Chicago, R. I. & P. Ry. Co. v. State , 158 Okla. 57 ( 1932 )

I desire to register a dissent against the conclusions reached in the opinion of the majority in this case. The concluding part of the opinion is as follows:

"After fully considering said cause, we hold that the Corporation Commission was without jurisdiction and authority to hear said cause and render order No. 4790 therein."

It appears from the opinion that there had existed a crossing near Seminole, Okla., across the tracks of the Chicago, Rock Island Pacific Railway Company. Just when the crossing was put in and how long it had existed is not disclosed by the opinion. An individual at one time owned the land on both sides of the road where the crossing was, and the complainant, Seminole Refining Company, bought a part of the land and claimed the right to go from its place of business to this crossing by permission of adjacent owners. It further discloses that there were public crossings some distance on either side of the complainant's property. It further appears in the opinion that the Corporation Commission made an order directing the railway company to reopen the crossing.

The opinion cites section 18, art. 9 of the Constitution, and also section 5532, C. O. S. 1921, and, the case of A., T., S. F. Ry. Co. v. Corp. Comm. of Okla., 68 Okla. 1,170 P. 1156 and also section 3491, C. O. S. 1921, and also section 3494 and section 3463, and the case of Smith v. Corp. Comm.,101 Okla. 254, 225 P. 708, and concludes by ordering the dismissal for want of jurisdiction in the Corporation Commission to hear the matter.

It seems to me that the authority claimed by the Corporation Commission must be lodged somewhere in any well regulated community. The railroad with its line of road does, in most every way, preclude passage of persons desiring to get from one side to the other of its steel barrier. Evidently recognizing the necessity for it, at one time a crossing was put in. Later, according to this opinion, the railroad company saw fit to close it up. The refining company made arrangements with the owners of the adjacent land to get to and use this crossing. As a public utility proposition, there may be something in the case made to call for a dissertation thereon, but as it appears now, it is a question of getting across the railroad tracks.

It is well to keep the Corporation Commission within bounds, but at the same time it is well to keep the railroad company within bounds and to look out for the public, whether it be all of the public, or part thereof, that have occasion to get across the lines. Most accidents occur at crossings, very frequently resulting in disaster to the lighter vehicle in its entirety, but occasionally causing the most serious of wrecks, involving claims for property damage and claims for personal damage, both by the passengers, and also by the person injured at the crossing.

Prior to statehood there had been grants of railroad rights of way that were being used by the Missouri, Kansas Texas Railroad, and by the Frisco, on the Indian Territory side, the Santa Fe and Rock Island being the dominant ones on the west side. The courts were established in 1889, and the first presidential election thereafter was in 1892, resulting in the Democrats winning. The general attorney of the M., K. T. road, already so full of work that he required assistants, was made the United States attorney, for which office he required assistants. A change in, the political wheel occurred in 1896, and the Republicans came into power. Immediately the general attorney of the Frisco, already overworked, was made the United States attorney for the Indian Territory. On the west side, through the medium of pass propaganda, members of the Legislature were very frequently enabled to ride without cost to themselves. Such had been the experience of the people of both sides of the state that there was a positive demand for a commission or board that would be elective with power to regulate the railroads in an administrative capacity as well as somewhat on a legislative order. The Corporation Commission measure was the result of that demand. Probably it was taken from Virginia with very little amendment.

The Constitution, as I view it, is broad enough to give to the Corporation Commission jurisdiction to order the crossing restored in the exercise of the superintendence therein conferred. Such for a while were the holdings. Later the case that is cited in the majority opinion came up from Guthrie, wherein an expensive viaduct was ordered to be put in, and there is also what is generally referred to as the "Lynn-Lane Case" of the St. L.-S. F. Ry. Company v. Love 29 Okla. 523,118 P. 259, a case wherein from an Indian tribe a right of way had been gotten without compensation under the treaty of '66. There was some recession from the idea of the Corporation Commission having the authority to prescribe the form of crossing, the court going on the idea that it was a condemnation of property without pay to require the company to provide a crossing, and the court practically held that in the grant secured from the Indian Nation there was no reservation of a right to cross the tracks, and owing to the fact that the money for the right of way had not been paid the court reached this conclusion:

"Under the exercise of the right of eminent domain, the public is entitled to lay its highway across plaintiff's right of way, and under the authority of the police power, if the facts exist, the Corporation Commission has power to fix the kind and character of crossing to be established. The jurisdiction and duties as well as the principles involved, are separate and distinct. The highway must first be established and opened by the local authorities, and then the jurisdiction vested in the Corporation Commission attaches to determine the character of crossing to be built."

