delivered the opinion of the court:
The commissioners of highways of the town of West Marion, in Williamson county, filed their bill in the circuit court of that county on August 17, 1917, against the Chicago, Burlington and Quincy Railroad Company and the Herrin and Southern Railroad Company, for an injunction requiring the defendants to remove certain obstructions which the bill alleged constituted and were a public nuisance, from a highway, to restore the highway to its condition before the obstructions were placed in it, and enjoining the defendants from maintaining such obstructions. Upon the appeal of the defendants the Appellate Court reversed the decree of the .circuit court, which granted the relief prayed for, and remanded the cause, with directions to enter a modified decree for a part, only, of the relief asked, and a writ of certiorari was allowed on the petition of the railroad companies for the purpose of reviewing the record.
The plaintiffs in error offered no evidence and the cause was submitted on the evidence of the defendants in error, which showed these facts: ' About January 1, 1913, the Herrin and Southern Railroad Company constructed, and the Chicago, Burlington and Quincy Railroad Company under agreement with the former company has since that time operated, a railroad in the town of West Marion, which crossed, about two and one-fourth miles west of the city of Marion, the Marion and Carbondale road, which has been a public highway of the width of fifty feet for fifty years. It is an overhead crossing, and the railroad track was supported by three rows of six posts about twelve inches in diameter, the center row being in the center of the highway and of the traveled track and the other rows north and south, respectively, and nineteen feet distant from the center row. After the construction of the railroad a concrete hard road was constructed from the city of Marion west to a point two miles west of the crossing, with the exception that such concrete road was not constructed under the railroad and for a space of about thirty-eight feet on either side of it. The circuit court found that the three rows of posts constituted a material and substantial obstruction to the free passage of persons, in vehicles or otherwise, lawfully having a right to travel over the highway, and decreed that defendants remove them within sixty days and restore the highway at the crossing to as good condition as when the posts were placed in the highway, and that the defendants be perpetually enjoined from maintaining the posts in the highway after sixty days. The Appellate Court reversed the decree and remanded the cause, with directions to enter a decree ordering the plaintiffs in error to remove the center row of posts within six months from the date of the decree and to restore that portion of the highway to as good condition as it was in when the posts were placed there and enjoining the plaintiffs in error from thereafter maintaining said center row of posts.
The jurisdiction of the circuit court of the subject matter of this suit cannot be questioned and is not in controversy. The constitution confers upon the circuit court jurisdiction of all causes in equity, and the legislature is without power to deprive it of any part of this jurisdiction. A court of equity has jurisdiction to enjoin the creation or compel the abatement of a public nuisance at the suit of the Attorney General or other authorized public official, or of an individual to whom or to whose property it causes or will cause a special and particular injury, as well as a private nuisance at the suit of the injured person. An unauthorized obstruction of a public highway is a public nuisance, and it is within the jurisdiction of a court of equity to grant relief by injunction for the prevention or removal of such obstruction at the suit of the proper officials in behalf of the public or of an individual who is directly and specially injured by the obstruction. Fors v. Anderson, 270 Ill. 45; Green v. Oakes, 17 id. 249.
The chief question argued is the right of the highway commissioners to maintain the suit, the plaintiffs in error contending that the Public Utilities act in force when the suit was brought, and since, deprived the highway commissioners of any authority to represent or act for the public in respect to highways at railroad crossings and placed the entire subject matter of such crossings in the hands of the Public Utilities Commission. At the time the overhead crossing involved in this case was constructed, and until July x, 1913, the highway commissioners had charge of the roads and bridges in their respective towns, and by paragraph 5 of section 19 of the Railroad Incorporation act every corporation formed under the act was authorized to construct its railway across any highway which its route intersected, subject to the duty of restoring the highway to its former state or to such state as not unnecessarily to have impaired its usefulness. This was an absolute grant of power by the State to the railroad company to construct its road across any highway and no consent of the highway commissioners was required, such consent being necessary only where the railroad was to be constructed along,— that is, lengthwise,—of the highway. (County of Cook v. Great Western Railroad Co. 119 Ill. 218.) The right of crossing the highway was subject to the condition that the company should restore the highway so as not unnecessarily to impair its usefulness, and this court suggested in Chicago General Railway Co. v. Chicago, Burlington and Quincy Railroad Co. 181 Ill. 605, that an unnecessary obstruction caused by the construction of an overhead crossing could be enjoined in a suit on behalf of the public.
