also specially concurring:
I also concur in the conclusion reached in the opinion delivered by Mr. Justice Dunn that the commissioners of highways were without authority to file the bill in this case and that the suit for that reason, only, should be dismissed. As a matter of fact, not, however, appearing of record, the obstructions have been removed many months ago by the railroad companies and while this case was pending for decision in this court, and the overhead structures have been changed and re-built by the railroad companies and without any authority or direction of the Public Utilities Commission. All the questions submitted to this court for decision are moot questions and there is no occasion or necessity for further litigation in this case, and had the decision of the court been placed upon the single ground that the proper parties are not complainants in the bill, in accordance with the usual custom of this court when proper parties complainant are not before the court and have not been heard upon the merits, no discussion of the merits of the case would have been indulged in by us. I cannot consent, however, to be understood, by implication or otherwise, as assenting to the proposition that the circuit court can be ousted of its original jurisdiction of the subject matter of this suit, or that the Public Utilities Commission has any jurisdiction or authority whatever to decide any question arising on this record.
The substance of the charge in this bill is, that the pillars or posts in question obstruct the traffic and travel on the public highway and constitute a public nuisance for that reason, only. There is no suggestion or charge of any kind in the bill that the pillars or overhead structures are unsafe or dangerous to the traveling public or to the employees or passengers of the railroad companies while crossing that crossing, or that for any reason other than already stated any part of the structures there should be changed or reconstructed. The answer of the railroad companies simply denies that the pillars obstruct the highway; avers that the public in general is using and can use the highway as a public thoroughfare without hindrance by the posts and denies that they constitute a public nuisance; denies the right of defendants in error to maintain the suit; alleges that the commission aforesaid is the proper forum and has the power and authority to order or refuse a change in the construction of said crossing, and argues that the circuit court is without authority or jurisdiction to enter any decree or order in this suit. Those are the exact claims made by the railroad companies, and the opinion holds, in substance, that those contentions are correct in every particular; and the fact that the opinion states that there is no question in the case that the circuit court has jurisdiction of the subject matter of the suit does not change the fact that the decision, in effect, does decide that the commission has the sole jurisdiction to decide the questions at issue and that the circuit court has no original jurisdiction of the subject matter of the suit. No other interpretation can be placed upon this holding unless the opinion is to also be interpreted as holding that the commission is the only proper complainant in the bill of complaint and can maintain this suit in the circuit court to abate the nuisance. There is absolutely no such right conferred on the commission by the statute, and I do not think any such holding is intended by the opinion. The opinion does clearly hold, in substance, that since the amendment of 1913 to the Road and Bridge law and the enacting of the Public Utilities act, neither the highway commissioners nor the State Highway Commission can maintain a bill in equity in the circuit court to abate a public nuisance or remove an obstruction in a public highway at or under an overhead or other railroad crossing. The opinion contains these declarations: “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.” The lawyers of this State in reading said opinion would undoubtedly conclude that the real holding is that the circuit court has not now original jurisdiction to entertain a bill in equity by any person, public or private, to abate a nuisance or remove an obstruction from a public highway at or under an overhead or other railroad crossing. The opinion explains this divesting of the court’s jurisdiction conferred by the constitution, with the startling declaration that the new Road and Bridge law and the Public Utilities act have divested all public highway authorities, and every private individual who may be affected by the nuisance, of all right or authority to maintain such a suit in the circuit court, but tells us that the circuit court has jurisdiction of the subject matter of such a suit but is powerless to make any order or decree of any kind in such a case because no one can bring the suit in that court. Then, may I ask, has not the court been most effectively divested of such original jurisdiction, and with which it was invested by our State constitution, if this opinion should be adopted as the law? How can a court have jurisdiction of the subject matter of a suit that no person under any circumstances can bring before it?
