concurring specially:
I concur in the judgment of reversal upon the sole ground that the court erred in denying the application of the Attorney General to intervene on behalf of the people.
I can not agree that the Public Utilities Commission has exclusive jurisdiction of the question of dismantling the road, under the circumstances presented by this record. The Constitution gives to the District Court “original jurisdiction of all causes at law and in equity,” and that includes the foreclosure of mortgages and all matters incident thereto. As an incident to their powers, courts of equity, in foreclosure proceedings, determine how property subject to, a lien in process of foreclosure shall be sold, in what parcels and upon what terms, with a view to giving full relief to the mortgagee, with as little sacrifice as may be to the owner of the encumbered property, or others interested therein.
In this case it was incumbent upon the court to make all orders necessary to give the plaintiff the benefit of its security in such a way as to cause the least loss to the parties interested in the property either as owners, or otherwise; this in pursuance of the chancery rule of doing complete equity to all parties before the court.
The continued operation of the road being a matter of public interest, the State is entitled to be heard upon the question of dismantling the road. This fact appears to *483have been recognized in recent cases, which are authority also on the question of jurisdiction.
In State of Iowa v. Old Colony Trust Co., 131 C. C. A. 581, the state was a party in a suit in which the jurisdiction of a court of equity, in a foreclosure suit to direct the dismantling of a railroad, was directly involved. The Circuit Court of Appeals held that the lower court had such jurisdiction. The opinion, after stating the condition of the road as disclosed by the record, says:
“In these circumstances, what could the court, charged with the duty of caring for and protecting the whole property, have done except to order the abandonment of the steam line and the sale of its salvage?”
In N. Y. Trust Co. v. P. & E. St. Ry. Co., 192 Fed. 728, the court said:
“The conclusion reached is that a court of equity, having possession of the res, with the parties before it, including the Attorney General, the proper representative of the state, has the power, in an insolvent situation like this, to dispose of the property in a way which may be for the best interest of the mortgagee; and if necessary in order to realize anything from the property, to order a sale in the alternative.”
The order was that the road be offered as a going concern, and, if not sold at a price equal to its salvage value, that it be sold for dismantling.
The District Court, having jurisdiction of the question, could not be deprived of it by legislative enactment; and, having taken jurisdiction of the cause, should, after allowing the people to be represented, proceed to try the question of dismantling the road.
I am authorized to state that Mr. Justice Bailey concurs in' this opinion.