Our attention is called to section 5652 of the Code:
"The Railroad Commission, subject at all times to the control of the Legislature, may regulate railroad, freight and passenger tariffs, the locating and building of passenger and freight depots, correct abuses, prevent unjust discrimination and extortion, and require reasonable and just rates of freight and passenger tariffs."
The argument is that the powers thus granted by the Legislature to the Commission are granted in the same language as was used in section 243 of the Constitution in conferring the same powers on the Legislature; that this grant of the Constitution must be construed as plenary and complete, and as including the power to require railroad companies to replace existing depot buildings with buildings entirely new, regardless of the necessity for such an improvement; and that the same effect must be accorded to the same language in the statute (section 5652).
Whether there can or should be any difference in the construction of a grant of power to the Legislature and the legislative delegation of power to a mere administrative commission, we are not now called upon to determine.
The power to "regulate * * * the locating and building of passenger and freight depots" means the power to regulate in accordance with the requirements of the public service which the railroads are obligated to supply. This may include the erection of new depots, as pointed out in the original opinion, but it cannot be construed as giving to the Commission the power to arbitrarily require the erection of new depots, regardless of any reasonable necessity therefor, where remodeling and renovation of existing depots will furnish adequate facilities, conveniences, and comforts to the public who have occasion to use them.
The exercise of an arbitrary power like that would, in the writer's opinion, amount to a confiscation of property, in violation of the Fourteenth Amendment to the federal *Page 155 Constitution. The court, however, deems it unnecessary to pass upon that question.
The application for rehearing will be overruled.
All the Justices concur.