State ex rel. Wabash Ry. Co. v. Pub. Serv. Comm.

• Citation: 100 S.W.2d 522
• Decision Date: 23 December 1936
• Docket Number: No. 34006.,No. 34005.,No. 34004.,34004.,34005.,34006.
• Parties: STATE OF MISSOURI at the relation of WABASH RAILWAY COMPANY, a Corporation, Appellant, v. PUBLIC SERVICE COMMISSION. STATE OF MISSOURI at the relation of WALTER S. FRANKLIN and FRANK C. NICODEMUS, JR., Receivers for WABASH RAILWAY COMPANY, Appellants, v. PUBLIC SERVICE COMMISSION. STATE OF MISSOURI at the relation of CITY OF ST. LOUIS, a Municipal Corporation, Appellant, v. PUBLIC SERVICE COMMISSION.
• Court: United States State Supreme Court of Missouri

100 S.W.2d 522

STATE OF MISSOURI at the relation of WABASH RAILWAY COMPANY, a Corporation, Appellant, v. PUBLIC SERVICE COMMISSION. STATE OF MISSOURI at the relation of WALTER S. FRANKLIN and FRANK C. NICODEMUS, JR., Receivers for WABASH RAILWAY COMPANY, Appellants, v. PUBLIC SERVICE COMMISSION. STATE OF MISSOURI at the relation of CITY OF ST. LOUIS, a Municipal Corporation, Appellant, v. PUBLIC SERVICE COMMISSION.

No. 34004.

No. 34005.

No. 34006.

Supreme Court of Missouri.

Division Two, December 23, 1936.^*

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

ORDER OF COMMISSION AFFIRMED IN PART AND REVERSED AND REMANDED (with directions) AS TO PART.

Nat S. Brown and Homer Hall for Wabash Railway Company.

