
    Erie Railroad Co., Appellant, v. The Public Service Commission.
    
      Public Service Commission — Railroad companies — Federal control — Grade crossings — Relocation of trades — Power of commission to order relocation.
    
    1. Tbe fact tbat a railroad company was under tbe control of the director general of railroads did not deprive tbe Public Service Commission of jurisdiction over tbe corporation which owned tbe road, in a proceeding to abolish a grade crossing. Where in such proceedings a second crossing is abolished, without expense to tbe railroad company, tbe fact tbat there was no complaint against tbe latter crossing or tbat no testimony was taken in reference thereto, is immaterial.
    2. In a complaint to abolish a grade crossing tbe ascertainment of damages must not necessarily be determined before tbe order is made, or is the order, on tbat account, incomplete or unsupported by tbe evidence. Tbe order which adopted tbe plan for tbe abolition of tbe crossing is not a taking of property. It is tbe putting tbe plan into execution which injures tbe owner of adjacent property. Tbe assessment of damages would follow the appropriation and tbe estimate of tbe proportionate share of tbe costs, as distributed by tbe commission, would be made following tbe aseer-tainment of land taken and tbe expense of construction. For tbe commission to find tbe damage's would be merely Suggestive, for tbe owner would not be bound by such finding, having a right of appeal to tbe court of comm'on pleas from tbe determination of the' damages by tbe commission.
    3. Tbe compensation for damages accrues when tbe property has been taken, injured or destroy®! 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 the amount of damages was determined by tbe commission. Tbe subject of damages remains within tbe power of tbe Public Service Commission, pending tbe completion of tbe work.
    4. Under tbe police power of tbe Commonwealth, tbe Public Service Commission has authority to require a railroad company to relocate its tracks in order to abolish a grade crossing. In such case, it is not tbe railroad company which takes private property to facilitate tbe carrying out of a crossing change, but tbe Commonwealth acts and makes the necessary appropriation. While there is no express provision in tbe Public Service Company Law which authorizes the commission to require a relocation of the tracks to make practicable the abolition of a grade crossing, that would seem to be the necessary implication as to the power of the commission, to be exercised within reasonable limits.
    Argued November 18, 1920.
    Appeal, No. 9, March. T., 1921, by plaintiff, from report and order of tbe Public Service Commission of Pennsylvania in tbe case of tbe Motor Club of Lackawanna County v. Erie Railroad Company, Complaint Docket No. 2642.
    Before Orlady, P. J., Portee, Henderson, Head, Trexler, Keller and Linn, JJ.
    Affirmed.
    Complaint that existing grade crossing on Erie Railroad Company over State Highway Route No. 168 in tbe Borough of Elmhurst, Lackawanna County is dangerous and should be abolished.
    The commission made the following report and order:
    The grade crossing complained of in this case is where State Highway Route No. 168 crosses two tracks of the Erie Railroad Company in Elmhurst Borough, Lacka-wanna County. The tracks crossed are a branch of the Erie railroad which extends from Scranton eastwardly, connecting with its main line at Lackawaxen. One of the tracks crossed is a siding terminating a short distance south of the crossing. While the general direction of the main track is east and west, at the point of crossing it extends practically north and south, its Elmhurst station being about 200 feet north of the crossing complained of. The state highway, leading from Scranton to Stroudsburg, also extends in a northerly and southerly direction at this point, crossing the tracks obliquely. Another highway leads from the state highway east-wardly, crossing at grade the single track of respondent company about 1,500 feet south of the crossing complained of.
    The state highway department is improving this highway as one of the State’s primary roads. On March 25, 1919, the commission found the crossing complained of dangerous. Plans providing for its abolition were filed by the state highway department as well as by the railroad company. These plans were considered at a meeting held for that purpose, oral argument was had and briefs filed. After argument, the state highway department filed revised plans which provide for a vertical clearance of 14 feet and a horizontal clearance of 29 feet, of which 24 feet will be occupied by a roadway and 5 feet by a sidewalk.
    The estimated cost of the improvement, without property damages as submitted by the state highway department, is $64,576.71. The estimate submitted by the railroad company is $77,535. The revised plans of the state highway department provide for the relocation of both the railroad track and the highway, so that the highway will pass underneath the railroad at a point about 200 feet south of the crossing complained of. Said plans contemplated the abolition of the other crossing 1,500 feet south thereof, all travel to be diverted to the new subway. The plans also provide foundations wide enough to carry two tracks with a superstructure, however, for only one track; the siding to be shortened so as to terminate just north of the proposed subway.
    The conclusions reached by the commission are as follows :
    That the revised plans, as submitted by the state highway department, be approved.
    
