Mississippi Public Service Com'n v. Columbus & Greenville Ry. Co., 07-CC-59223

• Decision Date: 12 December 1990
• Docket Number: No. 07-CC-59223,07-CC-59223
• Citation: 573 So.2d 1343
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI PUBLIC SERVICE COMMISSION v. COLUMBUS & GREENVILLE RAILWAY COMPANY.

Page 1343

573 So.2d 1343

MISSISSIPPI PUBLIC SERVICE COMMISSION v. COLUMBUS & GREENVILLE RAILWAY COMPANY.

No. 07-CC-59223.

Supreme Court of Mississippi.

Dec. 12, 1990.

Dennis W. Miller, Jackson, for appellant.

J.P. Coleman, Ackerman, for appellee.

Before DAN M. LEE, P.J., and PRATHER and PITTMAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal from the First Judicial District of the Hinds County Circuit Court sitting as an intermediate court of appeal which reversed an order issued by the Mississippi Public Service Commission [hereinafter commission] determining that the commission lacked jurisdiction in this matter. Finding the circuit court action correct, we affirm.

Pursuant to complaints from area residents and an assessment by the commission's railroad inspector, the commission issued an "ORDER DIRECTING ISSUANCE OF CITATION TO SHOW CAUSE" on December 7, 1984, to the Columbus and Greenville Railway [hereinafter C. & G.]. This order required C. & G. to appear before the commission to show cause why the railway should not be required to make repairs for adequate drainage at the Sapa railroad crossing in Webster County, Mississippi. C. & G. moved for a dismissal of the order for the reason that the commission was wholly without jurisdiction to issue orders designed to impact flooding of private residences located several hundred feet away from the railroad right-of-way.

The commission entered an order dismissing C. & G.'s motion to dismiss for lack of jurisdiction. Following a hearing before the commission on its citation and show cause order, a "FINAL ORDER" was entered which directed C. & G. to provide the commission and its engineering staff with plans and specifications designed to correct flooding at the Sapa crossing. "Said plans and specifications shall provide for the construction of an open wooden trestle at the Sapa Crossing or for the modification and redesign of a culvert installation with drainage characteristics and capabilities equal to or in excess to those associated with an open wooden trestle structure." C. & G. was ordered to submit its plans and specifications within 60 days of the order subject to final approval by the commission.

C. & G. then filed notice of appeal to the Hinds County Circuit Court. Upon consideration of the record and briefs filed by both parties, the circuit court found that the commission lacked jurisdiction to issue a citation in this matter and that the commission should have granted C. & G.'s motion to dismiss. The case was reversed and remanded to the commission for the appropriate entry of an Order Dismissing the Citation. Hence, the commission filed its appeal to this Court.

The single issue before this Court concerns the territorial limit of the commission's jurisdiction.

I. DID THE MISSISSIPPI PUBLIC SERVICE COMMISSION HAVE SUBJECT MATTER JURISDICTION TO ORDER THE ALTERATION OF DRAINAGE STRUCTURES UNDER A FREIGHT TRAFFIC RAILROAD AS A RESPONSE TO FLOODING THAT OCCURRED ON PRIVATE PROPERTY SITUATED SEVERAL FEET OFF THE RAILROAD RIGHT-OF-WAY?

FACTS

Near the community of Sapa in Webster County, the C. & G. railway runs in a generally east-west direction and crosses a streambed. Prior to September of 1983, the railroad crossing consisted of an open trestle formed from a latticework of wooden supports. At some point around September of 1983, the wooden trestle failed which prompted C. & G. to take some action in order to restore rail service. C. & G. installed two 48-inch (4 ft.) metal culverts in the streambed which were packed in gray fill gravel with the gravel forming the base or foundation for the rails.

The first instance of torrential rainfall and flooding at Sapa occurred on May 19, 1983, two and a half years subsequent to the replacement of the trestle with two 48-inch culverts. From May 18th-22nd, unusually heavy rains caused flooding on the Big Black River, and the West, Mississippi, station recorded the highest point since such records have been kept. There are three homes in the Sapa area which are of interest. ¹ The Womack residence received 21 inches of water during the May flood. The Jenkins home flooded with 18-25 inches of water, and the third residence, the Mullen home, had flooding in the utility room. According to the record, the Womack home is located 200 hundred yards from the tracks, and Ms. Jenkins stated that her house was located a distance of 100 hundred feet from Mr. Womack's residence.

As a result of the heavy rains and flooding, the gray fill gravel underneath the railway track washed away leaving the tracks unsupported and hanging in mid air. However, this problem with the gravel wash out was not unique to the Sapa crossing. Mr. James Marvin Strickland, chief engineer for C. & G., testified that there were 19 locations along the system from Greenville to Columbus which experienced major washouts, and rail service on the C & G. line came to a complete halt from May 19-27, 1983. Subsequent to the May flood, C. & G. repacked the two 48-inch culverts with gravel and slag in order to restore service on the line.

Approximately seven months later in December of 1983, a second heavy rainfall produced flooding problems. Mr. Womack reported 13-14 inches of water in his home on this second occasion. The Jenkins home had been raised since the first flooding by two rows of cinder blocks, but the house still flooded with four to six inches of water. Only the yard flooded at the Mullen residence on this second occasion. December of 1983 was also a month of unusually heavy rainfall, and there was widespread flooding in the Yazoo, Tombigbee and Big Black River basins. Once again, some of the gravel fill beneath the track washed out at the Sapa crossing leaving the rails suspended in the air. Further, C. & G. testified that on this occasion they also experienced major washouts along the system and reported a total of 39 washouts that occurred in the year 1983 alone. After this second incident of flooding, C. & G. Railway made changes in the drainage capacity at the Sapa crossing. C. & G. installed two 72-inch (6 ft.) metal culverts and left one 48-inch (4 ft.) culvert in place.

The third and final flood occurred on October 22, 1984. The Womack and Jenkins homes received three to six inches of water. The Mullen home did not flood on this third occasion. Government reports contained in the record reveal that very heavy rainfall and widespread flooding was a statewide problem in October of 1984. There were no problems with the gravel washing away and leaving the rails unsupported during the October, 1984 flood.

LAW

Factual findings of the commission are prima facie correct, and the reviewing court can not substitute its judgment for that of the commission and disturb its findings where there is any substantial basis in the evidence for the commission's findings or where the ruling of the commission is not arbitrary or capricious. Loden v. Mississippi Pub. Serv. Comm'n, 279 So.2d 636, 641 (Miss.1973); Mississippi Pub. Serv. Comm'n v. Alabama Great So. R.R. Co., 255 So.2d 665, 667 (Miss.1971). Our Constitution does not permit this Court to retry matters de novo on appeal from administrative agencies. Mainstream Sav. & Loan Ass'n v. Washington Fed. Sav. & Loan Ass'n, 325 So.2d 902, 903 (Miss.1976).

The appeal from an administrative agency is a limited one. This Court will entertain the appeal only to determine whether or not the order of the agency was (1) supported by substantial evidence; (2) arbitrary or capricious; (3) beyond the power of the administrative agency to make; (4) violated some constitutional or statutory right of the complaining party. Mainstream Sav. & Loan Ass'n v. Washington Fed. Sav. & Loan Ass'n, 325 So.2d 902, 903 (Miss.1976) (citing Mississippi State Tax Comm'n v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969); Loftin v. George County Bd. of Educ., 183 So.2d 621 (Miss.1966); City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951)).

However, administrative agencies have only such powers that are expressly granted to them or those necessarily implied via their grant of authority. Pittman v. Mississippi Pub. Serv. Comm'n, 538 So.2d 367, 373 (Miss.1989). If the authority of an administrative agency is not found to be expressly granted or necessarily implied, then the agency's decision is void. Farrish Gravel Co., Inc. v. Mississippi State Highway Comm'n, 458 So.2d 1066, 1068 (Miss.1984). The term "necessarily implied" is somewhat restrictive. "Necessarily implied" refers to a logical necessity and means that no other interpretation is permitted by the words of the instrument construed, and it has been defined as an implication which yields so strong a probability of intent that any intention to the contrary cannot be supposed leaving no room for doubt. Strong v. Bostick, 420 So.2d 1356, 1361 (Miss.1982) (citing 42 C.J.S. Implication at 405 (1944)). Furthermore, any such power exercised by an administrative agency must be found within the four corners of the statute under which it operates. Strong v. Bostick, 420 So.2d 1356, 1361 (Miss.1982); Mississippi Milk Comm'n v. Winn-Dixie, 235 So.2d 684 (Miss.1970).

The commission's argument in a nutshell is that it has legislative authority to function as a regulator and to act accordingly in the public interest. As a basis for this authority, the commission directs the Court's attention to four statutes which it embraces as its "enabling authority" to issue its order pertaining to flooding at the Sapa crossing. The authority gleaned from these four statutes is the sum and substance of the commission's argument for jurisdiction in this case. First of all, the commission is delegated general oversight and authority to act by Secs. 77-9-1 and 77-9-9.

It is the duty of the public service commission to call for information from railroads and other common carriers from time to time, and to make investigations to determine whether...