Chicago, Rock Island & Pacific Railway Company v. Public Service Commission of State of Missouri

• Decision Date: 11 October 1926
• Docket Number: 26881
• Citation: 287 S.W. 617,315 Mo. 1108
• Parties: Chicago, Rock Island & Pacific Railway Company, Appellant, v. Public Service Commission of State of Missouri
• Court: Missouri Supreme Court

287 S.W. 617

315 Mo. 1108

Chicago, Rock Island & Pacific Railway Company, Appellant, v. Public Service Commission of State of Missouri

No. 26881

Supreme Court of Missouri

October 11, 1926

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

Luther Burns, Dumm & Cook and John E. Dolman for appellant.

(1) Where Federal aid is asked and received by the State towards paying the cost of a separation of grades of a Federal-aid highway over a railroad, the power or authority of the State Public Service Commission in apportioning a part of such expense to the railroad is limited to that part of the expense representing the State's proportionate part after deducting Federal aid. Laws 1921, 1st Ex. Sess., p 138, sec. 16; State ex rel. Terminal Assn. v. Public Service Comm., 272 S.W. 961. (2) It is the duty of the State Highway Commission to apply Federal aid received by it on any particular project to that project, and it is without authority to ask and receive aid upon a particular project and then apply it and use it elsewhere. Laws 1921, 1st Ex. Sess. p. 138, sec. 16; Federal Highway Act, U.S. Comp. Statutes 1916, Supp. 1923; Sections 7477 1/4 C. C., 7477 1/4 J., 7477 1/4 L., 7477 1/4 Q., 7477 1/4 R., U.S. Comp. Statutes 1916, Supp. 1923. (3) The court erred in affirming decision of respondent assessing one-third the cost of the approaches to the viaduct in question outside of appellant's right-of-way and representing more than one-half the cost of the entire structure against appellant. Such order under the guise of a proper exercise of the police power constitutes a taking of appellant's property without due process of law, contrary to the Fourteenth Amendment of United States Constitution. (4) The power of the respondent in ordering a separation of grades is limited to an exercise of the police power in the interest of the public safety and where the undisputed evidence and findings of respondent according to that evidence shows a crossing at grade would not be unusually unsafe and dangerous, respondent has no power to assess any part of the cost of a separation of grades against appellant without violating the due process clause of the Fourteenth Amendment to U.S. Constitution. State ex rel. Terminal Assn. v. Public Service Comm., 272 S.W. 957; Erie Railroad Co. v. Public Utilities Comm., 254 U.S. 394, 65 L.Ed. 322; City of Kirksville v. Hines, 285 Mo. 283; State ex rel. v. Fairchild, 224 U.S. 510, 56 L.Ed. 863; Great Northern Ry. Co. v. Minnesota ex rel. Railway Com., 238 U.S. 340, 59 L.Ed. 1337. (5) Under the undisputed evidence it is shown to be necessary for appellant to secure the permission of the Interstate Commerce Commission to issue securities in order to obtain the funds necessary to make the capital expenditure ordered by respondent, and respondent has no power or jurisdiction to order such expenditure without the consent of said Commission, as provided by the Act of Congress dated February 28, 1920, and commonly known as the Transportation Act. Railroad Com. v. So. Pac. Co., 264 U.S. 331, 68 L.Ed. 713; Sub-division 11, Sec. 8592A, U.S. Comp. Stat. 1916, 1923 Supp; Sub-division 2, Sec. 8592A, U.S. Comp. Stat. 1916, 1923 Supp.

D. D. McDonald and J. P. Painter for Public Service Commission, L. Newton Wylder, Lue C. Lozier and Edgar Shook for State Highway Commission.

