State ex rel. Railroad Co. v. Publ. Serv. Comm.

• Decision Date: 10 June 1932
• Docket Number: No. 31422.,31422.
• Citation: 51 S.W.2d 73
• Parties: STATE OF MISSOURI at the Relation and to the Use of CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF MISSOURI ET AL.
• Court: Missouri Supreme Court

51 S.W.2d 73

STATE OF MISSOURI at the Relation and to the Use of CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF MISSOURI ET AL.

No. 31422.

Supreme Court of Missouri, Division 2.

June 10, 1932.

Appeal from Cole Circuit Court. — Hon. Walter S. Stillwell, Judge.

AFFIRMED.

Ryland, Stinson, Mag & Thomson for appellants.

(1) The order of the Public Service Commission was void because based upon insufficient evidence and the right and duty rests upon the Supreme Court to examine the record and determine whether such record contains such requisite evidence. Lusk v. Atkinson, Receiver, 268 Mo. 109, 186 S.W. 703; State ex rel. v. Brown, 19 S.W. (2d) 483; State ex rel. v. Publ. Serv. Comm., 271 Mo. 155, 196 S.W. 369; State ex rel. Power & Light Co. v. Publ. Serv. Comm., 310 Mo. 313, 275 S.W. 940; Interstate Transit Lines, No. 6602, Unreported. (2) The evidence of customs, practices and usages of witnesses or of the Highway Department is incompetent and any judgment found thereon would violate the due process of law clauses of the Federal and State Constitutions. 14th Amendment to the Const. of the U.S.; Sec. 30, Art. II, Const. of Mo.; St. Louis v. Railroad, 278 Mo. 205, 211 S.W. 671; Rusk v. Thompson, 170 Mo. App. 76, 156 S.W. 64; Hovey v. Elliott, 167 U.S. 418, 42 L. Ed. 215; In re Letcher, 190 S.W. 21; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 384, 68 S.W. 1043.

D.D. McDonald and G.C. Murrell for respondents.

(1) The State Highway Commission is "authorized and empowered to locate ... highways and bridges" and "shall determine the width of right-of-way and surface, and the type and character of construction, improvement and maintenance," of the class of highways known as "traffic relief roads" and also roads "to connect state highways as designated and laid out under existing law with other such highways." Sec. 44a, Art. IV, Const. of Mo. (2) In view of Section 44a, Article IV, Constitution of Missouri, if "the commission had the power to fix `the particular point of crossing ... as an incident to determining the manner of crossing ... the only consideration that would have authorized it to change the particular point of crossing from that fixed" by the State Highway Commission in locating the road "is that of the public safety." Kirksville v. Hines, 285 Mo. 233; State ex rel. Terminal Ry. Co. v. P.S.C., 308 Mo. 359. (3) The State in the exercise of its police power in requiring separation of crossings of railroad with highway does not violate the "due process" clause of the Federal Constitution. State ex rel. Kansas City Terminal v. P.S.C., 272 S.W. 957, 308 Mo. 359; Erie Railroad v. Utility Comm., 254 U.S. 394; Atl. Coast Line v. Goldsboro, 232 U.S. 548; Railroad v. Bristol, 151 U.S. 556. (4) The Public Service Commission of the State is vested with the authority to require separation of grades at crossings of highways with railroads and in so doing exercises the police power of the State in the interest of public safety. Railroad v. Bristol, 151 U.S. 556; Erie Railroad v. Utility Comm., 254 U.S. 394; 3 Elliott on Railroads (2 Ed.) sec. 1102; Wabash v. Defiance, 167 U.S. 88; Railroad v. Nebraska, 170 U.S. 57; State ex rel. Wabash Ry. Co. v. P.S.C., 306 Mo. 149; Sec. 5171, R.S. 1929. (5) Railroad corporations may be required, at their own expense, to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways. Chicago, Milwaukee & St. Paul Ry. Co. v. Minn., 232 U.S. 430; Mo. Pac. Railroad v. Omaha, 235 U.S. 121; Erie Railroad v. Utility Comm., 254 U.S. 394; State ex rel. K.C. Terminal v. P.S.C., 272 S.W. 957; Denver & R.G. Railroad Co. v. Denver, 250 U.S. 241; Mo. Pac. Railroad v. Duluth, 208 U.S. 583; American Tobacco Co. v. St. Louis, 247 Mo. 374; State ex rel. v. Mo. Pac. Railroad Co., 262 Mo. 720; State ex rel. v. P.S.C., 271 Mo. 270.

WHITE, P.J.