This case was decided in 1911. The announcements contained in extracts in this opinion seem to be carried out in the case relied on and quoted from, viz., A., T. S. F. Ry. Co. v. Corp. Comm., 68 Okla. 1, 170 P. 1156. That opinion was filed on the 15th of December, 1914, and rehearing denied on February 26, 1918.

The Legislature, evidently recognizing that it was time for it to come to the relief of the Corporation Commission pursuant to the statutes, in 1913 gave to the Commission power to punish for contempt. See section 3464, C. O. S. 1921. Later, after the opinion in the last above named case became final, it enacted chapter 53, Session Laws 1919, the first four sections of which are as follows:

"Sec. 1. The Corporation Commission is given full jurisdiction over all public highway crossings, where same cross steam or electric railroads or railways within the state of Oklahoma.

"Sec. 2. The expense of construction and the maintenance of public highway grade crossings shall be borne by the railroad or railway company involved. For overgrade or undergrade public highway crossings over or under steam or electric railroad or railway, the assignment of cost and maintenance shall be left to the discretion of the Corporation Commission; but in no event shall the city town, or municipality be assessed with more than fifty per cent. (50%) of the actual cost of such overgrade or undergrade crossings.

"Sec. 3. In all actions arising before the Corporation Commission the same rules as to procedure, notice of hearing and trial, and as to appeals to the Supreme Court, shall be applicable as are prescribed for said Commission, as to transportation companies generally; and the same rules applicable to the enforcement of other orders of the Corporation Commission as to transportation companies shall be applicable to the enforcement of any order or orders made hereunder.

"Sec. 4. The Corporation Commission shall have exclusive jurisdiction to determine and prescribe the particular location of highway crossings, for steam or electric railways, the protection required, to order the removal of all obstructions as to view of such crossings, to alter or abolish any such crossings, and to require, where practicable a separation of grade at any such crossing, heretofore or hereafter established."

The same session enacted a law to compel fencing of rights of way, and conferred jurisdiction upon the Commission as announced in section 3496, C. O. S. 1921. Prior to this time, however, the Supreme Court, in opinions that do not seem to have been noticed in the present court opinion, had held that the original sections of the Constitution conferred full jurisdiction on the Corporation Commission, which is reflected in the case of M., K. T. Ry. Co. v. State, 26 Okla. 270,109 P. 65, opinion filed May 10, 1910. It appears from that opinion that an opinion was filed on the 26th of April, 1908, affirming such jurisdiction, and the railway company had filed an application for rehearing. At page 271 of 26 Okla., the court says:

"The purpose of this proceeding is to secure a farm crossing for a man who needs it, and as far as possible his convenience should be consulted in its place of location. As long as this case pends here, he is denied this necessity; hence, to secure this end the order is made. Under these circumstances, the case is remanded to the Corporation Commission, with directions to have the place of the crossing definitely designated and determined by its official engineer, and the company will then, under its proffer and this judgment, construct a crossing suitable for the uses intended."

An inspection of the record in that case shows the Corporation Commission's jurisdiction was attacked and sustained.

The 1910 Revision carries with it, under the head of Corporation Commission, art. 9, sec. 18, of the Constitution, a citation which is as follows:

"Railroad crossings. This section construed. Under it, Commission has jurisdiction to determine necessity and propriety for crossing, and place and manner of its being made. After this is done, proceedings must be had as provided by law of eminent domain. (See sec. 1349, subd. 6) Ry. Co. v. Richardson, Judge, et al., 25 Okla. 640, 106 P. 1108. Following22 Okla. 106, 98 P. 330."

The case referred to, A., T. S. F. Ry. Co. v. Corp. Comm.,22 Okla. 106, 98 P. 330, opinion filed Sept. 11, 1908, and especially the case of M., K. T. Ry. Co. v. Richardson,25 Okla. 640, 106 P. 1108, is so plain that the Constitution conferred power on the Corporation Commission to handle the subject of crossing that reference thereto suffices. It quotes a Texas case so holding, under a legislative act pursuant to constitutional provision nothing to compare with ours in extent, and also a case from Virginia on the subject, from which state a large part of our Corporation Commission provision was borrowed.

The present opinion seems to be in conflict with Gibbons et al. v. M., K. T. Ry. Co., 142. Okla. 146, 285 P. 1040, decided March 11, 1930, an extract therefrom being as follows:

"In the present case, as we have already seen, the Legislature authorizes and gives the Corporation Commission jurisdiction to determine and prescribe the particular location of highway crossings and to order the removal of all obstructions as to view of such crossings; and we see no constitutional objection to this delegation of authority."

Under these conditions, I think that the Corporation Commission's jurisdiction in this matter should not be denied, and that it should be permitted to carry out its constitutional and statutory functions.