Illinois Cent. R. Co. v. Mississippi Public Service Commission

• Citation: 220 Miss. 439,71 So.2d 176
• Decision Date: 22 March 1954
• Docket Number: No. 39120,39120
• Parties: ILLINOIS CENT. R. CO. v. MISSISSIPPI PUBLIC SERVICE COMMISSION et al.
• Court: United States State Supreme Court of Mississippi

Page 176

71 So.2d 176

220 Miss. 439

ILLINOIS CENT. R. CO. v. MISSISSIPPI PUBLIC SERVICE COMMISSION et al.

No. 39120.

Supreme Court of Mississippi.

March 22, 1954.

Byrd, Wise & Smity, Jackson, Jas. H. Wright, John W. Freels, Chicago, for appellant.

J. P. Coleman, Atty. Gen., by James T. Kendall, Asst. Atty. Gen., for appellees.

ROBERDS, Presiding Justice.

Prior to October 1, 1950, appellant Railroad was operating two daily passenger trains, one each way, between Jackson and Gulfport, Mississippi.

It publicly announced its intention to cease operating these trains. The Public Service Commission cited the Railroad to appear before it October 3, 1950, to show cause why it should not be required to continue the operation of said trains. The matter was heard before the Commission and on October 18, 1950, the Commission entered an order which the State and the Railroad interpret to require the Railroad to continue to operate the two passenger trains. No appeal was taken by the Railroad from this order.

In the meantime, and on September 29, 1950, the Attorney General of Mississippi filed a bill in the Chancery Court of Harrison County, seeking, and upon which he obtained, an order enjoining the Railroad from discontinuing the operation of said trains until the matter before the Commission 'shall have been fully and finally heard, determined and finally disposed of in the manner provided by law.'

On November 10, 1950, on motion of the Railroad, said temporary injunction was dissolved by said chancery court because the question had been determined by the Public Service Commission.

On November 15, 1950, the Railroad filed in the Chancery Court of Hinds County the bill now under consideration, seeking (1) an injunction to prevent the order of the Commission from being carried out; (2) attacking the power and right of the Commission to pass the order it adopted October 18th; and (3) for a permanent injunction against enforcement of said order. The Hinds County Chancery Court granted a temporary injunction restraining the enforcement of the order of the Commission and on November 16, 1950, the Railroad ceased the operation of said trains and has not operated them since that time. On May 21, 1953, after the taking of testimony and a full hearing on the merits, the Chancery Court of Hinds County dissolved the temporary injunction theretofore issued by that court and dismissed, with prejudice, the original bill filed by the Railroad. From that action this appeal is prosecuted.

The Railroad contends (1) that the order of the Commission requires it to operate two passenger trains between Jackson and Gulfport, and it has no authority to require the Railroad to operate any particular train; (2) the Railroad was losing money in the operation of the two trains and to require the Railroad to furnish the passenger service would be taking its property without due process of law, and in violation of its constitutional rights; and (3) that the proof on this hearing in the Hinds County Chancery Court failed to show any public necessity for such passenger service, and that the order of the Commission did not so find and adjudicate.

The State takes issue on the foregoing propositions and contends (a) that the Railroad had a full, plain, adequate, complete and speedy remedy by appeal from the order of the Commission, which it did not pursue, and that for that reason this bill in equity is not maintainable; and (b) the mail service in question was formerly furnished by the Gulf & Ship Island Railroad under a charter granted it by the State, and that the property of that Railroad was purchased by appellant Railroad and that appellant is under a contractual obligation to furnish said passenger service.

We have given the case long and thorough consideration and have concluded the Railroad did have a plain, adequate and complete remedy by appeal from the order of the Commission, to which resort was not had, and that for that reason the present bill was not maintainable.

Section 7699, Code 1942, reads: 'In addition to other remedies now available, the State, or any party aggrieved by any final finding, order, or judgment of the Commission, shall have the right, regardless of the amount involved, or appeal to the first judicial district circuit court of Hinds county, Mississippi, which shall be taken and perfected as hereinafter provided, within six months from the date of such final finding, order or judgment, and in those cases wherein an administrative order of the Commission is involved, may affirm or reverse for further proceedings as justice may require and in those cases wherein the Commission's order appealed from is a judicial finding the said circuit court shall review, affirm, reverse or modify the same and enter therein such order or judgment as may be right and just; provided that without excluding any other finding, order or judgment of the Commission as constituting a judicial finding, the granting or denial by the Commission of an application for a certificate of public convenience and necessity, or the granting or denial of an application for a permit to operate as a contract carrier, shall be construed as a judicial finding, and appealable as such. All such appeals shall be taken and perfected, heard and determined either in term time or in vacation on the record, including a transcript of pleadings and testimony, both oral and documentary, filed and heard before the Commission, and such appeal shall be heard and disposed of promptly by the court as a preference cause. In perfecting any appeal provided by this Act, the provisions of law respecting notice to the reporter and the allowance of bills of exception, now or hereafter in force respecting appeals from circuit courts to the Supreme Court, shall be applicable.'

We quote the applicable part of Section 7700, said Code, granting the right of appeal to the Circuit Court of Hinds County from any final order, finding or judgment of the Commission: 'Appeals from any final finding, order or judgment of the Commission shall be taken and perfected by the filing of a bond in the sum of $500.00 with two sureties, or with a surety company qualified to do business in Mississippi as the surety, conditioned to pay the cost of such appeal, said bond to be approved by the chairman or secretary of the Commission, or by the judge of the court to which such appeal is taken in case the chairman or secretary of the Commission refused to approve a proper bond tendered to them within the time limited for taking appeals. The Commission may grant a supersedeas bond on any appeal, in such penalty and with such surety thereon as it may deem sufficient, and may, during the pendency of any appeal, at any time, require the increase of any such supersedeas bond or additional securities thereon; and the judge of the circuit court of Hinds county may on petition therefor by any party entitled to an appeal under this Act, presented to him within six months of the date of the final finding, order, or judgment of the Commission appealed from, award a writ of supersedeas to any such final finding, order, or judgment of the Commission, upon the filing of a supersedeas bond in an amount to be fixed by said judge.'

Section 7711, said Code, provides: 'Appeals from the order of the circuit court affirming or reviewing...