State ex rel. Chicago & Alton Railway Company v. Public Service Commission

• Citation: 204 S.W. 531,275 Mo. 72
• Parties: THE STATE ex rel. CHICAGO & ALTON RAILWAY COMPANY v. PUBLIC SERVICE COMMISSION et al
• Decision Date: 13 June 1918
• Court: Missouri Supreme Court

204 S.W. 531

275 Mo. 72

THE STATE ex rel. CHICAGO & ALTON RAILWAY COMPANY v. PUBLIC SERVICE COMMISSION et al

Supreme Court of Missouri

June 13, 1918

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Affirmed.

Charles M. Miller for appellant.

(1) The Public Service Commission erred in apportioning, under the contract between the two railroad companies, any part of the cost of construction, operation, and maintenance, of the interlocking plant against the Alton Company, and the circuit court also erred in affirming the order of the Public Service Commission. Caldwell v. Layton, 44 Mo. 220; Bradshaw v. Bradbury, 64 Mo. 334; Pavey v Burch, 3 Mo. 447; Davis & Rankin v. Hendrix, 59 Mo.App. 444; County of Johnson v. Wood, 84 Mo. 489; Carney v. Chillicothe W. & L. Co., 76 Mo.App. 536; Sachleben v. Wolfe, 61 Mo.App. 28; Stock Food Co. v. Bridges, 160 Mo.App. 122; Belch v Miller, 32 Mo. 387; Lumber Co. v. Dent, 151 Mo.App. 614; Patterson v. Camden, 25 Mo. 13; Leonard v. C. & A. Ry. Co., 54 Mo.App. 293. (2) The order of the Public Service Commission impairs the contract between the two railroad companies and takes its property without due process of law, contrary to Sections 15 and 30 of Article 2 of the Constitution of Missouri, and Section 1 Article 14, of the Amendments to the Constitution of the United States.

J. W. Jamison for respondent, Missouri, Kansas & Texas Railway Company.

(1) The proposed interlocking plant at the crossing of the two lines of railroad, consisting of numerous switches, derails, facing point locks, home signals and dwarf signals, with pipe connections mounted on antifriction pipe carriers, the turns and angles in the pipe line to be made with rocker shafts, deflecting bars and cranks; pipe carriers to be of concrete equipped with iron tops; dwarf signals, home signals and electric distant signals to be mounted on iron masts; all signals to be mounted on well-designed, substantial concrete foundations; tract battery and signal battery to be housed in substantial concrete battery boxes; the tower for housing of the interlocking machine to be two stories high; tower to be made of monolithic concrete construction, etc.; interlocking machine to be located in the second story, etc., was not a "crossing signal "within the meaning of the old contract between the M. K. & T. Railway Company and appellant. Grand Trunk Ry. v. Indiana Railroad Comm., 221 U.S. 400. (2) The order of the Public Service Commission, ordering the interlocker, and apportioning the cost thereof on an equitable basis as between the two lines of railroad, does not impair the provisions of the contract relied on by appellant, nor does it take appellant's property without due process of law, contrary to any provision of the Constitution of Missouri, or of the Federal Constitution. State ex rel. M. K. & T. Ry. v. Public Service Comm., 221 Mo. 270; State ex rel. Wabash v. Public Service Comm., 271 Mo. 270; Tranbarger v. Chichago & Alton Ry. Co., 250 Mo. 46; Chichago & Alton Ry. Co. v. Tranbarger, 238 U.S. 67.

Alex Z. Patterson, General Counsel, James D. Lindsay, Assistant Counsel for respondent, Public Service Commission.