(1) The order of the Commission requiring the appellant to pay a portion of the cost of the improvements in Forest Park and the judgment of the circuit court affirming that order constitute an impairment of the obligation of the tripartite agreement, which provides that the railway should not be required to pay any further cost of work in the park. Mo. Const., Sec. 15, Art. II; U.S. Const., Sec. 10, Art. I; Missouri-Kansas-Texas Railroad Co. v. Oklahoma, 271 U.S. 307; Louisiana Comm. v. Morgan's Co., 264 U.S. 399; Georgia Ry. & Power Co. v. Decatur, 262 U.S. 438; Columbia Ry. G. & E. Co. v. South Carolina, 261 U.S. 248; Detroit v. Detroit Citizens St. Ry. Co., 184 U.S. 394; Old Colony Trust Co. v. Omaha, 230 U.S. 115; Kansas City v. K.C. Term. Ry. Co., 324 Mo. 882. (2) Where a municipal corporation enters into a contract, as in this case, the doctrine of estoppel applies with the same force as against individuals, and in this case the city of St. Louis, having entered into the tripartite agreement and enjoyed all the benefits of the contract, cannot now deny the appellant's right to claim the benefits which the contract gives to it. Union Depot Co. v. St. Louis, 76 Mo. 396; Fox v. Windes, 127 Mo. 512; Simpson v. Stoddard County, 173 Mo. 421; Wilson v. Drainage Dist., 257 Mo. 289; Consolidated School Dist. No. 2 v. Cooper, 28 S.W. (2d) 384; St. Joseph v. St. J. Term. Ry. Co., 268 Mo. 47; Town of Montevallo v. School Dist., 268 Mo. 223; Arrington v. McCluer, 326 Mo. 1027; Shartel ex rel. City of Sikeston v. Mo. Utilities Co., 331 Mo. 353; State ex rel. City of Sikeston v. Pub. Serv. Comm., 82 S.W. (2d) 105; Peterson v. Kansas City, 324 Mo. 459. (3) The separation of grades was made necessary by, and was for the benefit of, traffic on the highways, and the cost of the improvement apportioned to the appellant was not based upon any benefit received by it. To require appellant to provide a particular convenience for highway traffic not primarily a matter of safety is a denial of due process. The burden imposed upon the appellant bears no reasonable relation to evils to be eradicated or advantages secured; and, for these reasons, the order of the Commission was and is arbitrary, unreasonable, unjust and unlawful and should be set aside. Art. XIV, U.S. Const., Sec. 21, Art. II, Mo. Const.; Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 Sup. Ct. 486; Southern Ry. Co. v. Virginia, 290 U.S. 196; Chicago, St. P.M. & O. Ry. Co. v. Holmberg, 282 U.S. 167; Lehigh Valley Railroad v. Commissioners, 278 U.S. 33; Great Northern Ry. Co. v. Cahill, 253 U.S. 73; Mo. Pac. Ry. Co. v. Omaha, 235 U.S. 127; Mo. Pac. Ry. Co. v. Nebraska, 164 U.S. 414; State of Washington ex rel. Oregon Railroad & Navigation Co. v. Fairchild, 224 U.S. 529. The court will take judicial notice of the rapid increase in the number and speed capacity of motor vehicles using the highway and of the decrease in the volume of traffic upon the railroad in determining the equitable and just apportionment of the cost of grade separation. Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 Sup. Ct. 497. (3) The railway company cannot be charged with any part of the expenditures made for the sole purpose of ornamentation or gratifying aesthetic tastes in the construction of the project. Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 Sup. Ct. 486; Welsh v. Swasey, 214 U.S. 106; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 274; St. Louis v. Dreisoerner, 243 Mo. 224; Kansas City v. Liebe, 298 Mo. 617; State ex rel. Wabash v. Pub. Serv. Comm., 306 Mo. 149; Haller Sign Works v. Training School, 249 Ill. 447; Meighan v. Birmingham Term. Co., 165 Ala. 591, 51 So. 775; Byrne v. Maryland Realty, 129 Md. 202, L.R.A. 1917A, 1216, 98 Atl. 547. (4) The order of the Commission, in failing to exclude from the cost of the project apportioned to appellant the excess of the cost of the depression plan as executed over the cost of track elevation, and the judgment of the court affirming said order, are unreasonable, unjust and unlawful and would deprive the appellant of its property without due process of law and deny the appellant the equal protection of the laws. State ex rel. Wabash Ry. Co. v. Pub. Serv. Comm., 306 Mo. 149; Cases under point (3). (5) The Public Service Commission had no jurisdiction or authority to make any order respecting Grand Drive and Pedestrian Way in Forest Park, as they are not public highways, and Grand Drive was already adequately separated from the railway tracks by a bridge carrying the railway over it, and the order of the Commission requiring the appellant to pay a portion of the cost of the relocation of the New Grand Drive and Bridge and the Pedestrian Way Bridge was unreasonable, unjust and unlawful and denies to appellant the equal protection of the laws and deprives it of its property without due process of law. Sec. 5171, R.S. 1929; Cases under point (3). (6) The properly allowable costs of the project should be apportioned to the parties in accordance with equity and the established policy of the Public Service Commission in the apportionment of the costs of grade separations; that is, the apportionment should be between the public that uses and pays for the highway on the one hand, represented by the City in this case, and the public that uses and pays for the railroad service on the other, represented here by the railway, to the extent that each makes necessary the construction and that each will benefit by its completion. The facts in this case show that, according to that rule, the proper apportionment to the appellant would be less than ten per cent of the cost. Clinton County v. Railroad Co., 10 Mo. P.S.C. 473; Kansas City v. Mo. Pac. Ry. Co., 16 Mo. P.S.C. 518; State ex rel. Kansas City So. Ry. Co., 325 Mo. 876; State ex rel. Alton Railroad Co. v. Pub. Serv. Comm., 334 Mo. 991, Id. 334 Mo. 997; State ex rel. K.C. Term. Ry. Co. v. Pub. Serv. Comm., 308 Mo. 375; Erie Railroad Co. v. Public Utilities, 254 U.S. 414. (7) The increase of traffic on the highways and decrease in traffic on the railways have caused a definite and just trend in the decisions of the courts, the acts of the legislatures and the orders of public service commissioners to a much larger apportionment to municipalities and a much smaller apportionment to railways of the cost of grade separations, and that principle should be applied in this case. Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 Sup. Ct. 486; State ex rel. Alton Railroad Co. v. Pub. Serv. Comm., 334 Mo. 991, Id. 334 Mo. 997. (8) The Water Department of the City of St. Louis is a public utility, operated for profit, and the cost of relocating the water mains should not be included as part of the cost to be apportioned in this case. Charter, City of St. Louis, Secs. 10, 11, 12, Art. 13; 8 McQuillin on Municipal Corporations, Supp. 1921, sec. 2680, p. 8284; Vilas v. Manila, 220 U.S. 356; South Carolina v. United States, 199 U.S. 461; Stifel v. St. Louis, 181 S.W. 579; Lloyd v. Mayor of New York, 5 N.Y. 374. (9) This being an appeal from an order of the Public Service Commission, the court is not bound by the findings of the Commission, but will consider the evidence as in proceeding in equity, and, being so considered, the order should be held to be unreasonable, unjust and unlawful in so far as sustains the claims of the City, and disallowed the claims of the appellant, and apportioned to appellant any of the cost in excess of the benefits received by it as shown by the evidence. Sec. 5234, R.S. 1929; State ex rel. Jenkins v. Brown, 19 S.W. (2d) 484; State ex rel. Wabash Railroad Co. v. Pub. Serv. Comm., 271 Mo. 165; State ex rel. Power Co. v. Pub. Serv. Comm., 287 Mo. 531; Lusk v. Atkinson, 268 Mo. 109; State ex rel. Case v. Pub. Serv. Comm., 298 Mo. 321; Chicago, B. & Q. Railroad Co. v. Pub. Serv. Comm., 266 Mo. 346; Frederich v. Union E.L. & P. Co., 82 S.W. (2d) 79.

Edgar H. Wayman and John G. Burkhardt for City of St. Louis.

(1) The cost to be apportioned in a grade separation is the cost incurred. Every legitimate contribution made by the parties in effecting such separation should be considered. State ex rel. Wab. Ry. Co. v. Pub. Serv. Comm., 306 Mo. 149, 267 S.W. 102. (a) The Commission properly refused to eliminate practically all of the City's actual expenditures on the grounds that the ordinance initiating the project was invalid; that, allegedly, the City, under the tripartite agreement, is required to pay all of the cost of so-called park expenditures, and that Lindell Boulevard, Grand Drive and Park Road are not public highways within the meaning of the Public Service Commission Act, because the Commission is not a court within the meaning of the Constitution of this State, and therefore cannot authoritatively determine such questions or enforce contracts. City of Macon v. Pub. Serv. Comm., 266 Mo. 491, 181 S.W. 396; Lusk v. Atkinson, 268 Mo. 117, 186 S.W. 703; State ex rel. Electric Co. v. Atkinson, 275 Mo. 334, 204 S.W. 897, P.U.R. 1919A, 343; State ex rel. Mo. So. Railroad Co. v. Pub. Serv. Comm., 259 Mo. 727, 168 S.W. 1156; Mo. So. Railroad Co. v. Pub. Serv. Comm., 279 Mo. 489, 214 S.W. 379, P.U.R. 1919F, 584. (b) The...