Chicago, Rock Island & Pacific Railway Co. v. Nebraska State Railway Commission , 89 Neb. 853 ( 1911 )

Sedgwick, J.

It was held in the opinion in 88 Neb. 239, that the village authorities have exclusive original jurisdiction of the matters determined in this case, and that the action of the state railway commission was therefore without jurisdiction. The statement of law in the syllabus is conceded in the brief upon the motion for rehearing to be . correct, if no street has been laid out or ordered to be opened. The contention seems to be that the proceedings of the village authorities opening the street were found by the railway commission to be regular and valid, and in such case the commission has jurisdiction. It is, however, admitted that the only defense of the railway company was with reference to the validity of those proceedings. The pleadings and evidence and rulings before the commission and in court upon appeal all show that the sole question in dispute is whether the public road in question is necessary and ought to be opened. This is a question for the village authorities under subdivisions XXI, XXYII, sec. 69, art. I, ch. 14, Comp. St. 1909.

If those provisions of statute are constitutional", and the village authorities have proceeded regularly and ordered the street opened over the right of way and tracks of the company, and a proper crossing constructed, the courts will enforce such order, as they will the orders of the railwhy commission in matters within its jurisdiction. The village is not required to wait for the approval of the railway commission, but is entitled to immediate obedience of its proper order in that regard. If the railway commission can review and approve the findings and orders of the village authorities, it can, of course, also annul them, and, both being administrative bodies, the right to open and control the streets and regulate railroad crossings within the village would thereby be taken away from the local authority and conferred upon the state commission, which is contrary to the plain letter of the statute.

The railway commission is given jurisdiction of railway crossings in general outside of cities and villages, but we do not want to be understood as holding that it has authority to inspect crossings within cities and villages, with a view to safeguard the lives of passengers and employees upon its cars, or for any other purpose, for no such question is presented by this record. And it must not be -inferred from any language used in the former opinion that, in supervising crossings outside of cities and villages, the commission is under less obligation to'safeguard the public who use such crossings than it is to protect those who are carried in its trains.

Our former decision reversing the judgment of the district court and dismissing the proceedings before the railway commission is adhered to. Motion for rehearing

Overruled.