Richards v. Public Service Commission of Missouri

• Decision Date: 08 April 1922
• Citation: 239 S.W. 838,293 Mo. 625
• Parties: J. F. RICHARDS v. PUBLIC SERVICE COMMISSION OF MISSOURI, Appellant
• Court: Missouri Supreme Court

239 S.W. 838

293 Mo. 625

J. F. RICHARDS v. PUBLIC SERVICE COMMISSION OF MISSOURI, Appellant

Supreme Court of Missouri, First Division

April 8, 1922

Appeal from Jackson Circuit Court. -- Hon. Thad B. Landon, Judge.

Reversed.

R. P Spencer and James D. Lindsay for appellant; Roland Hughes, of counsel.

(1) The railroad switch track involved in this case, constructed under grant of public authority, and operated and maintained by a common carrier, is a "railroad" within the provisions of Sec. 14, Art. XII, Mo. Constitution. Dietrich v. Murdock, 42 Mo. 279; Brown v. Ry Co., 137 Mo. 529; Union Line Co. v. Railway, 233 U.S. 211-222; Railroad Co. v. Coal Co., 161 Mo 288. And within the provisions of the Public Service Commission Law; Subdiv. 6 and 8, Sec. 10411 and Sec. 10425, R. S. 1919. That part of the track to be constructed over the lots of respondent was an integral part of the whole track, under the terms of the ordinance permitting the crossing of Hickory Street, whereby other uses than those for respondent Richards were authorized and imposed. Hairston v. Railway, 208 U.S. 598. (2) Acceptance and continued enjoyment of the grant to construct and operate a switch railroad track across a public alley, and across a public street along a designated line, to a designated point, is conclusive evidence of a devotion of the property thus constructed and operated to a public use. The city could not make the grant for a private use. Glaessner v. Brew. Assn., 100 Mo. 508; Cummings v. St. Louis, 90 Mo. 263; Schopp v. St. Louis, 117 Mo. 133; Lockwood v. Ry. Co., 122 Mo. 86; Belcher Sugar Co. v. Elev. Co., 82 Mo. 124; State ex inf. Jones v. Light & Dev. Co., 246 Mo. 640; Brown v. Ry. Co., 137 Mo. 529; State ex rel. v. St. Ry. Co., 140 Mo. 539; 13 R. C. L. sec. 172, p. 202; Sherlock v. Ry. Co., 142 Mo. 172. (3) The construction and operation of a railroad or of a switch railroad track for the shipment of cars of goods, wares and merchandise into the commerce of the country, under an authority granted by the State, whether through exercise of the right of eminent domain, or by a grant of cetrain rights in public highways or streets not directly enjoyed by others, affects the property thus employed with a public interest, and subjects its use to regulation by the State. Coal Ry. Co. v. Coal & Mining Co., 161 Mo. 288; Lime Co. v. Ry. Co., 233 U.S. 222; State ex rel. v. St. Louis, 145 Mo. 574, 576; Lime Co. v. Railroad Comm., 144 Wis. 523; Ry. Co. v. Lime Co., 152 Wis. 633. (4) The grant expressed in the ordinance constitutes a franchise, which, although given by Kansas City, is in reality a grant from the State, evidenced by the act of the city, as a subordinate governmental agency of the State. Kavanaugh v. St. Louis, 220 Mo. 511; State ex. inf. v. Light & Dev. Co., 246 Mo. 649; Transportation Co. v. Chicago, 99 U.S. 640, 641. The power of the State to regulte the exercise of a right which can not come into being, or the enjoyment of a use which can not exist, unless founded upon a public interest in the right and use, and without an appropriate grant of authority by the State, can not be denied. (5) The power of the State to regulate a use of property, which can not exist or be enjoyed except through privilege granted by the State, can not be controlled by contracts, wholly between the interested private parties, or by their conduct in respect of the use. State ex rel. v. Public Serv. Comm., 271 Mo. 270; State ex rel. v. Commission, 272 Mo. 645; Tobacco Co. v. St. Louis, 247 Mo. 374; Railway v. Duluth, 208 U.S. 583; Railway v. Minneapolis, 232 U.S. 430. (6) The ordinance granting the right to construct and operate the switch railroad track was a purely govermental act of the State, accomplished by its subordinate agency, the city. The right of regulation of the use of the track remained with the State, and was not lost by the acts of private parties interested, nor waived by failure for a time to exercise the police power of the State over the subject of the use. Sec. 5, Art. XII, Mo. Constitution; State ex. inf. v. Light & Dev. Co., 246 Mo. 650. (7) The terms of apportionment between parties interested of the expense of constructing the track, under authority to construct across the street, and beyond, was and is a matter collateral, and distinguished from the regulation of the use and operation of the track, after it was constructed. The question of condemnation of property, or the taking of property without compensation does not arise in this proceeding, either directly or in a derivative way from the action of the Commission. The rights of the parties, if any, arising out of their respective contributions for the construction of the track, is a judicial question, independent of, and not controlling, the regulation of the use of the property, as part of the system of a common carrier. (8) "The Commission's supervision is not limited to lines constructed by a railroad company nor to those owned by it; it is expressly extended to 'lines and property owned, leased, controlled or operated' by such company." Ry. Co. v. Public Serv. Comm., 279 Mo. 490; Secs. 10411 (Sub. 6 and 8), 10425 (Sub. 1 and 3), 10435, 10436, 10437, 10433, 10452, 10458, R. S. 1919; Olcott v. Supervisors, 16 Wall. (U.S.) 695.

