State ex rel. Chicago, R. I. & P. R. Co. v. Public Service Commission

• Decision Date: 07 April 1969
• Docket Number: No. 25131,25131
• Parties: STATE of Missouri ex rel. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 742

441 S.W.2d 742

STATE of Missouri ex rel. CHICAGO, ROCK ISLAND AND PACIFIC

RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.

No. 25131.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Rehearing Denied June 2, 1969.

Hale Houts, Thad C. McCanse, Neal E. Millert, Kansas City, for appellant, James, McCanse & Larison, Kansas City, of counsel.

Jeremiah D. Finnegan, Acting Gen. Counsel, Jefferson City, for respondent.

HOWARD, Presiding Judge.

This is an appeal from the judgment of the Cole County Circuit Court affirming an order of the Public Service Commission requiring appellant railroad company to install flashing light signals at a grade crossing of its rail line at Mile Post 111 32 in Maries County, Missouri. The evidence is that the installation of such flashing light signals would cost approximately $10,000.00 and that annual expense of maintenance and operation would be approximately $500.00 per year. This appeal first went to the Supreme Court of Missouri but that court determined that it did not have jurisdiction because the constitutional issues asserted by appellant were not properly raised; because the issues raised involved only statutory construction and not construction of the Constitution, and because the amount in dispute did not vest the Supreme Court with jurisdiction. The case was accordingly transferred to this court. 429 S.W.2d 723.

This proceeding was instituted by the Public Service Commission after having received the petition signed by 51 residents of Maries County complaining of the hazardous condition of the grade crossing. The commission set the hearing on its own motion and notified the Rock Island, Maries County, Missouri, and Special Road District No. 4 of Maries County to be present. At the hearing the evidence showed that the road in question runs from Maries County Highway J, across the Rock Island tracks and dead-ends at the Gasconade River. While the road and the rail line both run at angles at the point of the crossing, we shall refer to the road as running north and south and the rail line as running east and west. This is a gravel road and three families live on it south of the grade crossing. One family has two children of school age. Eight or ten other people own farm land, access to which is had by this road, and members of the public use the road to get to the Gasconade River for purposes of fishing and other recreational activities.

The rail line slopes downhill to the west of this grade crossing and curves through a cut some 16 to 20 feet deep. To the east of the road, the rail line curves through a cut 8 to 10 feet deep. As one comes out from the river in a northerly direction and approaches this grade crossing, he could see west (left) from 80 to 300 feet down the track as he approached from 100 feet back from the crossing to a point 25 feet from the crossing. To his right or east, he could see approximately 400 feet. As one approaches this grade crossing from the north going toward the river his line of sight to the west (his right) would vary from 80 feet to 150 feet as he traveled from 100 feet away from the crossing to a point 25 feet from the crossing. To his left or east, he could see from 200 feet to 300 feet down the track. It appears that the trains on this track travel at approximately 25 to 35 miles an hour. They travel faster going downhill on the slope to the west than when they are pulling uphill going east. The members of the families living to the south between the crossing and the river must use this crossing daily to get to and from their homes. The 8 to 10 other people owning land south of the crossing must use the crossing to get to and from their farm land carrying feed, supplies and equipment used on the farms and stock and crops from the farms to market. Thus, the vehicular traffic consists of automobiles and trucks and farm tractors pulling equipment. Also, the crossing is used for carrying and driving livestock to and from the farms. Several witnesses who use this crossing to get to their homes or farm lands, plus a member of the highway patrol and the Safety Supervisor for the Public Service Commission, all testified that this crossing was dangerous because the cuts through which the rail line goes and the curves in the track resulted in short sight distances at the crossing. There had been one wreck at the crossing a few years before the hearing and several near-misses. On the advice of the highway patrol, the school bus was not permitted to cross this crossing and mail was not delivered to the families residing south of the crossing because of the danger in using this crossing.

The Public Service Commission concluded that this crossing was dangerous and the evidence supported such a finding. To relieve this dangerous condition, the Public Service Commission ordered the installation of flashing light signals at the grade crossing and the total cost was apportioned to the railroad. From this order, the railroad has appealed.

It contends that the Public Service Commission was without jurisdiction to proceed in this matter on the complaint of private individuals or on the commission's own motion because of the requirements of Section 389.640, R.S.Mo., 1959, as amended, V.A.M.S.; that the commission is bound by provisions of a prior order affecting this grade crossing and there has been no change of condition subsequent to the date of this prior order and that the order of the commission assessing all of the costs against the railroad is arbitrary and capricious because there is no competent and substantial evidence to support such apportionment. There are two statutes concerning the authority of the Public Service Commission in this matter. Section 386.310, R.S.Mo., 1959, V.A.M.S., provides in pertinent part in paragraph 1 thereof as follows:

'1. The commission shall have power, after a hearing had upon its own motion or upon complaint, * * * to require every person, corporation and public utility, to maintain and operate its line, * * * tracks and premises in such manner as to promote and safeguard the health and safety of its employees, passengers, customers, and the public, and to this end to prescribe, among other things, the installation, use, maintenance and operation of appropriate safety and other devices or appliances, including interlocking and other protective devices at grade crossings or junctions * * *.'

Section 389.640, R.S.Mo. 1959, as amended, V.A.M.S. paragraph 2, reads as follows:

'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, at grade or otherwise, of a railroad by a public road, highway or street whenever the commission finds that public convenience and necessity will not be adversely affected and public safety will be promoted by so altering or abolishing 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 any agreement entered into after October 13, 1963, between any such corporation and the state, county, municipality or other public authority in interest, as to the apportionment of any cost mentioned in this section, shall be final and binding upon the filing with the commission of an executed copy of such agreement. If such parties are unable to agree upon the apportionment of said cost, the commission shall, except as to projects of the state highway commission apportion the cost among the parties according to the benefits accruing to each. In determining such benefits, the commission shall consider all relevant factors including volume, speed and type of vehicular traffic; volume, speed and type of train traffic; savings, if any, which will inure to either party as the result of the project; and advantages to the public and to such corporation resulting from the elimination of delays and the reduction of hazard at the crossing. Any portion of the cost of any such project in excess of such benefits shall be apportioned to and assessed against the corporation, county, municipality, or other public authority desiring to make, or proposing, such installation, alteration, abolishment or separation.'

As indicated, the railroad contends that the Public Service Commission can only proceed under the latter statute and that Section 386.310 is not applicable. This is on the basis that where we have two statutes, one being general and the other being specific, the provisions of the specific statute must govern to the exclusion of the general statute. In certain circumstances where there is an irreconcilable conflict between the provisions of a specific and general statute, the doctrine contended for by the railroad does apply. However, where, as here, we have two separate statutes dealing with the same subject matter, the two must be read together and harmonized and force must be given to the provisions of each. Where the provisions of the more specific statute conflict with the provisions of the general statute, then the provisions of the specific statute must be enforced....