(1) The Public Service Commission has complete and exclusive power to prescribe the manner of crossing of one railroad by another railroad, and to require the installation, operation and maintenance of appropriate safety and other devices and appliances, including interlocking plants by railroads, and to determine and apportion the cost thereof. Sections 50 and 116, Public Service Act; State ex rel. M., K. & T. Ry. Co. v. Public Service Commission, 271 Mo. 270. (2) The power to require the installation of an interlocking plant at the crossing of one railroad by another railroad, and to apportion the cost between them, in an exercise of the delegated legislative power, which is independent of and unhampered by contracts between the companies concerned. It is compulsive and coercive in its nature, and in no wise contractual. State ex rel. M., K. & T. Ry. v. Public Service Commission, 271 Mo. 270; Grank Trunk Ry. v. Indiana Railroad Commission, 221 U.S. 400; Railroad v. Minneapolis, 232 U.S. 430; American Tobacco Co. v. St. Louis, 247 Mo. 433; Northern Pacific Railway v. Duluth, 208 U.S. 583. (3) The subject-matter of the contract upon which appellant relies, is one of a public nature and of public service. By the Public Service Commission Act, it has been withdrawn from the possession and power of the railroad companies as a subject they may control by a contract between themselves. The contract, not having been executed by the parties before the State chose to act in the premises, has no longer a legal existence. The subject-matter of it has been destroyed by the Public Service Act. Therefore, it is unenforcible. L. & N. Railway Company v. Mottley, 219 U.S. 467. (4) The Legislature gave to the Public Service Commission exclusive jurisdiction over the entire subject of railroad crossings and construction of interlockers, but gave it no jurisdiction whatever to consider, to construe or to enforce contracts in respect of tat subject, and a legislative attempt to grant the last named power would have been unconstitutional and futile. Lusk v. Atkinson, 268 Mo. 109; State ex rel. Mo. South R. R. Co. v. Public Service Com., 259 Mo. 704. (5) The order does not impair the obligation of the contract between the two companies, nor take appellant's property without due process of law in violation of any provision of State or Federal Constitution, because: (a) The order concerns the public safety, and the power of the State over that subject cannot be limited by the contracts of private interests on the same subject. (b) The obligation has failed by reason of this infirmity of subject-matter and of parties. (c) The contract was entered into subject to the unabridged police power of the State, peculiarly applicable to the subject in hand -- the crossing of two public highways. (d) The obligation of such contract was conditional and could not extend to the defeat of or inference with, action by the State, on that subject. State ex rel. M. K. & T. Ry. v. Public Service Commission, 271 Mo. 270; Grand Trunk Ry. Co. v. Indiana Commission, 221 U.S. 400; Louis. & Nash. R. R. Co. v. Mottley, 219 U.S. 467; Milwaukee Elec. Ry. & L. Co. v. Commission, 238 U.S. 174; Mo. Pac. Ry. Co. v. Omaha, 235 U.S. 121; North. Pac. Ry. v. Duluth, 208 U.S. 583; Addyston Pipe & Steel Co. v. United States, 175 U.S. 229; Scranton v. Wheeler, 179 U.S. 162; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U.S. 202; Atlantic Coast Line R. R. Co. v. City of Goldsboro, 232 U.S. 558.

OPINION

In Banc.

WILLIAMS J.

The proceeding which forms the basis of this review was originally instituted before the Public Service Commission by the Missouri, Kansas & Texas Railway Company, wherein the Public Service Commission was asked to make an order requiring the construction of an interlocking plant at the crossing at North Jefferson, Missouri, of the tracks of the Missouri, Kansas and Texas Railway Company and of the Chicago & Alton Railway Company, and further that the Commission apportion the cost of construction, maintenance and operation of said interlocking plant between the two railway companies. After a hearing, the Public Service Commission ordered an installation of the interlocking plant, the estimated cost of which was $ 9624, and ordered that the cost of construction, together with the cost of maintenance and unkeep, be appropriated as follows:

To the Missouri, Kansas & Texas Railway Company, 71.4% thereof; to the Chicago & Alton Railway Company 28.6% thereof.

Upon certiorari, at the instance of the Chicago & Alton Railway Company, the order of the Public Service Commission was reviewed and affirmed by the circuit court of Cole County. Thereupon the Chicago & Alton Railway Company appealed to this court.

In its answer before the Commission the Chicago & Alton Railway Company, hereinafter referred to as the appellant, alleged that by virtue of a certain written contract entered into by and between itself and the predecessor of the Missouri, Kansas & Texas Railway Company, the sole cost of construction, maintenance and operation of the interlocking plant should be assessed against the Missouri, Kansas & Texas Railway Company; that to do otherwise would be to impair the obligation of said contract and to take appellant's property without due process of law, all contrary to certain specified sections of both the State and Federal Constitutions.

It appears from the evidence that the appellant is the senior company and was operating a railroad at this point at the time the crossing contract in question was executed in 1892. Those sections of the contract here involved are as follows:

"Third. The said party of the second part [the predecessor of the M K. & T. Ry. Co.] agrees that it will furnish the materials for and construct and put in all crossing-frogs crossing-signals, gates and targets and other fixtures necessary to make the crossing with the existing tracks of the party of the first part [appellant herein] at the points aforesaid strictly in accordance with such plans and specifications as shall be prescribed by the chief engineer of the party of the first part, and that the said party of the second part will, at its sole cost and charge, forever maintain and keep in good repair, and renew, from time to time when necessary, all the crossing-frogs, crossing-signals, gates and targets and other fixtures provided for in this indenture, whether of existing tracks or of such as may be hereafter laid by the party of the first part, all in such manner as shall be satisfactory to the said party of the first part. In the event that it does not make...