DISSENTING OPINION. I cannot agree with that part of the prevailing opinion in this case construing § 26, Acts 1919 p. 119. My objections briefly stated are that the majority conclusion is made to rest upon the reserved power of the state to enact all reasonable measures to protect the general public in the use of streets and highways where the same have been subjected to additional use by a street railroad company. The principles of law used to support the majority opinion as abstract propositions are correct, but they are not applicable to the circumstances of this case. The question at hand does not depend upon what the legislature might have done, but upon what it actually did. This court cannot legislate, nor can it impliedly read into a statute words or a construction that will change the expressed intention of the legislature.
The highway commission of this state is a statutory body vested with limited statutory powers and authority. It is not the state, it is not a municipality, nor has it any power to legislate. It may very properly be denominated a state agent governed by definite statutory rules and regulations for improving and keeping in repair such highways only of the state over which it may obtain jurisdiction by complying with certain legislative directions. *Page 476
Grant that the commission has taken the essential steps authorizing it to improve the highway in question. The question then was the manner of making the improvement. To my mind the General Assembly foresaw the situation confronting the commission in the present case, and by § 26, supra, plainly marked the procedure it should follow. By this section the commission is allowed to exercise a discretion in the adoption of plans for proposed improvements. In the instant case it was given a choice of three methods: (1) To leave the street railroad tracks where they were and require the company to improve or pay the cost of improving a certain specified portion of the improvement as ordered; (2) if practicable, the commission was directed to make the improvement outside of the area occupied by the company's tracks; (3) "and where not practicable to do so then" the commission was given the power to remove the tracks outside of the area to be improved.
The power to improve and the power to remove were steps toward the same general object, that of making the highway safe and suitable for general public use, for which it was originally established. It certainly does not follow from "the power to remove such tracks" that the tracks are to be excluded from the highway, nor that such removal shall render such tracks inefficient for their purposed use. It will be noticed that the legislature has not given the commission the power to cause the tracks to be removed, or to order the tracks removed, or that it "shall have the power to remove such tracks" and charge the expense thereof to the company. The power to remove the tracks necessarily carried with it the power to relocate them at some point on the highway consistent with and as a part of the proposed improvement. Since the proposed improvement included as a part thereof the removal of *Page 477 the tracks, with power in the commission to do so, and no expression on the part of the state concerning payment for the expense thereof, the conclusion must follow that the entire work proposed is no more than a single general improvement to be paid for as such by the commission. Had the legislature in mind a change of tracks as here contemplated by the commission, where the cost of such change was to be borne by the company, it could, by the addition of a few words, have said so, as it did in case the highway was ordered improved without moving the tracks.
From my examination of the record and briefs of counsel, I am convinced that the trial court and this court in the prevailing opinion gave § 26, supra, an erroneous meaning. The judgment below should be reversed.
Travis, J., concurs in the dissenting opinion.