State ex rel. And To Use of Missouri Pac. R. Co. v. Public Service Commission of Missouri

• Decision Date: 23 June 1927
• Docket Number: 27827
• Citation: 297 S.W. 47
• Parties: STATE ex rel. and to Use of MISSOURI PAC. R. CO. v. PUBLIC SERVICE COMMISSION OF MISSOURI et al
• Court: Missouri Supreme Court

297 S.W. 47

STATE ex rel. and to Use of MISSOURI PAC. R. CO. v. PUBLIC SERVICE COMMISSION OF MISSOURI et al

No. 27827

Supreme Court of Missouri, Second Division

June 23, 1927

Motion for Rehearing Denied July 13, 1927.

James F. Green, of St. Louis, for appellant.

D. D McDonald and J. P. Painter, both of Jefferson City, for respondents.

OPINION

HIGBEE, C.

This is an appeal by the relator, the Missouri Pacific Railroad Company, from a judgment of the circuit court of Cole county affirming an order of the Public Service Commission requiring the construction of an overhead crossing at a point where the public highway will cross the relator's railroad track in Iron county.

The state highway commission has surveyed and laid out the highway referred to as a part of the state highway system of connected hard-surfaced public roads, ordained and established by section 29 of the Laws of Missouri, Extra Session of 1921, pp. 131, 145, 153, and designated said highway as routes 21 and 49. On September 10, 1925, the state highway commission filed an application with the Public Service Commission of Missouri requesting permission for the construction of an overhead crossing at a point where state highway No. 49 crosses the relator's right of way in Iron county. Quoting from the appellant's brief:

'The railroad company in its answer denied that it was essential that there should be an overhead crossing at the place designated, and requested the commission, in the event that it decided that an overhead crossing should be constructed, to only require the railroad company to pay a portion of the cost of the viaduct proper, excluding from the apportionment the highway approaches to the viaduct outside of the railroad right of way. The commission, after a hearing, made its order granting the application for the proposed overhead structure, the cost of the same being approximately $ 32,000, and assessed one-half of the cost thereof against the railroad company. The commission based its decision on the ground, as stated therein, that the cost of separating grade crossings was fixed by the statute (Session Acts 1925, p. 322), as follows:

' 'In all cases of the state highways, not more than one-half of the cost of construction of any grade separation, overhead or underpass, authorized or ordered by the Commission, shall be apportioned to the state highway commission.' ''

The railroad company filed its motion for a rehearing, alleging that the order of the commission was unreasonably burdensome, and that the act of the Legislature above quoted was unconstitutional and void, as class legislation. The motion was overruled, and the case was taken by writ of certiorari to the circuit court of Cole county, where the judgment of the Public Service Commission was approved.

The evidence shows that route 49 begins at the village of Glover, in Iron county, and runs south about 15 miles to Annapolis, a village with a population of 176 in 1920. It is a 'federal aid' project, and known as a secondary route, through a sparsely populated section. Iron county had a population of 9,458 in 1920. The construction of this highway and overhead crossing will eliminate eight grade crossings. The length of the viaduct over the railroad right of way is about 127 feet, the length of the east approach is 273 feet, and that of the west approach is 473 feet; the total length being about 873 feet. The estimated cost of the viaduct proper is $ 13,163.21, and that of the approaches is $ 17,157.69.

The evidence for the relator was that a grade crossing might be located over the right of way and tracks at a very small cost; very little business was done in the vicinity of the proposed crossing, people living there being engaged in cutting ties and mine props, and the highway is located in a very hilly portion of the county; that the construction of the viaduct will necessitate changes in the signal apparatus of the company which will cost about $ 1,000, and changes in the telegraph wires and lines which will cost about $ 529.

Appellant's first contention is that route 49 traverses a sparsely populated region where there is little business, and that a grade crossing over the railroad track will adequately meet all reasonable requirements, that the railroad company will derive no benefit from the construction of an overhead crossing, and that the order requiring the company to pay one-half of the cost imposes an unreasonable and unnecessary burden on the appellant.

As we read the record, route 49 is a new highway in process of construction. It is a connecting link in the state highway system of hard-surfaced public roads. Section 10459, R. S. 1919, as amended by Laws 1925, p. 322, reads, in part:

'1. No public road, highway or street shall hereafter be constructed across the track of any railroad corporation at grade, nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade, * * * without having first secured the permission of the commission. * * *

'2. The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public road or highway by a railroad or street railroad and of a street by a railroad or vice versa, so far as applicable, and to alter or abolish any such crossing, and to require, where in its judgment, it would be practicable, a separation of grades at any such crossing heretofore or hereafter established, and to prescribe the terms upon which such separation shall be made and the proportion in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the state, county, municipality or other public authority in interest: Provided, however, that in all cases of the state highways, not more than one-half of the cost of construction of any grade separation, overhead or underpass, authorized or ordered by the commission shall be apportioned to the state highway commission.'

Paragraph 1 forbids the construction of a public road over the track of a railroad at grade without first having secured the permission of the commission. The fact that the local needs may not require an overhead crossing is not controlling. Route 49 is a federal aid project; it is a link in the state highway system, connecting that portion of the state with the city of St. Louis, in the construction of which the state is expending large sums of money, and over which it may reasonably be assumed there will constantly be considerable vehicular travel. The report of the commission finds:

'That route 49, when completed, will afford an outlet for traffic to a considerable territory. Traffic originating in Oregon and Carter counties, and parts of Shannon, Ripley, Wayne and Butler, will have an outlet to St. Louis and the north, and this road will serve as a connecting link over which tourists from both north and south will pass.'

It further finds that it would not be feasible or practicable to establish a grade crossing at the point of the proposed viaduct; and, as has been seen, the construction of the overhead crossing will eliminate eight grade crossings.

It is true that the order of the commission may be reviewed, but it is provided that:

'The burden of proof shall be...