(dissenting):
I am unable to concur in the dismissal of the writ of certiorari. The order sought to be reviewed is frankly one to abate a nuisance, which; in the opinion, of the Public Service Commission, is detrimental to the health of the community and interferes with the comfort of the public generally. This is a matter over which the Legislature has expressly given jurisdiction to the board of health, with the broadest possible powers to make and enforce the necessary, measures for the public safety. (Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 1167-1229, as amd.) It is not questioned that, unless these powers have been repealed so far as concerns railroad properties, the board of health had ample power to abate the nuisance in question. In fact it had taken the mattér up and had made certain orders, in regard thereto before the order now sought to be reviewed had been made. If the Public Service Commission has authority over the same subject 'merely because the relator maintained a nuisance (and no other ground for its order is. suggested), it must be either because the Legislature has conferred upon the Public Service Commission concurrent jurisdiction with the board'of health to *337abate nuisances existing upon the property of railroad corporations, or because the Legislature has ousted the board of health of all jurisdiction to exercise its powers over property owned by such corporations and conferred power in that regard solely upon the Public Service Commission. The ■ respondents place .themselves squarely upon the latter alternative. The Commissioner, upon whose report the Commission acted, and the respondents in their brief in this court stand upon the broad proposition that the Legislature had delegated to the Public Service Commission all the police power of the State over the public agencies placed-within the jurisdiction of that Commission, and so far as concerned those agencies had recalled and abrogated the powers and authority of the health authorities. Although, for reasons to be presently stated, I totally disagree with this contention, I do agree that it is the only ground upon which the order under review can be logically sustained. It cannot be that the Legislature intended by bare implication to grant concurrent jurisdiction to two bodies over so important a matter as the protection of the public health. The obvious inconvenience which might result therefrom, and the almost inevitable clashing of contradictory orders upon the same subject, would render the'granting of such concurrent jurisdiction so unwise that we should not, in my opinion, attribute such an intention to the'Legislature unless it has been expressed in unmistakable terms. The orderly and efficient administration of the law requires that there should be no conflict of authority such as is certain to result, sooner or later," from the possession by different governmental agencies of independent jurisdiction over the same subject-matter. If then the respondents had jurisdiction to abate a nuisance merely because it was a nuisance, it must be that the board of health has been, by implication, ousted of such jurisdiction when the nuisance happens to be maintained by a railroad company upon its own property.
It must be conceded that such transference of authority has not been effected in plain terms, but it is claimed to be found in the broad terms in which the Public Service Commissioners are given authority over railroads. Section 5- of the Public Service Commissions Law (Laws of 1907, chap. 429) provides as follows: “ The jurisdiction, supervision, powers and duties of the Public Service *338Commission in the first district shall extend under this act: 1. To railroads and . street railroads lying exclusively within that, district, and to the persons or corporations owning, leasing, operating or controlling the same. . * * 3. To such portion of the lines'-of any other railroad as lies within that district, and to the person or corporation owning, leasing, operating or controlling the same, so far as concerns the construction, maintenance, equipment, terminal facilities and local transportation facilities, and local transportation of persons or property within that district.” Section 50 of the act provides as follows: “ If, in the judgment of the Commission having jurisdiction, repairs or improvements to or changes in any tracks, switches, terminals or terminal facilities, motive power, or any other ■ property or device, used by any common carrier, railroad corporation or street' railroad corporation in or in connection with the transportation of passengers, freight or property ought reasonably to be made, or that any additions should reasonably be made thereto, in order to promote the security or convenience' of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers, freight or. property, the Commission shall, after a hearing either on its own motion or after- complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in- a manner to be specified therein,'and every common carrier, railroad corporation and street railroad corporation is hereby required and directed to make all repairs, improvements, changes and additions required of it by any order of the Commission served upon it.”
There can be no doubt- that the powers then vested in the Public Service Commission are very broad, but they are not without limits. Although the act has been in effect but a very few years, the courts have already, in several instances, been required to define some of those limits. (Village of Fort Edward v. Hudson Valley R. Co., 192 N. Y. 139; People ex rel. South Shore Traction Co. v. Willcox, 196 id. 212; People ex rel. D. & H. Co. v. Stevens, 197 id. 1.) The authority conferred by the sections above quoted is fully and completely upheld if it be confined to matters affecting the construction, operation, assets, liabilities, passengers, freight, shippers and other features attaching to railroad corporations in *339their capacity as common carriers, and it is quite unnecessary, in order to give full effect to the legislative grant of power, to so construe the statute as to confer upon the Commission the power conferred by other statutes upon the health authorities, such as authority to abate a nuisance, even though the manner of the abatement may involve a reconstruction of some part of the railroad facilities, Since, in the present case, the respondents and the board of health are in substantial accord as to what steps should be taken to- abate this particular nuisance, it may not be of prime importance which body gives the order, but the principle involved is of great importance. A time may come when the board of health may consider that to be detrimental to health which the Public Service Commission considers harmless. In such a case if the present order be sustained, upon the only logical ground to be found for upholding it, an acute situation might arise. I cannot believe that the Legislature intended to make such a situation possible. In my opinion, therefore, the order in question was not within the power and jurisdiction of the Commission, and should be annulled.
Writ dismissed and orders affirmed, with fifty dollars costs and disbursements to respondents. Settle order on notice.