American Petroleum Exchange v. Public Service Com'n
| Decision Date | 06 July 1943 |
| Docket Number | 38463 |
| Citation | 172 S.W.2d 952 |
| Parties | AMERICAN PETROLEUM EXCHANGE v. PUBLIC SERVICE COMMISSION |
| Court | Missouri Supreme Court |
Arthur U. Simmons and Edwin Rader, both of Clayton, for appellant.
John P Randolph, Gen. Counsel, Public Service Commission, and Lester G. Seacat, Assistant Counsel, Public Service Commission Raymond C. Barnett, Gen. Counsel, State Highway Commission Louis V. Stigali, and Ralph Eubanks, all of Jefferson City for respondent.
BARRETT, Commissioner.
In January 1931 the State Highway Commission applied to the Public Service Commission for permission to establish a grade crossing on U.S. Highway 66 and its intersection with the Missouri Pacific Railroad tracks at a certain station in St. Louis County. After a hearing the commission made a report and order permitting the grade crossing upon condition that automatic flashing light signals be installed and maintained. Mo.R.S.A. § 5627.
In September 1938 the State Highway Commission filed a motion to modify the report and order of the Public Service Commission. The motion, among other things, alleged that after the commission's order authorizing the crossing and after its establishment gasoline filling station pumps, gasoline tanks and other structures were erected at the intersection of the tracks and the highway and that they created a dangerous and hazardous condition in that they obstructed the view of travelers on the highway. The Public Service Commission was asked to modify its previous order by requiring the removal of the structures at the intersection. The commission notified the railroad, the highway commission and the American Petroleum Exchange that a hearing would be had on the motion to modify its previous order on a certain date. A hearing was had and many matters were gone into but the principal fact issue upon which evidence was presented was whether the structures mentioned were a hazard to the traveling public and whether they obstructed motorists' views of the railroad tracks, particularly at night.
On the hearing it developed that the filling station and its accessories belonged to the American Petroleum Exchange and that they were located upon the railroad's right of way under and by reason of a lease from the railroad.
The Public Service Commission ordered (1) that the Missouri Pacific Railroad Company 'remove or have removed all buildings, pumps, lights, signs, tanks, or other obstructions which in any way restrict or obstruct sight distances at this crossing between the limits of the railroad right of way lines for a distance of two hundred feet in each direction from the center line of the highway and to keep said area clear from all obstructions henceforth,' and (2) that the State Highway Commission prohibit parking on the shoulders of its highway within 200 feet of the crossing.
Neither the railroad nor the highway department filed a motion for a rehearing before the Public Service Commission. But the American Petroleum Exchange did file a motion for a rehearing and is the appellant from the ruling of the circuit court affirming the order of the commission on certiorari.
It is asserted that this court has jurisdiction of this appeal by reason of Article 6, Chapter 35, Revised Statutes of Missouri 1939, Mo.R.S.A. § 5685 et seq. That article is entitled 'Procedure Before Commission and Courts.'
It is true that prior to 1937 the statute (Sec. 5237, R.S.Mo.1929) provided that appeals from circuit court reviews of orders of the Public Service Commission should be prosecuted to the Supreme Court. But, this court held that the legislature could not, in this manner, restrict or fix the court's jurisdiction. State ex rel. Orscheln Bros. Truck Lines v. Public Service Commission, 338 Mo. 572, 92 S.W.2d 882. In 1937 the statute was amended (Laws of Mo.1937, p. 434) and it now provides that appeals from circuit court reviews may be prosecuted 'to a court having appellate jurisdiction in this state.' Mo.R.S.A. § 5693. The Public Service Commission is not a 'state officer' within the meaning of Sec. 12, Article VI of our Constitution, Mo.R.S.A., and therefore, jurisdiction does not attach by reason of the commission's being a party to the appeal. State ex rel. Gehrs v. Public Service Commission, 338 Mo. 177, 90 S.W.2d 390. An order or ruling of the Public Service Commission on an application for a certificate of convenience and necessity to operate as a motor carrier does not involve an amount in dispute within this court's jurisdiction (State ex rel. Pitcarin v. Public Service Comm., 338 Mo. 180, 90 S.W.2d 392), and by the same token a ruling on an application for permission to construct a grade crossing, or an order modifying such a ruling, does not involve an amount in dispute within this court's jurisdiction. Const.Mo. Art. VI, Sec. 12; Amend. Art. VI, 1884.
The consequence is that we do not have jurisdiction of this appeal unless it involves the construction of the Constitution of the United States or of this State. Const.Mo. Art. VI, Sec. 12. And, the point briefed and argued by the American Petroleum Exchange, as appellant, is that the order of the Public Service Commission, the respondent, violates the Missouri constitutional provision 'That private property shall not be taken or damaged for public use without just compensation.' Const.Mo. Art. II, Sec. 21. But the mere fact that the appellant invokes certain constitutional provisions, both here and in its motion for a rehearing before the commission, does not necessarily mean that a constitutional question is involved in the case. Supreme Lodge, L. O. of M. v. Progressive O. of M., 322 Mo. 866, 17 S.W.2d 327. A question of constitutional law must in fact exist. Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112.
The original order permitted the establishment of a grade crossing provided certain safety devices were installed and maintained. That order was directed to the Missouri Pacific Railroad Company and the State Highway Commission. Before a grade crossing could be established it was necessary for the interested parties to secure the consent of the Public Service Commission. A grade crossing cannot be established 'without having first secured the permission of the commission.' Mo.R.S.A. § 5627. The commission has the exclusive power to authorize grade crossings, their location, the point of crossing and the terms of installation, maintenance and apportionment of expense. State ex rel. St. Louis-San F. Ry. Co. v. Public Service Comm., 331 Mo. 438, 53 S.W.2d 868; State ex rel....
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