Rehearing Denied Nov. 29, 1955.
[79 Ariz. 309] Wm. P. Mahoney, Jr., County Atty., John F. Connor, Chief Deputy Co. Atty.,
Phoenix, Lewis, Roca, Scoville & Beauchamp, by John P. Frank, Phoenix, for appellant.
Robert Morrison, Atty. Gen., Don Corbitt, Spec. Asst. Atty. Gen., Evans, Hull, Kitchel & Jenckes, Phoenix, by Earl H. Carroll, Phoenix, of counsel, for appellees.
The Arizona Corporation Commission, at a public hearing, entered an order on May 29, 1953, requiring the Southern Pacific Company to construct a flashing signal device at the intersection of the Southern Pacific Company's tracks and Alma School Road near Mesa, Arizona, at such time as Maricopa County should agree to pay 50% of the cost of construction.
In its order of May 29, 1953, the commission found that there existed at the Alma School Road highway crossing over and across the Southern Pacific Company's tracks, 'a hazardous condition dangerous to the health and safety of the public,' and that therefore 'it is necessary to install and maintain at this crossing two electrically operated flashing warning signals of the type presently in use at railroad highway crossings.'
The commission thereupon found, in addition, that the installation of these devices would 'benefit the Southern Pacific Company and Maricopa County in equal proportions' and it ordered the Southern Pacific Company to construct the device 'at such time as the county of Maricopa shall execute an agreement with said Railroad to pay 50% of the cost of construction of said device upon completion thereof.'
Maricopa County applied for a rehearing on the ground that the commission had no jurisdiction to condition its order upon the payment by Maricopa County of 50% of the cost, and this motion was heard and denied.
The county appealed from the order of the commission to the superior court on the ground that the order of the commission amounted to a direction to the county to pay 50% of the cost of the safety device and that such an order was beyond the powers of the commission.
The court found (1) that the application for rehearing made by the county to the commission was within the time required by law; (2) that the crossing was 'a hazardous condition dangerous to the health and safety of the public'; (3) that the warning signals were necessary; (4) that the installation of the device would benefit the railroad and Maricopa County in equal proportions and that the cost of constructing this was $8,000; (5) 'that the commission had authority to apportion [79 Ariz. 310] the cost of said crossing protection between the Southern Pacific Company and Maricopa County', and the apportionment by the commission was not arbitrary or unreasonable, and, (6) that:
'Because of the immediate need of crossing protection at the Alma School Road crossing and because of the long delay occasioned by Maricopa County's refusal to enter into an agreement with Southern Pacific Company to share the cost of said installation, Decision No. 27676 should be modified to provide that Maricopa County pay to Southern Pacific Company forthwith, the sum of $4,000.00 as and for its half of the cost of said crossing protection.'
The court entered judgment accordingly from which this appeal was taken.
The commission contends that the complaint filed in the superior court denominated by the county as an appeal from the order and decision of the commission was not filed within the time prescribed by law and that its motion for rehearing before the commission was likewise not filed within the period prescribed by law and that it did not succeed in vesting the superior court with jurisdiction to hear the matter and that the order and decision of the commission was therefore final.
These questions were raised by appellee on cross-assignments of error without cross-appealing from the judgment of the trial court by giving notice of appeal. The county takes the position that under the provisions of sections 21-1801-21-1803, A.C.A.1939, the commission was required to give notice of appeal in order to have this court consider its cross-assignments of error.
Under the facts and circumstances of the instant case we agree with this view. An examination of the authorities on this point leads us to the conclusion that the correct rule under such circumstances is that if appellee in its brief seeks only to support or defend and uphold the judgment of the lower court from which the opposing party appeals, a cross-appeal is not necessary. Gillespie Land & Irrigation Co. v. Jones, 63 Ariz. 535, 164 P.2d 456, 4 C.J.S., Appeal and Error, § 1299. If, however, it is sought by such cross-assignments to attack said judgment with a view either of 'enlarging his own rights thereunder or of lessening the rights of his adversary' he must cross-appeal by conforming with the rules of court by giving notice of appeal. United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087. In the absence of a cross-appeal the appellee can defend only as to the items allowed below and cannot present rejected claims. This question is discussed in the forthcoming Volume 7 of Moore's Federal Practice under Rule 72.05, Necessity for Cross-Appeals, pages 3010 et seq.
In the case of United States v. American Ry. Express Co., supra, Justice Brandeis, writing the ...