State v. Public Service Commission

• Decision Date: 07 April 1924
• Docket Number: No. 23809.,23809.
• Citation: 303 Mo. 505,260 S.W. 973
• Parties: STATE ex rel. CITY OF CARTHAGE v. PUBLIC SERVICE COMMISSION et al.
• Court: Missouri Supreme Court

260 S.W. 973

303 Mo. 505

STATE ex rel. CITY OF CARTHAGE v. PUBLIC SERVICE COMMISSION et al.

No. 23809.

Supreme Court of Missouri, Division No. 1.

April 7, 1924.

Appeal from Circuit Court, Cole County; J. G. State, Judge.

Proceeding by the State of Missouri, on the relation of the City of Carthage, against the Public Service Commission of Missouri and others. From a judgment affirming an order of the Public Service Commission, relator appeals. Affirmed.

McReynolds & McReynolds and John H. Flanigan, all of Carthage, for applicant. Frank R. Birkhead, City Atty., and J. D. Harris, both of Carthage, for relator.

L. H. Breuer, Gen. Counsel, of Rolla, and Frank E. Atwood, Asst. Gen. Counsel, of Carrollton, for Public Service Commission.

JAMES T. BLAIR, J.

This is an appeal from a judgment of the circuit court, affirming an order of the Public Service Commission which granted leave to respondent Southwest Missouri Railroad Company, an electric line, to take up two short spur tracks. The ordinance under which the spurs in question and other tracks were built in Carthage was passed in September, 1894. The testimony shows that the main purpose at the time was to secure the coming into Carthage of an interurban line which would connect it with other cities in the county and section. The ordinance, so far as it is relevant to the question raised by appellant, is as follows:

"An ordinance granting to F. H. Fitch, his heirs, assigns and lessees, the right to construct, operate and maintain over certain streets and alleys of the city of Carthage, an electric railway, and regulating the manner of construction of the same, and also the right to erect poles and wires for electric lighting purposes.

"Be it ordained by the council of the city of Carthage. Missouri, as follows:

"Section 1. That permission and authority are hereby granted and given to F. H. Fitch, his heirs, assigns and lessees, to lay down, maintain and operate a street railway, for the carrying of passengers and mail and express matter in said city, with all the necessary side tracks, turn-outs and switches over, upon and along the following streets, avenues and alleys in the city of Carthage, jasper county, Missouri, to wit."

Several streets and lines are then described. These include those along which the Interurban cars arrive and depart, the two on which the spurs in question are built, and other lines in the city on which no tracks Dave ever been built. The section contains provisos concerning (1) the required assent of a majority of property owners along streets described; (2) time when work shall commence; (3) time within which 1½ miles of track must be put in operation or city may remove all tracks then laid. Section 2 describes motive power, and the kind, character, erection, position, and manner of maintenance of poles and wires. Section 3 describes types of rails to be used, the gauge, grade, and number of tracks, and the paving along tracks laid. Section 4 deals with the use and occupancy of streets during the construction period. Section 5 regulates the kind and equipment of cars and their operation. This includes schedules. Section 6 deals with fares. Section 7 reserves the right to order temporary removal of tracks and the taking down of poles and wires when a public purpose or necessity may require. Section 8 provides a means of enforcing the obligation to pave along the track.

"Sec. 9. The grant herein given shall extend for the term of forty-nine (40) years from the passage hereof, provided the same shall be accepted by the said grantee, his heirs, assigns or lessees within forty-five days after its passage."

Sections 10 and 13 provide for the indemnification of the city from damages and the like, for which it might become liable by reason of the grant or operations under it.