The appeal is from a judgment of the Circuit Court of Cole County affirming an order to the Public Service Commission. The State Highway Commission filed its application, June, 1930, to effect an overhead crossing over the track of the Chicago Great Western Railroad between Beverly Junction and Weston, in Platte County. The Chicago Great Western comes from a northeasterly direction, crosses Bee Creek, and then curves around to the south along and near Bee Creek until it reaches Beverly Junction. The location of proposed crossing is about a mile north of Beverly Junction. Bee Creek curves around to the west and runs along the west of the track for about half that distance. A highway, Route 45, called a traffic relief route, proposed by the Highway Commission, comes from the west beginning at the Buchanan County line, and connects with Route 92 at Beverly Junction. It passes through the town of Weston which is four or five miles to the northwest of Beverly Junction. Weston had a population of about 2,000 people and it was estimated that from 1,500 to 4,000 cars would pass along this highway when completed.

The evidence presented by the Highway Commission tended to show that a grade crossing of the railroad at that point was impracticable: that the sight distance was short, only 50 to 100 feet, and to increase that sight distance would be very expensive. The cost of the overhead structure as estimated by the highway engineers would be $20,128.90 and the approaches would be $11,613.53, with a reinforced concrete crossing. By order of the Public Service Commission the cost was apportioned half to the Railway Company and half to the Highway Commission.

The commission in its report summarized the evidence fully and correctly. After stating the place and course of the proposed road, the report says:

"The proposed highway is on a new location, and it is impossible to obtain a traffic count, but it is estimated that Route No. 45 will carry between 2,500 and 4,000 vehicles each day after completion.

"The track which will be crossed, is the main line of company between Chicago, Illinois and Kansas City, Missouri. The company operates four passenger trains at speeds of 45 to 55 miles per hour, and from five to seven freight trains at speeds of 30 to 45 miles per hour, each day, over the points of proposed crossing.

"The testimony shows that Bee Creek parallels the track in the vicinity of the crossing, and that a county road also parallels the track to a point approximately 500 feet west of the point of proposed crossing. Said road then abruptly turns across the track at grade and continues into the town of Beverly. The State Highway Commission proposes to construct an approach between Route No. 45 and the county road that will allow travelers on said road to use the highway from the connection into Beverly. It is stated that the grade crossing will then be unnecessary and may be closed."

In relation to the claim of the company that the highway might have been constructed on the other side of the railroad between it and Bee Creek, the report said:

"Beverly is approximately one mile from the point of proposed viaduct, and the evidence shows that the land in this vicinity is exceedingly rough, that Bee Creek flows to within 40 or 50 feet of the company's right-of-way; and that a location of the highway as suggested would be difficult of construction, subject to overflow, subject to great maintenance costs due to the stream, and introduce considerable added curvature in the highway."

The commission further discussed the facts as follows:

"The evidence further shows that if a grade crossing were established at the point of proposed viaduct, a traveler on the highway could not see more than 100 feet in either direction along the track until practically upon same.

"In view of the facts relative to the topography of the country in this vicinity, and the evidence of the State Highway Commission's locating engineer relative to the consideration of a number of locations and the adoption of the one proposed as being the most practicable and economical, the commission is of the opinion that the proposed point of crossing is the only one that it should consider. A grade crossing would undoubtedly be extremely hazardous, and engineers of both the applicant and the defendant testified to this fact."

In regard to a contention of the company that a creosote wooden structure, which could be built for $5,800, would be more economical, the commission called attention to exhibits on file before it, showing that many railroads in the State use creosoted bridges to carry trains and vehicular traffic and then said:

"The evidence shows that the State Highway Commission has adopted concrete construction, such as proposed herein, as a standard; that all of the bridges built by it are of said standard; and that said standard was adopted after study of practices in other states, and for the reason that it requires little if any maintenance, and has an indefinite life."

And further: "In considering whether concrete or creosoted timbers should be used in the proposed structure, the commission must consider the method in which the Highway Commission secures its funds for construction work. It does not receive funds from an established business and with regularity but must depend upon bond issues and the desire of the people of the whole State. It is common knowledge and is admitted that concrete construction has an indefinite life, barring accidents or poor construction, while creosoted timber construction has a rather definite life under varying conditions of use and location. It is general practice among railroads and others to replace timber structures with concrete and steel structures just as rapidly as they deteriorate or as it is financially possible, due to the ever present fire hazard and its consequent stopping of traffic, and the cost of maintenance and of frequent inspections."

The Public Service Commission then ordered that the Highway Commission be...