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

• Decision Date: 08 July 1930
• Docket Number: No. 29175.,No. 29174.,No. 29172.,No. 29173.,29172.,29173.,29174.,29175.
• Citation: 30 S.W.2d 112
• Parties: THE STATE at Relation and to Use of KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION ET AL. THE STATE at Relation and to Use of SHEFFIELD STEEL CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION, THOMAS BROWN ET AL., and KANSAS CITY, Intervener. THE STATE at Relation and to Use of ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION ET AL. THE STATE at Relation and to Use of MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION ET AL.
• Court: Missouri Supreme Court

30 S.W.2d 112

THE STATE at Relation and to Use of KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION ET AL. THE STATE at Relation and to Use of SHEFFIELD STEEL CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION, THOMAS BROWN ET AL., and KANSAS CITY, Intervener. THE STATE at Relation and to Use of ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION ET AL. THE STATE at Relation and to Use of MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION ET AL.

No. 29172.

No. 29173.

No. 29174.

No. 29175.

Supreme Court of Missouri. Court en Banc.

July 8, 1930.

Appeal from Cole Circuit Court. — Hon. Henry J. Westhues, Judge.

REVERSED AND REMANDED (with directions).

Frank H. Moore and A.F. Smith for relator and appellant Kansas City Southern Railway Company.

(1) The apportionment of forty per cent to the city and sixty per cent to the railway companies of that part of the cost of the viaduct due to grade separation is unreasonable, unjust, and contrary to the rules established by the Commission, and this is particularly true so far as concerns the Kansas City Southern Railway Company. Macon v. Railroad Co., 1 Mo. P.S.C. 648; Moberly v. Railroad Co., 4 Mo. P.S.C. 304; M-K-T. Ry. Co. v. Ry. Co., 4 Mo. P.S.C. 63; State Highway Commission v. St. Louis, etc. Co., 15 Mo. P.S.C. 500. A finding unsupported by evidence is void. Baltimore & Ohio Ry. Co. v. United States, 264 U.S. 258; Chestnut Ridge Ry. Co. v. United States, 248 Fed. 802. (2) The Commission erred in assuming that there were two viaducts with two approaches to each viaduct, and in charging the Kansas City Southern with the cost of two of such approaches, and the circuit court erred in approving such ruling of the Commission. Baltimore & Ohio Ry. Co. v. United States, 264 U.S. 258; Chestnut Ridge Ry. Co. v. United States, 248 Fed. 802. (3) The Commission erred in using as the basis of apportionment the possible number of tracks which might be constructed on the railway rights of way under the viaduct. Midland Valley Railroad Co. v. Fulgham, 181 Fed. 95; St. Louis-San Francisco Ry. Co. v. Mills, 271 U.S. 344; Chicago etc. Co. v. Coogan, 271 U.S. 472; Gulf etc. Co. v. Wells, 275 U.S. 455; Thomas v. Ry. Co., 261 U.S. 481; Interstate Commerce Commission v. Louisville etc. Co., 227 U.S. 88; Baltimore & Ohio v. United States, 264 U.S. 258.

E.T. Miller, Henry S. Conrad, L.E. Durham and Hale Houts for relator and appellant St. Louis-San Francisco Railway Company.

(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. (2) The legal status of the Sheffield Company is the same as that of the other defendants which have railroad tracks. Richards v. Pub. Serv. Commission, 293 Mo. 625. (3) The report and order of the Commission were unlawful, unjust and unreasonable in that the Commission ignored the issue raised by the Frisco's answer and cross application for relief in respect to the closing of Independence Road crossing, and the ordering of separate viaducts to permit the diversion of traffic from Independence Road over the tracks. State ex rel. v. Pub. Serv. Comm., 289 S.W. 787. (4) The Commission's assessment of cost against the Frisco was unlawful, unjust and unreasonable, as between the city and the Frisco. (a) The viaduct ordered neither was made necessary by nor takes into consideration the existence of the Frisco's tracks, or for that matter any of the railroad tracks, and no cost thereof should be assessed against the Frisco. State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., 308 Mo. 374. (b) In any event, in view of the type of structure ordered and the refusal of the commission to abolish Independence Road crossings the assessment against the Frisco as between the Frisco and the city was unlawfully, unreasonably and unjustly excessive. State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., supra; State ex rel. Wabash Railroad v. Pub. Serv. Comm., 306 Mo. 181. (5) The apportionment is unlawful and unjust as between the Frisco and the other defendant railroads, including the Sheffield Company. (a) There is unjust discrimination against the Frisco, Missouri Pacific and Sheffield Company as between them and the Southern. State ex rel. K.C. Terminal Ry. Co. v. Commission, 308 Mo. 374. (b) The apportionment discriminates against the Frisco as between it and the Missouri Pacific, Sheffield Company and Southern and each of them. (6) The assessment against the Frisco and, in many respects against the other railroads, is violative 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 Public Utility Commissioners, 49 S. Ct. 69, l.c. 72; Thomas v. Railway Co., 261 U.S. 481; Chicago Junction case, 264 U.S. 258; Interstate Commerce Commission v. Railroad, 227 U.S. 88; Chestnut Ridge Railway v. United States, 248 Fed. 791.