"Sec. 11. In consideration of the granting of the right and franchise to build and operate a railroad in the city of Carthage as contained in this ordinance and such franchise is granted in consideration that said F. H. Fitch, his heirs, assigns or lessees in addition to building such street railroad in the city of Carthage and within one year after the acceptance of this ordinance—time to be the essence of the contract—shall build, construct, operate or shall cause or procure to be built, constructed and operated, an electric rapid transit railroad from the city of Carthage, from some point on the street railroad to be built in the city of Carthage as provided in this ordinance, to the city of Carterville or Webb City, Jasper county, Missouri; and electric cars shall be regularly operated and run on said last mentioned electric rapid transit railroad to be built in the city of Carthage as aforesaid, between said city of Carthage and some point or points within the corporate limits of said city of Carterville or Webb City. And in further consideration of granting this franchise for said street railroad, as indemnity and liquidated damages for a failure to comply with terms, conditions and privileges granted by this ordinance, said grantee, his heirs, assigns and lessees, at the time of filing of the written acceptance of the conditions of this ordinance, as provided in section 17 hereof and as a part of such acceptance, shall deposit with the city treasurer, of the city of Carthage, the sum of three thousand dollars ($3,000) in good faith and lawful money of the United States, and the acceptance shall not be complete and no rights shall be acquired without said deposit.

"Said three thousand dollars ($3,000) shall be held by said city treasurer and in case said F. H. Fitch, his heirs, assigns or lessees shall build and operate said electric street railroad in the city of Carthage, in the manner and within the time limited in the ordinance and shall comply with the terms thereof, and shall in addition also build said electric rapid transit railroad from the city of Carthage to the said city of Carterville or Webb City as heretofore in this section provided, and within the time above limited for the building thereof; said money, so deposited, shall, on the order of the city council of the city of Carthage, be repaid to said grantee, his administrators and assigns, but if for any reason said electric street railroad, to be built in the city of Carthage, shall not be built and operated within twelve months as provided in section 1, of this ordinance, or said electric rapid transit railroad from a point on said street railroad, in the city of Carthage, shall not be built and operated to said city of Carterville or Webb City in accordance with the provisions of this section and within one year as herein limited—time to be the essence of this contract and franchise—then said sum of three thousand dollars ($3,000) shall be held and retained by the city of Carthage and by said city treasurer appropriated and paid into the general revenue fund thereof as liquidated damages, on account of such failure and default, in addition to the other penalties and forfeiture provided by the conditions of this ordinance and without reference to whether or not said city council declares by ordinance the forfeiture of any of the rights or privileges granted by this ordinance."

Section 12 provides for forfeiture of the franchise in case of failure to comply with proviso (3) of section 1. Sections 14, 15, 16, and 17 relate to an electric light, heat, and power franchise. Section 18, the last section, provides for forfeiture for failure of grantee to accept and file bond within 45 days.

The first interurban car came into Carthage August 28, 1895. Five or six months later the two spurs, one to the Frisco depot and one to the old Missouri Pacific depot, were completed. One is three-eighths and the other about five-eighths of a mile in length. These are the distances from the square to the Frisco depot and the former Missouri Pacific depot, respectively. The latter has now been moved about 1,000 feet farther north, and is that distance from the end of the spur. A light car was operated on the spurs for about 20 years. It is established by the evidence and found by the Public Service Commission that the average annual loss on the operation of these two spurs, which constituted one mile of track, exceeded $2,500. The total loss for the period, therefore, exceeded $50,000. The appellant in its brief admits the evidence conclusively shows a loss in operating the spurs. A compilation for the years 1912, 1913, 1914, and to June 17, 1915, shows that the receipts totaled $4,185.10, and the wages at that time of the two motormen required by the service aggregated $5,005.45. It was shown that from June 1 to June 17, 1915, inclusive, the average daily loss on operation, exclusive of interest and depreciation, was $7.57. The annual loss at that rate, with like exclusions, would exceed $2,700. The direct testimony and the showing for other periods proved that these 17 days were typical of the whole period of operation. The amount of interest and depreciation fairly chargeable to the spurs seems not to have been given, though it must have added materially to the annual loss. It was shown that the company has not operated the spurs since June 17, 1915, which is about the time the first application to the commission was filed. It was shown that motormen's salaries had increased 150 per cent. This would add $6 per day, or nearly $2,200, to the annual cost of operation.

The evidence showed that it would require about $12,000 to put the spurs and equipment into operative condition, and about $3,000 to extend the Missouri Pacific spur to the new depot. At 6 per cent. this would add an annual charge of $900. When to these are added other items of expense, which under cheaper conditions in 1912-1915 amounted to ".7 cents per car mile, and the additional cost of operation due to the lengthening of one of the spurs, which will be essential if traffic from the Missouri Pacific depot is to be secured, it is...