State ex rel. Chicago, R. I. & P. Ry. Co. v. Public Service Com'n of Missouri

• Decision Date: 17 May 1934
• Docket Number: 32780
• Citation: 72 S.W.2d 101,335 Mo. 180
• Parties: State of Missouri at the Relation and to the Use of Chicago, Rock Island & Pacific Railway Company, Appellant, v. Public Service Commission, Milton R. Stahl, Almon H. Ing, J. H. Porter, J. Fred Hull and George H. English, individual members of the Public Service Commission
• Court: Missouri Supreme Court

72 S.W.2d 101

335 Mo. 180

State of Missouri at the Relation and to the Use of Chicago, Rock Island & Pacific Railway Company, Appellant, v. Public Service Commission, Milton R. Stahl, Almon H. Ing, J. H. Porter, J. Fred Hull and George H. English, individual members of the Public Service Commission

No. 32780

Supreme Court of Missouri

May 17, 1934

Rehearing Denied May 17, 1934.

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge; Opinion filed at September Term, 1933, February 23 1934; motion for rehearing filed; motion overruled at May Term, May 17, 1934.

Affirmed.

Luther Burns, Henry S. Conrad, L. E. Durham, Hale Houts, Ilus M. Lee and Wright Conrad for appellant.

(1) The evidence is to be considered de novo as in a suit in equity. State ex rel. Jenkins v. Brown, 19 S.W.2d 484; State ex rel. Pugh v. Pub. Serv. Comm., 10 S.W.2d 948; State ex rel. Power & Light Co. v. Pub. Serv. Comm., 310 Mo. 333; State ex rel. St. Joseph Ry., L. H. & P. Co. v. Pub. Serv. Comm., 199 S.W. 999. (2) The report and order of the commission was unlawful, unjust, inequitable and unreasonable in that the commission ignored the issue raised by the appellant that the revenues of the appellant were so greatly reduced that it cannot meet its fixed charges and that it has no funds for the purpose of carrying out the order of the commission. Secs. 5174, 5234, R. S. 1929; Lake Shore Elec. Ry. Co. v. Commission, 180 N.E. 552; City of Hartford v. Ry. Co., Conn. Pub. Util. Rep. 1928E, 556; Lehigh Valley Railroad Co. v. Board of Pub. Util. Commrs., 49 S.Ct. 69. (3) The report and order of the commission is unlawful and unreasonable in that it ignores the fact established in evidence that the necessity, if any, of the reconstruction of the grade separation in question was caused solely by the acts of St. Louis County without notice to or authority of this appellant. Supra 2. (4) The report and order of the commission is in violation of the due process of law provisions of the Federal and State Constitutions and against the general theory and spirit of the Constitutions as well. Lehigh Valley Railroad Co. v. Board of Pub. Util. Commrs., 49 S.Ct. 69.

D. D. McDonald for respondents.

(1) The evidence may be considered de novo, but the question is whether the order of the commission is reasonable and lawful. If it is found to be supported by testimony as reasonable and lawful, it should be affirmed. State ex rel. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 73; State ex rel. Detroit-Chicago Motor Bus Co. v. Pub. Serv. Comm., 23 S.W.2d 115; State ex rel. Henson v. Brown, 31 S.W.2d 208. (2) Section 5171, Revised Statutes 1929, gives the Public Service Commission exclusive power to determine and prescribe the manner including the particular point of crossing, the terms of installation and to apportion the cost between the railroad company and the county. State ex rel. St. Joseph Ry., L., H. & P. Co. v. Pub. Serv. Comm., 199 S.W. 1001; Kirksville v. Hines, 285 Mo. 233; State ex rel. K. C. Term. Ry. v. Pub. Serv. Comm., 308 Mo. 359; State ex rel. M., K. & T. Ry. Co. v. Pub. Serv. Comm., 271 Mo. 270. (3) The financial condition of the railroad is not a question to be taken into consideration in apportioning the cost. Sec. 5171, R. S. 1929; State ex rel. K. C. Term. Ry. v. Pub. Serv. Comm., 308 Mo. 359. (4) There is no question of assessment of benefits in the case of grade separations. The rule in Missouri is that the Public Service Commission may apportion the cost of an overhead structure as the facts of the particular case warrant. Sec. 5171, R. S. 1929; State ex rel. K. C. So. Ry. Co. v. Pub. Serv. Comm., 30 S.W.2d 112. (5) The order of this commission does not violate any provision of the Federal or State Constitutions. It follows the declared public policy of the State. State ex rel. M., K. & T. Ry. v. Pub. Serv. Comm., 271 Mo. 287; Northern Pac. Ry. v. Duluth, 208 U.S. 583; Erie Railroad Co. v. Board of Pub. Util. Commrs., 254 U.S. 394; Lehigh Valley Railroad Co. v. Board of Pub. Util. Commrs., 278 U.S. 24, 73 L.Ed. 161.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

