Erie Railroad Co. v. Public Service Commission , 76 Pa. Super. 170 ( 1921 )

Opinion by

Henderson, J.,

This is an appeal from the order of The Public Service Commission directing, the abolition of a grade crossing at a point where State Highway No. 168, in Lackawanna County, crosses a branch of the Erie Railroad Company in the Borough of Elmhurst. The proceeding was initiated by the Motor Club of Lackawanna County; the complaint being that the crossing is dangerous. Hearings were had' at different times by the commission, evidence was taken bearing on the subject, and a final order was made August 10, 1920, abolishing the crossing in accordance with the revised plans submitted by the state highway department, which plans were approved by the commission. A distribution of the cost of the improvement was made among the parties in interest. The appellant sets forth several objections to the action of the commission which will be considered in their order.

(1) The first proposition presented is that the appellant was not a public service company within the meaning of the law at the time the complaint was presented to the commission; that the director general of railroads was in charge of the defendant’s property and should have been made the respondent in the proceeding. It is conceded that tbe appellant was a public service corporation doing business witbin this State at tbe time tbe act of Congress, known as tbe Federal Control Act, was adopted. That act did not destroy or suspend tbe life of tbe corporation. It authorized tbe taking possession of tbe physical properties of tbe company and tbe control and operation of them for tbe purposes declared in tbe proclamation of tbe President of tbe United States, but it did not deprive tbe owner of tbe right to exercise such corporate authority and perform such corporate acts as were consistent with tbe act of Congress and tbe proclamation issued pursuant thereto. It was not in contemplation of tbe Congress that' tbe power under which tbe State exercised tbe right to regulate railroad companies should be suspended or impaired, except where such regulation might affect tbe transportation of troops, war materials or government supplies. Tbe director general of railroads was not directly interested in tbe subject of grade crossings, for they bad no proper relation to tbe purposes for which be administered tbe business of tbe railroad coi’porations. Tbe owning company was interested directly in tbe permanent improvement of its property, and was not deprived of its power to negotiate for tbe abolition of grade crossings, nor was it relieved of responsibility with respect to tbe exercise of authority on tbe subject by tbe Commonwealth through tbe Public Service Commission. In an important sense, it was a railroad corporation “doing business witbin this State” and subject to tbe regulations of tbe Public Service Commission to tbe extent to which tbe functions of tbe latter body were not for tbe time being suspended by reason of tbe federal control statute. Sustaining such relation of responsibility, it has no defensible position of complaint that tbe director general of railroads was not made a party to this proceeding. It was expressly provided in tbe Federal Control Act that nothing therein shall be construed to amend, repeal, impair or affect tbe existing laws or powers of the states in relation to taxation or the lawful police regulation of the several states except wherein such laws or regulations may affect the transportation of troops, war materials, government supplies, or the issue of stocks and bonds. It will thus be seen that the states were left in full exercise of their police power with the special exceptions in the act expressed, none of which have any bearing on the subject under consideration. That the “lawful police regulations” included the authority exercised by the Public Service Commission admits of no doubt. The abolition of grade crossings is a movement in promotion of public safety, and thereby conduces to the general welfare. We see no reason for holding that the director general was a necessary party to the proceedings, or that the appellant was improperly brought into it after the complaint was filed.

Moreover, the railroad company appeared through its counsel, participated in the examination of witnesses, offered evidence, and took part in the discussion of the various questions which arose before the commission, and in effect approved of the proposition to abolish the crossing. We think, therefore, it ought not to be now heard in objection to the jurisdiction of that body to entertain the complaint and enter an order on the subject.