We must not be driven away from the real proposition by indirection. Section 12 of article 6 of our constitution provides: “The circuit courts shall have original jurisdiction of all causes in law and equity, and such appellate jurisdiction as is or may be provided by law.” Take notice that the constitution provides that said courts shall have original jurisdiction of all cases in law and equity, and I lay it down as unassailable doctrine that neither the legislature nor this court, nor any other court, can in any way divest the circuit court of such original jurisdiction or in any way alter or abridge it. Concurrent jurisdiction of such cases may be conferred by the legislature on county or other courts, but no jurisdiction of the circuit court conferred by the constitution can be taken away by the legislature by any act or series of acts. (Prackelton v. Masters, 249 Ill. 30; Wilson v. People, 94 id. 426.) How, then, may I ask, can a non-judicial body like said commission be said to have the sole and only original jurisdiction of the subject matter of this suit? The circuit court has jurisdiction in equity to entertain a bill filed by the proper party to remove an obstruction from a public highway that amounts to a public nuisance. This court has repeatedly so decided, and that highway commissioners or persons injuriously affected may maintain such a bill when their right is clear and appertains to the public. (Fors v. Anderson, 270 Ill. 45; Hillmer Co. v. Behr, 264 id. 568; Green v. Oakes, 17 id. 249.) Such jurisdiction is original jurisdiction, and the fact that the public nuisance is in the highway under an overhead railroad crossing has nothing to do with the jurisdiction of the court. Reviewing an order of the commission on appeal or granting a writ of mandamus to compel obeyance of an order of the commission by the circuit court is not exercising the original jurisdiction of the court that I am considering in this case, and the opinion I am answering merely dodges the question in an effort to show that it is not ousting the circuit court’s jurisdiction when it holds that the public nuisance must first be considered by that body. The real question is, Can the commission, even to the exclusion of the circuit court, have jurisdiction or authority to settle the questions presented by this bill? The answer must necessarily be, no.
It is undoubtedly a clear proposition that the Public Utilities Commission is absolutely without authority to entertain or decide a single issue in this case, and my best guess would at all times have been that the commission would have answered promptly that it had no such authority or jurisdiction. The issues are plain and simple, and are: (1) Are defendants in error proper parties complainant in the bill? (2) Are the posts obstructions to the highway or a public nuisance that the proper road authorities have a right to have abated? (3) Were plaintiffs in error the guilty parties that placed them in the road? (4) Had the circuit court the authority or jurisdiction to decide the issues and to enter the order that it did enter that plaintiffs in error remove the obstructions and pay the costs of the suit? A moment’s reflection upon the proposition seems to me ought to be convincing that the commission has no jurisdiction or authority to decide any of those questions, whether the matter was put up to it by way of a bill in equity or by any form of petition calling on it to act and to decide as to such matters. I submit that the foregoing were the very questions, and the only questions, decided by the circuit court, and these simple truths must not be lost sight of in this case.
