Opinion of the Justices

To the House of Representatives:

The undersigned, the Justices of the Supreme Court make answer to your resolution with reference to House Bill No. 142 entitled “An Act to Compel the Boston & Maine Railroad to Restore the Double Track on its Line to Boston between Concord and the State Line.”

In our opinion the Public Service Commission has authority under existing law to require the railroad to restore the track already removed between Concord and Nashua and to desist from, further removal if adequacy and safety of service demand it. Revised Laws, chapter 287, section 21, so far as material provides that the Public Service Commission may order a railroad to furnish proper service and equipment, and by section 22 of the same chapter a railroad is required to obey such orders. Revised Laws, chapter 289, sections 1 and 3 respectively, provide in effect that a railroad must furnish safe and adequate service and that the Public Service Commission has supervisory powers to see that this and other provisions concerning the operation of railroads are carried out. Whether in the present instance safety and adequacy of service demand that the tracks be relaid and that further removal be stopped depends on facts which we are in no position to determine since they are “neither proved nor admitted.” State v. Railroad, 77 N. H. 425, 426. Since we cannot know what facts may be found by the Public Service Commission, we do not predict whether the power exists to order the railroad to relay its tracks.

In answer to the first part of the second question, House Bill No. 142 on its face does not violate the Constitution of New Hampshire. If House Bill No. 142 as applied to the Boston & Maine Railroad would compel it to make “an unnecessary, unreasonable and waste*543ful operation” (Thompson v. Railroad, 86 N. H. 204, 205), it would violate the State Constitution.

E. Harold Young (by brief and orally), for the bill. Orr & Reno (Mr. Retío orally), for the Boston & Maine Railroad, opposed.

The second part of the second question raises the issue whether the House Bill would conflict with the order of the Interstate Commerce Commission entered pursuant to U. S. C. A., Tit. 49, s. 26. We are unable to express any opinion on this part of the question due to insufficient facts. Cf. Southern Pacific Co. v. Arizona, 325 U. S. 761, 768, 769.

Francis W. Johnston. Frank R. Kenison. Laurence I. Duncan. Amos N. Blandin, Jr. Edward J. Lampron.

May 28, 1951.