State ex rel. St. Paul & Kansas City Short Line R. Co. v. Public Service Commission

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 699,339 Mo. 641
• Parties: State of Missouri at the relation of the St. Paul & Kansas City Short Line Railroad Company, a Corporation, Appellant, v. Public Service Commission
• Court: Missouri Supreme Court

98 S.W.2d 699

339 Mo. 641

State of Missouri at the relation of the St. Paul & Kansas City Short Line Railroad Company, a Corporation, Appellant, v. Public Service Commission

Supreme Court of Missouri

November 12, 1936

Appeal from Cole Circuit Court; Hon. Nike G. Sevier, Judge.

Affirmed.

Luther Burns, Henry S. Conrad, L. E. Durham, Hale Houts and I. M. Lee for appellant.

(1) The judgment is to be reversed if the order of the commission is unlawful, unjust or unreasonable and the case is to be determined as a suit in equity. Secs. 5234, 5237, R. S. 1929; Chicago, B. & Q. Railroad v. Pub. Serv. Comm., 266 Mo. 341; Lusk v. Atkinson, 268 Mo. 118; State ex rel. Ozark Power Co. v. Pub. Serv. Comm., 287 Mo. 531; State ex rel. St. Louis-S. F. Ry. Co. v. Pub. Serv Comm., 294 Mo. 369; State ex rel. K. C. P. & L. Co v. Pub. Serv. Comm., 310 Mo. 333; State ex rel Motor Bus Co. v. Pub. Serv. Comm., 324 Mo. 275; State ex rel. Mo. So. Railroad v. Pub. Serv. Comm., 259 Mo. 729. (2) The decision and order of the commission denying relator's application for permission to maintain the bridge with horizontal clearance of fourteen feet was unlawful, unjust and unreasonable. The commission's holding that it had no jurisdiction of the application filed after the bridge had been constructed was improper and unlawful, unjust and unreasonable. The failure of the commission to consider the application on its merits in view of the facts existing at the time of the hearing was unlawful, unjust and unreasonable. While the merits of the application should be considered by the commission in the first instance it is clear that the facts disclosed by the record warranted and called for the granting of the application. Secs. 5234, 5235, R. S. 1929; State ex rel. v. Pub. Serv. Comm., 325 Mo. 880; State ex rel. Alton Railroad v. Pub. Serv. Comm., 334 Mo. 992; State ex rel. Alton Railroad v. Pub. Serv. Comm., 334 Mo. 985; Sec. 5251, R. S. 1929; State ex rel. v. Pub. Serv. Comm., 331 Mo. 1113; St. Louis-S. F. Ry. Co. v. King, 329 Mo. 1214; State ex rel. v. Pub. Serv. Comm., 308 Mo. 373; State ex rel. Power & Light Co. v. Pub. Serv. Comm., 310 Mo. 313; Public Serv. Comm. v. K. C. Power & Light Co., 325 Mo. 1217; State ex rel. Jenkins v. Brown, 323 Mo. 382; State ex rel. Kennedy v. Pub. Serv. Comm., 42 S.W.2d 349; Atchison, T. & S. F. Ry. v. United States, 284 U.S. 248; Nashville C. & S. T. L. Ry. v. Walters, 294 U.S. 405; Secs. 4557, 4656, R. S. 1929; Lake Shore Electric Co. v. Commission, 180 N.E. 552.

James P. Boyd, General Counsel, and Daniel C. Rogers, Assistant Counsel, for Public Service Commission.

(1) Upon review of orders of the Public Service Commission, the sole question for determination is whether or not the order is lawful. The burden of proof is on the one who questions the reasonableness or lawfulness of the commission's orders. Secs. 5246, 5247, R. S. 1929; State ex rel. St. Joseph v. Busby, 274 S.W. 1067; State ex rel. St. Louis v. Pub. Serv. Comm., 47 S.W.2d 102; State ex rel. Motor Bus Co. v. Pub. Serv. Comm., 23 S.W.2d 117. (2) Amenability to the horizontal clearance statute, Section 5247, Revised Statutes 1929, is determined by the time when any person or corporation undertakes to create a condition which the statute is designed to regulate. Sec. 5247, R. S. 1929; State ex rel. Jenkins v. Brown, 19 S.W.2d 848. (3) When public safety, health or convenience may be better served or aided by a rule or regulation that has been put into effect without authority from the Public Service Commission having been secured, the courts will uphold such rule. State ex rel. Kansas City P. & L. Co. v. Pub. Serv. Comm., 275 S.W. 940. (4) An attempt to make individual exceptions of any rule promulgated by the Public Service Commission, where no exceptions are provided for, is unlawful. The existing rules, until lawfully changed, are accorded the force and effect of law and are binding not only upon the utility and the public, but upon the commission as well. State ex rel. St. L. County Gas Co. v. Pub. Serv. Comm., 315 Mo. 317; State ex rel. Western Union Tel. Co. v. Pub. Serv. Comm., 264 S.W. 671, 672; 28 C. J. 576. (5) Exceptions may be made to existing rules, if provision for exceptions is authorized by statute or the rules themselves, when the Public Service Commission may find that the exception under consideration falls within the authority for exceptions. State ex rel. Kennedy v. Pub. Serv. Comm., 42 S.W.2d 349; State ex rel. Jenkins v. Brown, 19 S.W.2d 848. (6) Violation of rules of Public Service Commission will be prosecuted under the criminal code if there is a statutory provision for enforcing such rules as a crime, and the amenability of the violator to the rule dates from the time of promulgation of the rule. State v. Dixon, 73 S.W.2d 385.

