Eastwood, Bigelow and Freund. The opinion of the court was delivered by Eastwood, J.A.D.
The Department of Public Utilities, Board of Public Utility Commissioners (hereinafter referred to as the "board"), approved the application of the State Highway Department "to construct State Highway Route 4 at grade over the Stone Harbor Branch of the Pennsylvania-Reading Seashore Lines" (hereinafter mentioned as the "railroad"), and ordered the railroad to install and maintain warning signals and safety devices.
Concisely, the conceded pertinent facts are: The State Highway Department presently is constructing State Highway Route 4, extending in a northerly-southerly direction almost the entire length of the State, its southerly terminus being Cape May City. The highway, at the proposed crossing, will be a dual one, separated by an island, with a concrete pavement 24 feet wide for each of the north-bound and south-bound lanes of traffic. It is anticipated that Route 4 will carry a considerable volume of automobile traffic. By reason of the fact that the proposed highway will intersect the Stone Harbor Turnpike, the crossing will have an over-all width of 317 feet. Presently, the railroad has no passenger service and but one customer at the southerly end of its line for transportation of freight. In the winter months, the railroad operates approximately one trip per month and, in the summer months, five or six round trips per month, to transport freight to its one customer, the Stone Harbor Lumber Company. The trips are made either on Monday or Tuesday, as required, between noon and 3:00 p.m. In 1943, the railroad company's application to the Interstate Commerce Commission for permission to abandon the line was denied. More recently, another application to abandon made by the railroad was withdrawn when the lumber company interposed opposition thereto. The record indicates that the railroad did not raise any procedural questions before the board.
The railroad contends that the application was made by virtue of R.S. 48:2-28, and the board has no power to make the order. R.S. 48:2-28 provides:
"No highway shall be constructed across the tracks of any railroad company at grade, nor shall any track over which locomotives, railroad or street railway cars are to pass be laid across any highway, so as to make a new crossing at grade, nor shall the tracks of any railroad, street railway or traction company be laid across the tracks of any other such company without first obtaining permission from the board.
This section shall not apply to the replacement of lawfully existing tracks."
The railroad company argues that merely because the application comes from another agency of the State, the board's permission should only be granted after due consideration is given to the interests of the railroad company and the public; that the Legislature, by the enactment of L. 1929, c. 88, R.S. 48:12-68 et seq. , adopted a declaration of public policy that required the State Highway Commissioner to formulate an annual program "for the elimination of railroad crossings at grade or State Highways" and that this public policy has since been continued in effect; that the board should have given consideration to the financial risk to the railroad attending the creation of the proposed crossing and the financial inequity in requiring the railroad company to install and maintain warning signals and other safety devices when viewed in the light of the fact that the line is only operated for the benefit of one customer; and that the fulfillment of the statutory conditions of R.S. 48:2-29 requires that there be a crossing in existence at the time the board makes its order. R.S. 48:2-29 provides:
"Whenever it shall appear to the board that a public highway and a railroad or a street railway, or that a railroad and a street railway, cross one another at the same level and that conditions at such grade crossing make it necessary that gates be erected or that some other reasonable provision for the protection of the traveling public be adopted, the board may order the railroad or street railway company or both, to install such protective device or adopt such other reasonable provision for the protection of the traveling public at the crossing as in the discretion of the board shall be necessary."
The parties are in accord that warning signals and safety devices will be required when the crossing is constructed. R.S.
Stewart, an official of the railroad, testified that "we feel if this crossing is permitted or ordered by the Board, it should be protected by flashing lights." Thus, the necessity for warning signals and safety devices being conceded, the sole question is whether the order requiring the railroad to install and maintain same is reasonably proper under the circumstances and whether it has been prematurely entered.
That the Legislature may empower a state commission to compel railroad companies to provide safeguards at crossings of railroads with highways and to determine the measures to be taken for the protection of the public traveling upon the highways, is settled law. Such a commission may be authorized to require the erection of gates or bars, or the maintenance of a flagman, at a grade crossing, where the public safety so requires. A railroad company takes its charter subject to the power of the State to provide for the safety of the public, insofar as the safety of the lives and persons of the people are involved in the operation of the railroad. The company here laid its tracks subject to the condition, necessarily implied, that their use could be so regulated by competent authority as to insure the public safety. And as all property, whether owned by private persons or by corporations, is held subject to the authority of the State to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the State shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken ...