State ex rel. City of Kirkwood v. Public Service Com'n of Missouri

• Decision Date: 27 May 1932
• Docket Number: 31456
• Parties: State ex rel. City of Kirkwood v. Public Service Commission of Missouri et al., Appellants
• Court: Missouri Supreme Court

50 S.W.2d 114

330 Mo. 507

State ex rel. City of Kirkwood v. Public Service Commission of Missouri et al., Appellants

No. 31456

Supreme Court of Missouri

May 27, 1932

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Reversed and remanded (with directions).

D D. McDonald, T. E. Francis and O. P. Owens for appellants.

(1) The findings of the Public Service Commission are prima-facie lawful, and the burden of proof is upon the party adverse to the Commission or seeking to set aside an order of the Commission to show by clear and satisfactory evidence that the order is unreasonable or unlawful. C. B. & Q Railroad v. Pub. Serv. Commission, 266 Mo. 333; State ex rel. v. Pub. Serv. Commission, 271 Mo. 155; State ex rel. v. Pub. Serv. Commission, 291 Mo. 432; State ex rel. v. Pub. Serv. Commission, 298 Mo. 303; State ex rel. v. Pub. Serv. Commission, 316 Mo. 842; State ex rel. v. Pub. Serv. Commission, 321 Mo. 297; State ex rel. v. Pub. Serv. Commission, 324 Mo. 270; State ex rel. v. Busby, 274 S.W. 1067; State ex rel. v. Pub. Serv. Commission, 275 S.W. 940; State ex rel. v. Pub. Serv. Commission, 297 S.W. 47; Sec. 5247, R. S. 1929. (2) The findings and conclusions of the Commission, when in conformity with law and supported by substantial evidence, will be accepted as final. State ex rel. v. Pub. Serv. Commission, 291 Mo. 432; State ex rel. v. Busby, 274 S.W. 1097. (3) It is the function of the Public Service Commission to authorize the abandonment of unprofitable lines or portions of lines of a street railway system within the limits of a municipal corporation, and this is true notwithstanding the fact that the privilege to operate within the limits of the municipality may have been by virtue of franchise ordinances of the municipality. State ex rel. v. Mo. So. Ry. Co., 279 Mo. 455; Southwest Mo. Railroad Co. v. Commission, 281 Mo. 52; State ex rel. v. Pub. Serv. Commission, 303 Mo. 505; Cape Girardeau v. Railway Co., 305 Mo. 590. Under the evidence adduced, the order of the Commission is entirely reasonable and lawful, and, conversely, it would have been unreasonable and unlawful to have refused the application to abandon the tracks, in view of the operating losses and the necessary large capital expenditures to relocate and reconstruct tracks because of the paving of streets occupied by the tracks and in view of the further fact that bus service is required to be substituted with free transfer privileges to and from the substituted bus lines and street railway lines of the applicant as a prerequisite to the abandonment. (4) The police power of the State is inalienable. Southwest Mo. Railroad Co. v. Pub. Serv. Commission, 281 Mo. 52; Tranbarger v. Railroad, 250 Mo. 46; Constitution, Art. 12, Sec. 5. The court erred in finding and holding that the order of the Commission amounted to an usurpation of the police power of the city of Kirkwood by reason of the fact that the Commission attached a condition to the abandonment of a portion of the line authorized to be abandoned, which, under the authority of law, was an exercise of the police power and entirely meet and proper.

Wurdeman, Stevens & Hoester for respondent.

(1) The court did not err in overruling and setting aside the orders of the Public Service Commission of Missouri made and entered on the 28th day of June, 1930, and subsequently modified on the 19th day of February, 1931. The statutory law of the State of Missouri defines and sets forth the powers of the Commission. The orders of the Commission clearly attempt to take from the city of Kirkwood its inherent and inalienable right, under the laws of this State, to exercise exclusive control over all its streets, alleys, avenues and public highways, and particularly Woodbine Avenue, where the tracks of the appellant, the St. Louis Public Service Company, are laid. R. S. 1929, sec. 7047; St. Louis & Meramac Railroad Co. v. Kirkwood, 159 Mo. 239. (2) The orders of the Commission sanctioning the abandonment of the street railway service over and along Woodbine Avenue from Clay Avenue in the city of Kirkwood to the loop in Osage Hills are conditioned that bus service be substituted by the St. Louis Public Service Company. This, of course, requires the St. Louis Public Service Company to obtain a permit from the city of Kirkwood before said bus service can be substituted. An order of this kind which is conditional upon the Public Service Company obtaining the assent of the city of Kirkwood for the substitution of bus service in lieu of street car service is wholly beyond the powers of the Commission to make or enter and wholly void. State ex rel. United Rys. Co. v. Pub. Serv. Comm., 192 S.W. 958. Ordinance of City of Kirkwood No. 2613. If the appellant St. Louis Public Service Company were granted permission to abandon its right of way as proposed under the zoning ordinance of the city of Kirkwood, heretofore introduced in evidence, the appellant could not construct its loop as proposed at Woodbine and Clay Avenues in the city of Kirkwood, that district being restricted to two-family apartments. Respondent's ordinance City of Kirkwood No. 2556. (3) The appellant should not be permitted to abandon the proposed line, even though the Commission believe that the said line is being operated at a loss. The properties of the entire system should be considered by the Commission in estimating the profits of the Public Service Company, and the fact that one or two lines are not paying propositions should not warrant their abandonment if the system as a whole is paying a reasonable return upon the capital invested. Puget Sound T. L. & P. Co. v. Reynolds, 37 S.Ct. 705; 8 Mo. P. S. C. 56; 8 Mo. P. S. C. 62; 2 Mo. P. S. C. 375; 2 Mo. P. S. C. 389. (4) When the respondent, acting within its powers, grants franchises for the use of streets, wharves and other places for public purposes, the right of control and regulation upon the part of the municipal authority must be reserved so that it may be exercised at any time for the public good. Belcher Sugar Ref. Co. v. St. L. Grain Elevator Co., 82 Mo. 126; Glasgow v. St. Louis, 87 Mo. 678; Lockwood v. Wabash Railroad Co., 122 Mo. 86; Sherlock v. Kansas City, etc., 142 Mo. 172; State ex rel. v. Murphy, 134 Mo. 548; Elliott on Roads and Streets, p. 573; St. L. & S. F. Railroad Co. v. Gill, 156 U.S. 649. And it has been consistently held that in giving its consent to the use of its streets by street railways a city may lawfully impose conditions. St. Louis v. Public Service Co., 276 Mo. 509, 207 S.W. 799; Union Depot Railroad Co. v. Railroad Co., 105 Mo. 573; City v. United Rys. Co., 263 Mo. 387; 26 C. J. 1036, 82; State v. Iowa Tel. Co., 175 Iowa 607. (5) The city of Kirkwood has duly let a contract for the improvement of Woodbine Avenue from Clay and Woodbine Avenues to Geyer Road, in the city of Kirkwood, to the Carlon Construction Company, under ordinance No. 2724 of the city of Kirkwood, said contract for said improvement being accepted by the Carlon Construction Company on the 22nd day of May, 1929. To permit the proposed abandonment by the Public Service Company would destroy the vested rights conferred by said contract. Bridewall v. Cockrill, 122 Mo.App. 204; National Water Works v. Kansas City, 20 Mo.App. 237; C. B. & Q. Railroad Co. v. Quincy, 139 Ill. 355; Newport Street Railroad Co. v. Newport, 1 Ky. L. Rep. 124; Dillon on Municipal Corporations (4 Ed.) 713 et seq.; Elliott on Roads and Streets, 334, 335.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is an appeal by the defendant Public Service Commission of Missouri from the judgment of the Circuit Court of St. Louis County, by which judgment the Circuit Court of St. Louis County on a writ of review set aside and annulled an order made by the Public Service Commission of this State permitting the St. Louis Public Service Company, a corporation of this State, owning and operating the street railroads of the city and county of St. Louis, to abandon a portion of its line of street railroad known as the Osage Hills line west and southwest of the intersection of Clay Avenue and Woodbine Avenue, in the city of Kirkwood, to the terminus of said line at the Osage loop, a distance of approximately two and one-half miles. The trial court on the writ of review ruled that the order of the Public Service Commission granting the St. Louis Public Service Company, the owner and operator thereof, the right to take up its tracks and abandon the operation of this part of its electric street railway line was unreasonable and unlawful.

The case originated in this way: The St. Louis Public Service Company applied to the Missouri Public Service Commission for an order permitting it to remove its tracks and abandon the operation of this part of its Osage Hills line, describing the route to be abandoned, and stating, as grounds therefor:

"(4) The income derived from the operation of those portions of said lines sought to be removed is and always has been insufficient to pay operating expenses and to yield a return upon the investment, and the cost to applicant of reconstructing tracks and improving that portion of the streets occupied by its tracks, if it were forced to so reconstruct its tracks and improve such portions of said streets, would be exorbitant.

"(5) Applicant proposes, if it is authorized to remove its tracks as herein prayed, to substitute for that portion of its street railway lines sought to be removed, adequate bus service to serve the territory affected by the removal of the tracks if the patronage of that portion of its system sought to be removed justifies the substitution of such bus service, and applicant proposes to operate such bus service so long as the same is self-supporting."

The...