State ex rel. City of St. Joseph v. Public Service Com'n

• Decision Date: 15 July 1986
• Docket Number: No. WD,WD
• Citation: 713 S.W.2d 593
• Parties: STATE of Missouri ex rel. CITY OF ST. JOSEPH, Missouri, Respondent, v. PUBLIC SERVICE COMMISSION, State of Missouri, Appellant. 37697.
• Court: Missouri Court of Appeals

Page 593

713 S.W.2d 593

STATE of Missouri ex rel. CITY OF ST. JOSEPH, Missouri, Respondent, v. PUBLIC SERVICE COMMISSION, State of Missouri, Appellant.

No. WD 37697.

Missouri Court of Appeals Western District.

July 15, 1986.

Linda K. Malinowski, Asst. General Counsel Public Service Com'n of Mo., Jefferson City, for appellant.

John D. Boeh, Asst. City Atty., St. Joseph, for respondent.

Before CLARK, C.J., and TURNAGE and KENNEDY, JJ.

CLARK, Chief Judge.

This is an appeal by the Missouri Public Service Commission from a judgment of the circuit court in Buchanan County which set aside the report and order of the Commission authorizing the applicant railroads to close the crossing of Florence Road in the City of St. Joseph at a point where the road intersected railroad tracks. The appeal contends, in effect, that the circuit court impermissibly substituted its judgment on questions of fact for that of the Commission, and that the Commission order was supported by competent and substantial evidence. We agree and therefore reverse the judgment and direct that the Commission report and order be reinstated as issued.

The geographical facts of the case are that Florence Road, a public street in southwest St. Joseph, runs from east to west and terminates in an industrial area at the banks of the Missouri River. Some distance east of this terminus, in an area which is partially residential and partially heavy manufacturing, Florence Road crosses two mainline railroad tracks and nine yard tracks. The tracks are used by the Burlington-Northern and the Santa Fe lines. To the north of Florence Road, Hickory Street and Oak Street run parallel to Florence and to the south, Alabama Street also runs east and west. With the exception of such deviation in travel to the north or to the south as is needed to reach these alternate routes, access to the west side of the railroad tracks is available by use of Hickory, Oak or Alabama and by Illinois Avenue, a private road which was shown by the evidence to be open for public traffic.

In the proceedings before the Commission, the railroads advocated closing Florence Road on the ground that the substantial number of tracks, the presence of mainline rail traffic moving two directions on dual tracks and the activity in the rail yard area, including the reduction in visibility by reason of standing box cars, presented a hazard to public safety which justified closing the crossing to motorists. The City of St. Joseph intervened and opposed the closing. The city's contentions focused on public convenience which, it argued, would be adversely affected. Particularly stressed was the delay in response time by fire and police equipment which would otherwise use Florence Road but, after the closure, would be forced to seek alternate routes. In its presentation to the Commission and on this appeal the city contends the closing of Florence Road is shown by competent and substantial evidence to have an adverse affect on public convenience and necessity thereby requiring that the road remain open.

On appeal from a decision by the circuit court in a cause ruled by the Public Service Commission, the appellate court reviews the decision of the Commission, not the judgment of the circuit court. State ex rel. Public Water Supply District v. Public Service Commission, 600 S.W.2d 147, 149 (Mo.App.1980). The role of the appellate court in reviewing a report and order by the Public Service Commission is to determine whether the report and order are lawful and reasonable and as to matters of reasonableness, the court may not substitute its judgment for that of the Commission if the latter is supported by substantial and competent evidence on the record as a whole. State ex rel. Utility Consumers Council of Missouri, Inc. v. Public Service Commission, 585 S.W.2d 41, 47 (Mo. banc 1979). The lawfulness of an order by the Commission is determined by whether it has the statutory power to act as it did and in this respect, the court need not defer to the Commission which has no authority to declare principles of law or equity. State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973); Board of Public Works of Rolla v. Sho-Me Power Corp., 244 S.W.2d 55, 59 (Mo. banc 1951). In matters of reasonableness, however, the Commission order enjoys a presumption of validity which must prevail if supported by competent and substantial evidence. State ex rel. Ashcroft v. Public Service Commission, 674 S.W.2d 660, 662 (Mo.App.1984).

In reviewing a decision by the Public Service Commission, the court is obligated to determine, first whether the Commission order is lawful and, second whether it is reasonable. State ex rel. Dyer v. Public Service Commission, 341 S.W.2d 795, 802 (Mo.1960); cert. denied, 366 U.S. 924, 81 S.Ct. 1351, 6 L.Ed.2d 384 (1961). The first inquiry, lawfulness, is directed toward the question of whether the Commission has the statutory power to act as it did. State ex rel. Beaufort Transfer Co. v. Clark, supra. In the present case, there appears to have been no challenge to the report and order on this ground, but we note for its relevance to the succeeding discussion the source of the Commission's authority over railroad crossings. That authority is found in § 389.640, RSMo.1978 which, in the first subsection, grants the Commission permit authority over the establishment of crossings initially. The second subsection is in part applicable to the abolishment of crossings, the relevant portion reading:

"The Commission shall have the exclusive power * * * 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 * * *."

Within the limits of public convenience, necessity and safety, determined in an appropriate proceeding, the Commission acted lawfully in directing the closing of the Florence Road crossing.

The debate in the case centers on the second prong of the review, whether the report and order are reasonable. The authorities cited earlier define reasonableness as a result based on competent and substantial evidence. In State ex rel. Rice v. Public Service Commission, 220 S.W.2d 61, 64 (Mo. banc 1949), it is stated that substantial evidence is evidence which, if true, would have a probative force upon the issues. Evidence which is not credible is, of necessity, not substantial but issues of credibility are for the fact finder, not for the court....