Kansas City v. Terminal Railway Co.

• Decision Date: 21 February 1930
• Docket Number: No. 29051.,No. 29056.,29051.,29056.
• Citation: 25 S.W.2d 1055
• Parties: KANSAS CITY, Appellants, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

25 S.W.2d 1055

KANSAS CITY, Appellants, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant.

No. 29051.

No. 29056.

Supreme Court of Missouri, Court en Banc.

February 21, 1930.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

REVERSED AND REMANDED (with directions).

John T. Barker and J.C. Petherbridge for Kansas City.

(1) The evidence fully justifies a decree of specific performance of the contract in favor of Kansas City. State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., 308 Mo. 377. (2) Specific performance is the proper remedy to enforce the contract in question. The trial court erred in holding that mandamus by the Commission, and not specific performance by the city, was the proper remedy; such ruling was contrary to the last decision of this court between the same parties involving the same subject-matter, on a former appeal, in which the opinion held specific performance was the proper remedy. State ex rel. Terminal Railway Co. v. Pub. Serv. Comm., 308 Mo. 377; Owen v. Ry. Co., 110 Mo. App. 320; Hubbard v. Ry. Co., 63 Mo. 68; Blair v. Ry. Co., 92 Mo. App. 538; Joy v. Ry. Co., 138 U.S. 1; Union Pac. Ry. Co. v. Ry. Co., 163 U.S. 600; Waddington v. Lane, 202 Mo. 387; Pomeroy v. Fullerton, 113 Mo. 440; Eggert v. Dry Goods Co., 102 Mo. 512; Telephone Co. v. Hickman, 129 Ky. 220. (3) The Public Service Commission has heretofore granted the city the right to extend Oak Street across the team-track yards of the Terminal Company at this point, connecting the south end of Oak Street with the north end of Gillham Road, and has approved the plan of the viaduct for that purpose, which action of the Commission has been fully approved by this court. That matter is now res judicata. State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., 308 Mo. 377. (4) The city has the right under Section 8 of the franchise contract and the law, to designate the place where it shall cross the tracks of the Terminal Company, with a public street, subject, however, to the approval of the Public Service Commission as to the particular point and the manner of such crossing, which has been secured in this case. Kansas City v. Ry. Co., 229 S.W. 771; State ex rel. Terminal Ry. Co. v. Pub. Serv. Com., 308 Mo. 359. (5) Property devoted to a semi-public use, such as a railroad right of way, switch yards or team-track yards, may be subjected by the State, or a municipality of the State, to a second public use, such as extending a public street across the same, if the second use does not destroy or materially interfere with the first use. The extension of Oak Street by a viaduct over the tracks of the Terminal Company at this point under the second modified plan of the viaduct therefor, approved by the Public Service Commission, will not destroy their use as a team-track yard nor materially interfere therewith as such. Mo. Constitution, Art. 12, Secs. 4 and 5; St. Louis & Sub. Ry. Co. v. Ry. Co., 190 Mo. 246; Railroad v. Gordon, 157 Mo. 71; St. Louis H. & K.C. Ry. Co. v. Union Depot Co., 125 Mo. 82; Lewis on Eminent Domain (3 Ed.) sec. 417, p. 751; American Tel. & Telegraph Co. v. Ry. Co., 202 Mo. 656; Kansas & Texas Coal Ry. Co. v. Coal & Mining Co., 161 Mo. 288. (6) Section 8 of Ordinance No. 41448 authorizing this improvement, provides for damages to be paid for an easement for the viaduct and its approaches. For such easement over the tracks of the Terminal Company which it has not granted the city in its franchise contract, for this viaduct, and the damages, if any, suffered thereby, the city proposes to pay. This will be taken care of in the condemnation proceedings which are to follow the disposition of this case. (7) It is not uncommon or unusual to construct viaducts for public traffic in cities where there are large railroad centers, over and across extensively wide switch, team-yard and main line tracks, in order that vehicular and foot traffic may get from one part of the city to another conveniently and safely. New York Central Ry. Co. v. Pub. Serv. Comm., 131 N.E. 549; Comms. of Parks v. Ry. Co., 52 N.W. 1083. (8) Even in the absence of a contract requiring a railroad to construct viaducts over its tracks, it may, under the law, be required, at its own expense, not only to abolish existing grade crossings, but also to build and maintain suitable viaducts to carry streets newly laid out over its tracks, subject, however, now, to the approval of the Public Service Commission as to the manner and particular point of crossing. Ry. Co. v. Minneapolis, 232 U.S. 442; Erie Ry. Co. v. Board Pub. Utilities, 254 U.S. 394; Ry. Co. v. Minnesota, 203 U.S. 594; Ry. Co. v. Omaha, 235 U.S. 121; Ry. Co. v. Denver, 250 U.S. 241; Ry. Co. v. Nebraska, 170 U.S. 57. (9) Whether there is any public necessity or need for extending a public street of a city across railroad tracks is a legislative question to be determined by the council of the city; and its action in determining that question will not be reviewed or set aside by the courts in the absence of fraud or gross abuse of authority, and none is shown there; the Public Service Commission having power, however, in the premises, to determine the particular point and the manner of crossing, whether at grade, by viaduct over or a subway under the tracks, which has been exercised in this case and the city granted permission to cross by a viaduct, the plan of which has been approved by the Commission. Kansas City v. Ry. Co., 229 S.W. 778; Kansas City v. Baird, 98 Mo. 215; Hannibal v. Ry. Co., 49 Mo. 480; Simpson v. Kansas City, 111 Mo. 237; Dickey v. Tennison, 27 Mo. 373; County Court v. Griswold, 58 Mo. 189; State ex rel. v. Engleman, 106 Mo. 628; Cape Girardeau v. Houck, 129 Mo. 618; In re Independence Avenue, 128 Mo. 272; St. Louis & San Francisco Ry. Co. v. Gordon, 157 Mo. 71; Lewis on Eminent Domain (3 Ed.) sec. 162; 2 Dillon on Munic. Corp., sec. 600. (10) Section 50 of the Public Service Act, empowers the Commission to determine and fix the particular point and the manner of the crossing of a public street over railroads; and also, in ordinary cases, to apportion the expense of such crossing, in the absence of a pre-existing executed contract, between the city and the railroad providing that the railroad shall pay such expense; but the Commission has no power to apportion such expense when there is, as here, such a contract; the contract in such a case is not annulled. "If either assumes the whole burden, or if they agree upon the proportionate part each shall pay, there is no occasion for submitting the question of apportionment to the Commission." State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., 308 Mo. 378; State ex rel. v. Railroad, 262 Mo. 720; Macon Case, 266 Mo. 484; Mo. Kans. & Texas Ry. Co. v. Oklahoma, 271 U.S. 303; Railway Co. v. Decatur, 262 U.S. 432, 57 L. Ed. 1035; Louisiana Commissions v. Morgan's Co., 264 U.S. 393, 68 L. Ed. 756. (11) Where rights have accrued and become vested in the city under a franchise contract between the city and the railroad, as here, requiring the railroad, at its expense, to build a viaduct for public travel across its tracks, such provision of the contract as to the expense, is not annulled by Section 50 of the Public Service Act subsequently enacted, giving the Commission power of regulation over the installation of railroad crossings. State ex rel. v. Railroad, 262 Mo. 720; Sec. 15, Art. II, Mo. Constitution; Sec. 10, Art. I, U.S. Constitution; Railway Co. v. Oklahoma, 271 U.S. 303; Railway Co. v. Decatur, 262 U.S. 432; Louisiana Comms. v. Morgan's Co., 264 U.S. 393.

