State ex rel. to Use of Missouri Pacific Railroad Company v. Garesche
| Decision Date | 29 March 1918 |
| Citation | 202 S.W. 400,274 Mo. 74 |
| Parties | THE STATE at Relation and To Use of MISSOURI PACIFIC RAILROAD COMPANY v. VITAL W. GARESCHE, Judge |
| Court | Missouri Supreme Court |
Writ granted.
Edward J. White, H. H. Larimore and J. F. Green for relator.
(1) Section 64 of the Public Service Commission law of Missouri does not authorize the commission to institute a suit to enforce an order of the commission until there has been a hearing by the commission. (2) If said section authorizes the proceeding instituted before respondent, then it is unconstitutional and void and an attempted taking of the railway company's property without due process of law. Sec. 30, art. 2, Mo. Constitution; Sec. 1, Fourteenth Amendment, U. S. Constitution; Georgia Central v Railroad Comm., 215 F. 421; Feess v. Bank, 115 P. 565; Sayers v. Railroad, 97 A. 660; State ex rel. v. Railroad Comm., 224 U.S. 510; State ex rel v. Railway Co., 67 So. 907. (3) Prohibition will lie to prevent exercise of unauthorized power, even in a case where the inferior court has jurisdiction of the subject-matter of the action. State ex rel. v. Reynolds, 209 Mo. 178; Railroad v. Wear, 135 Mo. 256; State ex rel. v Scarritt, 128 Mo. 338; High on Extraordinary Legal Remedies, sec. 389; Thomas v. Mead, 36 Mo. 246; State ex rel. v. Seehorn, 246 Mo. 585; State ex rel. v. Fort, 210 Mo. 525. (4) The issuance of a temporary injunction by respondent, without the requirement of a bond, was unauthorized. State ex rel. v Williams, 221 Mo. 227; State ex rel. v. Eby, 170 Mo. 518; State ex rel. v. Ford, 251 Mo. 51. (5) The respondent had no power to issue a preliminary order in mandamus. Pub. Serv. Com. v. Railroad, 158 N.Y.S. 480.
Alex. Z. Patterson and James D. Lindsay for respondent; Joseph T. Davis, of counsel.
(1) Under section 64 of the Public Service Commission Act, the Commission is authorized to prosecute a suit against a railroad company to prevent the company from doing, or to compel it to cease failing to do things contrary to and in violation of the law by injunction or by a writ of mandamus, or both. (2) The Legislature in using in said section 64 the words "injunction" and "mandamus," used the same in their usual and ordinary sense, and as they are used elsewhere in the statutes. Art. 7, and Art. 9, Chap. 22, R. S. 1909. (3) The provisions of the Public Service Commission Act show that there are two methods pointed out whereby the Public Service Commission as the administrative agency of the State may require public service corporations to perform their corporate duties or to cease from violating the same. One method consists in an inquiry held by the Commission upon complaint or upon its own motion, of which the offending corporation has due notice and an opportunity to be heard, resulting in an appropriate order made by the Commission. This order, if not reviewed or set aside by a court of competent jurisdiction, is binding, but obedience to the order, if resisted, can only be enforced through action in the courts. This action may be taken by the Commission in what is called a summary proceeding by a petition for injunction or mandamus for the enforcement of the order of the Commission. The other method is a suit brought directly and in the first instance by the Commission as the appropriate administrative agency of the State, setting up the specific allegations of violations of the law by the offending corporation, asking inquiry thereof by the court and praying for an appropriate remedy by injunction or mandamus. In the one, the facts constituting the ground of complaint are developed before the Commission and are reviewable by the court. In the other, the facts are developed in the first instance before the court. See Sections 43, 46, 47, 48, 49, 50, 51, 59, 63 and 64 concerning common carriers and the like sections in the other articles, and especially section 84 in the article on gas, electric and water corporations, and section 105 in article 5 on telegraph and telephone corporations, wherein like proceedings are prescribed against the last mentioned companies as are prescribed in section 64 against railroad companies. (4) The State is the real party in interest in the suit, the principal, and the Public Service Commission merely an administrative agency of the State, and no bond is required in a suit so brought to warrant the issuance of process, injunctive or otherwise. Sec. 2522, R. S. 1909. (5) The order made by respondent was not a temporary injunction, but a restraining order, within the power of respondent to make. Sec. 2532, R. S. 1909. State ex rel. v. McQuillin, 260 Mo. 174; State v. Woodside, 254 Mo. 580. (6) A restraining order ceases to be operative at the expiration of the time fixed by its terms. 22 Cyc. 746; State v. Green, 48 Neb. 327, 67 N.W. 162; Water Co. v. Steamship Co., 101 Cal. 216, 35 P. 651. (7) The direction given to the circuit court by section 64 does not limit the general powers of that court nor change the character of the remedies of mandamus or injunction. The only direction is that the court shall not wait for the statutory or regular term, but shall fix an early specific date within which the defendants shall answer, and answer being made or default suffered, the court shall proceed at once to final hearing and judgment. (8) The individual citizen has always had the right to ask the court by mandamus or injunction in the full meaning of those terms to compel the public service corporation to render him the service it was organized to furnish. State ex rel. v. Tel. Co., 93 Mo.App. 349; State ex rel. v. Jones, 141 Mo.App. 299; State ex rel. v. Water Co., 249 Mo. 649. Has the State through its official administrative agency a right inferior to that of the individual citizen whom it undertakes to and is bound to represent?
OPINION
In Banc.
Prohibition.
The Public Service Commission directed its counsel to institute suit against relator to compel it "to cease to omit and refuse, in violation of law, to furnish, upon application, cars for shipment of railroad ties" between designated points, "and to compel it to furnish cars" for like shipments. Suit was begun in the circuit court of the city of St. Louis and assigned to the division thereof over which respondent presides. Respondent issued a restraining order and ordered defendant, relator herein, to appear ten days later and show cause "why a temporary injunction or writ of mandamus should not issue as prayed for." Three days later service was had upon relator, and the day following it applied here for a writ of prohibition, and a preliminary rule was issued.
I. Under Section 64 (Laws 1913, p. 600) of the Public Service Commission Act, the Commission is empowered, whenever it is of the opinion that a railroad corporation is violating or about to violate its legal duty, to direct its counsel to institute a suit to restrain such violation or compel compliance with the law or valid order. Relator's contention that it was entitled to notice and a hearing upon the question whether the Commission should direct a suit to be brought under Section 64 is untenable. The order or direction to counsel to bring suit decides nothing against a defendant in such proceeding. It is a direction to counsel to appeal to the courts for correction of abuses the Commission thinks exist. Notice and hearing are had in the court in which the suit is brought. The cases cited chiefly are such as involve orders imposing some burden of themselves. They are inapplicable.
II. With regard to the proceedings in the circuit court in a suit begun at the direction of the Commission under Section 64, that section provides:
We think these provisions furnish a system excluding the issuance of restraining orders and temporary injunction. They prescribe procedure with considerable detail, defining the steps the court is to take in suits begun under the section. The design is to secure a decision on the merits as promptly as may be. Any other meaning often would permit the entire relief sought to be granted in such cases under the guise of restraining orders and temporary injunctions. In so far as the trial court exceeded or is about to exceed its jurisdiction in this respect, the preliminary rule is made absolute.
All concur, Bond, J., in separate opinion.
The Public Service Commission, at a session of that body on July 9, 1917, made the following order:
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