City of Macon v. Atkinson

• Decision Date: 04 January 1916
• Parties: CITY OF MACON, Appellant, v. JOHN M. ATKINSON et al., Constituting PUBLIC SERVICE COMMISSION, and CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
• Court: Missouri Supreme Court

181 S.W. 396

266 Mo. 484

CITY OF MACON, Appellant, v. JOHN M. ATKINSON et al., Constituting PUBLIC SERVICE COMMISSION, and CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

Supreme Court of Missouri, Second Division

January 4, 1916

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Affirmed.

W. G Busby, O. M. Spencer and M. G. Roberts for respondents.

The Public Service Commission Act provides that causes of action taken by writ of certiorari to the circuit court from the Public Service Commission shall be tried as suits in equity. It is further provided that such causes shall be appealed as in other cases. There is nothing for this court to review in this case, as the appellant did not file a motion for a new trial or a motion in arrest of judgment. The Public Service Commission Act does not dispense with the necessity of such motions required in all other civil cases.

George N. Davis, D. L. Dempsey and Andrew Field for appellant.

There was no provision nor place in appeals from the Public Service Commission for motion for new trial in the circuit court. The motion for rehearing before the commission takes the place of the motion for new trial. Section 110 of the Commission Act provides: "After an order or decision has been made by the commission any corporation or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, and the commission shall grant and hold such rehearing, if in its judgment sufficient reason therefor be made to appear; if a rehearing shall be granted the same shall be determined by the commission within thirty days after the same shall be finally submitted. No cause or action arising out of any order or decision of the commission shall accrue in any court to any corporation or person or public utility unless such corporation or person or public utility shall have made before the effective date of such order or decision application to the commission for a rehearing. Such application shall set forth specifically the ground or grounds on which the applicant considers said order or decision to be unlawful, unjust or unreasonable. No corporation or person or public utility shall in any court urge or rely on any ground not so set forth in said application." Section 111 provides for writ of certiorari or review for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined, and further provides "No new or additional evidence may be introduced upon the hearing in the circuit court but the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it. The commission and each party to the action or proceedings before the commission shall have the right to appear in the review proceedings. Upon such hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. Section 114 provides for appeal to the Supreme Court. "Such appeal shall be prosecuted as appeals from judgment of the circuit court in civil cases except as otherwise provided in this act. The original transcript of the record and testimony and exhibits, certified to by the commission and filed in the circuit court in any action to review an order or decision of the commission, together with a transcript of the proceedings in the circuit court, shall constitute the record on appeal to the Supreme Court. . . . No appeal shall be effective when taken by a corporation, person or public utility unless a cost bond of appeal in the sum of five hundred dollars shall be filed within ten days after the entry of judgment in the circuit court appealed from." Accordingly under the statute, this whole record is here for review by this court. And no point is made upon any action other than as it appears in this record.

FARIS, P. J. Walker, J., concurs; Revelle, J., not sitting.

OPINION

FARIS, P. J.

Appeal from the judgment of the circuit court of Cole county affirming the action of the Public Service Commission of the State of Missouri in a proceeding by appellant to compel defendant railroad company to repair certain overhead crossings of the streets of plaintiff city over the railroad track of defendant railroad.

Since, in the view we are compelled to take of the case, it does not turn here upon the facts, a brief statement of such facts will suffice. Concisely they run thus: At a former time, to-wit, in the year 1901, defendant railroad company was desirous of lowering the grade of its track where the same ran through plaintiff city and where it crossed over Wentz street and Ruby street therein. In order to lower this grade defendant railroad (hereinafter for brevity referred to simply as the railroad) made a contract with the city of Macon (hereinafter designated for brevity as the city), whereby it was agreed that the railroad should construct and keep in repair bridges over its said tracks where the same crossed said above-named streets. This contract further provided that the railroad should pay to the city as part consideration, at least, for the right of lowering such tracks and the grade through said city the sum of $ 8,500. It was further agreed that the city should assume the burden of keeping in repair the approaches to and the floors on said bridges, which approaches and floors constituted the streets, or passagways on Wentz and Ruby streets where the latter crossed the railroad tracks. This contract took the form of an ordinance, which ordinance was duly accepted by the railroad and the said sum of $ 8,500 paid to and accepted by the city.

In the course of time the flooring over the two bridges in question became rotten and out of repair, which necessitated the reflooring of same and the construction of new approaches on said streets to these two bridges. Thereupon the city took the position that it was not its duty to maintain and repair these floors and approaches, but that it was the duty of the railroad so to do, its legislative contract with the railroad notwithstanding. It thereupon proceeded to repudiate this contract on the theory that the same is ultra vires, and that it was and is the duty of the railroad under section 3049, Revised Statutes 1909, to repair and maintain both the approaches to these bridges and the floors thereon.

Upon a hearing before the Public Service Commission the complaint of the city was dismissed for the reason, among others, that the evidence in the case did not warrant the granting of the relief prayed for. From this order and ruling of the Public Service Commission appellant herein brought certiorari, or a writ of review, in the circuit court of Cole county to bring up the record of the case from the Public Service Commission. Upon a hearing in said circuit court the ruling of the Public Service Commission was in all things affirmed. From this judgment of the circuit court the city, which is appellant here, took an appeal to this court. In taking this appeal no motion for a new trial, or motion in arrest, or any other motion was filed, nor was any bill of exceptions filed in the case; nor was any time taken in the court nisi within which to file such bill of exceptions. A plain, bare appeal from the circuit court was taken merely by making the statutory affidavit and giving a supersedeas bond as in ordinary appeals in civil cases.

Such further...