State ex rel. Alton R. Co. v. Public Service Com'n

• Decision Date: 14 March 1934
• Citation: 70 S.W.2d 52,334 Mo. 985
• Parties: State ex rel. Alton Railroad Company, Appellant, v. Public Service Commission
• Court: Missouri Supreme Court

70 S.W.2d 52

334 Mo. 985

State ex rel. Alton Railroad Company, Appellant, v. Public Service Commission

Supreme Court of Missouri

March 14, 1934

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Affirmed.

Charles M. Miller for appellant.

The report and order of the commission was unreasonable and unlawful, and the Circuit Court of Cole County erred in not setting the same aside, for the following reasons, to-wit (1) Because the commission was without jurisdiction, power and authority to authorize and order the projects in each case, or assess any portion against the Alton Railroad Company, because their jurisdiction, power and authority was limited under the statute, to the elimination of existing grade crossings, and the apportionment to the railroad in any event, must be limited to the benefit the railroad would receive from the elimination of an existing grade crossing. Jackson Co. v. Railroad, 1 Mo. P. S. C. 699; White Co. v. Railroad, 320 Ill. 49, 172 N.E. 22; Jackson Co. v. Mo. Pac., 17 Mo. P. S. C. 630; Sec 5171, R. S. 1929. (2) Because no reasonable necessity was shown by the county for the projects, and if the commission had the jurisdiction, power and authority, under the statute, the apportionment to the Alton Railroad Company was unfair, unjust and unreasonable. In re Palo Alto, P. U. R. 1931, 580. (3) Because the commission erred in not considering and giving heed to the evidence of appellant, relating and bearing upon its financial condition, and inability to contribute to the cost of the proposed projects and holding it was without jurisdiction to do so, or to defer the projects until conditions were better and at least substantial recovery had been had from the "depression." Lake Shore Elec. Ry. Co. v. Pub. Utilities Comm., 180 N.E. 554.

D. D. McDonald, G. C. Murrell, Fred A. Boxley and Rufus Burrus for respondent.

(1) The burden of proof is on appellant to show by satisfactory evidence that the orders of the commission complained about are unreasonable and unlawful. Sec. 5247, R. S. 1929; State ex rel. Railroad Co. v. Pub. Serv. Comm., 196 S.W. 369, 271 Mo. 155; State ex rel. St. Joseph v. Busby, 274 S.W. 1070; State ex rel. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 76. (2) Questions relating to necessity, expediency or propriety of establishing and extending streets and highways, even when they cross railroads, are not matters for its (the Public Service Commission) consideration. These questions were settled by Jackson County, by its county court and the people in the bond election. Sec. 5171, R. S. 1929; State ex rel. Railway Co. v. Pub. Serv. Comm., 272 S.W. 960; State ex rel. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 75. (3) The Public Service Commission has authority under Section 5171, Revised Statutes 1929 (Mo. St. Ann., p. 6585), to require an alteration of a subway or overhead viaduct and to apportion the cost of the alteration between the railroad and the county. Sec. 5171, R. S. 1929; State ex rel. Railroad Co. v. Pub. Serv. Comm., 197 S.W. 56, 271 Mo. 270; Ry. Co. v. State Highway Comm., 17 S.W.2d 538. (4) The safety of passing trains is only one of the elements to be considered in matters of highway and railroad crossings. It is not the sole or controlling element. Railroad Co. v. Pub. Serv. Comm., 271 Mo. 286, 197 S.W. 59; Ry. Co. v. Pub. Serv. Comm., 287 S.W. 619, 315 Mo. 1108; Ry. Co. v. State Highway Comm., 17 S.W.2d 538. (5) It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings, but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways. Ry. Co. v. Pub. Serv. Comm., 287 S.W. 619; State v. Pub. Serv. Comm., 308 Mo. 374, 272 S.W. 961; Kansas City v. Kansas City Terminal, 25 S.W.2d 1064; Ry. Co. v. Omaha, 235 U.S. 121; Ry. Co. v. Puget Sound & Willapa Harbor Ry. Co., 250 U.S. 332; Railroad Co. v. Pub. Util. Commrs., 254 U.S. 394. (6) The financial ability of the appellant to contribute to the four projects which were proposed by the county has no bearing upon this cause and the commission did not err even if it had failed to give consideration to the financial condition of the appellant railroad. Ry. Co. v. Pub. Serv. Comm., 287 S.W. 619; Kansas City v. Kansas City Term., 25 S.W.2d 1069; Railroad Co. v. Pub. Util. Commrs., 254 U.S. 394. (7) State ex rel. Railroad Co. v. Pub. Serv. Comm., 297 S.W. 47; Chicago, R. I. & P. Ry. Co. v. Pub. Serv. Comm., 287 S.W. 620; State ex rel. Ry. Co. v. Pub. Serv. Comm., 30 S.W.2d 116.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming to the writer by reassignment, is an appeal by the Alton Railroad Company from the judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission requiring the railroad to contribute to the cost of a bridge. In 1931, Jackson County made application to the commission for an order authorizing the construction of a concrete bridge, over the track of the railroad on Noland Street road about a mile south of Independence, and apportioning the cost thereof. The estimated cost of the bridge was $ 5,536.30. The answer of the railroad stated that the present bridge was reasonably adequate; that if a new viaduct was to be constructed the county should pay the entire cost; that assessing any of the cost against the railroad would constitute an arbitrary appropriation of its property without due process of law and a denial of the equal protection of the laws, in violation of both the Missouri and Federal Constitutions; that defendant because of the financial depression, did not have sufficient earnings to be able to pay any of the cost; and that, if defendant should be required to contribute to the cost, the matter should be postponed until the present financial depression is over and the revenue of the railroad increased so as to make it reasonably able to contribute thereto.

