The determinative questions of law presented are:
1. Did the State Highway Commission have power to eliminate said grade crossing?
2. If so, was such power modified or destroyed by Public Laws of 1927, ch. 46, sec. 5, C. S., 3846 (e 5) ?
C. S., 3846 (k) expressly delegates to the State Highway Commission power “to regulate, abandon and close to use all grade crossings on any road designated as part of the State highway system . . . and whenever an underpass or overhead bridge is substituted for a grade crossing, the commission shall have power to close to use and abandon such grade crossing and any other crossing adjacent thereto.” Power is also given the State Highway Commission to eliminate grade crossings by -compelling the railroads to pay one-half the expense thereof. *118C. S., 3846 (y). Exclusive jurisdiction over and control of grade crossings is expressly conferred upon tbe State Highway Commission by C. S., 3846(z).
The overhead bridge near Price Station was substituted for the grade crossing theretofore existing and was constructed by the defendant and the State Highway Commission in compliance with the provisions of the statute and for the express purpose of eliminating this particular grade crossing in the interest of public safety. Under the law as written the State' Highway Commission had exclusive control of the crossing, and therefore had exclusive power to “close to use such grade crossing.”
Public Laws of 1927, ch. 46, sec. 5, C. S., 3846 (e 5), authorizes a county to reincorpórate into the county system any portion of a road duly abandoned by the State Highway Commission. This statute, however, neither by express terms nor by implication, undertakes to disturb or affect the exclusive jurisdiction of the State Highway Commission over grade crossings which it is authorized to eliminate. Moreover, the grade crossing in controversy was duly “closed to use” before the abandonment of the small portion of the road leading, to the crossing. While the county has the right to reincorpórate such abandoned portions of a road, it must necessarily follow that they must be reincorporated in the condition in which the Highway Commission left them. The Highway Commission left or abandoned this road with the grade crossing “closed to use.” The county, therefore, has no power under the law to require the Highway Commission or the defendant to restore a grade crossing which has been duly abolished in compliance with the statute. This view of the law received declaratory sanction by the General Assembly by an act ratified 18 March, 1929, which provides in substance that county road-governing authorities are not authorized to reopen any railroad grade crossing closed by order of the State Highway Commission “in connection with the building of an overhead bridge or underpass to take the place of such grade crossing.”
Reversed.