"The
53rd General Assembly of Missouri enacted what is known as
the Clearance Law which may be found at pages 323 and 324
Laws of Missouri 1925, the first section of which prescribed
a minimum clearance of twenty-two feet for permanent
structures erected over the tracks of any railroad unless the
Public Service Commission of Missouri found that such
construction was impracticable, and the second section of
which provided that said Commission should promulgate uniform
rules governing the construction of structures over or
contiguous to any railroad tracks; thereafter, when the law
became effective said Public Service Commission did
promulgate uniform rules pursuant to the provisions of the
act aforesaid, which said rules became the Commission's
General Order No. 24; this order, among other things,
provided that no structure should be erected, or any railroad
track laid wherein any such structure would be closer to the
center of said track than eight feet and six inches. This act
became effective on the 9th day of July, 1925, and said
General Order was promulgated during the latter part of that
month, the exact date not appearing in the record.
"The
Wabash Railway Company, Firestone Tire & Rubber Company, J.
L. Mueller Furnace Company and the Art Mosaic & Tile Company,
filed a joint application before the Public Service
Commission on the 9th day of July, 1927, requesting
permission on behalf of these industries to construct a
privately owned switch track, commencing at a point
approximately 430 feet east of the easterly line of Boyle
Avenue and extending in a westerly direction approximately
285 feet, a portion of which proposed track would have the
lateral clearance of between eight feet and four inches and
seven feet and ten inches. That portion of the proposed track
where the lateral clearance will be as stated above, is on
the north side thereof, and extends from the point where the
construction of said switch track commences for a distance of
about ten feet westerly; it appears that the Linde Air
Products Company own the ground on the north side of the
proposed switch track, and at the point where the clearance
is as above stated, have a steel tank, the base of which is
less than three feet from the northerly line of the property
owned by the applicants for the construction
proposed. On the south side of the proposed switch track,
there are two other privately owned switch tracks, each of
which have clearances less than that prescribed by law and
the order of the Commission.
"Notice
of the application for this permission was given to E. W.
Jenkins, Secretary and State Legislative Representative of
the Brotherhood of Railroad Trainmen, who was by the
Commission, duly allowed to intervene in this cause, and file
a protest, against the granting of the permission requested
by the applicants. Upon a hearing, it was disclosed that the
industries seeking the permit to construct the switch track
aforesaid, had acquired this property and establish
themselves thereon, possibly a little more than one year
prior to the date on which the application for the permit
sought, was filed, and a long time after the effective date
of the Clearance Act and the issuance of the Commission's
General Order No. 24 pursuant thereto. It further appeared
that the applicants had exhausted their resources in trying
to secure from the owner of the land at the point where the
proposed switch track would have less clearance than that
prescribed by the Commission's General Order sufficient
to enable them to construct the track with the required
clearance. It was not possible to secure additional space on
the south of the track for the reason that other tracks
already constructed prior to the enactment of the Clearance
Law had taken up all available space and neither of them had
the clearance
which the present order of the Commission required.
"The
protestant was allowed time in which to send an engineer to
examine the possibilities of constructing this track in
conformity with the General Order of the Commission, and his
report shows that such construction could not be made.
"In
due course the Commission submitted its report and order
authorizing the applicants to proceed with the construction
of the said switch track with the clearances proposed by
them. The intervener filed his motion for a rehearing in due
time, which was by the Commission overruled. Thereafter and
within the time prescribed by law he filed his petition for a
writ of certiorari to the Circuit Court of Cole County, and
in due course said writ was issued and the record of the
proceedings before the...