The county was building a new system of roads, financed by bond issues, aggregating $ 10,000,000. As a part of this program, an 18-foot concrete highway was being constructed, from Independence south almost nine miles, crossing U.S. Highway 40 and connecting with U.S. Highway 50 northwest of Lee's Summit, parallel to and four to five miles east of the eastern limits of Kansas City. It connected at Independence with a paved road running northeast to Courtney, where there was a bridge across the Missouri River. Near Independence this concrete road was to replace macadam pavement but over most of the distance the old road was an oiled earth road. The macadamized part of the old road crossed the single track main line of the railroad on a bridge, constructed of treated timber by the railroad in 1928, to replace an older structure. It was estimated that the probable life of the new treated timber bridge was from twenty-five to thirty years. The plans for the new concrete road, contemplating a higher grade with greater clearance above the railroad track and also eliminating certain curves, required a bridge on a different level and alignment than the wooden structure. The upper of the two layers, of the bridge flooring, was in bad repair and had been ordered replaced by the railroad. Both the present and the proposed bridge were approximately twenty feet in width. There was evidence that the present bridge could only safely carry a load of 100 pounds per square foot uniformly distributed, which about equaled the load of a 7-ton truck. The proposed bridge was designed to carry the load of a 20-ton truck. The county's engineers were of the opinion that the new road would become one of its most important north and south traffic arteries; that the present bridge did not have the strength to be an adequate bridge for such a trafficway; that it would be much more expensive to build a new bridge after the construction of the highway; and that to construct the highway without a new bridge would create a dangerous condition because the present bridge would be out of alignment with and on a lower level than the new pavement. The evidence of the railroad disputed these propositions.

The commission found that the location of the new road was changed to eliminate curves so as to promote the safety of the traveling public; that this change required a relocation of the bridge; that to relieve the railroad of keeping up the present structure, which required constant maintenance, would result in considerable saving; and that to build the new road at one time and replace the bridge at another would cost a considerable amount which could be saved by doing both at the same time. The commission ordered the new bridge built, apportioned twenty-five per cent of the cost to the railroad and required the county to pay seventy-five per cent thereof and to maintain the new bridge. The commission stated that it took into consideration the fact that the railroad had rebuilt the bridge so recently and reduced its apportionment because it had done so.

The basis of the railroad's first contention, that the commission's order requiring it to contribute to the cost of building a new bridge was beyond its power and authority and so arbitrary as to be in violation of due process and equal protection clauses of the State and Federal Constitutions, is that the commission had no authority in the matter at all because a grade crossing was not involved because its bridge was there before the creation of the Public Service Commission; because, since there was no grade crossing to be eliminated, no element of safety was involved; and because, for the same reason, there could be no possible benefit derived by the company. The authorities do not sustain the...