I concur in the foregoing opinion on the grounds therein stated.
I wish to say, however, in addition, that the conclusion that the Railroad Commission has no power to order the terminal depot in question constructed can also be reached by resort to the principle laid down in Atchison, T. S. F. Ry. Co. v.Railroad Com., 173 Cal. 577 [2 A. L. R. 975, 160 P. 828]. That decision establishes the principle that railroads are private property which are devoted to public use, and that the state has no power to order the railroad company, without its consent, to establish a new line of railroad for the benefit of the public. The scheme here embraced in the order of the Railroad Commission contemplates the expenditure of a very large sum of money by the railroad companies in the construction of a new terminal depot for their joint use in a place where there is no existing depot and no tracks leading thereto. Entirely new tracks will have to be built to reach the new depot, and the land on which it is to be erected and on which the track is to be built will have to be acquired by the said companies, or by some subsidiary company in which they are all interested, and vast sums of money must be used in constructing the buildings and tracks required for the union depot.
If this be true it is equally beyond the power of the Interstate Commerce Commission to make the order. To require the railroad companies to construct this depot and the tracks necessary therefor is equivalent to ordering them to dedicate new property to a public use. I know of no power which will justify the state in commanding a railroad company to thus acquire and dedicate property to a public use.
Rehearing denied.
*Page 229All the Justices concurred.