(1) The Public Service Commission is vested with the authority to require separation of grades at crossings of highways with railroads and in doing so exercises the police power of the State in the interest of public safety. Railroad v. Bristol, 151 U.S. 556; Erie Railroad v. Utility Comm., 254 U.S. 394; 3 Elliott on Railroads (2 Ed.) sec. 1102; Wabash Railroad v. Defiance, 167 U.S. 88; Railroad v. Nebraska, 170 U.S. 57; Sec. 10459, R. S. 1919; State ex rel. Wabash Ry. Co. v. Pub. Serv. Comm., 306 Mo. 149. (2) Railroad corporations may be required, at their own expense, not only to abolish existing grade crossings, but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways. Chicago, Milwaukee & St. Paul Ry. v. Minnesota, 232 U.S. 430; Mo. Pac. Ry. Co. v. Omaha, 235 U.S. 121; State ex rel. Terminal Assn. v. Public Serv. Comm., 272 S.W. 957; Denver & R. G. Railroad Co. v. Denver, 250 U.S. 241; Mo. Pac. Ry. Co. v. Duluth, 208 U.S. 583; Am. Tob. Co. v. St. Louis, 247 Mo. 374; State ex rel. v. Mo. Pac. Ry. Co., 262 Mo. 720; State ex rel. v. Pub. Serv. Comm., 271 Mo. 270. (3) Approaches to the viaduct are a necessary part of the overhead crossing. The term "crossing" occurring in the statute is used to indicate the structure intended as a means of crossing the railroad. It is not confined to the part of the structure which is upon the railroad. Moberly v. Ry. Co., 17 Mo.App. 518; Farley v. Ry. Co., 42 Iowa 234; State ex rel. v. Pub. Serv. Comm., 271 Mo. 284; Libby v. Canadian Pac. Ry. Co., 82 Vt. 316; Birlew v. Railroad Co., 104 Mo.App. 561; Roxbury v. Railroad Co., 60 Vt. 121; 3 Elliott on Railroads (3 Ed.) sec. 1565. (4) The State in the exercise of its police power in requiring separation of crossings of railroads with highways does not violate the "contract" clause nor the "due process" clause of the Federal Constitution. State ex rel. Terminal Assn. v. Pub. Serv. Comm., 272 S.W. 957; Atlantic Coast Line v. Goldsboro, 232 U.S. 548; Railroad v. Bristol, 151 U.S. 556. (5) The police power of the State to regulate grade crossings in the interests of public safety is not committed to the Interstate Commerce Commission by the Transportation Act. Railroad Com. v. Southern Pacific Co., 264 U.S. 330. (6) Although paid out only upon particular projects, Federal-aid funds are contributions to the State for highway purposes, and are, in effect, state funds. Sec. 16, p. 138, Laws 1921, 1st Ex. Sess.; Federal Highway Act, 42 Stat. 212; Beman v. Olcott, 95 Ore. 249, 187 P. 843. (7) The police power of the State is unaffected by the "Transportation Act." C. N. & S. T. P. Railroad Co. v. Railroad Commission, 204 N.W. 606; Milhollan v. Great Northern Ry. Co., 204 N.W. 994; Railroad Com. v. So. Pac. Co., 264 U.S. 331, 68 L.Ed. 713.

Higbee, C. Railey, C., not sitting.

OPINION

HIGBEE

The appellant owns and operates a railroad, a branch line of its system, from Altamont, in Davies County to St. Joseph, a distance of about fifty miles. The primary state highway from Hannibal to St. Joseph, designated as Route No. 8, crosses this branch line at a point about fourteen miles east of St. Joseph. On an application by the State Highway Commission, the Public Service Commission, the respondent, made an order requiring the State Highway Commission to construct a viaduct over appellant's railroad track at said point and requiring appellant to pay $ 13,000, approximately one-third of the estimated cost of the structure, to be paid in monthly installments as the work progressed, as its just share of the cost of construction. On the application of the appellant this order was reviewed on certiorari proceedings and affirmed by the Circuit Court of Cole County; hence this appeal.

After hearing the evidence, the Public Service Commission, on January 6, 1925, filed its report which, after summarizing the averments of the application, the answer and the evidence, reads in part as follows:

"2. The Centennial Road Law (Laws 1921, Extra Session, 131, 147) designated a highway in Buchanan County beginning at St Joseph and extending thence east to Dekalb-Buchanan county line. This highway was later designated as Route 8 by applicant. Route 8 will be the second most heavily traveled highway in the State, carrying traffic from northern Missouri, Iowa and northern Illinois going west through St. Joseph. A few miles east of the proposed crossing a north-and-south highway, known as Route 31, joins Route 8. All traffic from Route 31 going west to St. Joseph will also pass over Route 8 at the point of proposed crossing.

"Route 8 will pass over a switch track and the branch main line track of defendant, from Altamont, Missouri, to Atchinson, Kansas. Traffic on this line consists of four passenger trains and two freight trains every twenty-four hours, a tri-weekly local train, plus a possible extra train. The scheduled speed of these trains is approximately twenty miles per hour. . . .

"Defendant will receive Federal aid for the purpose of constructing the proposed viaduct and its approaches in the amount of fifty per cent of the cost of said structure and its approaches.

"The proposed structure consists of a reinforced concrete viaduct 112 feet in length, made up of a 40-foot inner span and two end spans each thirty-six feet in length. The roadway is twenty feet wide, and vertical clearance above the top of rail is twenty-two feet, and the approaches consist of earth embankments with six per cent grades.

"3. It appears from the evidence that the proposed crossing will not be unusually unsafe and dangerous. Apparently the visibility of approaching trains is good. Traffic on the railroad is light and the speed of train movements is slow, the scheduled speed of trains being approximately twenty miles per hour.

"On the other hand, Route 8 will be one of the most heavily traveled highways in Missouri and will be extensively used by tourists. All grade crossings are dangerous. The cost of a single accident may amount to thousands of dollars. The possibility of accident will be removed by the proposed viaduct, and defendant will therefore participate in the benefits derived from said proposed structure. Route 8 is a primary road. The Federal Government insists that grades be separated at all primary road crossings. Provisions have been made for the separation of grades at other...