Cyrus Crane, Samuel W. Sawyer, John H. Lathrop and John N. Monteith for appellant Kansas City Terminal Railway Company.

(1) The Public Service Act has conferred upon the Public Service Commission exclusive jurisdiction to determine not only the manner and the particular point of crossing, but the terms of apportionment of expenses of any viaduct which may be built, and has thereby abrogated and superseded the provisions of Section 8 of the Union Station Ordinance and has rendered nugatory any ordinance passed by the city under the purported authority of said Section 8. Section 5 of Article XII of the Constitution of Missouri completes this result. Sec. 10459, R.S. 1919; Am. Tobacco Co. v. St. Louis, 247 Mo. 374; State ex rel. Ry. Co. v. Pub. Serv. Comm., 271 Mo. 270; State ex rel. v. Pub. Serv. Comm., 272 Mo. 645; Chicago etc. Railroad Co. v. Chicago, 166 U.S. 226; Chicago etc. Railroad Co. v. Nebraska, 170 U.S. 57; Northern Pac. Ry. Co. v. Duluth, 208 U.S. 583; Cincinnati etc. Ry. Co. v. Connersville, 218 U.S. 337; Chicago etc. Ry. Co. v. Minneapolis, 232 U.S. 432; Mo. Pac. Ry. Co. v. Omaha, 235 U.S. 121; Northern Pac. Ry. Co. v. Ry. Co., 250 U.S. 332; Erie Railroad Co. v. Bd. of Commissioners, 254 U.S. 394. (a) Uniformity is the purpose of the Public Service Act. California Oregon Power Co. v. Grant's Pass, 203 Fed. 173; Seattle Electric Co. v. Seattle, 206 Fed. 955; State ex rel. Webster v. Superior Court, 67 Wash. 37; Troy v. Traction Co., 202 N.Y. 333; Milwaukee v. Railroad Comm. (Wis.), 155 N.W. 948. (b) Section 8 is a regulation or reservation of powers, not a contract. Kansas v. Belt Railroad Co., 102 Mo. 633; Hook v. Railroad, 133 Mo. 313; Railroad v. Gordon, 157 Mo. 71; New York & New England Railroad Co. v. Briston, 151 U.S. 556; Wabash Railroad Co. v. Defiance, 167 U.S. 88; Chicago etc. Railroad Co. v. Nebraska, 170 U.S. 57; Northern Pac. Ry. Co. v. Duluth, 208 U.S. 583; Milwaukee v. Railroad Comm., 155 N.W. 948. (c) Section 8 is not self-executing, but requires future exercise of legislative power. United States v. Armour & Co., 142 Fed. 802; Federal Lead Co. v. Swyers, 161 Fed. 687; People v. Railroad Co., 76 Cal. 29; Duhamel v. Stone Co., 59 Wash. 171, 109 Pac. 597; Kennedy v. Falde, 4 Dak. 319; Lippencott v. Ridgeway, 11 N.J. Eq. 526. (d) Ordinance 41448 purports to be the exercise of legislative power. Sec. 5, Art. XII, Mo. Constitution; ...