I concur. The logical conclusion from this opinion would seem to be that the city and the railroad may agree to terminate a franchise, for if the city might or might not revoke the franchise on failure to comply with a condition, an exercise of choice even against the will of the railroad, a fortiori the city and carrier could agree to terminate. If by such termination industries were left without facilities, there would be little that could be done about it, at least as far as the Public Service Commission is concerned. It was this realization which caused me to examine carefully Secs. 76-3-1, 76-3-20, 76-4-11 and 76-4-15, U.C.A. 1943. The first provides in part:
"Every public utility shall furnish, provide and maintain such * * * facilities as will promote the * * * convenience of its patrons, * * * and the public, and as will be in all respects adequate, efficient, just and reasonable." *Page 205
Section 76-3-20 provides that:
"Every railroad corporation, upon the application of any corporation or person being a shipper or receiver or contemplated shipper * * * for a connection between the railroad of such railroad corporation and any existing or contemplated private track, * * * shall make such connection and provide such switches and tracks as may be necessary for that purpose, * * * provided, that such connection is reasonably practicable and can be installed and used without materially increasing the hazard of the operation of the railroad with which such connection is sought, and that business which may reasonably be expected to be received by such railroad corporation over such connection is sufficient to justify the expense of such connection to such railroad corporation."
This section is headed "Railroad Connections by Switches and Spurs." A spur track is defined in International New Dictionary, 2nd Edition, as "a track diverging from a main or branch line, over which no regular train service is maintained." That fits the track in question. But it is not certain that the text of the section requires the railroad to connect with industries which are some distance from their main or branch tracks where private property must be condemned to accomplish the purpose. If so, it would certainly be subject to the provisional clause. But at all events I think such duty to make connections would be subject to Sec. 15-8-33 and Sec. 77-0-8, U.C.A. 1943. The Public Utilities Commission would, as holds the main opinion, have no authority under 76-4-10 to require such connections independently of a franchise from the city. In fact as the opinion points out Sec. 76-4-10 points expressly to such conclusion. Sections 76-3-1, 76-3-20 and 76-4-11 did not impliedly repeal Sections 15-8-33, 15-8-82 or Sec. 77-0-8. The requirements, duties or powers imposed or given by the former sections are subject to the power of cities granted by the latter sections. Of course, it is obvious that if the Public Service Commission can only require a spur track to be built by a carrier under Sec. 76-4-11 subject to the permission and granting of a franchise by the city to lay the tracks on its streets, then for the same reason the Public Service Commission *Page 206 cannot compel the maintenance of a spur already built over the streets and serving industries where the carrier and the city agree to terminate a franchise and especially where the tracks remain on a street "contrary to the terms of the franchise." Sec. 15-8-82.
While the Public Service Commission is given no power, except with consent of the city to require a railroad to lay or retain its tracks along a street, the fact that it is given "exclusive power to determine and prescribe the manner, including the particular point of crossing," etc., of a "street" by a railroad and visa versa and the fact that "no track of any railroad shall be constructed across * * * a street at grade * * * without the consent of the commission [Public Service Commission] having been first secured," may give rise to some wonderment. The reason seems to lie in the fact that railroads could obtain rights of way over private property and if the city could prevent their tracks from being placed across streets it would utterly prevent the railroad from entering a city. This seems to be the fundamental reason for the distinction and the reason why the Legislature sought to withhold such absolute power from the city. Considerations of safety and maintenance of railroad crossings seem to be secondary considerations. Cities themselves have the power to attend to that.
The main opinion has touched on the very significant fact that the Constitution places in cities the power to determine whether a street railway shall operate within a city or town, whilst it did not prohibit the Legislature from passing a law requiring cities to admit railroads. This is in keeping with what was said above in regard to railroad crossings. A street railway is a matter of local concern. A railroad is a matter of state and national concern. The constitution, therefore, intended to leave to the Legislature the power to determine the conditions on which railroads could enter towns. The Legislature by Sec. 15-8-33 and 15-8-82 gave the cities the power to withhold or grant a franchise to the railroad to use its streets, but such power may be taken *Page 207 away and given to the Public Service Commission. Up to date, the Legislature has not done so expressly or impliedly. I see no escape from the reasoning of the main opinion.
The opinion expressly states that since no delegation of powers claimed by the respondent was made to it, no question under Sec. 29, Art. VI of the Constitution is presented. No implication will be drawn from that statement in the opinion that if such delegation of powers had been made to the Public Service Commission, it would have been unconstitutional as against Sec. 29 of Article VI. In view of Section 12, Article XII of the Constitution and the very language of Section 29, Article VI which appears to cover, as far as a city is concerned, matters other than the granting of franchises, the contrary conclusion would seem the reasonable one, but as stated in the opinion such question is not before us.
PRATT, J., on leave of absence. *Page 208