Dissenting. — I dissent.

The city of San Jose, acting under section 43c of the Public Utilities Act (Stats. 1915, chap. 91, p. 115; Stats. 1917, chap. 209, p. 320; Stats. 1927, p. 1215), applied to respondent Railroad Commission for an order fixing the just compensation to each of the petitioners and others for damages which would be done to their respective properties by the construction and maintenance of a subway under Center Street in said city made by the depression of Julian Street so as to allow traffic at that point to pass under the tracks of the Southern Pacific Railroad laid and to be laid along said Center Street.

Respondent entertained the petition and issued a notice to the property owners affected thereby, fixing the day of hearing. Petitioners retaliated by the bringing of this proceeding alleging that said section 43c was in contravention of section 14, article I of the Constitution in that it authorized the taking of private property for a public use without just compensation therefor, assessed by a court and jury, having first been made to them. An alternative writ of prohibition issued upon their petition. A return has been made thereto and the validity of said section of the utilities act presents the sole legal question for our consideration.

The background of the controversy lies in the fact that the Southern Pacific Company has heretofore operated its main line through the city of San Jose over tracks laid on Fourth Street, crossing other city streets, county roads and a state highway at grade. The Fourth Street franchise having expired, the company applied to the city of San Jose for a new franchise, which was granted April 16, 1928, by Ordinance 2174. The substance of this grant was to give a new fifty-year franchise for a transposition and relocation of said lines of said company, with a new double track main line to leave the old line at Polhemus Street and follow the alignment of College Park to Santa Cruz Branch along Center Street to a point near San Carlos Street ; thence southerly over a new line to be constructed on a private right of way, joining the existing main line near Lick Station. The whole length of the new line is to be approximately five miles, about half of which is south of the city limits of San Jose. Various wye connections are also authorized.

In the construction of the new tracks it will be necessary to cross various thoroughfares of the city and also in the unincorporated portion of Santa Clara County south of the city. The franchise contemplates a change of four existing grade crossings and the elimination of four others by grade separation. Authority is also given to construct seventeen new crossings four of which will be at separated grades. In other words, there will be twenty-five crossings involved, twelve grade crossings, eight grade separations and five crossings without the city. The project, when completed, will abolish eighteen existing grade crossings, four by means of grade separation, eleven by removal of tracks and three by closing of streets. This ordinance also carried with it mutual covenants on the part of the railroad company and the city among which was that subways at separation of grades should be constructed by the railroad company but the damages done to property owners, other than the railroad company, should be paid by the city.

The Southern Pacific Company accepting the said franchise, applied to respondent Commission for permission to construct the various crossings over the public thoroughfares involved in the relocation of its main line tracks in said city as well as in the unincorporated territory south of the city. The matter was heard beginning October 24, 1928, and on December 5, 1928, respondent authorized the construction and directed that it be carried out. It further directed that the cost of said crossings, including the property damage and future maintenance, be borne in accordance with the terms of said ordinance. It also prescribed that such authority be granted upon the condition that certain streets and alleys in the city be regularly abandoned, among which was Center Street. The city of San Jose, moving to carry out its part of the transaction, made the application above referred to to the Commission to fix said damages and to make the order of condemnation. Petitioners herein each owns property abutting on both Center and Julian Streets. It is also to be noted that the plan contemplates not only the subway on Julian Street under Center Street but also the closing of Center Street and in addition thereto the elevation of the grade of what is now Center Street and the taking of a strip of property from each of the petitioners to accommodate the double tracks which are to be laid along said street when abandoned.

It will thus be noted that at least three independent causes will produce serious injuries to the property of petitioners. However, we are here concerned only with the question of construction of the subway. Respondent Commission does not propose to levy or assess the damages resulting from the other injuries to petitioners’ property.

In response to a well-founded public demand, the legislature, by the enactment of sections 43a, 43b and 43c of said Public Utilities Act, forbade the further construction of railroad crossings at grade and set in operation elaborate machinery authorizing the elimination of grade crossings and providing for the apportionment of the cost thereof between the railroad and the governmental agency or agencies involved. Section 43c gives in detail the procedure to be followed to bring about a hearing to fix the damages done to the property taken or injured in the separation of grades and provides that the commission itself may assess and award the damages suffered by such property owners and when said damages are assessed and paid may make a final order of condemnation.

The source of authority for said section must be found in sections 22 and 23 of article XII of the Constitution. The first named section creates the Railroad Commission and sets forth its power to make and regulate rates and charges for transportation. It contains this significant paragraph: “No provision of this Constitution shall be construed as a limitation upon the authority of the Legislature to confer upon the Railroad Commission additional powers of the same kind or different from those conferred herein which are not inconsistent with the powers conferred upon the Railroad Commission in this Cónstitution, and the authority of the Legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this Constitution.”

Section 23 defines the term public utility, enumerates the corporations that may be claimed as such and provides for the control of such further corporations or associations as may be declared public utilities by the legislature. It also contains this significant language: “The Railroad Commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities, in the State of California, and to fix the rates to be charged for commodities furnished, or services rendered by public utilities as shall be conferred upon it by the Legislature, and the right of the Legislature to confer powers upon the Railroad Commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this Constitution. ’ ’

In anticipation of the very question we have before us, the legislature provided in said section 43c, subdivision 8, of said act, as follows: “The Legislature hereby declares that subsection (c) hereof is enacted as a germane and cognate part of and as an aid to the jurisdiction of the Railroad Commission in the supervision and regulation of railroad and street railroad corporations.”

