City of St. Louis v. Public Service Commission

• Decision Date: 30 December 1918
• Citation: 207 S.W. 799,276 Mo. 509
• Parties: CITY OF ST. LOUIS v. PUBLIC SERVICE COMMISSION et al.; UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

207 S.W. 799

276 Mo. 509

CITY OF ST. LOUIS v. PUBLIC SERVICE COMMISSION et al.; UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri

December 30, 1918

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

Reversed and remanded. (with directions).

H. S Priest, T. E. Francis for appellant, United Railways Co. Morton Jourdan, of counsel; A. Z. Patterson and J. D Lindsay, General Counsel and Assistant General Counsel for appellant, Public Service Commission.

(1) Rate making is the province of the State in the exercise of its police power. The express language of the Constitution, is that this power "shall never be abridged." Art. 12, sec. 5. Even if not expressly reserved, this power, so essential to the public welfare, would be construed as impliedly reserved. It is the governing power for the welfare of the State. The ordinance relied upon by the city, whether it be a contract or regulation, must give way when it conflicts with legislation of the State in the exercise of its police power. When the State acts, the power of the city ceases. State ex rel. v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67; State Public Utilities Commission v. Railroad, 275 Ill. 555, 570; Chicago v. O'Connell, 278 Ill. 591; Atlantic Coast Railway Company v. Commissioners, 104 A. 218; Collingswood Sewerage Co. v. Collingswood, 102 A. 901; Salt Lake v. Traction Co., 173 P. 556. (2) Section 20 of Article 12 of the Constitution does not confer upon the City of St. Louis any power to make a contract or enact a law that is not subject to and in harmony with the Constitution and laws of the State. It is a prohibition against the exercise of the power of the General Assembly to grant a franchise "without first acquiring the consent of the local authorities," etc. From this negation of power to the Legislature, except upon condition of consent of the municipality, a proper interpretation will not justify a commission to the municipality of omnipotence to make and maintain any condition its wisdom or folly may suggest. The right of the city to give or withhold its consent to the occupation of its streets by street railways does not give it the power to fix rates. Its power must be sought for in its charter, which must always be subject to the Constitution and laws of the State. Ewing v. Hoblitzelle, 85 Mo. 64, 76; Home Telephone Co. v. Los Angeles, 211 U.S. 265; Milwaukee Electric Ry. & Light Co. v. Railroad Commission, 238 U.S. 174; Manitowoc v. Manitowoc Co., 145 Wis. 13; State v. Telephone Co., 189 Mo. 99; State ex rel. v. Public Service Commission, 270 Mo. 444; State ex rel. v. Railroad, 140 Mo. 550. (3) The respondent relies upon the case of Matter of Quinby v. Public Service Commission, 223 N.Y. 244. The judgment there rested upon a narrow interpretation of the act of that State establishing the Commission, while a contrary interpretation of our act (mainly borrowed from that of New York) was made by this court long antecedent to the above decision. If, when a law has been substantially copied by one state from another, it has received judicial construction, that interpretation will also be adopted; but, if the courts of the borrowing sovereign are first called upon to construe the law, and do construe it, their construction must stand, notwithstanding there may be a subsequent and contrary interpretation by the judiciary of the state from which the law was taken. Pratt v. Miller, 109 Mo. 89; Northcutt v. Edgar, 132 Mo. 278; Stulsman County v. Wallace, 142 U.S. 312; Myers v. McGavock, 58 N.W. 527 (Nebr.) ; Bank v. Hoffman, 74 Mo.App. 207; Metropolitan R. R. Co. v. Moore, 121 U.S. 572; State v. Chandler, 132 Mo. 161.

Charles H. Daues, and H. A. Hamilton for respondent, City of St. Louis.

(1) The General Assembly can pass no law granting the right to construct and operate a street railroad in the City of St. Louis, and no street railroad can be constructed and operated in said city, without the consent of the duly constituted local authorities. Const. Mo. art. 12, sec. 20; Union Depot Ry. Co. v. Southern Ry. Co., 105 Mo. 562; State ex inf. v. Lindell Ry. Co., 151 Mo. 162; St. L. & M. R. Ry. Co. v. Kirkwood, 159 Mo. 239; St. Louis v. United Rys. Co., 263 Mo. 387; Carlisle Railway Company's Appeal, 245 Pa. St. 561. (2) In granting the consent required by Section 20, Article 12, Constitution of Missouri, the City of St. Louis may attach such conditions thereto as it deems necessary and proper. A limitation upon the amount of fare to be exacted is a valid condition to granting consent to construct and operate a street railroad, and no legal power can disregard the condition and still uphold the consent. Union Depot Ry. Co. v. The Southern Ry. Co., 105 Mo. 562; St. L. & M. R. Ry. Co. v. Kirkwood, 159 Mo. 239; Kansas City v. Railroad, 187 Mo. 146; St. Louis v. United Rys. Co., 263 Mo. 387; In re Kansas City Railways Co., 3 Mo. P. S. C. 593; In re Southwest Mo. Ry. Co., 4 Mo. P. S. C. 13; People v. Barnard, 110 N.Y. 548; Kittinger v. Buffalo Traction Co., 160 N.Y. 377; Gaedeke v. Staten Island Railroad, 43 A.D. 515; People ex rel. v. North Tonawanda, 70 Misc. 91; Allegheny v. Millville Railroad, 159 Pa. St. 411; Plymouth Tp. v. Chestnut Hill Railroad, 168 Pa. St. 181; West Chester v. Postal T. C. Co., 227 Pa. St. 384; Ashworth v. Pittsburg Railroad, 240 Pa. 105; McKeesport v. McKeesport Railroad, 252 Pa. St. 142; 3 Elliott on Railroads (2 Ed.), sec. 1081; Detroit v. Detroit Railroad, 184 U.S. 386. (3) The police power is always subject to the rule that the legislature may not exercise any power that is expressly or impliedly forbidden to it by the Constitution. 12 Corpus Juris, p. 929; State v. Julow, 129 Mo. 163; State v. Missouri Pacific Ry. Co., 242 Mo. 339; Ives v. South Buffalo R. R. Co., 201 N.Y. 271. (4) The Public Service Commission Act does not vest power in the commission to increase the rate of fare stipulated in the franchise ordinance of a street railway and made a condition upon which the local consent is granted to construct and operate said railway upon the streets and highways. State ex rel. v. Public Service Commission, 270 Mo. 429; Quinby v. Public Service Commission, 119 N.E. 433.

WOODSON, J. Faris, Walker and Graves, JJ., concur; Bond, C. J., concurs in separate opinion, in which Faris, Blair and Williams, JJ., concur.

OPINION

In Banc

WOODSON J. --

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 1918, the United 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 in 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 franchise 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 sent 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 due 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.

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 appellant insist upon the affirmative of this proposition while those for the respondent deny the Commission...