(dissenting).
As I understand the majority opinion, the jurisdiction of the city of New Orleans over the grade crossing in the instant case is conceded. This authority is professed to exist under the city’s “police power”. La.Const. of 1921, art. 14, § 31.3, LSA and 1954 Home Rule Charter of the City of New Orleans; Act 159 of 1912. But, it is observed by the majority that this jurisdiction of the city over such things is not “sole” and “exclusive”. This, I assume, permits the conclusion that the Commission also has jurisdiction and the majority opinion recognizes the authority of the Commission to exercise jurisdiction in this instance. This authority is said to be lodged in Article VI, Section 4, of the Louisiana Constitution of 1921 and. LSA-R.S. 45:841-843.
I find no indication in these constitutional' and statutory provisions of any intention to divide the authority concerning the regulation of grade crossings in the city of New Orleans. “There is no reason why such authority should ever be — and an obvious: reason why it should never be — so divided for a division of it would only result in confusion, conflict of authority, and deadlocks.” 1 Although the conflict does not exist here, as the city is apparently seeking to relinquish jurisdiction to the Commission in order to escape its contractual obligation with the railroad, the time of conflict under the majority opinion will undoubtedly come.
My view is that jurisdiction in this matter is exclusive either in the Commission or in the city, and that jurisdiction is to be determined by a construction of the pertinent authorities relied upon by all parties.
Since the enactment of the Lawrason Act-in 1898, the State’s municipalities have been specifically vested with jurisdiction and power enabling them to regulate the crossings of railroads over the municipal streets-, within their territorial limits.
The city of New Orleans has specific authority delegated to it to “exercise all powers, police or otherwise which, under the-Constitution of the State of Louisiana, it-will be competent for this charter specifically to enumerate” (Act 159 of 1912). Its-. Commission Council has the power “[t]o order the ditching, filling, opening, widening and paving of the public streets, and to regulate the grade thereof” and “[t]o authorize the use of the streets for * * * railroads * * * and to regulate the same.”' Dart’s Louisiana General Statutes, Sec.. 6182 (1) (12).
Pursuant to the authority vested in the city by Section 22 of Article XIV of the-*313•Constitution of 1921, as amended by Act 551 ■of 1950, the 1954 Home Rule Charter of the City of New Orleans was adopted. In addition to conferring substantial additional powers upon the city, the Charter specifically provided that the city retained all rights, ■powers, privileges and authority that it had, -or could claim, to govern its local affairs, property or government.
We note that the Commission has failed to exercise jurisdiction over crossings of streets in the city of New Orleans, either pursuant to LSA-R.S. 45 :841-843 or otherwise. On the contrary, the city of New Orleans in this very case has assumed authority in its contract with the railroad to regulate this crossing. The Public Service Commission acknowledged it had no authority to approve or disapprove that agreement when the plans for the project were submitted by the city and the railroad to it for approval. See Order No. 4865 of June 1, 1948.
Under these circumstances, if the application of statutory or constitutional provisions are doubtful, an interpretation consistent with this prolonged refusal by the Commission to assume jurisdiction should be adopted. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958); Jackson v. Coxe, 208 La. 715, 23 So.2d 312 (1945).
I recognize that the decisions of our Federal Courts are not binding upon us where the question involved is the interpretation of a state law, but I cannot disregard the sound reasons expressed by the federal court in Morgan’s Louisiana & T. R. & S. S. Co. v. Louisiana Public Service Commission, D.C., 287 F. 390 (1923), 264 U.S. 393, 44 S.Ct. 358, 68 L.Ed. 756 (1924). There the court was considering the extent of the jurisdiction and authority of the Louisiana Public .Service Commission to order the opening of a railroad crossing over “streets” in the city •of New Orleans pursuant to Act 132 of 1918, the predecessor to LSA-R.S. 45:841-843. In denying that the Commission had jurisdiction to order the opening of crossings in the city of New Orleans, the district court said:
“Act 132 of 1918 has no application to the city of New Orleans.
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“If the jurisdiction of the commission to enter the order herein in controversy could be sustained, the right of the citizens of New Orleans to govern themselves in purely local matters would be seriously impaired. We can deduce no such intention from the provisions of the Constitution of 1921, or any other law of Louisiana. It follows that the commission was without jurisdiction or authority to make the order complained of.”
Subsequently, on appeal, the United States Supreme Court affirmed this decision saying:
“The broad language of section 284, Constitutions of 1898 and 1913, was not regarded as sufficient to empower the Railroad Commission to require carriers to construct public crossings over their lines. To meet this situation and provide relief in the parishes the Act of 1918 was passed; * * *.
* * * * * *
“Unless and until otherwise advised by the Supreme Court of Louisiana, we must conclude that the general control of its own streets is an ordinary governmental function of the City of New Orleans.
“It would require more definite language than we find in the Constitution of 1921, or in Gulf, C. & S. F. Ry. [Co.] v. [Louisiana] Public Service Commission [151 La. 635, 92 So. 143], to convince us that the commission has power to assume control over all those streets within New Orleans which approach or cross railroad tracks, and to disregard the solemn contracts of the municipality with respect thereto.”
*314The basic supervisory and regulatory power of the Commission is conferred by Article VI, Section 4, of the Louisiana Constitution of 1921. This constitutional enactment does not either expressly or impliedly confer upon the Commission power or authority to order the opening of railroad crossings over public roads or streets. The legislature realizing this deficiency has retained LSA-R.S. 45:841-843 to supply this authority. This does not, however, as I have shown, apply to streets or roads within municipalities.
It is conceded, as it must be, that Article XIV, Section 31.3 of the constitution grants the power to the city of New Orleans to regulate grade crossings. The contention, however, is that this power is not exclusive and the state-wide power of the Public Service Commission is not superseded thereby. Such an untenable position is contrary to the fundamental principle of statutory construction that the last expression on a subject should prevail. Article XIV, Section 31.3, having been enacted after Article VI, Section 6, which defines the authority of the Commission, should prevail in case of conflict.
Because of the authorities cited and the general rule of law that municipal corporations have "control of their own streets, with the right to fix grades, provide for payment, regulate their use by steam and street railroads, and determine what structures in the nature of railroad tracks and appurtenances, telegraph poles, etc., may be erected and maintained on said streets,” as one of their ordinary governmental functions, Morgan’s Louisiana & T. R. & S. S. Co. v. Louisiana Public Service Commission, supra, I cannot subscribe to the opinion of the majority. It is difficult to accept the conclusion that the city of New Orleans has less power in this respect than municipal corporations generally and less than all of the municipalities in this State organized under the Lawrason Act. I cannot agree that it was intended that Louisiana’s largest city alone be so restricted in this purely local function. The authorities relied upon do not say so; it is unreasonable and unrealistic to ascribe such a meaning to them.
I respectfully dissent.
. State v. City of New Orleans, 151 La. 24, 35, 91 So. 533, 537 (1922).