City of St. Louis v. Public Service Commission

• Decision Date: 10 December 1918
• Docket Number: No. 21072.,21072.
• Citation: 276 Mo. 509,207 S.W. 799
• Parties: CITY OF ST. LOUIS v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.
• Court: Missouri Supreme Court

207 S.W. 799

276 Mo. 509

CITY OF ST. LOUIS v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.

No. 21072.

Supreme Court of Missouri, in Banc.

December 10, 1918.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Petition by the United Railways Company to the Public Service Commission, asking for an increase of passenger rates, in which the City of St. Louis intervened. The commission granted the railways company's request and the city brought certiorari. From a judgment of the circuit court reversing the findings and rulings of the commission, both the commission and the railways company appeal. Judgment of the circuit court reversed, and cause remanded.

At all the times hereinafter mentioned, the United Railways Company of St. Louis was operating its system of street railways in that city under and by authority of Ordinance No. 19,352, approved April 12, 1898. Said ordinance, after authorizing the construction and operation of street railways upon and over certain streets of the city, provided that:

"A fare of five cents shall be charged for passengers of twelve years of age and over, and one-half of said fare for persons under twelve and over five years of age. Children's tickets shall be sold by conductors on the car at the rate of two tickets for five cents. Transfers shall be given so as to transport passengers by a continuous trip from one point on the system to any other point on the system."

This ordinance was duly accepted in writing by said railways company, and was properly filed in the office of the register of said city, as required by said ordinance.

Thereafter, in February of 1018, the `Crafted Railways Company filed with the Public Service Commission a petition asking that it be allowed to charge a reasonable compensation for the service it rendered the public in operating its street railways ha the city of St. Louis.

The city of St. Louis was allowed to intervene. It filed an "answer and protest" in which it challenged the jurisdiction and power of the Public Service Commission to annul, change, or impair any terms made in said ordinance enacted by the municipal assembly of the city of St. Louis granting the railways company the right to construct and operate its railways in the streets of the city.

The answer interposed as a defense section 20 of article 12 of the Constitution of 1875, which reads:

"No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchises so granted shall not be transferred without similar assent first obtained."

The Public Service Commission granted the petition of the railways company and authorized it to collect from adult passengers a fare of six cents instead of five cents, as provided for by said ordinance.

The city of St. Louis obtained from the circuit court of Cole county a writ of certiorari ordering the commission to send up the record in the cause so that it might review the rulings of said commission in the cause, and, upon proper hearing and after duo consideration, that court reversed the finding and rulings of the commission.

From that judgment of the circuit court, an appeal was duly taken to this court, both by the commission and the railways company.

H. S. Priest and T. E. Francis, both of St. Louis (Morton Jourdan, of St. Louis, of counsel), for appellant United Rys. Co.

A. Z. Patterson and J. D. Lindsay, both of Jefferson City, for appellant Public Service Commission.

Charles H. Defies and H. A. Hamilton, both of St. Louis, for respondent,

WOODSON, J.

(after stating the facts as above). I. There are two legal propositions presented by this record for determination. The first is: Has the Public Service Commission the power, under the Constitution and laws of this state, to increase the rate of fares agreed upon to be charged by the railways company in the franchise ordinance, which was made a condition upon which the consent of the city was given to the company to construct and operate its railways upon the streets of the city?

Counsel for the appellants insist upon the affirmative of this proposition, while those for the respondent deny the commission possesses that authority.

The second proposition before referred to will be stated and discussed In another part of this opinion.

Counsel for appellants contend that the judgment of the circuit court is erroneous for the reason that the making of rates to be charged for the transportation of passengers by common carriers is the province of the state in the exercise of its police power; that this power is inherent in the state as a part of its sovereignty and unabridgable by virtue of section 5 of article 13 of the Constitution ; and that under this power the franchise ordinance before mentioned, whether it be considered a contract or regulation, must give way when it conflicts with legislation of the state in the exercise of its police power; that, when the state acts in that regard, the power of the city ceases.

It must he conceded as contended for by counsel for respondent that the Legislature has no power to grant to a street railway company the authority to construct and operate street railways upon and over the streets of any city in this state without the consent of the duly constituted authorities thereof. Such is the express inhibition of section 20 of article 12 of the Constitution of this state for the year 1875, and the rulings of this court have been uniform in upholding that provision of the Constitution. State ex inf. v. Lindell Ry. Co., 151 Mo. 162, loc. cit. 185, 52 S. W. 248; St. Louis & Meramec River Ry. Co. v. City of Kirkwood, 159 Mo. 239, loc. cit. 249, 60 S. W. 110, 53 L. R. A. 300; City of St. Louis v. United Railways, 203 Mo. 387, loc. cit. 441, 174 S. W. 78.

