State v. Missouri Southern R. Co.

Citation214 S.W. 381,279 Mo. 455
Decision Date09 July 1919
Docket NumberNo. 20734.,20734.
PartiesSTATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI SOUTHERN R. CO.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Mandamus by the State, on the relation of the Public Service Commission, against the Missouri Southern Railroad Company. Judgment for relator, and defendant appeals. Affirmed.

J. B. Daniel, of Piedmont, for appellant.

A. Z. Patterson, Gen. Counsel, and J. D. Lindsay, Asst. Counsel, both of Jefferson City, for Public Service Commission.

BLAIR, P. J.

Upon entry of the order considered in Missouri Southern Railroad v. Public Service Commission, 214 S. W. 379, a companion case, appellant attempted to abandon the operation of the spur tracks to which the commission's order applied. Complaint was made, and the commission ordered its counsel to institute such legal proceedings as might be effective to compel a continuance of the carriage of freight over the spurs. Counsel thereupon instituted this proceeding by mandamus, and upon the filing of the return relator filed its motion for judgment, which was sustained, and a peremptory writ awarded. This appeal followed.

The return makes numerous formal admissions, and then admits appellant's ownership and operation of its main line, and "that for several years prior to July 23, 1917, respondent (appellant here) maintained and operated two lateral spur tracks, known, respectively, as industrial spur tracks Nos. 1 and 2, giving their lengths, "on which spur tracks respondent has, up to July 23, 1917, supplied cars to shippers at various points along said industrial spur tracks for the shipment of lumber, ties, and other commodities in carload lots, other than live stock and perishable freight, and that respondent offered said service, so long as furnished, as aforesaid, to the public generally, on equal terms"; admits that in May, 1916, it filed with the commission tariffs applying to the spur tracks, and that "these tariffs provide that all carload traffic, except live stock and perishable freight, will be switched between main line stations and loading yards on such spur tracks at a charge of $7.50 per car"; admits that on July 23, 1917, it abandoned all freight service on the spur tracks. The return then avers that the spurs were constructed in 1900 by an incorporated sawmill company, owning timber near the spurs and operating saw and planing mills at Leeper, and were constructed to transport that company's timber to appellant's railroad; that the sawmill company had no railroad charter, but transported timber over the spurs until it completed its work, and then sold the "rails, ties, switches, track fastenings, and bolts in said" spur tracks to appellant; that thereafter appellant agreed with certain owners of timber in the vicinity of the spurs "to place cars for shipment, in carload lots, of freight other than live stock and perishable freight, and to move the same when loaded to its railroad for $5 per car; that thereafter, for the accommodation of all persons who might desire such service, respondent (appellant here) published tariffs showing that while it operated said industrial spur tracks it would extend the contract aforesaid to all persons so desiring such service"; that thereafter the spur tracks, as tonnage failed near their extremities, were in part abandoned and taken up, and they were gradually reduced to their present length; that in 1914 appellant concluded the exhaustion of timber had progressed so tar that further operation of the spurs would be abandoned, whereupon certain persons agreed with appellant that, if it would repair the spurs for their then length and operate them for two years, these persons would furnish their timber for transportation over the spurs and pay appellant $7.50 per car transported; that appellant accepted the contract "on the condition that the same was approved by relator," and thereafter appellant "filed with relator said contract and prayed the approval of relator thereof; that respondent [appellant] was advised by relator that tariffs in conformity therewith would be filed by relator, when offered, * * * if not objected to"; that appellant repaired the spurs at great expense and filed tariffs, as alleged in the application for the writ; that thereafter J. M. Mooney, a party to the contract above mentioned, filed with relator a complaint praying that appellant be required to "operate said industrial spur tracks as a part of its main line," and be prohibited from collecting charges therefor in excess of those applicable to "any other part of the railroad"; that a hearing on this complaint was had, and the commission found appellant had expended $5,049.30 for repairs of the spurs; that for one year of operation on the spurs appellant had collected (switching charge) $2,910; that the spurs contain 5 and 8 per cent, grades; that relator refused to pass upon the question whether appellant had a right to abandon the spurs, and found that the relation of common carrier existed between appellant and the public with respect to the spurs, and held that "as long as that relation exists" appellant will be "required to treat the industrial spurs the same as other parts of its line in the application of freight charges upon carload traffic other than live stock and perishable freight, and will be prohibited from charging the switching charges for the movement of freight on said spur"; that this order took effect upon July 23, 1917, and on that date appellant "elected to abandon the operation of said industrial spur tracks rather than suffer relator to confiscate its property by the order aforesaid, and did abandon and refuse to operate the spurs."

