had a perfect right to enact the law," and, further, that it was "neither inequitable nor illegal to require the owners of the three public highways involved to contribute to the expense of the overhead crossing.' In a later case-Milwaukee v. Railroad Commission, 162 Wis. 127, [155 N. W. 948]-the city of Milwaukee sought to have vacated and declared of no force an order of the railroad commission apportioning to the municipality a certain percentage of the cost of establishing separation of grades at designated. crossings. The order was upheld, and in the opinion written by Mr. Chief Justice Winslow we find an answer to the argument advanced by the representative of San Jose in this proceeding that the railroad company creates the dangerous condition at street crossings and that it should, therefore, bear the entire expense of removing the peril to the users of the highways by the establishment of separated grades. We quote from the opinion as follows: "The law seems to be the fruit of an honest and enlightened attempt on the part of the legislature to deal equitably and fairly with a great municipal problem. "Milwaukee has during the last half century become a great and prosperous city. Its greatness and prosperity have come because of its commerce, and its commerce has come largely because of its railroads. Without them Milwaukee as we know it today would not exist. The growth of the city and of the railroads has been coincident, interdependent, inseparable, and from this growth has arisen the great danger of the grade crossing. Why should not the expense of removing that danger be equitably shared by the different agencies whose joint growth has brought it about?" The court of appeals of New York took occasion to express similar views. In re Erie R. R. Co., 208 N. Y. 486, [102 N. E. 562], was a proceeding in which the court was reviewing the action of the public service commission in making an order which failed to recognize that part of the statute by which the commission was directed to apportion the cost of crossings not at grade between the railroad, the municipality, and the state. Upon this matter the court spoke, in part, as follows: "We see no reason why equitably and properly the expense of a construction for avoiding a grade crossing by a new track, which is necessarily connected with and results in the elimination of an existing grade crossing should not be divided between the two purposes thus accomplished, and properly apportioned so far as the latter feature is concerned." (See, also, People ex rel. Town of Scarsdale v. Public Service Commission, 173 App. Div. 164, [159 N. Y. Supp. 48].) Petitioner insists that as the statute does not in terms provide for service of process or notice of any sort upon the city or that the city's rights be examined at any hearing, the railroad commission might well take the property of the municipal corporation without due or any process of law. It is said that the statutory omission deprives the commission of the power to acquire jurisdiction of the city for the purpose of imposing liability for the cost of the improvement, and that as jurisdiction may not be imposed by consent, the argument of petitioner is not met by the fact that the city actually did have notice and was heard by the commission before the judgment and award were made. We do not regard the omission to provide definite process to bring the city before the commission at a hearing on the necessity for a safe crossing as being fatal to the acquirement of jurisdiction over the municipality by the commission. The latter is both a court and an administrative tribunal. As a judicial body it has by implication all the powers necessary for the exercise of its duty. The city of San Jose does not complain that it had no day in court. It had notice to appear; actually did appear and was heard upon issue joined and evidence produced; and it had opportunity for review of the judgment. But aside from the power to summon and hear parties in interest-one which is necessarily involved in the judicial authority enjoyed by the commission-section 53 of the Public Utilities Act confers upon it power to prescribe rules of practice and procedure. Action has been taken under this authorization and it is shown that in the controversy between the city and the public service corporation these rules were followed. Petitioner's remaining point is that the commission acted in excess of its jurisdiction in failing, as a prerequisite to the grant of any authority to the Southern Pacific Company to cross certain specified streets in the city of San Jose, to require the said company to obtain a franchise from the municipality for such crossing. There is no merit in this point. The order of the commission did not assume to enumerate all of the conditions with which the public service corporation must comply before being permitted to cross the streets in question. Whether or not a franchise to be granted by the city was requisite for the extension of the tracks across the streets the commission was not called upon, and we are not now called upon, in this proceeding, to determine. In the exercise of the police power con ferred upon it, the commission was merely deciding how the safety of the public should be best preserved when the crossings should be made, if the contemplated extension should be consummated. The order was prospective both in its terms and its scope. The writ of certiorari is dismissed. Shaw, J., Sloss, J., Henshaw, J., and Angellotti,, C. J., concurred. Supreme Court of California: 175 Cal. 660, 166 Pac. 804. [S. F. No. 8440. In Bank.-July 31, 1917.] E. CLEMENS HORST COMPANY (a Corporation) et al., Petitioners, v. RAILROAD COMMISSION OF THE STATE OF CALIFORNIA, Respondent. RAILROAD COMMISSION-ENFORCEMENT OF TARIFF BY RAILROAD COMPANY-ORDER OF COMMISSION-CERTIORARI.-A writ of certiorari will not lie to review an order of the railroad commission directing a railroad company to enforce against the petitioners for the writ a certain tariff with reference to demurrage where the order does not adjudicate the question of liability or prevent the interposition of any defense in any action that may be pending or afterward brought to enforce such tariff. Application for a writ of review against the State Railroad Commission. The facts are stated in the opinion of the court. Edward C. Harrison, and Maurice E. Harrison, for Petitioners. Douglas Brookman, for Respondent. THE COURT.