Richard H. Benson and Hackney & Welch for relator and appellant Missouri Pacific Railroad Company.

(1) The order of the Public Service Commission and the decision of the circuit court overlooked the purpose of said viaduct, not as a mere grade separation but as a connecting link in a new arterial highway serving the public as an easy grade entrance into Kansas City from the east. (2) The order of the Commission and the decision of the circuit court was unreasonable, unjust and discriminatory, in that it charged this appellant with the cost of building a viaduct far in excess of a grade separation at appellant's tracks, which was the only authority the Commission had in said case. (3) The order of the Public Service Commission and the decision of the circuit court overlooked and ignored the fact that under Kansas City's plan no benefit would result to this appellant, and that, therefore, the judgment and decree of said court was and is unlawful, injurious and unreasonable, in violation of Sections 20, 21 and 30, Article II, Constitution of Missouri, and of Section 1, Article XIV, of the Amendments to the Constitution of the United States, and in violation of Section 8 of Article I of the Constitution of the United States. (4) The order of the Commission and the decision of the circuit court were unreasonable and unjust in apportioning the cost of the viaduct after eliminating certain fixed charges payable only by the city and the street car company, at sixty per cent to the railroads and forty per cent to Kansas City, in the face of the decisions of said Public Service Commission and of this court. Mo. State Highway Com. v. Ry. Co., 14 Mo. P.S.C. 9; Jackson Co. v. Ry. Co., 14 Mo. P.S.C. 456. (5) The opening of a new roadway without closing nearby grade crossings, and the building of one long, high-line viaduct therein, the paramount purpose of which is to eliminate heavy grades on existing near-by roads, rather than eliminate the hazard of a grade crossing, which under the evidence could be done by building two separate viaducts, does not justify an order and judgment herein of an expenditure by the Missouri Pacific of approximately $60,000 more than the cost of a mere grade separation, and is in violation of the constitutional security afforded to said appellant by the Fourteenth Amendment. Lehigh Valley Railroad Co. v. Board of Public Utilities Commission, 49 Sup. Ct. Rep. 69. (6) The Sheffield Steel Company was properly charged with a portion of the cost. Richards v. P.S. Com., 293 Mo. 634; Glaessner v. Anheuser-Busch Co., 100 Mo. 508; State ex rel. Ry. Co. v. P.S. Com., 272 Mo. 645.

Samuel W. Sawyer, George J. Mersereau and Richard S. Richter for appellant Sheffield Steel Corporation.

(1) The powers of the Public Service Commission are strictly limited to those expressly conferred by the Public Service Commission Act (R.S. 1919, Art. III, Chap. 95). State ex rel. Terminal Ry. Co. v. Pub. Serv. Comm., 308 Mo. 359; State ex rel. United Rys. Co. v. Pub Serv. Comm., 270 Mo. 29. (2) The statute which created the Public Service Commission, and by the provisions of which its powers are limited, confers no jurisdiction over a corporation or individual who is not engaged in the public service. Secs. 10410, 10411, 10425, 10459, R.S. 1919. (3) The Sheffield Steel Corporation is not engaged in any service which brings it within the jurisdiction of the Public Service Commission. State ex rel. Telephone Co. v. Pub. Serv. Comm., 272 Mo. 627; State ex rel. Danciger v. Pub. Serv. Comm., 275 Mo. 483; 1 Wyman on Public Service Corporations, 227; State ex rel. Power Transmission Co. v. Baker, 9 S.W. (2d) 591; Producers Transportation Co. v. Railroad Commission, 251 U.S. 228; State v. Pub. Serv. Commission of Washington, 201 Pac. 765; Murphy v. Standard Oil Co., 207 N.W. 92.

D.D. McDonald, John T. Barker and J.C. Petherbridge for Kansas City, Intervener.

(1) The evidence, under the law, fully justified the order of the Commission apportioning a part of the cost of the viaduct to the Sheffield Steel Corporation. (2) The occupancy and use of the public highways of the city by the Sheffield Steel Corporation with its railroad switch tracks and engines, under public grant from the city, gives the Public Service Commission jurisdiction over such concern to apportion to it a reasonable part of the cost of the separation of the grade crossing so occupied and used by it, notwithstanding it may be incorporated as a manufacturing company. Richards v. Pub. Serv. Comm., 293 Mo. 625; Brown v. Ry. Co., 137 Mo. 529; State ex rel. v. Street Ry. Co., 140 Mo. 539; Sherlock v. Ry. Co., 142 Mo. 172; Par. 8, Sec. 10411, R.S. 1919; Sec. 10425, R.S. 1919; Railroad Co. v. Coal Co., 161 Mo. 288; Union Lime Co. v. Ry. Co., 233 U.S. 222. (3) A 146-foot right of way with 1000 feet of switch tracks...