The Public Service Commission of Missouri, upon the application of St. Louis County, ordered the county and the Chicago, Rock Island and Pacific Railway Company to reconstruct the subway at the intersection of Woodson Road and the company's track in St. Louis County. The net expense to the railroad company of the ordered work according to the plans directed to be followed, the equal division of costs and the company's estimates, amounts to $ 6947.50. Upon certiorari, at the petition of the railroad, the Circuit Court of Cole County gave judgment affirming the order of the commission. From this judgment the company appealed to this court.

The company contended before the Public Service Commission and in the circuit court and it urges in this court that it should not pay any part of the cost of constructing the conduit. Its first reason is that its revenues are inadequate to meet its current operating expenses and fixed charges, and therefore it cannot comply with the order of the commission requiring a net outlay of $ 6947.50. Its second reason is that the dangerous condition of the intersection was brought about by the inclusion of Woodson Road by St Louis County in its extensive program of highway improvements. And in the execution of this program the county, without consultation with relator, increased the perils of the intersection by changing the course of Woodson Road near the point of its passage beneath the railroad.

The record shows the following facts: Woodson Road is a major highway of St. Louis County. It runs from St. Charles Rock Road on the north to Olive Street Road on the south. St. Charles Road is the route of U.S. Highways 40 and 61. Both the St. Charles Road and the Olive Street Road are main arteries of travel into and out of the city of St. Louis. The population of the communities served by the Woodson Road is 15,000. The nearest parallel roads are three miles east and west respectively. At a point 1000 feet south of Page Avenue, Woodson Road intersects the single track main line of the Rock Island Railroad. The track passes above the road on what is described as a 12-panel, heavy loading, fire proof deck, pile trestle. The trestle supports are pile bents, made of timbers. These bents are about fifteen feet apart. The trestle was built in 1910 "during what was known as the horse-drawn vehicle age" as the answer of the railroad puts it. Woodson Road formerly was a dirt highway, but lightly traveled, especially in winter. But in 1929, St. Louis County improved the road with a 20-foot concrete slab. The traffic then increased to 40 vehicles every 30 minutes at the intersection. The county also changed the course of the road so that it now passes beneath the trestle at an angle of 50 degrees instead of 70 degrees as formerly. Since a right angle intersection would be 90 degrees, the limitation of sight view along the highway toward the trestle at a 50-degree angle would be evident without further testimony. But one witness, a county engineer, stated that a person driving an automobile northwardly along Woodson Road could not see over 50 feet beyond the trestle. The county changed the course of the road at the intersection in order to take out several right angle turns.

Beneath the trestle Woodson Road, a 20-foot concrete slab elsewhere, narrows to the space between two bents. This space is fifteen feet wide at one end and eleven feet wide at the other. The result of the acute angle intersection and of the narrowed roadway is, as one witness stated, that persons driving automobiles along Woodson Road in opposite directions cannot see each other upon their approach to the intersection, and they cannot pass each other at it. It is a one-way highway beneath the trestle. The two bents which delimit the road are no longer parallel to its route owing to the change of course. This condition adds to the peril of motor vehicle traffic. The timbers of these bents bear marks of collisions. All witnesses for the county and for the railroad at the hearing before the commission admitted that there was a hazard of collisions of motor vehicles at the intersection. Mr. Korsell, assistant engineer of the railroad, testified that there is some hazard to the present structure. Mr. Ford, assistant chief engineer of the Rock Island lines, stated that, "as the matter now stands, the bents in the highway do obstruct public traffic."

There were two hearings before the commission. At the first there were wide differences between the county and the railroad on the plans of alteration if a change should be ordered. At the second hearing they were in partial agreement upon a plan for a 30-foot clear roadway, with concrete piers at each side and steel girders to carry the railroad over the span. The county deemed fifty tons of steel sufficient for the girders, but the railroad insisted that sixty tons would be in accord with standard construction. The commission ordered that the conduit or underpass be rebuilt according to this plan sixty-ton girders to be used, the county and the railroad to share the costs equally, and the county to pay to the railroad $ 1408, the agreed retirement cost of the present structure. An engineer, in the service of the railroad company, estimated the cost of construction, according to this plan, at $ 16,711. Half of this amount is $ 8355.50. If there be subtracted the retirement cost of the present trestle, namely $ 1408 from $ 8355.50, one-half the estimated constructing cost, there remains $ 6947.50, the amount first mentioned as the net outlay to be made by the company under the order. Experts called by the county placed the cost of...