This court has also uniformly held that the city, in giving its consent as provided for by said section 20 of article 12 of the Constitution, may impose such conditions as it may deem necessary and proper; but whether that power is derived from the constitutional provision, the charter of the city, or derived from the public policy of the state, has not been decided.

The following cases hold that the city may impose such conditions: Union Depot Ry. Co. v. Southern Ry. Co., 105 Mo. 562, loc. cit. 573 and 574, 16 S. W. 920; St. Louis & Meramec River Ry. Co. v. City of St. Louis, 159 Mo. 239, 60 S. W. 110, 53 L. R. A. 300; City of St. Louis v. United Railways Co., 263 Mo. 387, 174 S. W. 78.

To the same general effect are the following authorities: Kansas City v. Kansas City Belt Ry. Co., 187 Mo. 146, 86 S. W. 190; In re Kansas City Rys. Co., 3 Mo. P. S. C. 593; In re Southwest Missouri Ry. Co., 4 Mo. P. S. C. 13; People v. Barnard, 110 N. Y. 548, 18 N. E. 354; Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 54 N. E. 1081; Gaedeke v. Staten Island, etc., R. R. Co., 43 App. Div. 515, 60 N. Y. Supp. 598; People ex rel. v. North Tonawanda, 70 Misc. Rep. 91, 126 N. Y. Supp. 186; Allegheny v. Millville, etc., R. 3. Co., 159 Pa. 411, 28 Atl. 202; Plymouth Tp. v. Chestnut Hill, etc., R. R. Co., 168 Pa. 181, 32 Atl. 19; West Chester v. Postal T. C. Co., 227 Pa. 384, 76 Atl. 65; Ashworth v. Pittsburg R. R. Co., 231 Pa. 539, 80 Atl. 981; Point Bridge Co. v. Pittsburgh R. IL Co., 240 Pa. 105, 87 Atl. 614; McKeesport v. McKeesport, etc., R. R. Co., 252 Pa. 142, 97 Atl. 184; 3 Elliott on Railroads (2d Ed.) § 1081; Detroit v. Detroit, etc., R. R. Co., 184 U. S. 386, 22 Sup. Ct. 410, 46 L. Ed. 592.

From these premises it is contended by counsel for respondent that, since the Legislature could not under the inhibition of said constitutional provisions in the first instance have granted the railways company the authority to construct and operate its railways upon and over the streets of the city of St. Louis, and since the city alone possessed the absolute and exclusive power, under the express provisions of said constitutional provision, to grant or withhold its consent to the company to so construct and operate its railways, and since the city had the authority to impose a condition upon its said consent that the company should agree that it would not charge greater fares than those Stated in the ordinance, it therefore follows that the Legislature cannot, by statute subsequently enacted, authorize that to be done which it could not do in the first place, namely, authorize the Public Service Commission to annul, change, or impair the limitations placed upon the fares prescribed by the franchise ordinance. In other words, if I correctly understand counsel, they insist that the Legislature bad no constitutional authority by subsequent legislation to change or authorize the change of the list of fares fixed by the franchise ordinance, when it could not in the first place have done so.

It must be conceded that, under the adjudications of this court, the city of St. Louis had the absolute and exclusive authority to grant to or withhold its consent from the railways company to construct and operate its railways over the streets of the city. Union Depot By. Co. v. Southern Ry. Co., 105 Mo. 562, loc. cit. 573, 16 S. W. 920; St. Louis & Meramec River Ry. Co. v. City of Kirkwood, 159 Mo. 239, 60 S. W. 110, 53 L. R. A. 300; Kansas City v. Belt Line Co., 187 Mo. 146, loc. cit. 155, 86 S. W. 190; City of St. Louis v. United Railways Co., 263 Mo. 387, loc. cit. 439, 174 S. W. 78.

If it were not for this constitutional provision, there would be no doubt as to the power of the Legislature in the exercise of its police power to increase or authorize the commission to increase the rates of fares stipulated for in the franchise ordinance; as I understand it, this is practically conceded by counsel for the respondent. But in the presence of that...