Lusk, Nixon & Biddle, Receivers of St. Louis & San Francisco Railroad v. Public Service Commission
| Decision Date | 15 March 1919 |
| Citation | 210 S.W. 72,277 Mo. 264 |
| Parties | LUSK, NIXON & BIDDLE, Receivers of ST. LOUIS & SAN FRANCISCO RAILROAD, Appellants, v. PUBLIC SERVICE COMMISSION |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.
Affirmed.
W. F Evans, E. T. Miller and A. E. Haid for appellants.
(1) Upon the record the court should have reversed the order of the Public Service Commission as to the railroad company, the record showing that the company was not operating any of the railroad at the time or after the complaint was filed. (2) The court had no power or jurisdiction under the Public Service Law to make the order requiring appellants to re-route their trains 801 and 802. The Commission relies on Sections 49 and 51 of said law for such authority and jurisdiction, but said sections do not support such authority or jurisdiction, nor do any other sections of the Act of 1913. Laws 1913, pp. 577 to 645; C. B. & Q. Railroad v Public Service Commission, 181 S.W. 61. (3) The order of the Commission affirmed by the circuit court is arbitrary unjust and unreasonable. It attempts to substitute the judgment of the Commission as to operating questions for the judgment of the receivers and the court under which they are acting. It attempts to build up one locality at the expense of another. It disregards the fact that reasonable passenger service is already provided by the receivers at Caruthersville. It deprives appellants of their property without due process of law and without compensation, and denies to them the equal protection of the law, in violation of the Fourteenth Amendment to the Constitution of the United States, and of Sections 21 and 30 of Article 2 of the Constitution of Missouri. C. B. & Q. Railroad v. Public Service Commission, 181 S.W. 61; Illinois Central Railroad v. Illinois, 163 U.S. 142; C. B. & Q. Railroad v. Chicago, 166 U.S. 227; L. S. & M. S. Railroad v. Ohio, 173 U.S. 285; Cleveland Railway v. Illinois, 177 U.S. 514; Mississippi Railroad Com. v. Illinois Central Railroad, 203 U.S. 335; Atlantic Coast Line v. Wharton, 207 U.S. 328; Herndon v. C. R.I. & P. Railroad, 218 U.S. 135; Oregon Railroad & Nav. Co. v. Fairchild, 224 U.S. 510; Gt. Northern Ry. v. Minnesota, 238 U.S. 340. (4) The order of the Commission directly burdens and interferes with interstate commerce, and is therefore void because in conflict with Section 8, Article I, of the Constitution of the United States. Illinois Central Railroad v. Illinois, 163 U.S. 142; McNeil v. Southern Railway, 202 U.S. 543; Atlantic Coast Line v. Wharton, 207 U.S. 328; Herndon v. C. R.I. & P. Railroad, 218 U.S. 135; Kansas City Southern Railway v. Kaw Valley District, 233 U.S. 75; C. B. & Q. Railroad v. Wisconsin, 237 U.S. 220.
Alex Z. Patterson, General Counsel, James D. Lindsay, Assistant Counsel and R. L. Ward, of Counsel for respondent.
(1) Appellants failed to set forth in their application for a rehearing before respondent their ground for reversal here urged, to-wit, that the order of respondent should not be made to apply to the railroad company, since such company was not operating any of the railroad at the time the complaint was filed or thereafter. Such failure absolutely precludes appellants from relying on this ground now. Sec. 110, Public Serv. Act. (2) Appellants likewise failed to urge this ground of reversal before the Circuit Court. No allegation or contention to this effect is contained in appellants' petition for certiorari, nor is such ground set up in appellants' motion for new trial or motion in arrest in the circuit court. (3) The comprehensive terms of Sections 49 and 51 of the Public Service Law gave the Commission full power to require the operation of trains 801 and 802 through Caruthersville, since such sections expressly give the Commission power to order "additional facilities" or to direct "changes in any thereof in use." (4) It is now well established that it is proper for a state to provide by statute, or direction of a legislative commission, for local improvements of facilities, or for the adoption of reasonable measures in the interest of the health, safety and welfare of the public, notwithstanding the fact that such regulations may incidentally and indirectly involve interstate commerce. Note, 14 L. R. A. (N. S.) 293; 5 Ruling Case Law, sec. 34; South Covington v. Covington, 35 S.Ct. 158. (5) The proof in this case established the fact that trains 801 and 802 were primarily and principally devoted to intrastate service. Being so devoted, and appellants not having otherwise furnished adequate local service to Caruthersville and vicinity, the order of the Commission was not an unlawful interference with interstate commerce. Mississippi Railroad Co. v. Illinois Central, 203 U.S. 335; Herndon v. Railway Co., 218 U.S. 135; Atlantic Coast Line v. Wharton, 207 U.S. 328. (6) From the proof it conclusively appears that the passenger-train service given Caruthersville by appellants' local and branch line trains was wholly inadequate and unreasonable, when the importance of the city and the extent of the needs of the public of that city and locality were considered.
