Missouri Southern R. Co. v. Public Service Commission

• Decision Date: 09 July 1919
• Docket Number: No. 20735.,20735.
• Citation: 214 S.W. 379,279 Mo. 484
• Parties: MISSOURI SOUTHERN R. CO. v. PUBLIC SERVICE COMMISSION.
• Court: Missouri Supreme Court

214 S.W. 379

279 Mo. 484

MISSOURI SOUTHERN R. CO. v. PUBLIC SERVICE COMMISSION.

No. 20735.

Supreme Court of Missouri, Division No. 1.

July 9, 1919.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

An order of the Public Service Commission against the Missouri Southern Railroad Company was affirmed by the circuit court, and the Railroad Company appeal. Affirmed.

J. B. Daniel, of Piedmont, for appellant.

A. Z. Patterson, Gen. Counsel, and J. D Lindsay, Asst. Counsel, both of Jefferson City, for respondent.

BLAIR, P. J.

This is an appeal from judgment of the Jefferson circuit court affirming an order of the Public Service Commission entered in the matter of the complaint of James M. Mooney v. Missouri Southern Railroad Co., 5 Mo. P. S. C. Rep. 250, which order in so far as it is affirmed, required appellant to "refrain from charging or collecting for the transportation of carload shipments on the tram or spur tracks which connect with" appellant's main line and points on appellant's main line, "or between points on said trams, rates in excess of those in effect between other points on its main line, for the same distance." The trial court also accepted a suspending bond, and suspended the operation of the order until the final determination of the case in this court.

Appellant owns and operates a line of railroad 54 miles long, which runs from Bunker, in Reynolds county, to Leeper, in Wayne county. Connected with this line, appellant also operated two industrial spur tracks. Industrial spur No. 1 is 4½ miles long and joins the main line at Dairyville. Industrial spur No. 2 is 5 miles in length, and connects with the main line at Corridon. The evidence before the commission and the circuit court showed appellant, was imposing a switching charge of $7.50 for each loaded car switched between main line stations and points on either spur. This charge was in accord with tariffs filed by appellant, but never approved by the commission, and seems to have originated out of an agreement between appellant, on the one part, and complainant, Mooney, and other shippers, on the other. The agreement was made at a conference between appellant and interested shippers, which conference resulted from a notice appellant gave in December, 1916, that it purposed to abandon spur track No. 1 and take up the rails. By the agreement appellant contracted to repair spur track No. 1 and operate it for two years, upon condition that the $7.50 switching charge be allowed appellant provided the Public Service Commission would approve such charge. The shippers agreed not to oppose abandonment of the spur after two years, and that they would request the commission to approve the switching charge. After this agreement was made, appellant expended about $5,000 in repairing the spur tracks and rendering serviceable a geared or Shay engine, which, because of heavy grades, it was necessary to use on the spurs. The evidence showed that the switching charge of $7.50 yielded $2,910 per annum. Other facts appear in the opinion.

Appellant contends, in order, that (1) the spur tracks are not subject to regulation by the commission; (2) the questions whether (a) appellant is charging more than a lawful rate, and (b) whether it can be compelled to operate the spurs, are purely judicial, and the commission has no jurisdiction to decide them; (3) the operation of the spurs was an ultra vires activity, which the state might prevent, but which it could not compel appellant to continue; (4) the commission's power to regulate is a power to regulate reasonably, and not to destroy; and (5) complainant, by his agreement, was estopped to question the validity of the switching charge.

I. The question whether appellant could be compelled to continue the operation of the spur tracks is directly presented and decided in State ex rel. Public Service Commission v. Missouri Southern Railroad Co., 214 S. W. 381, a companion case. Whether that question is presented by this record need not, therefore, be decided.

II. It is contended the question whether the rate charged was excessive is a judicial question, and one, therefore, which the commission has no power to decide. The statute (section 47, Laws 1913, p. 583) expressly gives the commission authority to fix rates, and this court has held valid that delegation of administrative power. State ex rel. v. Public Service Commission, 259 Mo. loc. cit. 728, 168 S. W. 1156. It is true the Public Service Commission is not a court (City of Macon v. Commission, 266 Mo. loc. cit. 490, 181 S. W. 396; Rhodes-Buford L., H. & P. Co. v. Union Elec. L. & P. Co., 2 P. S. C. Rep. 123); nevertheless though it cannot exercise judicial functions, it must take cognizance of existing facts and the law. The act establishing it expressly requires it to do so. Section 47, supra. It is an "administrative arm" of the Legislature. Neither it nor the Legislature can ignore the Constitution, nor can the commission proceed otherwise than in accordance with valid statutory provisions. In determining whether a proposed rate or change of rate is reasonable—i. e., whether it is the lawfully applicable rate for the future—the commission does so in view of existing facts and controlling law. To do this it is necessary for it to ascertain what that law is, and in performing its legitimate function—i. e., putting into effect in respect to a particular utility the previously declared will of the Legislature (Michigan Central It R. v. Michigan R. R. Com., 160 Mich. 355, 125 N. W. 549)—it must ascertain the existing facts, since these, under the law, determine the applicable rate. Such inquiries by the commission are not judicial. Prentis v. Atlantic Coast Line, 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150; State ex rel. v. Harty, 213 S. W. 443, decided June 14, 1919. The fixing of rates for future business is legislative in character. The commission's inquiry resulted, not in a judgment respecting existing or past rates or rights, but in an order respecting rates to be charged in the future. That final act was the test of the character of the inquiry before the commission (Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. 229), and was not judicial. The point is ruled against appellant.

III. It is insisted the spur or trams are "not railroads within the meaning of the Public Service Commission Act," and not subject to regulation by the commission. The commission found, on the evidence, that the spurs were parts of appellant's railroad. They were being operated by appellant. Appellant had filed "tariffs naming rates for the movement of all freight over the spur tracks in carloads, except live stock and perishable freight." Appellant's contentions are that (1) the spurs are not included in the charter; (2) only the track material is owned by appellant; (3) appellant has never operated them as a part of its railroad.

That appellant was operating these spurs is proved beyond doubt. That it operated them by means of an engine different from those on the main line is of no consequence on this question....