The fact seems clearly established that power rests under these provisions of the Constitution in the Railroad Commission to direct and control the manner of constructing railroad crossings, together with the right to direct the separation of grade thereat and to apportion between the railroad and the governmental agency or agencies involved, the cost thereof. (City of San Jose v. Railroad Com., 175 Cal. 284, 288, 289 [ 289 Pac. 967 , 969].)

In the case just cited the court, on facts similar to those here, among other things, said: “That the control of the manner of constructing railroad crossings is a vital and material part of the regulation of railroads and is germane to that subject is too evident to need supporting argument. The right of apportionment of the cost by the commission to the parties benefited by the crossing is a proper element of this cognate power.”

Referring to the above sections of the Constitution, the court in that cause also said: “Having thus abdicated their police powers with respect to the regulation of public utilities, the people of that city have lost such protection as might, under other circumstances, be afforded by the parts of the Constitution cited in their behalf, because sections 22 and 23 of article XII, by their plenary provisions, exclude all considerations of other parts of the Constitution, if any there be, conflicting with or contradictory to the Public Utilities Act, if only the matters of which that statute treats are cognate and germane to the subject of regulation of public utilities.”

The court quoted approvingly from the case of Pacific Tel. & Tel. Co. v. Eshleman, 166 Cal. 640, 658 [Ann. Cas. 19150, 822, 50 L. R. A. (N. S.) 652, 137 Pac. 1119 ], where Mr. Justice Henshaw used the following language: “We regard the conclusion as irresistable that the Constitution of this state has in unmistakable language created a commission having control of the public utilities of the state, and has authorized the legislature to confer upon that commission such powers as it may see fit, even to the destruction of the safeguards, privileges, and immunities guaranteed by the Constitution to all other kinds of property and its owners.” Mr. Justice Sloss, delivering the concurring opinion, said: “If the Railroad Commission has acted in conformity with the powers granted to it by the legislature, the validity of its order cannot be questioned in this court or elsewhere under a claim of violation of any provision' of the state Constitution other than the provisions relating to the Railroad Commission. This statement is, however, to be taken subject to the qualification that the powers conferred by the legislature on the Railroad Commission must be such as are cognate and germane to the purposes for which the Railroad. Commission was created, i. e., the regulation and control of public utilities.” (See, to the same effect, Civic Center Assn. v. Railroad Com., 175 Cal. 441 [166 Pac. 351] ; City of Pasadena v. Railroad Com., 183 Cal. 526, 533 [10 A. L. R. 1425, 192 Pac. 25 ] ; San Bernardino v. Railroad Com., 190 Cal. 562, 565 [ 213 Pac. 980 ].

The net result of the holding in said causes is to concede to the Commission compulsory authority over cities, counties and the state highway commission in the matter of the construction of separated grades and apportionment of the costs thereof as an incident to its regulatory powers over public utilities. It seems but a mere step forward in the same direction to concede to the legislature the power to provide that the Commission may also, in any specific instance, assess the damages done to private property in effecting such separation of grades 'as an incident to such regulatory power.

The chief ground urged by petitioners against the validity of said section is that it authorizes the Railroad Commission to interfere with private property rights. But we have just noted that in a matter such as the one under review the Commission may direct the action of sovereign agencies such as a municipality, county or highway commission. Are private rights any more sacred? Private property rights are no more sacred than the governmental rights of the state or a county or municipality therein. It is in fact not interference with private property as such but is an effectual carrying out of the regulatory power lodged in the Commission. In order to give the police power full and effective operation, private rights are subplanted so far as involved in the execution of such power.

A moment’s contemplation of the situation seems to convince one that this power is germane to the power of regulation. Suppose the Commission should direct the separa tian of grades at a given point involving a utility, the state, county and city and should apportion the costs between the said parties. It would have to await the result of two or more condemnation suits and, if private rights could not be interfered with by it, it could not compel either the state agency, county or city, to proceed to sue; the power of regulation in such a situation might become entirely ábortive.

Another viewpoint is that in order to determine that the separation of grade is advisable, the cost thereof, which would, of course, include the incidental damage resulting to private property, must be investigated and determined before a proper order can be made in the premises. Why give the Commission this right and deny it the right to fix the amount of such damages suffered by ■ this private property? To deny the Commission the right to carry out the full project is to encumber the law with entanglements and to dissipate its strength.

The essence of the whole question, as above noted, is whether the power conferred is “cognate and germane” to the regulation and control of public utilities. The logical answer to that question is, we think, in the affirmative and, this being true, the legislation must of necessity be valid. In the case of East Bay M. U. Dist. v. Railroad Corn., 194 Cal. 603 [ 229 Pac. 949 ], the court, with great precaution, based its holding upon the ground that the valuation of a public utility for the purposes of eminent domain proceedings “was not cognate and germane to the exercise of any regulatory powers of the commission”. The case holds no more than this. Section 23a of article XII of the Constitution is not involved in this proceeding. The object of that section is simply to provide a means of allowing a sovereignty, such as the city or municipality, to acquire a utility and in such case the Railroad Commission is given plenary power to fix the compensation to be paid for the taking.

It is unfortunate that petitioners may not have all the cases arising from injuries to their property determined in one cause or proceeding. But we are here confronted with the question of the validity of a statute of general operation, carrying great remedial benefit to the traveling public and the inconvenience of a particular situation cannot be accorded controlling weight. Moreover, it is difficult to see how a proceeding in eminent domain could be united with a proceeding to close a street.

The alternative writ heretofore issued should be discharged and the petition for prohibition should be denied.