      The respondent, tbe Erie Railroad Company, do all the -work necessary to abolish the crossing in compliance with the revised plans, as made by the state highway department, save that the state highway department construct the cement roadway in the new highway as relocated and perform all work to properly drain the same and lay the cement sidewalk as shown by the plans. All of said work shall be completed on or before November 1, 1920.
    That the total cost of eliminating said crossing according to the plans, including the cost of the necessary right-of-way, to relocate both the highway and the railroad tracks, as well as property damages, if any, is hereby apportioned and will be paid as follows:
    The state highway department will pay for all of the work which is, by this report, required to be done by it, and in addition thereto will pay to the Erie Railroad Company the sum of $17,500.
    The County of Lackawanna shall pay to the Erie Railroad Company the sum of $8,000.
    The Borough of Elmhurst shall pay to the Erie Railroad Company the sum of $500.
    The Public Service Commission hereby appropriates from the general fund appropriated to it for the elimination of grade crossings by the Act of July 18, 1919, P. L. 1048, the sum of $8,500, to be paid to the Erie Railroad Company.
    The Erie Railroad Company, respondent, shall pay the entire balance of cost of eliminating said crossing including property damages. The several payments herein provided to be made to the Erie Railroad Company, respondent, shall be paid to it as the work progresses, when and as certified to by the Public Service Commission.
    The Erie Railroad Company shall hereafter maintain the bridge abutments and superstructure erected thereon.
    
      Tbe cement sidewalk to be laid by the state highway department through said subway should be continued by the borough, at its own cost and expense, a proper distance on each side thereof.
    ORDER.
    This matter being before the Public Service Commission of the Commonwealth of Pennsylvania upon complaint and answer on file, and the commission having by its order dated March 25,1919, found and determined that the existing crossing at grade, at a point where the tracks of the Erie Railroad Company cross State Highway Route No. 168, distant about 300 feet in an easterly direction from the station of the Erie Railroad Company, in the Borough of Elmhurst, and near the Vogel-bacher Hotel, Lackawanna County, Pa., is dangerous to the traveling public and the abolition thereof necessary for the accommodation, convenience and safety of the public, and further hearing having been held upon the question of the adoption of plans prepared by the state highway department and the appointment of the cost and expenses incident to the abolition of said grade crossing, including damages due to owners of adjacent property taken, injured or destroyed by reason thereof, and the matters and things involved having been fully considered, and the commission having on the date hereof, made and filed of record a report containing its findings of fact and conclusions thereon, which said report is hereby approved and made part hereof:
    Now, to wit, August 10, 1920, It is ordered: That said grade crossing situate in Elmhurst Borough, Lacka-wanna County, be and the same is hereby abolished in accordance with the revised plans submitted by the state highway department, which said plans are hereby approved.
    It is further ordered: That the Erie Railroad Company, the County of Lackawanna and the Borough of Elmhurst, Lackawanna County, severally carry out the findings and determinations of the commission, in the manner and according to the terms and conditions contained in the foregoing report.
    Plaintiff appealed.
    
      Error assigned, among others, was the order of the commission.
    
      Douglass D. Storey, and with him Ralph J. Baker and Duane E. Minará, for appellant.
    
      Berne H. Evans, and with him John Fox Weiss, for the Public Service Commission.
    March 5, 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.  