It is then averred that in November, 1915, relator made an order prescribing rates for appellant's railroad and that an appeal from that order is pending; that under the rates in force appellant was not receiving adequate compensation; that the order of July 23, 1917, denying the right to enforce the $7.50 switching charge, further reduced appellant's revenue $2,000 per year, "and the commission in that case refused to grant to it higher rates or any other revenue from any other source, and the continued operation of industrial tracks 1 and 2 under said order would constitute a confiscation of respondent's property to the extent of $2,000 per year. Wherefore it says the Public Service Commission is estopped to complain that it ceased the operation of said trams, and the respondent [appellant] on that account had a right to abandon the operation of said industrial tracks"; that in its answer to Mooney's complaint, appellant pleaded "that any reduction of its revenue, not compensated in some way by an increase elsewhere, would operate as a confiscation of the property" of appellant, in violation of section 1 of the Fourteenth Amendment to the federal Constitution and of section 30 of article 2 of the state Constitution, and appellant "now pleads,. the provision aforesaid" of the Constitutions" in bar of the right of relator to the writ of mandamus prayed for in this action. The return then avers relator's authority to require appellant to operate the spurs is given solely by section 116 of the act of 1913 (Laws 1913, p. 645) which requires a hearing, and no hearing has been had; that if section 64 of the same act authorizes this proceeding, which relator denies, still the writ should be denied because the spurs were built without a grant from the state, the operation thereof was voluntary, and appellant had the right to abandon them for good reason or no reason; that appellant never had charter authority to build or acquire the spurs, "and that while its actions in acquiring and operating said industrial spur tracks may have been and were unlawful and without authority, and the state may compel" appellant to cease such ultra vires operation, it and relator are without authority to compel a continuance of such activities.

The contentions in the brief are that (1) the spurs are neither railroads nor parts of appellant's railroad within the meaning of the law; (2) neither the Public Service Commission nor the courts have power to compel appellant "to furnish transportation not included in the exercise of its franchise"; (3) "mandamus is a discretionary writ, ' * * and the granting of this writ in this case was a gross abuse of the discretion of the court; and (4) the judgment rendered confiscates appellant's property and thereby violates both the state and federal Constitutions.

I. The question whether the spur tracks fall within the regulatory power of the commission is decided in Missouri Southern Railroad Co. v. Public Service Commission, a companion case.

II. "It is settled that a railroad company in possession of its road may be compelled by mandamus to operate its road in...

To continue reading

Request your trial
23 cases
  • State ex Inf. Shartel v. Mo. Utilities Co.
    • United States
    • Missouri Supreme Court
    • October 5, 1932
    ... 53 S.W.2d 394 ... STATE OF MISSOURI upon the Information of Stratton Shartel, Attorney-General, ex rel. the CITY OF SIKESTON, Relator, ... MISSOURI UTILITIES COMPANY, a Corporation ... 201; State ex rel. Laundry, Inc., v. Public Serv. Comm., 34 S.W. (2d) 37; State ex rel. Rhodes v. Public Serv. Comm., 194 S.W. 287; Mo. Southern Ry. Co. v. Public Serv. Comm., 259 Mo. l.c. 728, 168 S.W. 1164; Washington University v. Public Serv. Comm., 272 S.W. 971; R.S. 1929, chap. 33; R.S ... ...
  • May Department Stores Co. v. Union E.L. & P. Co., 34288.
    • United States
    • Missouri Supreme Court
    • June 30, 1937
    ... ... No. 34288 ... Supreme Court of Missouri ... Division One, June 30, 1937. * ... [107 S.W.2d 43] ...         Appeal from ... State ex rel. v. Pub. Serv. Comm., 308 Mo. 328; State ex rel. v. Pub. Serv. Comm., 275 Mo. 201; State ex ... Bank, 331 Mo. 386, 53 S.W. (2d) 902; State ex rel. v. Wright, 95 S.W. (2d) 804; Southern Pac. Co. v. Interstate Com. Comm., 219 U.S. 498, 31 Sup. Ct. 279; United States v. Railroad Co., ... ...
  • State ex inf. Shartel, ex rel. City of Sikeston v. Missouri Utilities Co.
    • United States
    • Missouri Supreme Court
    • October 5, 1932
    ... ... Louis v. Pub. Serv. Comm. and Laclede Gas Light Co., 329 ... Mo. 918; State ex rel. Sedalia v. Public Serv ... Comm., 215 Mo. 201; State ex rel. Laundry, Inc., v ... Public Serv. Comm., 34 S.W.2d 37; State ex rel ... Rhodes v. Public Serv. Comm., 194 S.W. 287; Mo ... Southern Ry. Co. v. Public Serv. Comm., 259 Mo. l. c ... 728, 168 S.W. 1164; Washington University v. Public Serv ... Comm., 272 S.W. 971; R. S. 1929, chap. 33; R. S. 1929, ... secs. 4962, 7683. (See cases cited above in support of this ... point 1.) It was not necessary for respondent to secure ... ...
  • Public Service Commission of Missouri v. St. Louis-San Francisco Railway Company
    • United States
    • Missouri Supreme Court
    • November 20, 1923
    ... ... carriers, than that they should not discontinue a portion of ... the essential service to the public in this State, ... voluntarily undertaken by them, without a determination upon ... the facts in each instance, by the proper administrative body ... of the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT