Mississippi Railroad Commission v. Yazoo & Miss. Valley Railroad Co.

• Decision Date: 18 December 1911
• Docket Number: 15,059
• Citation: Mississippi Railroad Commission v. Yazoo & Miss. Valley Railroad Co., 56 So. 668, 100 Miss. 595 (Miss. 1911)
• Parties: MISSISSIPPI RAILROAD COMMISSION v. YAZOO & MISS. VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

56 So. 668

100 Miss. 595

MISSISSIPPI RAILROAD COMMISSION v. YAZOO & MISS. VALLEY RAILROAD COMPANY

No. 15,059

Supreme Court of Mississippi

December 18, 1911

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Suit by the Yazoo & Mississippi Valley Railroad Company against the Mississippi Raliroad Commission. From a decree for plaintiffs, defendant appeals.

The Yazoo & Mississippi Valley Railroad Company sued out an injunction to restrain the enforcement of an order of the Railroad Commission requiring it and the Southern Railway Company to connect their tracks at Hollandale, a station situated on the line of both railways, where the two ran parallel. The chancellor granted a perpetual injunction, and the Railroad Commission appeals. At the March, 1911, term of the supreme court the appellant filed a motion to advance the cause on the docket as a preference case, which motion was overruled on May 22, 1911. Thereafter, at the October, 1911 term of said court, the case was argued and submitted.

Affirmed.

Watson & Jayne, for appellant.

Based on the right of the public to use switch. We apprehend that this is one of, if not the determining question in this case and will, therefore, go into the authorities on it to some extent.

It seems that the weight of authority and the best reasoned cases hold that the test as to whether the use to which the projected railroad, spur, feeder or connecting switch, is public or private, is determined by the question as to whether all of the public dealing with the public service corporation have the right to use the projected railroad spur, feeder or connecting switch, and not by the fact that the number who have business requiring its use may be very small.

The cases defining when the use of public and private have most often arisen in the exercise of the right of eminent domain. However the principle involved in the determination of what is a public use apply in the case at bar. Some of the leading cases on this subject are here cited. Ulmer v. Lime Rock Co., 57 A. 1001; Decamp v. Hibernia R. R. Co., 47 N. J. Law 43; National Dock. R. R. v. Central R. R., 32 N. H. Eq. 755; Kettle River R. R. Co. v. Eastern Ry. Co., 43 N.W. 469; Chicago V. & N. R. v. Carter, 46 N.W. 75; Phillips v. Watson, 18 N.W. 659; Chicago Dock & Sea Co. v. Garity, 3 N. E. (Ill.) 448; Gayland v. Chicago, 68 N. E. (Ill.) 522.

This question is fully discussed in the first case above cited and the authorities are there cited, classified and distinguished, and which case is so well reasoned that we content ourselves with the exposition of the question therein made.

2. Due process of law.--We do not believe the contention of appellee to the effect that the order of the railroad commission, directing the two railroads in question to put in the connecting switch over an intervening strip of land belonging to third persons, falls within the constitutional provision against the taking of property without due process of law. We fully understand that it would be necessary for one or the other of the railroads or both acting jointly to have condemned the right of way for the connecting switch under the right of eminent domain and pay therefor. This could have been done under their charters without question, and the owner of the strip of land would not have been heard to question their right on the ground that the exercise of eminent domain in the instant case amounted to the taking of his property without due process of law. Therefore, if these railroads or either of them, could exercise their right of eminent domain of their own volition, in case they deemed it to their interest to so do, why could not the state from whom they received their charters acting through the state railroad commission, compel them to exercise the right of eminent domain on behalf of the public? To put it otherwise we do not believe it comports with the better law on the subject under discussion to hold that the choice of the time and the necessity for the exercise of the right of eminent domain, belongs entirely to public service corporations. We believe that, upon public service corporations, failing to exercise the right of eminent domain, given them under their charter, in cases where the public convenience demanded that such be done, then the state may, acting through its legislature, or through its railroad commission, or such other supervisory body as it may vest with the power, choose the time and pass upon the necessity for the exercise of the right of eminent domain and compel such exercise.

The following language of the Supreme Court of the United States, we think apply in point:

"In this case the provision is manifestly a reasonable one tending directly to the accommodation of the public and in a manner not substantial or unreasonably detrimental to the ultimate interest of the corporation itself."

"Although to carry out the judgment may require, by the plaintiff in error, of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnished an answer to the application of the defendant in error." Railroad Co. v. Jacobson, 179 U.S. 288, 45 L.Ed. 195. The case above cited was one requiring the track connection and facilities for the exchange of cars and traffic at railroad intersections. The opinion of the court in this case is supported by a list of authorities there cited.

Aside from the above authorities we believe that the question of due process of law was entirely removed from the case before the chancellor, by the tender of the right of way by the Arcola Manufacturing Co., as set out in the answer of appellant and the evidence in the case.

Alexander & Alexander, Chalmers Alexander and James R. McDowell, assistant attorney-general, for appellants.

We rely on the case of Wisconsin, etc. R. R. Co. v. Jacobson, 179 U.S. 287, 54 L.Ed. P. 194, for a reversal of the decree in the court below, rendered by chancellor Lyell against the present appellants. The Wisconsin-Jacobson suit involves the question of railroad intersection and of validity of statute requiring track connection and interchange of traffic. The Law Edition, volume 45, shows the Minnesota statute, concerned, whose similarity to the Mississippi statute will at once be apparent. The suit started in the Minnesota state court, and came by writ of error before the United States Supreme Court. That court, in a lengthy opinion by Mr. Justice Peckham laid down the law, and we submit that the decision is here in point. The present court will note that the question of constitutional rights of the railroad companies was clearly presented to the United States Supreme Court, and that great tribunal held that the companies, by such Minnesota statute, were not deprived of their constitutional rights, of their property without the process of law. We accordingly submit that the decree of the chancery court below should be reversed and proper decree be rendered on the law and facts, in the present appellate court.

Charles N. Burch and Mayes & Longstreet, for appellee, filed a lengthy brief contending:

First That the order of the Railroad Commission was void for the reason that it was made to subserve a private interest and not the public welfare, citing Lewis on Eminent Domain, sec. 157 and...