Hays, J. All concur, except Collet, J., not sitting.

OPINION

HAYS

This is an appeal by St. Paul & Kansas City Short Line Railroad Company, relator (in the court below), from the judgment of the Circuit Court of Cole County affirming, upon writ to review, an order and decision of the Public Service Commission dismissing an application presented by appellant to the commission for permission to maintain a certain bridge constructed and in use on its line of railroad.

In the application filed with the commission August 31, 1931, it was averred that through mistake and inadvertence of its engineering department the applicant had constructed a bridge over Shoal Creek with a horizontal clearance of slightly over fourteen feet, without compliance with the rule of the commission which requires a horizontal clearance of sixteen feet, and without previous application for permission so to do. It was further averred that through similar inadvertence appellant had constructed the bridge with a vertical clearance of twenty feet and ten inches instead of twenty-two feet required by statute (Sec. 4656, R. S. 1929), but that it was practicable to remedy the vertical clearance and appellant proposed to do so. (It was shown at the hearing that the vertical clearance had been increased to the required twenty-two feet, so that the application and proceeding involved only the matter of horizontal clearance.) It was also averred that the horizontal clearance could not be changed to sixteen feet without removing the structure and replacing it with a new bridge at heavy expense, and with appellant in a dire financial situation and with earnings so reduced as to make it almost impossible to bear fixed charges, it was impracticable to require the bridge to be removed and a new one constructed; that with the vertical clearance corrected the operation of the bridge would be safe and proper.

The bridge was on a new line of railroad constructed by appellant for an eighty-two mile cut-off on the Trenton line of the Rock Island Railroad in northwest Missouri between Coburn and Birmingham and was financed through appellant as a subsidiary company. There are four bridges on the line; two of them new, with sixteen-foot horizontal clearances, the other fourteen-foot horizontal clearance bridge was near Trenton, and thirty-five miles distant from the bridge in question, on the old line and installed before the commission was given jurisdiction over horizontal clearances.

On September 10, 1931, a hearing was held by the commission and the application was submitted upon the testimony given by two witnesses on behalf of the applicant; and on October 4, 1931, the commission delivered its report, in substance (formal introduction omitted) as follows:

In the construction of the new line of railroad above mentioned the applicant found it necessary to erect a bridge to carry its track over Shoal Creek. The engineering department of the company, in its effort to complete the line to enable operation of freight trains by July 1, 1931, erected during the month of June previous an old span having a fourteen-foot horizontal clearance, to be used as a bridge over said creek. That since the filing of the application herein the vertical clearance has been corrected and now complies with the statute, but the horizontal clearance still remains at fourteen feet.

I. L. Simmons, a bridge engineer for the Rock Island stated that it would cost $ 37,000 to make the horizontal clearance sixteen feet as required by the commission's general order, the salvage of the bridge being estimated at $ 2000. That the question before the commission is not the impracticability and expense of reconstructing the bridge already installed so as to comply with the commission's order.

Robert H. Ford, assistant engineer for the Rock Island, gave it as his judgment that it is safe to operate trains over the bridge with fourteen feet lateral clearance. The bridge in question has been in service approximately twenty-five years and the expected life is estimated at from ten to fifteen years.

The commission found that the engineering department, in installing the bridge without notice or application to the commission, had acted inadvertently and in good faith. The commission concluded that it was authorized by the statutes (Secs. 4656 and 4657, R. S. 1929) to grant permission to erect bridges and other structures with less clearance than that provided by statute or rule, but that it was without jurisdiction to grant permission to a railroad company to maintain a bridge of less clearance which it had installed without previous permission.

The commission denied the application and issued its order accordingly, to become effective ten days after said date. To such conclusions and order one of the commissioners dissented on the stated ground that the commission had authority to determine the merits of the application.

The applicant's motion for rehearing, filed November 14,...