I cannot concur in that part of the opinion which apportions the cost of the proposed grade separation on the basis of sixty per cent thereof to the State of Illinois and forty per cent to the railroad companies. It appears to me that the record is entirely insufficient to justify this division of expense or any other apportionment of the cost. There is no finding of fact in the order of the Commerce Commission which can give any basis, other than an arbitrary one, for that part of its order. In order to make that point perfectly clear it is necessary to state the entire finding of facts, copied directly from the order of the commission, which is admittedly the only basis for its order which follows. This finding of facts is as follows:
"The commission having given due consideration to the said petition and to the evidence introduced at the hearings held in the matter, and being full advised in the premises, is of the opinion and finds:
"(a) That petitioner herein is authorized by law to lay out and construct State Bond Issue Route 57, a State highway which is to extend between certain designated points and to provide certain cities and villages reasonable connections with each other, as hereinabove described; *Page 78
"(b) That said Route 57, as laid out, extends across the tracks and rights of way of the respondent railroad companies by means of proposed under-crossings at certain points in the village of Niles Center, Cook county, Illinois, at the locations and in the manner shown on the plans attached to the petition in this case;
"(c) That certain portions of said Route 57, both north and south of the points of crossing herein proposed, have been constructed, the pavement on the constructed portions being forty feet (40') wide, the total width of said highway being one hundred feet (100'), and the said highway having been planned with the ultimate view of constructing the pavement to a total width of eighty feet (80');
"(d) That the line of the Chicago and Northwestern Railway Company herein concerned is the more westerly one of its two railroads extending between the cities of Chicago, Illinois, and Milwaukee, Wisconsin, over the double tracks of which railroad a heavy freight traffic is handled, and over which, also, a certain amount of rather high-speed passenger business is handled, the said line being located as hereinabove described and as shown on the plans attached to the petition in this case;
"(e) That the line of the Chicago North Shore and Milwaukee Railroad Company herein concerned is a double-track electrically-operated railroad known as the said company's Skokie Valley line, over the tracks of which railroad, on that portion of the same on which the proposed crossing is located, more than three hundred (300) trains are operated daily, some of which move at a high rate of speed, and which railroad extends between certain points and through certain communities, as hereinabove described and as shown on the plans attached to the petition in this case;
"(f) That due to the heavy traffic that doubtlessly will develop on said Route 57 and which will move thereover, (due to the direct alignment, easy curvature, wide right of *Page 79 way and wide pavement of said highway,) the grades should be separated at the intersections of said highway with respondents' railroads;
"(g) That in the interest of public safety and convenience petitioner herein should be authorized to extend the said highway underneath respondents' tracks by means of double 14' x 44' openings and across their respective rights of way as prayed for by petitioner herein and as shown on the plans attached to the petition in this case, the right according to law to cross respondents' rights of way first having been secured and the said highway first having been legally opened up on both sides of respondents' railroads at the crossing locations before the work of such extension is started;
"(h) That petitioner herein should be required to perform the work of excavation of the said subway and the approaches thereto, also the work pertaining to the necessary drainage for said subways, and should at its sole expense construct the pavement on the said approaches and throughout said subways, and should be required thereafter, at its sole expense, to maintain the work which it constructs;
"(i) That the Chicago and Northwestern Railway Company should be required to construct the substructure and superstructure of the bridge required to support its tracks at the proposed crossing on its railroad, and should be required thereafter, at its sole expense, to maintain such structures;
"(j) That the Chicago North Shore and Milwaukee Railroad Company should be required to construct the substructures and superstructures of the bridge required to support its tracks at the proposed crossing on its railroad, said substructures to provide for four-track construction and said superstructure to provide for two-track construction, and should be required thereafter, at its sole expense, to maintain the said structures; also that said respondent should be required to construct the substructures and superstructures *Page 80 of the bridge necessary to carry its yard tracks (existing or proposed), such structures to be of such track-carrying capacity as said respondent may elect to have constructed at the time said highway is constructed, and should be required thereafter, at its sole expense, to maintain the same;
"(k) That petitioner herein should be required to bear sixty (60) per cent of the total expense incurred in the construction of the proposed under-crossings, the highway pavement not being considered a part of the expense of such construction;
"(l) That the Chicago and Northwestern Railway Company should be required to pay forty (40) per cent of the total expense incurred in the construction of the proposed subway under its tracks and the approaches thereto, and necessary gutters, and twenty (20) per cent of the total drainage expense incurred in the crossing of both of respondents' railroads;
"(m) That the Chicago North Shore and Milwaukee Railroad Company should be required to bear forty (40) per cent of the total expense of the proposed subways under its tracks and the approaches thereto, and necessary gutters, and twenty (20) per cent of the total drainage expense incurred in the crossings of both of the respondents' railroads with said Bond Issue Route 57; and
"(n) That the prayer of the petitioner should be granted.
"It is therefore ordered," etc.
It is impossible for me to say from a reading of these findings that there is anything in them from which I can determine whether the railroads should pay forty per cent, ten per cent, or any other per cent of the cost of the proposed improvement. Surely they give us no light on such vital points as what, if anything, the railroads might save through a decrease in wear and tear on their surface crossings, through a decrease in expense of watchmen, signals, *Page 81 etc., at such crossings, through a decreased liability for injuries which might occur at those crossings, or any other basic fact which might possibly serve as some guide to a just apportionment. The order as it stands could just as well and just as reasonably have required the railroads to pay ninety per cent or ten per cent of the amount involved as to arrive at the figures mentioned in the order.
It has been a rule in this court, supported by an unbroken line of authorities, that the Commerce Commission is required by section 65 of the Public Utilities act (Cahill's Stat. 1931, par. 84,) to make findings of fact sufficiently specific to enable this court to intelligently review its decisions. The majority opinion in this case appears to me to go contrary to this line of cases without mentioning them and without overruling them. Among these cases will be found the following:Chicago, Rock Island and Pacific Railway Co. v. Commerce Com.346 Ill. 412; Kewanee and Galva Railway Co. v. Commerce Com. 340 id. 266; Central Business Men's Ass'n v. Commerce Com. 337 id. 149; Louisville and Nashville Railroad Co. v. CommerceCom. 353 id. 375.
I am also of the opinion that this order of the Commerce Commission violates the due process and equal protection clauses of the constitution of the United States, but since this point has not been discussed in the majority opinion I will not discuss it here.
It is my opinion that the order should have been reversed and the cause remanded to the Commerce Commission, with directions that it comply with section 65 above mentioned.
Mr. JUSTICE DEYOUNG concurs in this dissenting opinion. *Page 82