St. Louis Southwestern Railway Co. v. Stewart

• Decision Date: 28 November 1921
• Docket Number: 3
• Citation: 235 S.W. 1003,150 Ark. 586
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. STEWART
• Court: Arkansas Supreme Court

235 S.W. 1003

150 Ark. 586

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. STEWART

No. 3

Supreme Court of Arkansas

November 28, 1921

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Daniel Upthegrove, J. R. Turney, and Gaughan & Sifford, for appellant.

1. On this appeal the duty of this court is to try the case de novo, in accordance with the procedure defined by Act No 124, approved February 15, 1921, and it should not govern itself by the rule heretofore established not to pass upon the weight of the evidence on appeals from findings of facts by trial courts or verdicts of juries.

2. The court can consider no evidence other than that shown in the record,--it cannot consider the personal impressions of the members of the commission, nor the information given the commission by the engineer not incorporated in the record. 227 U.S. 88.

3. The commission was not authorized to prescribe the materials out of which the depot building should be constructed. The police power of the State can be exercised no further than to require things necessary for the public health, moral safety and convenience. 55 Ark. 12; 172 U.S. 269; 97 Ark. 475; 113 Id. 384, 396; 200 U.S. 562.

The Railroad Commission, the creature, cannot rise above its creator, the Legislature, and the latter in its latest expression on the subject has required only that "every corporation engaged in public service business in this State shall establish and maintain adequate and suitable facilities" etc. This has no reference to the appearance nor to the materials out of which the buildings--facilities--shall be constructed.

R. L Montgomery and Hamiter & Dickson, for appellees.

1. This proceeding was instituted and the appeal to the circuit court was filed before the enactment of Act 124, Acts 1921, and the procedure contended for by appellant does not apply; moreover, section 22 of that act provides that cases previously appealed to the circuit court shall be heard and determined in accordance with existing law.

2. The Commission had express authority under § 11, Act 571, Acts 1919, to make a personal inspection either by its members, inspectors or employees.

3. The reasonableness and necessity for the order requiring better station facilities is established by the proof, and in requiring the erection of a new station it was neither arbitrary nor unreasonable, but comes within principles recognized by this court. 85 Ark. 12; 99 Id. 1; 113 Id. 384, 385; 25 Id. 298; 97 Id. 473; 206 U.S. 7.

4. It is within the power of the Commission to prescribe the character of the building and the materials out of which it shall be constructed. Act 338, § 2, Acts 1907; Act 124, § 6, Acts 1921; Act 571, § 6, Acts 1919.

MCCULLOCH, C. J. HART and SMITH, JJ., dissent.

OPINION

McCULLOCH, C. J.

This appeal brings up for review proceedings before the Corporation Commission, initiated against appellant by citizens of the town of Lewisville, to require the company to construct a new passenger station at that place. Notice was given as required by statute, there was a hearing upon the testimony of witnesses and an order was made by the Commission requiring the construction of a new building as prayed for in the petition. An appeal to the Pulaski Circuit Court was prayed and granted, and a few days thereafter the statute now in force was enacted abolishing the Corporation Commission and transferring its functions, so far as related to control over public utilities, to the Railroad Commission.

The old statute (Act 571, Acts of 1919) provided for an appeal from the decision of the Corporation Commission to the circuit court of Pulaski County, where the matter should be heard upon the record made before the Commission, and also provided for an appeal to the Supreme Court from the judgment of the circuit court, and that "in such case appeals to the Supreme Court shall be governed by the procedure, and reviewed in the manner which is now or may hereafter be prescribed by law governing appeals from chancery courts." Secs. 27-28, Act 571, Session of 1919. The statute abolishing the Corporation Commission (Act 124, Session of 1921) provided for appeals to the circuit court of Pulaski County, thence to the Supreme Court, and that on appeal to the Supreme Court that court "shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable." Sec. 21, Act 124.

Sec. 22 of the last statute provides that "all cases which have heretofore been appealed to the circuit courts of this State from any decision or order of the Corporation Commission and which appeals are now pending shall be heard and determined by said courts on the merits as in other cases by law made and provided."

The first controversy here between counsel relates to the question of procedure, whether this court shall, hear the cause "in the manner which is now * * * prescribed by law governing appeals from chancery courts," as provided by the act of 1919, supra; or whether it shall disregard the findings of fact by the circuit court and "review all the evidence and make such findings of fact and law as it may deem just, proper and equitable," as provided in the act of 1921, supra, for appeals from the Railroad Commission as now constituted; or whether the court shall hear the case and review merely for error, as on other appeals from judgments of circuit courts. The contention of counsel for appellee is that section 22 of the act of 1921, supra, is controlling, and that this appeal affords merely review for error as in other law cases. On the other hand, counsel for appellant contend that the procedure on the present appeal is controlled by the provision of the old statute declaring that the Supreme Court shall hear the cause according to the practice governing appeals in chancery courts, or by section 21 of the act of 1921, supra.

There is another question which might raise itself, and that is, whether or not the Legislature has the power to change the practice in this court on appeals in law cases from a review for error to a trial de novo as in chancery cases. We do not deem it necessary to decide these questions, for, if we adopt the practice most favorable to the appellant and review the evidence de novo, as in chancery cases, we do not find that the conclusions of the Corporation Commission and of the circuit court on appeal are contrary to the preponderance of the evidence.

It appears from the evidence that Lewisville is a growing town with a population of about 2000 inhabitants, and is situated at the junction of appellant's line of railroad and a branch line known as the "Shreveport branch;" that the present station building, which is a combination one for both freight and passengers, is a frame building about 30 years old; that it is not of sufficient capacity for the convenience of travel, that it is unsightly and insanitary, and that it is inconveniently located in that it is too close to the main track to afford platform space between the station building and the railroad. The contention of appellant was, and is, that a building constructed according to the orders...