State ex rel. St. Joseph Railway, Light & Power Company v. Public Service Commission
| Decision Date | 22 December 1917 |
| Citation | 199 S.W. 999,272 Mo. 645 |
| Parties | THE STATE ex rel. ST. JOSEPH RAILWAY, LIGHT & POWER COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.
Reversed and remanded.
Alex. Z. Patterson and James D. Lindsay for appellants.
(1) Section 50 of the Public Service Commission Law (Laws 1913 p. 589) provides that the expense of grade crossing elimination shall be by the Public Service Commission "divided between the railroad or street railroad corporations affected, or between such corporations and the State, county, municipality or other public authority in interest." Acting under the authority of this statute the Public Service Commission lawfully apportioned a reasonable part of the expense of the grade-crossing improvements to the Street Railway Company, and the circuit court should have affirmed such order of apportionment. 33 Cyc. 290; Milwaukee v. Railroad, 9 Wis. R. C. R. 93 1915 B. P. U. R. 155; Polk v. Railroad Comm., 154 Wis. 523; Woodruff v. Catlin, 54 Conn. 277; Railroad v. Bristol, 155 U.S. 556; Tobacco Co. v. St. Louis, 247 Mo. 374. (2) The evidence before the Public Service Commission, and before the circuit court upon review, conclusively shows that the apportionment of $ 34,000 to the Street Railway Company of the total cost of the improvement, $ 443,591, was a fair and just apportionment, and the circuit court's judgment herein is plainly, flagrantly and indisputably contrary to the evidence. (3) The subway plan of improvement, as approved by the Public Service Commission, was accepted by the Street Railway Company by its written statement of acceptance filed with the Public Service Commission, and the circuit court committed gross error in hearing and considering the Street Railway Company's objection to this plan. (4) In making the apportionment order herein, the Public Service Commission considered the "trackage basis" proposed by the railroads, and also a division of expenses based upon the estimated cost of the street railway track changes, to which was added the saving resulting to the Street Railway Company on account of the removal of crossings. The latter basis of apportionment did not take into consideration expense of raising steam railroad tracks at Fourth and Monterey streets, and it assigned $ 569 more to the Street Railway Company than the "trackage basis." (5) The Street Railway Company's contention that the apportionment order of the Commission unjustly required it to pay a part of the cost of changing steam railroad tracks is without merit. The "trackage basis" of apportionment, used in the conference between the parties, lumped together all the costs of changing and reconstructing both steam and street railway tracks, constructing the subway, and repaving the surface of Sixth Street.
M. G. Roberts and H. J. Nelson for St. Joseph Union Depot Company as Amicus Curiae.
Joseph T. Davis for respondent.
(1) The State has power to cause steam railroads to remove tracks from streets and crossings at the cost and expense of the railroads. Tobacco Co. v. St. Louis, 247 Mo. 374. (2) Apportionment of costs and expenses upon trackage basis is wrong, and inequitable. Milwaukee v. Railroad, 9 Wis. R. C. R. 193; Milwaukee v. Railroad, 15 Wis. R. C. R. 762; Re D. L. & W. Railroad, P. U. R. 1915 F, p. 180. (3) Respondent should not be charged with taking care of cost of changing property of other public service corporations. Every public utility must take care of its own mains and poles, etc. Re Long Island Railroad Co., P. U. R. 1917 F, p. 44.
OPINION
In Banc.
I. In 1914 the mayor of the city of St. Joseph filed four complaints to the Public Service Commission against various railroad companies and the St. Joseph Street Railway Company, looking to the removal of dangerous street-level crossings. From the order of the Commission apportioning the cost of grade-crossing eliminations to the various companies, an appeal was taken to the circuit court of Cole County by the Street Railway Company. The order was reversed and the cause remanded and from that judgment the Public Service Commission has perfected an appeal to this court.
The plan finally adopted by the Commission for the elimination of the various dangerous grade crossings was agreed to and accepted by all of the railroad companies, and the controversy here is over the amount apportioned to be paid by the Street Railway Company as its share of the total cost.
The Public Service Commission found the total cost of the improvement and subtracted therefrom the estimated consequential damages to private property and apportioned it to be paid by the city. It then allotted the balance to be paid by the railroad companies, which then undertook to meet at Chicago and agree as to the proper apportionments inter sese. As a result of that meeting one-seventh of $ 238,000, or $ 34,000, was allotted to be paid by the Street Railway Company and the remainder of the cost of the improvement was to be borne by the steam railroad companies.
The Street Railway Company being dissatisfied with this charge against it, filed a motion before the Public Service Commission to re-apportion the cost of the improvement as between it and the other railroad companies. Upon the hearing of that motion it was shown by the testimony of various engineers that the methods usually employed to reach an adjustment of cost in such cases are what are termed the "trackage basis" and the "right of way basis;" that in this instance it was found impracticable to use the "right of way basis," and that the "trackage basis" (by which the estimate of $ 34,000 was made at the Chicago conference) was fair and reasonable. At this hearing it was further shown that the Street Railway Company would receive certain benefits from the removal of specified grade crossings equal to that accruing to any one of the steam railroads; but that the steam railroads, in addition to bearing their proportionate part of the cost of subways and track raising, would have to bear also the further expense of installing an interlocking plant and acquiring considerable right of way.
On the other hand the Street Railway Company insisted that it should be required to pay only $ 12,500, the estimated cost of the work to be done within the Street Railway Company's track zone.
In estimating a fair apportionment of the amount to be paid by the Street Railway Company, the Public Service Commission then took into consideration certain other elements of constructive cost and benefit of the general improvement and did not base its conclusion solely upon the "trackage basis" by which the cost was apportioned by the conferring railroads at their Chicago conference. In following this plan the Commission took the evidence of its own engineers and experts, as well as the testimony of persons present and taking part in the Chicago conference and as a result estimated the amount properly chargeable to the Street Railway Company at $ 46,569, from which sum it deducted $ 12,000 to cover the benefits that would accrue to the steam railroads by doing away with the expense of crossing watchmen, thus leaving the...
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