State of Missouri Wabash Ry Co v. Public Service Commission of Missouri

• Citation: 71 L.Ed. 575,47 S.Ct. 311,273 U.S. 126
• Decision Date: 10 January 1927
• Docket Number: No. 69,69
• Parties: STATE OF MISSOURI ex rel. WABASH RY. CO. et al. v. PUBLIC SERVICE COMMISSION OF MISSOURI et al
• Court: United States Supreme Court

273 U.S. 126

47 S.Ct. 311

71 L.Ed. 575

STATE OF MISSOURI ex rel. WABASH RY. CO. et al.

v PUBLIC SERVICE COMMISSION OF MISSOURI et al.

No. 69.

Argued Dec. 10, 1926.

Decided Jan. 10, 1927.

Messrs. Homer Hall, of St. Louis, Mo., Frederic D. McKenney, of Washington, D. C., and Nat. S. Brown, of St. Louis, Mo., for plaintiff in error Wabash Ry. Co.

Messrs. Marcus L. Bell, of New York City, W. F. Dickinson, of Chicago, Ill., and Luther Burns, of Topeka, Kan., for plaintiff in error Chicago, R. I. & P. Ry. Co.

Messrs. Julius T. Muench, City Counselor, and Oliver Senti, Asst. City Counselor, both of St. Louis, Mo., for defendants in error mayor and city of St. Louis, Mo.

Mr. Marion Early, of St. Louis, Mo., for defendants in error Frank H. Gerhart and others.

Mr. David W. Peters, of Jefferson City, Mo., for Brotherhood of Railroad Trainmen.

Messrs. Marion C. Early, of St. Louis, Mo., L. H. Breuer, of Rolla, Mo., Oliver Senti, of St. Louis, Mo., and John E. Benton, of Washington, D. C., for Public Service Commission of Missouri.

Mr. Justice STONE delivered the opinion of the Court.

The mayor of St. Louis instituted a proceeding before the Public Service Commission of the state of Missouri to eliminate a grade crossing of the Wabash Railway Company at Delmar Boulevard in the city of St. Louis. The commission ordered the Wabash Railway to abolish this grade crossing by depressing its tracks and constructing a viaduct for street traffic, with an 18 feet clearance above the tracks. This order, set aside by the circuit court of Cole county, was reinstated by the Supreme Court of Missouri. 306 Mo. 149, 267 S. W. 102. The case is here on writ of error to that court, on the ground that the order results in an unconstitutional deprivation of property, impairs the obligation of contract, and violates paragraph 18, § 1, of the Interstate Commerce Act, as added by Act May 29, 1917, and amended by Act Feb. 28, 1920, § 402 (Comp. St. § 8563). Judicial Code, § 237, before amended (Comp. St. § 1214).

All the proceedings below were limited in their purpose and effect to the removal of the single grade crossing named. There is no dispute that the hazardous character of the crossing makes the separation of grades necessary. The controversy arises from the fact that the change in grade at Delmar Boulevard is the initial step in a general scheme for abolishing all grade crossings within an extensive area of the city. Both the railroad and the city have evolved comprehensive plans for grade crossing elimination. The essential difference between the two programs is that the city proposes the depression of the railroad tracks with a consequent elevation of streets spanning the tracks by viaduct, while the railroad urges the elevation of the tracks upon embankments, leaving the streets at their present level. The Delmar Boulevard crossing is so situated that the commission's order directing depression of the railroad tracks there is a virtual, though not legal, adoption of the city plan to the extent that other crossings at grade in the vicinity can, as a practical matter, be eliminated only by depressing the tracks. The commission, however, expressly disclaimed passing on other details of the plan. A consideration of the proposed plans is necessary for a fuller understanding of the issues involved, although our review is limited to the immediate change at Delmar Boulevard directed by the order.

The Wabash Railway passes from Delmar Boulevard southeasterly through a residential district, thence through Forest Park. The location of its tracks within this large public park was fixed by a contract with the park commissioners. The Chicago, Rock Island & Pacific Railway Company, also a party to the proceeding, enters the city from the west, crosses the right of way of the Wabash several squares southeast of Delmar Boulevard, runs parallel with both the Wabash tracks and the northern end of Forest Park, and then joins the Wabash line, whose tracks it uses through the park to the Union Terminal. Its right to use the tracks is defined by the contract considered in Joy v. St. Louis, 138 U. S. 1, 11 S. Ct. 243, 34 L. Ed. 843. It is not directly affected by the commission's order except insofar as the separation of grades at Delmar crossing amounts to an adoption of the city plan causing a change of level of the Wabash tracks at other crossings and requiring a similar change of its own.

The city plan, in its principal features, calls for the lowering of all the tracks within a cut screened from view, the relocation of the tracks within the park, so that the railroad would intersect with fewer streets as it emerges from the park, and the construction of viaducts with a verticle clearance of 18 feet. The plan also provides for the depression or abandonment of part of the Rock Island's tracks, for proper safeguards to be taken to obviate the danger of flood from a neighboring stream, and the purchase of additional land to increase the width of the right of way uniformly to 100 feet within a designated area. The railroad plan makes unnecessary the change of location of the right of way in the park, but involves the construction of unsightly embankments, which would materially reduce the value of residential property in the district. Each party makes claim for its plan the advantages of safety, economy, numerous mechanical and engineering conveniences, and the avoidance of certain mechanical and engineering hazards, all or most of which, it is insisted, the other lacks. The...