-We cannot see that the railroad commission has assumed by its order to adjudicate the question of the liability of the petitioners to the Southern Pacific Company, or to prevent the interposition of any defense in any action that may be pending or may be hereafter instituted against them by the Southern Pacific Company. No judgment is thereby attempted to be given against any of them. The whole effect of the order is that the Southern Pacific Company is directed to enforce against them a certain paragraph of a certain rule of a certain tariff with reference to demurrage, and this, it is taken for granted, can only be done by the company by means of ordinary actions against the several petitioners in the courts of the state, where the question of liability will be determined. The application for a writ of certiorari is denied. Supreme Court of California: 176 Cal. 194, 167 Pac. 849. CITY OF LOS ANGELES (a Municipal Corporation), Respondent, v. J. T. ZELLER et al., Appellants. EMINENT DOMAIN-CONSTRUCTION OF SECTION 14, ARTICLE I, OF CONSTITUTION-ASCERTAINMENT OF DAMAGES.-In section 14 of article I of the constitution of California, relating to the taking of private property for public use, and providing how compensation for such taking shall be ascertained, the words, "as in other civil cases in a court of record," refer to the matter of fixing the compensation and not to the manner or means by which a jury trial may be waived. ID.-STREET Opening Act of 1903-CONSTITUTIONALITY OF-WAIVER OF JURY.-Section 8 of the Street Opening Act of 1903 as amended by Statutes of 1909, page 1035, which provides that a jury in street opening proceedings is deemed to be waived if not demanded upon the hearing of a motion to set the cause for trial, is not violative of section 14 of article I of the state constitution. ID. TRIAL WITHOUT OBJECTION.-Where parties appear and go to trial without objection, they will be deemed to have waived a trial by jury. ID. STREET OPENINGS IN LOS ANGELES-FIXING GRADE CROSSINGS BY RAILROAD COMMISSION-PUBLIC UTILITIES ACT.-Section 43 of the Public Utilities Act of 1911, making the permission of the railroad commission a prerequisite to the establishment of grade crossings of any railroad by a street, has no application to street openings and railroad crossings within the city of Los Angeles. ID. OPENING STREET OVER RAILROAD RIGHT OF WAY.-Opening a street over a railroad right of way does not destroy the value of the property for street railroad uses, especially where, as in this case, the right of way with tracks, wires and equipment was specially reserved to the railroad company. ID. COMPENSATION-INADEQUACY OF DAMAGES.-Nominal damages in the sum of ten dollars for taking the right to use as a street a strip of railroad right of way one thousand six hundred feet long and thirtyfive feet wide is inadequate, and calls for a reversal of the judgment in view of the interruption of the railroad service by compulsory obedience to speed regulations, the added danger of accidents which could not ordinarily happen on a private right of way, the increased expense due to the railroad's duty to keep a part of the street in repair, and the taking from the railroad the right to affix waiting stations, switches, etc., to the land. Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. N. P. Conrey, Judge. The facts are stated in the opinion of the court. J. W. McKinley, Frank Karr, A. W. Ashburn, Jr., and R. C. Gortner, for Appellants. Albert Lee Stephens, and Charles S. Burnell, for Respondent. MELVIN, J.-In this case an opinion was prepared by the district court of appeal, but subsequently an order was made transferring the case to this court, where an opinion was prepared and announced, but a rehearing was granted in order that a further consideration might be had of the action of the superior court in upholding a compensation merely nominal for the taking for use as a public street of a strip of land owned by a street railway and occupied by it for the purposes of its business. Upon further study of the matter a majority of the justices are of the opinion that the superior court erred in sustaining an award of damages in so small an amount. Upon the other questions discussed we reaffirm our former opinion, which was in part the adoption of the views of the district court of appeal. As given below, the portions in quotation marks are from that part of the former opinion prepared by Mr. Justice Sloss, and those in double quotation marks are from the opinion written by Mr. Justice James and originally filed in the district court of appeal. "Appeal from a judgment and from an order denying the motion of appellants for a new trial. "This action was brought by the city of Los Angeles to condemn for street purposes ground used as a right of way by appellant Pacific Electric Railway Company and to which ground said appellant held fee-simple title. The ground consisted of a strip of land approximately thirty feet in width and of more than one thousand feet in length, upon which was located rails, poles, wires, and the usual equipment of an electric railway. This strip of land was continuous, except that it was intersected and crossed by one street which was ninety feet in width. Other streets numbering four abutted the right of way at right angles from the south, and one abutted the north line of the right of way at its westerly end. Sixteenth Street in the city of Los Angeles formed a continuance of the strip mentioned at the east, and along this street the tracks of the railway company extended, leading toward the center of the city of Los Angeles. The result of the condemnation proceedings, if successful, would be to open Sixteenth Street westerly throughout the length of the strip mentioned and form means of access from Sixteenth Street into and out of the several streets which were closed against the south line of the right of way strip. After preliminary proceedings had agreeable to the provisions of the Street Opening Act of 1903 (Stats. 1903, p. 376), suit was commenced and notice of motion to set the cause for trial given. At the time set for the hearing of |