(2) It is argued that the order is not in conformity with law in that it not only abolishes the crossing on road No. 168 with respect to which the petition was filed, but also includes the abandonment of a crossing on road No. 172 with respect to which no complaint had been made. This crossing is about 1,500 feet south of that on road No. 168. When an examination of the situation was made by engineers of the commission and the highway department, it was the recommendation of the engineers and the conclusion of the commission that the crossing proposed to be established on the latter road be substituted for both of the grade crossings. We do not understand from tbe evidence that the abandonment of the crossing on road No. 172 subjects the appellant to any inconvenience or loss. The use of the crossing is to be discontinued because a better one will be created by the structure proposed in the plan adopted by the commission. It is unnecessary, therefore, to go into an inquiry as to the power of the commission on their own initiative to abolish a crossing. It is not seriously contended, as we understand the argument, that they might not do so. The complaint seems to be that it was done without notice to the appellant, and without evidence. We do not understand in what respect the appellant is harmed, and if not injured, it has no ground of com-plant. It would seem to be to its advantage to have the crossing abandoned as the track would thereby be made safer for the operation of the appellant’s trains. It cannot be correctly said that a hearing was not had on the subject, for there was frequent reference in the testimony and in the discussion of the whole question to the crossing on road No. 172 and to the advantage to be gained by abolishing it and making the new way serve the uses of the community.

(3) Further objection is made that the record is incomplete and that it will not sustain the order because there was not an ascertainment of all the damages likely to result to property owners from putting the plan into operation, and section 12 of article V of the Public Service Commission Act is brought to our attention in support of the position taken. The argument is that the final order fixing a plan for such an improvement cannot be made until there has been an ascertainment and apportionment of the costs and damages. A sufficient reply to this position is that the adoption of the plan is not the taking of property; it is the putting of the plan into execution which injures the owner of adjacent property. The ascertainment of damages would follow the appropriation, and the estimate of the proportionate share of the costs, as distributed by the commission, would be made following tbe ascertainment of tbe cost of land taken and tbe expense of construction. Ascertainment of damages by tbe commission would be merely tentative, for tbe owner would not be bound by sucb finding, there being a right of appeal to tbe court of common pleas from tbe determination of tbe commission as to damages. As tbe State is responsible for tbe damages in tbe first instance under tbe statute, there seems to be no reason why tbe plan of tbe commission might not be carried into effect before tbe determination of tbe amount of tbe damages, and this we think tbe statute authorizes. Tbe compensation for damages accrues when property has been taken, injured or destroyed in the construction, relocation, alteration or abolition of any crossing. Tbe injury must result before tbe right to damages arises. Otherwise no order could take effect before tbe amount of tbe damages was determined by tbe commission. Tbe subject of damages is still within tbe power of that body.