In 19x3 the law in relation to roads and bridges was codified, revised and amended. (Laws of 1913, p. 521.) Paragraph 6 of section 50 of the revised act provided that the highway commissioners should have general charge of the roads and bridges of their respective towns or districts and keep them in repair and improve them so far as practicable. This was a re-enactment, with slight change of diction, of the previous law, but article 2 of the act created a State highway department and State Highway Commission, and provided that the State Highway Commission should have general supervision of highways and bridges constructed, improved or maintained, in whole or in part, by the aid of State moneys. This article provided for the. method of construction of roads by the aid of State moneys, and required such roads and bridges to be kept in repair by the State Highway Commission at the cost of the State. State aid roads were thus specifically excluded from the general charge of the highway commissioners and transferred to the State Highway Commission. At the same session of the legislature the Public Utilities act was passed,' section 58 of which prohibited the construction of new grade crossings of highways by railroads but expressly declared that the section should not apply to the replacing of existing crossings. In 1917 these acts were both amended, the Road and Bridge act to provide for the election of one highway commissioner instead of three, the Public Utilities act to bring under the control of the Public Utilities Commission any railroad highway crossing, whether at grade, overhead or by subway. The amendment in question of the Public Utilities act consisted of the addition to section 58, among other things, of the following: “The commission shall also have power by its order to require the reconstruction, alteration, re-location or improvement of any crossing (including the necessary highway approaches thereto) of any railroad across any highway or public road, whether such crossing be at grade or by overhead structure or by subway, whenever the commission finds after a hearing that such reconstruction, alteration, re-location or improvement is necessary to preserve or promote the safety of the public or of the employees or passengers of such railroad. By its original order or supplemental orders in such case, the commission may direct such reconstruction, alteration, re-location or improvement to be made in such manner and upon such terms and conditions as may be reasonable and necessary, and may apportion the cost of such reconstruction, alteration, re-location or improvement between the railroad company or companies and other public utilities affected, or between such company or companies and other public utilities and the State, county, municipality, or other public authority in interest. The cost to be so apportioned shall include the cost of changes or alterations in the equipment of other public utilities affected as well as the cost of the relocation, diversion or establishment of any public highway, made necessary by such reconstruction, alteration, re-location or improvement of said crossing.”
Since both of these acts, originally passed at the same session of the legislature, were amended subsequently at the same session of the legislature, they must be construed together as one act so far as they relate to the same subject and with reference to the rule of law stated in Endlich on Interpretation of Statutes, sec. 399: “Where, therefore, there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. It follows that where an act in one set of provisions gives specific and precise directions to do a particular thing, and in another set prohibits, in general terms, the doing of that which in the broad sense of the words used in the latter would cover the particular act authorized by the former, the more general provisions can not be deemed to include the matters embraced in the more specific ones.”
The general language of the Road and Bridge act in conferring upon the highway commissioners general charge of the roads and bridges of their towns and upon the State Highway Commission general supervision of highways and bridges constructed, improved or maintained, in whole or in part, by the aid of State moneys, is sufficiently comprehensive to include all parts of all roads in the State outside of cities and villages and leaves nothing for the amendment which has been quoted to operate on. If the charge and supervision of roads given to highway commissioners and the State Highway Commission give to these bodies charge and supervision of the crossings of highways by railroads, then the amendment of section 58 of the Public Utilities act is of no effect. In accordance with the rule quoted, therefore, the particular enactment of the provisions giving specific and precise authority in the particular matter of crossings of highways by railroads must be given effect in those particular cases, and the more general provisions of the Road and Bridge law cannot be held to apply. If the commission has authority to order the reconstruction or alteration of the crossing of the railroad over the highway in such manner and upon such terms and conditions as may be reasonable and necessary and apportion the costs among the company, the county, town and other public authority, then for that purpose it must have the sole authority, subject to the judicial review of its decision as provided by the act. The question whether the public safety requires the reconstruction or alteration of the crossing of a public highway by a railroad is an executive question, the decision of which may be committed to an administrative body such as the Public Utilities Commission, subject to review by a court as to the reasonableness of its conelusion, and such action is not a delegation of legislative authority. (Chicago, Burlington and Quincy Railroad Co. v. Cavanagh, 278 Ill. 609; Chicago, Milwaukee and St. Paul Railway Co. v. Lake County, 287 id. 337.) The legislature has the power to confer authority over the public highways throughout the State upon such local or State officers as it deems best and may divide the authority in such manner as it chooses. The authority over railroad crossings of highways, the place, manner, terms and conditions of such crossings, their construction, reconstruction, alteration or improvement and the apportionment of their cost, has been conferred upon the Public Utilities Commission. Such authority in its nature must be exclusive. Before 1913 railroad companies had the right to cross any highway, and there was no authority to control the manner of crossing or construction, except that it must not unnecessarily impair the usefulness of the highway. The highway commissioners having charge of the highway were the public officials who had authority to enforce the requirement by bill in chancery or petition for mandamus in behalf of the public. Now, however, neither the highway commissioners nor the State Highway Commission can maintain a proceeding for that purpose. They have no duty to perform in regard to railroad crossings. The railroad company is bound to obey the order of the Public Utilities Commission, upon which control in the matter of the crossing has been conferred by law. It is immaterial that no order has been made by the commission. It is the only body authorized to order a reconstruction, alteration or change in the crossing, and the fact that it has made no order for that purpose does not authorize any other individual, official or board to assume authority to do so. The court can make no order in this case directing any change in the crossing, not because it is without jurisdiction to do so when application is made for that purpose in a proper case, but because the defendants in error have no right to sue. It is only upon a failure to obey a proper order of the commission that the railroad company becomes a wrongdoer. The Public Utilities Commission, alone, was authorized to represent the public, to order changes in the crossing and to apply to the court for enforcement of its orders. No authority has been conferred upon the defendants in error, the highway commissioners, to appear for and represent the public in regard to this crossing. The bill stated no cause of action which they were entitled to maintain.
The judgment of the Appellate Court and the decree of the circuit court will be reversed and the cause will be remanded to the circuit court, with directions to dismiss the bill.
Reversed and remanded, with directions.