OPINION
In Banc
A statement of the facts pertinent to the decision of questions raised on this appeal will appear in connection with rulings on those questions. However, it has seemed sensible to fetch a small compass by way of an outline of the case in limine, to the end that it may have an understandable setting for discussion, thus:
The mayor and aldermen of Caruthersville, on behalf of that city and its people (and virtute officii), filed a complaint with respondent Commission of three specifications, in substance, to-wit:
First: It was charged that appellants, unmindful of the safety of the people, operate certain passenger trains into and out of Caruthersville, by backing them. (After complaint filed, this method of train operation was discontinued, as we gather, hence the foregoing was abandoned at the hearing and will not be further noticed).
Second: It was charged that a certain local passenger train, operating from Kennett, Missouri, to Memphis, Tennessee via Caruthersville, was run on a schedule creating unnecessary lay-overs, inconveniences and reductions of traffic. (The grievances complained of in this specification seem to relate to conditions in Arkansas, hence the finding of respondent Commission was against complainants thereon, and, as no appeal was taken by the mayor and board of aldermen, it drops out of the case and will not be further noticed).
Third: It was charged (and on this charge the live issues seem to hang) that certain day trains between St. Louis and Memphis, known as 801 and 802, no longer stopped at Caruthersville, but were diverted through a cut-off, to the inconvenience, loss and injury of the business and inhabitants of said city. That said failure to stop there was without meritorious cause, etc. Complainants prayed an order requiring said trains to run into and stop at Caruthersville as they had formerly done, thereby correcting the alleged wrongs.
It seems the railroad company itself was made a party defendant, together with said receivers, in the original proceedings before the Commission. Accordingly, on the coming in of said complaint, the railroad company filed its separate answer setting up the fact that its co-defendants were acting as receivers under the appointment of the United States District Court for the Eastern Division of the Eastern District of Missouri; and that since their appointment said receivers have had full possession and operative control of its railroad and properties.
By their answer, the receivers denied the charges made in the complaint, admitted they had charge of and were operating the road and its properties and that they had in August, 1913, discontinued the operation of trains 801 and 802 by the way of Cauthersville for the purpose, they allege, of reducing expense and making connections at St. Louis and Memphis, and they further averred that they are furnishing reasonable passenger facilities to Caruthersville.
On issues thus joined a hearing was had before respondent Commission, on testimony taken and duly preserved, with the result that the Commission found in favor of the complainants as to said trains 801 and 802, that the passenger service at Caruthersville was insufficient and inadequate, and an order was passed and served on appellants in effect to run said two passenger trains through Caruthersville and stop them at the depot there to receive and discharge passengers and their baggage, and appellants were given until August 2, 1915 (about six months), to comply with such order. (Vide Byrd v. St. Louis & San Francisco Railroad, 2 P. S. C. 430).
Denied a rehearing, appellants in statutory form sued out a writ of certiorari, in the Cole Circuit Court. On a new hearing in that court, on the same record before the Commission, it was adjudged that the order of respondent Commission be affirmed. From that judgment, on due intermediate steps taken, the cause came up on appeal to this court, was heard first in Division and then in Banc with a special judge on the bench in place of Judge Faris, who declined to sit.
The case was submitted in Banc on the admission that in due time appellants complied with the order and are now running and ever since the time limited in the order have run said trains in compliance therewith.
Recognizing that refusing to stop day trains 801 and 802 at Caruthersville and that by re-routing them through the cut-off, aforesaid, and leaving that city to one side, would seriously affect the...
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