Lawsuit Challenging Public Railroad Crossing Private Road

The Arizona Constitution gives certain authority over public service corporations, including railways, directly to the Commission. For example, Article 15, Section 3, authorizes the Commission to prescribe "just and reasonable classifications to be used and just and reasonable rates and charges to be made and collected, by public service corporations within the State . . ." and to "make reasonable rules, regulations, and orders, by which such corporations shall be governed in the transaction of business." The Arizona Constitution does not, however, contain language granting the Commission authority to require Burlington to establish and maintain a crossing. Any powers over public service corporations not specifically granted by the Constitution to the Commission reside with the legislature. It may enlarge the Commission's power and extend its duties. Ariz. Const. art. 15, 6; see also Corporation Comm'n v. Pacific Greyhound Lines, 54 Ariz. 159, 176-77, 94 P.2d 443, 450 (1939). If the legislature does enlarge or extend the Commission's powers and duties, it is only upon such terms and limitations as the legislature deems proper. Pacific Greyhound, 54 Ariz. at 176-77, 94 P.2d at 450. Despite the Commission's argument to the contrary, the Commission has no implied powers, and its powers do not exceed those derived from a strict construction of the Constitution and the implementing statutes. Commercial Life Ins. Co. v. Wright, 64 Ariz. 129, 139, 166 P.2d 943, 949 (1946); Tonto Creek, 177 Ariz. at 55, 864 P.2d at 1087. Because the Commission's authority over railroad crossings does not come from the Constitution, but rather from the legislature, we now turn to the relevant statute to determine what authority it has granted to the Commission to establish public railroad crossings. We will not imply any power beyond that expressly bestowed by the statute. See Tonto Creek, 177 Ariz. at 56, 864 P.2d at 1088. The relevant statute, A.R.S. section 40-337 (1996), provides as follows: A. No public highway or street shall be constructed across the track of any railroad at grade . . . without the permission of the commission, but this provision shall not apply to the replacement of lawfully existing tracks. the commission may refuse permission or grant it upon such terms and conditions as it prescribes. To determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each of the crossings. To alter or abolish crossings. To prescribe the terms upon which and the proportions in which the expense of the alteration or abolition of the crossing shall be divided between the parties affected or in interest. C. When the commission finds that public convenience and necessity demands establishment, creation or construction of a crossing of a street or highway over, under or upon the tracks or lines of any public service corporation, the commission may by order require the establishment, construction or creation of the crossing, and the crossing shall thereupon become a public crossing. the commission shall have the exclusive power to prescribe the character of crossings to be constructed and maintained by railroads where their lines cross public roads or streets of a town or city. The dispositive question we must address is whether the statute allows the Commission to establish public crossings where railroad tracks intersect with roads or streets that are not "public" roadways. The first sentence in subsection C, contains no language indicating that a "public" roadway must be involved. the sentence refers merely to establishment of a "crossing of a street or highway over, under or upon the tracks or lines of any public service corporation." It appears to allow the Commission to establish a public crossing where any private street or highway intersects with railroad tracks if required by public convenience and necessity. Furthermore, subsection C's reference to the Commission's exclusive power to prescribe the character of crossings over public roads or streets of a town or city is less than clear. The last sentence of subsection C provides "the commission shall have the exclusive power to prescribe the character of crossings to be constructed and maintained by railroads where their lines cross public roads or streets of a town or city." Although neither party makes this argument, the last sentence of subsection C can be read as a limitation on the concurrent power of cities and towns to control railroad crossings rather than as an indication of legislative intent to restrict the authority of the Commission to establish railroad crossings involving public streets and roads. Reading the statute as a whole, however, as we must, we are not persuaded that the legislature intended to grant the Commission jurisdiction over private crossings. When interpreting a statute, we give effect to the legislature's intent. Faz v. Ford Motor Credit Co., 191 Ariz. 191, 194, 953 P.2d 935, 938 (App. 1997). We consider individual provisions in the context of the entire statute. Arizona Health Care Cost Containment System v. Cochise County, 186 Ariz. 210, 213, 920 P.2d 776, 779 (App. 1996). Section 40-337 as a whole is concerned with crossings where public roadways intersect with railroad tracks. We conclude, therefore, that the Commission may order the establishment of public crossings only where railroad tracks cross public roadways. In fact, the Commission has conceded that its jurisdiction is so limited. Arizona courts have repeatedly interpreted Arizona law as providing that public roads and highways can only be established as provided by statute and not by other means such as prescriptive use. See, e.g., State ex rel. Herman v. Cardon, 112 Ariz. 548, 549, 544 P.2d 657, 658 (1976); State ex rel. Herman v. Electrical Dist. No. 2 of Pinal County, 106 Ariz. 242, 243, 474 P.2d 833, 834 (1970); Mead v. Hummel, 58 Ariz. 462, 467, 121 P.2d 423, 425 (1942); Champie v. Castle Hot Springs Co., 27 Ariz. 463, 467, 233 P. 1107, 1108 (1925); Territory v. Richardson, 8 Ariz. 336, 339-40, 76 P. 456, 457 (1904). 2 In Herman v. Cardon, 112 Ariz. 548, 549, 544 P.2d 657, 658 (1976) the particular statute had been adopted by the Territorial Legislature in 1868 at a time when the words "public highways" would have included the common-law definition. 112 Ariz. at 549, 544 P.2d at 658. The Cardon court also acknowledged that even before Arizona became a state, the legislature had changed the law so that, thereafter, "in Arizona 'public highways' are limited to those established in the manner provided by law and to no others." Id. at 549, 544 P.2d at 658. This change in the law took place in the 1901 code. See Champie, 27 Ariz. at 467, 233 P. at 1108; Richardson, 8 Ariz. at 339-40, 76 P. at 457.