Page:California Highways and Public Works Journal Vols 8-9.djvu/19



in the construction of this highway is to be realized, the greatest caution should be used in permitting the establishment of any obstacle to the flow of traffic. From the record in this proceeding, it is apparent that a grade separation is physically feasible and can be constructed at a cost ranging between $75,000 and $115.000, depending on the type of structure used. The most feasible manner appears to be to carry the railroad track over the highway and depressing slightly the grade of the highway.

It is my opinion that this crossing should be constructed at separated grades in the above manner but the details as to the type of structure and the fixing of the grades should be worked out between the parties or, if the parties fail to agree, the Commission can then decide as to these details. In fixing the grade lines, attention should be given to the crossing of the spur with the proposed track of the Western Pacific California Railroad Company.

If the area proposed to be developed as an industrial area does reach the full development of which it is capable, the cost of a separation of grades will be very nominal when compared to the revenue derived from freight or the increased value it will give the land to be served. On the other hand, the moving factor in this grade separation is the greater convenience and safety for the automobile using public.

After carefully considering the record in this proceeding, it seems to me that the cost of constructing said separation should be equally divided between the Department of Public Works of the State of California and Southern Pacific Company.

The following form of order is accordingly recommended:

ORDER The Commission having instituted an investigation on its own motion in the above entitled matter, hearings having been held and both the Department of Public Works of the State of California and Southern Pacific Company having submitted the matter to the Commission for determination as to the manner of constructing the crossing and apportionment of the cost;

It is hereby ordered, that if and when the Department of Public Works of the State of California and Southern Pacific Company, or either of them, desire to construct the crossing of a state highway and a spur track, in the vicinity of engineer’s station 725. as shown on sheet 6 of Exhibit No. 1, entitled “Plan and Profile of Proposed State Highway in San Mateo County,” filed in this proceeding, said crossing shall be constructed subject to the following conditions and not otherwise:

(1) Said crossing shall be constructed at separated grades and said separation of grades shall be effected by constructing the railroad track above the state highway.

(2) Said crossing shall be constructed with clearances conforming to the provisions of General Order No. 26-C.

(3) Before undertaking the construction of said crossing, a complete set of plans of the grade separation construction, together with profiles of the highway and the railroad, shall be submitted to the Commission, to be subject to its approval.

(4) The cost of effecting said separation of grades, including the approaches on the railroad and any excavation which may be necessary in connection with the change in grade of the highway, shall be borne 50 per cent by Southern Pacific Company and 50 per cent by the Department of Public Works of the State of California.

(5) Within sixty days from the date of this order, said Southern Pacific Company shall notify this Commission as to whether or not it intends to construct said crossing.

(6) If said separation is effected, Southern Pacific Company shall, within thirty days after the construction thereof notify this Commission, in writing, of the completion of this work.

(7) If said crossing shall not have been installed within two years from the date of this order the authorization herein granted shall then lapse and become void unless further time is granted by subsequent order.

(8) The Commission reserves the right to make such further orders relative to the location, construction, operation, maintenance and protection of said crossing, as to it may seem right and proper and to revoke its permission if, in its judgement, the public convenience and necessity demand such action.

The effective date of this order shall be twenty days from and after the date hereof.

The foregoing opinion and order are hereby approved and ordered filed as the opinion and order of the Railroad Commission of the State of California.

Dated at San Francisco, California, this seventh day of December, 1929.

Commissioners.

(Continued from page 11.)

cause is here by direct appeal: and the only matter for our determination is the validity of the challenged classification.

The power of a state in respect of classification has often been declared by opinions here. We are unable to say that there was no reasonable basis for the one under consideration; the court below reached the proper result; and its decree must be affirmed. Appellants voluntarily assumed the position of common carriers operating between fixed termeni and enjoy all consequent benefits. That a marked distinction exists between common and private carriers by auto vehicles appears from Frost & F. Trucking Co. vs. Railroad Commission. 271 U. S. 5.S3, 70 L. Ed. 1101. 47 A. L. R. 457, 46 Sup. Ct. Rep. 605. and ''Michigan Pub. Utilities Commission. vs. Duke.'' 266 U. S. 570, 69 L. Ed. 445, 36 A. L. R. 1105, 45 Sup. Ct. Rep. 101. Sufficient reasons for placing common carriers, operating as appellants do, in a special class, are pointed out by Raymond vs. Holm. 165 Minn. 215, 206 X. W. 166 (Dec. 4. 1925) : State vs. Le Febrre. 174 Minn. 248. 219 N. W. 167 (April 13, 192S) : Iowa Motor Vehicle Asso. vs. Railroad Comrs.—Iowa,—,221 N. W. 364 (Sept. 28. 1928); Liberty Highway Co. vs. ''Michigan Pub. Utilities Commission'' (D. C.) 294 Fed. 703. Their use of the highways probably will be regular and frequent and therefore, unusually destructive thereto. Also it will expose the public to dangers exceeding those consequent upon the occasional movements of other carriers.

Although relied upon by counsel, and said to be almost identical with the case at bar. Quaker City Cab Co. vs. Pennsylvania. 277 U. S. 389, 72 L. Ed. 927, 48 Sup. Ct. Rep. 553. gives no support to claim of undue discrimination. We regard the controversy as not open to serious doubt, and further discussion of it seems unnecessary.