Lathrop, Morrow, Fox & Moore for respondent.

(1) The order of the Commission violates constitutional provisions. (a) Private property cannot be taken for public use without compensation. U. S. Constitution, 14th Amendment, sec. 1; Mo. Constitution, art. 2 secs. 20 and 21. (b) Neither the State nor its creature, the Public Service Commission, can make a law or ruling impairing the obligation of contract. U. S. Constitution, art. 1, sec. 10; State v. Wood, 143 Mo.App. 316; Carpenter v. St. Joseph, 263 Mo. 714. (2) The power of eminent domain is not given to the Public Service Commission. Murphy v. Missouri Pacific, 2 Pub. Serv. Comm., Rep. 471; Landau Cabinet Co. v. Bush, 3 Pub. Serv. Comm. Rep. 476. (3) Before the Commission could acquire jurisdiction, public convenience and necessity must be shown. Smith v. Chicago, Burlington & Quincy, 5 Pub. Serv. Comm. Rep. 124; Mound City Mill Co. v. Chicago, Burlington & Quincy, 5 Pub. Serv. Comm. Rep. 278. (4) This private track is not a railroad. Laws 1911, p. 161; Laws 1913, p. 577, sec. 6. (5) The question involved in the order of the Commission has already been judicially determined. Richards v. Ferguson Imp. Co., 125 Mo.App. 428; State v. Pub. Serv. Comm., 259 Mo. 727; Lusk v. Atkinson, 268 Mo. 116; Atchison, Topeka & Santa Fe v. Pub. Serv. Comm., 192 S.W. 462.

RAGLAND, C. Small, C., concurs; Brown, C., absent.

OPINION

RAGLAND, C. --

This is an appeal from a judgment of the Circuit Court of Jackson County, setting aside and annulling an order of the Public Service Commission requiring the Union Pacific Railroad Company to operate the whole of a certain switch track in Kansas City, for the use of all the owners of lots over which it passes without discrimination between them.

The switch track in question begins at the point of its connection with a side track of the Union Pacific Railroad Company on or near the west line of lot 25 in block 45 of Turner's Addition to Kansas City, extends thence northeasterly across the alley in said block, and thence eastwardily paralleling the alley and crossing Hickory Street and the south ends of lots 1, 2, 3, 4, 5, 6, 7 and 8 in block 44 of said addition, terminating at the east side of said lot 8.

In the year 1878 and since that time the buildings upon the lots in Turner's Addition, including those on the lots last referred to, were, and have been, used and occupied as warehouses, or in connection with wholesale mercantile businesses. During all that time J. F. Richards has been the owner of said lots 1, 2, 3 and 4. In response to his petition asking the right of way for a railroad track the Common Council of Kansas City, on December 13, 1878, duly enacted the following ordinance:

"Section 1. That J. F. Richards & Company, their successors and assigns, be and they are hereby authorized and empowered to lay down, operate and maintain or cause to be laid down operated and maintained a switch railroad track from a point, and connecting with, the sidetrack of the Kansas Pacific Railway Company, south of the alley in Block Forty-five in Turner and Company's Addition to the City of Kansas, Missouri, thence over and across said alley in rear of lots 22 and 23 in said Block Forty-five; thence over and across Hickory Street, the south rail being three feet north of the north line of said alley to the south ends of Lots 1, 2, 3, 4, Block 44, in said Turner & Company's Addition, for the purpose of receiving and discharging from and loading and shipping on railroad cars, goods, wares and other merchandise.

"Section 2. That the authority granted in Section one of this ordinance is, however, on condition that the said J. E. Richards & Company, their successors and assigns, shall construct or cause to be constructed and kept in repair the said switch railroad track where the same crosses said alley or Hickory Street on a level with the established grade of said alley and Hickory Street, and construct and keep the space between the rails and the space of two feet on the outside of the rails planked with white or burr oak planks two and one-half inches thick, and such planks should be thoroughly spiked to the cross ties and so placed as to make a connected and safe crossing from two feet outside of the rails on one side of said railroad track to two feet on the other side of said track, and shall extend clear across said alley and street and including the sidewalks of said street.

"Section 3. That no cars shall remain on said switch railroad track where the...