dissenting.
If the commission has jurisdiction over the subject matter, its authority, although in a sense advisory only, should be upheld. It is contended that the village board has jurisdiction and authority to order the track to be planked between and on the outer side of the rails, so as to render the way passable and safe, and, in case of a refusal on the part of the railroad company to comply with the order, an action in the form of mandamus could be instituted by the village authorities in the district court, whereby the duty could be coerced, and that that right could not be taken away. To this I fully agree. The doors of the courts are and must be open at all times for the enforcement of the performance of the duties imposed. It may be conceded that that would be the better and more effective course to be pursued, for there are many arguments in its favor. While all this may be conceded, yet it does not follow that the commission, to the extent of its powers, may not have concurrent jurisdiction over the same subject matter, but based upon a rather different foundation. The constitution (amendment, 1906) provides : “The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the legislature may provide by law.” By section 2, art. VIII, ch. 72, Comp. St. 1909, the commission is given power to regulate the rates and services of, and to exercise a general control over, all railroads; to examine and inspect, from time to time, the condition of each railway or common carrier, its equipment, and the manner of its conduct and management, with regard to the public • safety and convenience in the state; and, if any part thereof is found in an unsafe and dangerous condition, said commission shall immediately notify the railway company whose duty it is to put the same in repair, which shall be done by it within a reasonable time after receiving such notice, etc. The duty of making and keeping a crossing in repair is imposed upon railroads by section 110, ch. 78, Comp. St. *8561909. This section has been held valid in numerous, cases, among which are State v. Chicago, B. & Q. R. Co., 29 Neb. 412; Burlington & M. R. R. Co. v. Koonce, 34 Neb. 479; Missouri P. R. Co. v. Cass County, 76 Neb. 396. By these provisions, and others, in the statutes, it is clear that the commission has a control, oversight and superintendency over all railroads within the state, “with regard to the public safety and convenience in the state,” and for that purpose must, of necessity, have jurisdiction over every foot of railroad track in the state, without reference to whether the track is located within an incorporated village or city or in the open country. Wherever “the public safety and convenience” is overlooked or ignored by a railroad company in the condition of its tracks, the commission has the power, and it is its duty, upon complaint being made, to order the repair or correction. Should the authorities of a city or village fail or refuse to require the tracks to be rendered safe and convenient for the use of the public, the authority of the commission cannot thereby be ousted, and the people be left to shift for themselves, and be compelled to seek other means and places of crossing the tracks. It is manifest that they would not be permitted to enter the right of way of a railroad company and plank crossings in order to render the way passable. The safety of the traveling public, as well as of the railroad company itself, requires that the duty of making grade surface crossings safe and convenient must be with the railroad company.
The bill of exceptions shows beyond any question that Walnut street from the east to the west lines of the corporation is, and has been, open since the settlement of the village, the only obstruction being the railroad crossing; that on either side of the railroad track residences are established, and sidewalks have been constructed in front of the lots fronting on Walnut street to near the right of way of the railroad company; that the school house and some residences are located on the east side of the track, and the major portion of the residences and the *857village church on the west side; that there are two street crossings in the village, both of which are frequently blocked by standing of freight trains; that at the point where the crossing is desired, and evidently needed, the railroad track is in a cut from 2 to 2| feet deep; that the citizens and village authorities have stood ready to do the grading at their own expense, and the fact is stipulated in the record. The contention of the railroad company that the street in question has never been legally opened is a mere pretense, and entitled to no consideration. Without discussing the evidence at length, I am unable to see any good reason why the crossing should not be made, but many why it should, and that without further delay. It is clear that the safety and convenience of the public, of which the citizens of Hallam form a part, require that the railroad track be improved as ordered by the railway commission. In my opinion, the decision of the district court in dismissing the appeal was right, and should be affirmed.
Rose and Fawcett, JJ., concur in this dissent.