As the structures complained of existed when this suit was begun, there was not the least ground for a finding or a contention that the structures were dangerous to either the traveling public or to any railroad employee or passenger on the railroad. These questions were absolutely immaterial to the real issues. No change was contemplated by the railroads at that crossing. The commission had ordered no change of the structures at the crossing. No one had asked for such a change. The court made no order as to how the obstructions should be removed or what changes should be made in the other structures. No question of a change of a grade crossing arose or could arise. The railroad crossed the highway by an overhead crossing more than twenty-two feet above the surface of the highway. There was no determination by anyone that the pillars or obstructions would be removed or the structures changed at that crossing until the court ordered the obstructions removed. No one knew up to that moment that any change was necessary or would be necessary. No one had any right or authority to make the order made by the circuit court except that court. If the jurisdiction of the commission ever came into being it was after the court entered its final order. Then for the first time the fact became known that a change was a necessity and that a change would be made in the structures. In other words, the best claim the railroads could possibly maintain was that the jurisdiction of the Public Utilities Commission began at the moment the circuit court’s jurisdiction ceased, or would begin as soon as a proper petition was filed before the commission for directions as to what changes or structures should replace the old structures to insure the public safety and the safety of the railroad employees and passengers. But the railroad companies displayed their insincerity as to having any interest in the commission’s deciding the character of the structures to be built and re-built, by building them of their own motion and without consulting the commission. In other words, they recognized the rights of no one but themselves in obstructing the road or in removing, the structures and re-building other structures. Railroad companies are as much entitled to their just and legal rights as the humblest and most helpless citizen of the land, and their duty is as much binding upon them as upon that same humble and helpless citizen. Search every sentence in the opinion or any that may be omitted pertaining to the statutory duty of the commission, and not one phrase or one sentence can be found that authorizes or even suggests any authority for deciding the issues decided by the court or for making the order or decree that the court rendered. The statute provides that the commission shall have power by its order to require the reconstruction or alteration of a crossing whenever it finds, after a hearing, that such reconstruction, alteration, etc., is necessary to promote the safety of the public or of the employees or passengers. It never made such a finding, and could not have made it if it had been asked, as no such unsafe condition existed until it was legally determined that the pillars were a public nuisance and had to be removed for that reason.
I concede that the highway commissioners have no right to maintain this suit as the public highway is a State aid road. They have not, under the statute as amended, authority to order the removal of obstructions that may be placed in any part of this State aid road. That authority is now vested by section 151 of the Road and Bridge act in the State Highway Commission, State highway engineer or county superintendent of highways. (Hurd’s Stat. 1921, p. 2801.) I entertain no sort of doubt that the State highway department could have maintained this suit as complainant in the bill, and with it as complainant the decree and order of the circuit court in this case would have to be affirmed if the law applicable to the case should be followed. I feel very sure that the commission has absolutely no right or authority to maintain this suit as complainant or to decide any question presented to the circuit court for decision in any kind of a proceeding before it. Its jurisdiction would properly begin where the jurisdiction of the circuit court ceased and upon proper application to it for orders or directions as to the kind of new structures that would be made necessary by the court’s order to remove the pillars that were obstructing traffic and travel on the public highway. When those pillars should be ordered removed by the court as a public nuisance at the suit of the proper party complainant, and not till then, new structures would be required, and what the new structures and changes should be, it would be the province of the commission to decide. By such a course and procedure the circuit court would exercise its proper original jurisdiction to order abated a public nuisance in a public highway, and all duties required by the Public Utilities act to be performed by the commission at that crossing, and necessitated only by the court’s order, would be performed by the commission exactly as required and contemplated by section 58 of that act. It is as clear as the noon-day sun, it seems to me, that if the court should have found that the pillars or posts were not a public nuisance and for that reason could be retained by the railroad companies, the commission would never have had any occasion or authority to act in the case at all, for the plain and simple reason that there would be no basis for any claim that the structures were dangerous to the public or to the employees or passengers of the companies or that they should be removed or changed for any other reason. It was only the court’s order to abate the nuisance that could call into action the commission, as the commission had absolutely no authority to determine the question whether or not the pillars were obstructions to travel on the public highway, and for that reason, only, a public nuisance. These propositions seem to me so clear as to demonstrate that there is no basis whatever for the claim in the opinion that the provisions of section 58 of the statute will be in any way abrogated by recognizing the unassailable right of the proper highway officials to invoke the original jurisdiction of the circuit court to first determine that the obstructions were or were not a public nuisance.
I recognize in every way and to the very letter the right and authority of the commission to take jurisdiction and authority when the occasion or the necessity arises for it to exercise such authority, but I vigorously dissent from the contention that it had any authority or excuse to act until the circuit court pronounced its legal conclusion that the obstructions must be removed because a public nuisance, as charged in the bill. The statute absolutely gives it no authority to determine whether or not the posts should be removed because obstructions to travel and for that reason a public nuisance, and certainly not to the exclusion of the circuit court’s authority and jurisdiction to settle those questions.