City & Suburban R. R. v. Washington, Westminster & Gettysburg R. R.

Boyd;, C. J., delivered the opinion of the Court. It follows from what we have said in the opinion in the case of Mayor & Common Council of Hyattsville v. The Washington, Westminster & Gettysburg Railroad Company {Ante, p. 128) in reference to the charter, that the judgment in this case must he reversed. The only defense set up in the answer of the appellant is that the Public Service Commission can alone determine whether the appellee can cross the tracks, of the appellant at grade, and that hence the proceedings to condemn are not applicable. The answer alleges that the appellee had filed proceedings before the Public Service Commission praying permission to cross the tracks of the appellant and that those proceedings are still pending. While we have no doubt that the statute creating the Public Service Commission and the amendments thereto have not taken away the right of a railroad company to condemn a crossing of another road, inasmuch as it is alleged that the proceedings instituted by the appellee are still pending before that Commission, in reference to a crossing at grade, and inasmuch as the powers of the Commission have not been passed on by this Court, it will be well at the re-hearing of the case by the lower Court to give the Commission the right to be heard, if it so desires, provided the Court determines the charter to be sufficient, after taking testimony as pointed out in the opinion above referred to. Judgment reversed and case remanded, the costs in this Court to be paid by the appellee.