(4) Another complaint is that tbe commission has no power to order tbe railroad to relocate its tracks off its right-of-way and acquire a new right-of-way by condemnation or otherwise in order to abolish a grade crossing. It appears from tbe plans adopted that in order to carry out tbe project it is advisable to build tbe highway under tbe railroad tracks. Owing to tbe conformation of tbe ground and tbe relation of tbe railroad tracks to tbe site of tbe crossing, tbe highway engineers, after consultation with tbe engineer of tbe commission, recommended a slight change in tbe location of tbe railroad track for a distance of about 1,100 feet where it describes a curve. Tbe change suggested involved tbe moving of tbe track westwardly at tbe deepest place in tbe curve, a distance of about 56 feet. It did not appear that this was prejudicial to tbe appellant as an engineering proposition, and tbe evidence was all to tbe effect that it made tbe crossing plan much more practicable. When tbe subject was under consideration tbe appellant’s counsel said: “I think I should make a statement as to the railroad’s views. The Erie railroad approaches the elimination of this crossing in good faith and would like to see it eliminated, and we think well of the state engineer’s plan and haven’t any improvement to suggest except the detail we have mentioned here.” The detail referred to appears to have been the construction of a sidewalk and the paving of the road for a few hundred feet from the crossing at the place where route No. 172 would join No. 168. In the same connection with respect to the change of the location of the track the counsel said: “I might say right here that while it isn’t our intention to make any point of it, I think there is a question in my mind as to whether the order of the commission can relocate a road.I merely suggest that in consideration of the order that might be made.” He then proceeded to discuss the plan, and having objected to the paving bill said: “And second, I don’t think we ought to pay on the basis of a cost for relocating our right-of-way. We ought to have some deduction out of the $20,000 additional cost for relocating our right-of-way and that should be restricted or reflected in the proportion. Now when you have taken out the paving question, if these estimates are reasonable, I think the railroad would be willing, as far as it is able, to pay fifty per cent of the elimination. Something ought to be said, too, I think, who should do this work in case the commission makes the order.but we have no objection to the highway department making the improvement, but any laying of track or ballasting of tracks, we feel are necessary for us to do on account of standards, etc. Q. (By Mr. Rilling) Would your company object to doing the-work necessary to relocate the tracks? A. I don’t think they would.” The discussions and colloquies of which the foregoing is a part tend strongly to show that the proceeding was in the main amicable and that the plan adopted by the commission was approved by the appellant’s representative. The minor objections presented did not go to tbe merit of tbe project or tbe expediency of tbe order for tbe construction of tbe crossing. We might with propriety bold therefore that tbe plan presented by tbe commission was accepted and approved by tbe appellant. Tbe subject of cost was considered and evidence taken with reference thereto and full opportunity afforded tbe appellant to offer any testimony deemed necessary or valuable in tbe final determination of tbe case. We see no support, therefore, for tbe contention that tbe order was made without evidence and without opportunity for tbe appellant to be fully beard. Tbe only subjects to which exception is taken were tbe few hundred feet of paving of tbe highway and tbe building of tbe sidewalk through tbe crossing and tbe proper proportion of tbe cost of tbe moving of tbe track which should be borne by tbe railroad company. In other respects tbe action of tbe commission appears to have been with tbe consent and approval of tbe appellant. We may agree with tbe learned counsel that tbe authority to condemn land for railroad purposes is vested exclusively in tbe directors of tbe corporation so far as tbe power of tbe railroad company is concerned, but tbe proceeding here is by virtue of a paramount authority, tbe police power of tbe Commonwealth. It is not tbe railroad company which takes private property to facilitate tbe carrying out of a crossing change. Tbe Commonwealth acts in such cases and makes tbe necessary appropriation. Tbe question here is rather one of tbe removal of tbe track to a location within land appropriated by tbe State to that purpose contiguous to tbe right-of-way. While there is no express provision in tbe public service law which authorizes tbe commission to require a relocation of tbe tracks to make practicable tbe abolition of a grade crossing, that would seem to be a necessary implication as to the power of tbe commission to be exercised within reasonable limits. No provision for tbe change of grade of .tracks is made in tbe statute,.but it would probably not be contended that the commission might not require the company to elevate or lo.wer its tracks for the purpose of avoiding a crossing at grade, and we see no reason by analogy why they might not be required to make a change laterally on ground provided for that purpose. Such change must be reasonable and without prejudice to the permanent physical conditions of the track, but within these limits such power seems to be implied in the general provisions of the statute relating to the subject of crossings. The 12th section of the Act of 1913 declares: “The commission shall also have exclusive power upon its motion or upon complaint, and after hearing as hereinafter provided.to order any crossing aforesaid now existing or hereafter constructed at grade at the same or different levels to be relocated or altered or to be abolished according to plans and specifications to be approved, and upon just and reasonable terms and conditions to be prescribed by the commission.” The same section provides that “the compensation for damages which the owners of adjacent property taken, injured, or destroyed, may sustain in the construction, relocation, alteration or abolition of any such crossing.shall after due notice and hearing be ascertained and determined by the commission.” The power thus conferred is very broad and includes the appropriation of private property for this specific purpose. In construing the statute, consideration must be given to the purpose of its enactment. Its object is not to fix rights between the litigants in such proceeding. The safety of the public is the object in view, and it should be so construed as to most effectually carry out this purpose, within the limitations imposed by the language employed by the legislature. We do not regard it as a forced construction to hold that inconsiderable changes in the location of the track or tracks of a railroad may be required by the commission in carrying out most effectively a plan for the abolition of a dangerous grade crossing. A similar conclusion was readied im Danner v. N. Y. & H. R. R. Co., 213 N. Y. 117, under a statute giving to the railroad commission of New York less ample authority oyer the subject than exists in the Pennsylvania statute.

It may he that the amounts named in the order on final determination of the actual cost will be found to be inequitable, and if so made to appear, the Public Service Commission will doubtless be disposed to make such modification as equity suggests. The proportion of costs is still open for consideration in the discretion of the commission on the application of the appellant. A review of the whole case brings us to the conclusion that the order of the commission should be affirmed.

The appeal is dismissed at the cost of the appellant.