State v. Public Service Commission

• Citation: 257 S.W. 462,301 Mo. 179
• Decision Date: 06 October 1923
• Docket Number: No. 23314.,23314.
• Parties: STATE ex rel. KANSAS CITY (CUNNINGHAM et al., Interveners) v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.
• Court: United States State Supreme Court of Missouri

257 S.W. 462

301 Mo. 179

STATE ex rel. KANSAS CITY (CUNNINGHAM et al., Interveners) v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.

No. 23314.

Supreme Court of Missouri, In Banc.

October 6, 1923.

Dissenting Opinion of David E. Blair, J., October 10, 1923.

Dissenting Opinion of James T. Blair, J., November 20, 1923.

Motion for Rehearing Overruled November 20, 1923.

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

Action by the State, on the relation of Kansas City, against the Public Service Commission and another, in which Ellen Cunningham and others intervened. Judgment for defendants, and relator and interveners appeal. Reversed.

John B. Pew, E. F. Halstead, and E. M. Herber, all of Kansas City, for appellant Kansas City.

M. E. Casey and Reed & Harvey, all of Kansas City, for appellants Cunningham and others.

R. Perry Spencer and James D. Lindsay, both of Jefferson City, for respondent Public Service Commission.

Carl S. Hoffman and J. W. Jamison, both of St. Louis, and A. L. Cooper and E. A. Neel, both of Kansas City, for respondents Railway Co. and receiver.

WALKER, J.

This is an appeal from a judgment of the circuit court of Cole county, affirming an order of the Public Service Commission in the case of Kansas City, Appellant, and Ellen Cunningham et al., Interveners, against the Public Service Commission et al., Respondents.

The order of the Public Service Commission granted permission to the railway company to construct its tracks along and across certain streets in said city, without having obtained authority from the latter so to do. The interest of the interveners arises from their ownership of lots adjacent to the streets sought to be appropriated as rights of way by the Missouri, Kansas & Texas Railway Company, one of the respondents.

I. Neither convenience, expediency, or necessity are proper matters for consideration in the determination of the issue here submitted. Either or all of these can only be urged in support of an act of the Commission clearly authorized by the statute. We say clearly authorized because the statutory origin and administrative character of the Commission render it necessary that its power be warranted by the letter of the law or such a clear implication flowing therefrom as is necessary to render the power conferred effective. It is conceded that express power to make the order in question is only to be found, if it there exists, in sections, 49 and 50 of the public service statute (now sections 10458 and 10459, R. S. 1919). It appears, however, that there is an earlier general statute (section 9850, R. S. 1919) limiting the power of railroad companies to use or occupy the streets of a city, which is contended by the respondent to be in conflict with the sections of the Commission Act above cited. As a prerequisite, therefore, to the exercise of the power claimed to be conferred on the Commission by these sections, it must be held that they repeal section 9850. An analysis of these statutes is necessary to the determination of this question.

Section 10458 is as follows:

"If, in the judgment of the Commission, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation in or in connection with the transportation of passengers or property ought reasonably to be provided, * * * in order to promote the security or convenience of the public or employés, or in order to secure adequate service or facilities for the transportation of passengers or property, the Commission shall, after a hearing, either on its own motion or after complaint, snake and serve an order directing such repairs, improvements, changes, or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street railroad corporation is hereby required * * * to make all repairs, improvements, changes and additions required of it by any order of the Commission served upon it. * * *"

Section 10459 is as follows:

"1. * * * Nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade, * * * without having first secured the permission of the Commission. * * * The Commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.

"2. The Commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of * * * a public road or highway by a railroad or street railroad and of a street by a railroad or vice versa, so far as applicable, and to alter or abolish any such crossing. * * *"

And section 9850 is as follows:

"Every corporation formed under this article shall, in addition to the powers hereinbefore conferred, have power: * * * Third, to lay out its road, * * * and to construct the same; * * * fourth, to construct its road across * * * any street. * * * Nothing herein contained shall be construed to authorize * * * the construction of any railroad not already located * * * across any street in a city * * * without the assent of the corporate authorities of said city. * * *"

II. The power conferred on the Commission by these sections is purely regulatory. In fact, the entire power of the Commission may be thus characterized. The dominating purpose in the creation of the Public Service Commission was the promotion of the public welfare. This is sought to be effected by regulation which seeks to correct the use of any property right of a public utility and not its use. The exercise of the latter would involve a property right in the utility which the Commission does not possess. This distinction while usually made in the adjudicated cases in considering the property rights of public utilities is nevertheless applicable in defining the limits of the power of the Commission as affecting the general public as in the case at bar. "It must be remembered" as Mr. Justice Brewer said in effect in Interstate Commerce Commission v. Chicago Great Western Railway Co., 209 U. S. 108, 28 Sup. Ct. 493, 52 L. Ed. 705, "that while from the * * * character of the work in which [railroad companies] are engaged the public has the power to prescribe rules for securing faithful and efficient service * * * yet in no proper sense is the public a general manager." To a like effect is Chicago, Minneapolis & St. Paul v. Wisconsin, 238 U. S. 491, 35 Sup. Ct. 869, 59 L. Ed. 1423, L. R. A. 1916A, 1133.

These general observations as to the character of the power with which the Commission is invested finds its confirmation in the sections under review. Section 10458 has to do with the manner in which the entire superstructure of railroad companies is to be used; and the power of the Commission in regard thereto is limited to the regulation of repairs, improvements, changes, and additions. Each of these terms is clearly indicative of a legislative purpose to confer power upon the Commission to improve conditions then existing, but not to create new ones. The power thus conferred is mandatory (State ex rel. U. Rys. v. Public Service Com., 270 Mo. 429, 192 S. W. 958, 198 S. W. 872), and whatever mandates are issued thereunder must emanate from the Commission, "whether they be on its own motion or on complaint." Under the authority of neither was the proceeding at bar commenced, and if authority therefore be based upon this section alone its application in either influencing or determining the matter at issue may be subject to serious question.

However, it is provided in section 10459 that application by a railroad company for permission to construct its track across a road, highway, or street at grade shall be made to the Commission, whose permission shall be a condition precedent to the exercise of the right. The permission thus required by the terms of the section is limited to grade crossings. That limitation not being necessary to the determination of the question here requiring solution, is not ruled upon, especially in view of the fact that the Commission has ruled (Macon v. C., B. & Q. Rd. Co., 1 P. S. Com. Rep. loc. cit. 647) that its authority over crossings is general and is not limited to grade, whether existing before or constructed after the law went into effect. It will be time enough for a consideration of that ruling when the limit of the Commission's power in that regard is at issue.

To any one familiar with current history concerning the operation of railroads, and the increased dangers occasioned by the manner of constructing and maintaining crossings, the reason for their special designation in a regulatory statute, and the emphasizing of the power of the Commission in reference thereto, was primarily in the interest of public safety, although incidentally it may add facilities to the railroad company in the transaction of its business. In short, it was the public welfare and not merely commercial convenience that the Legislature had in view. It will be noted that the exclusive power conferred by the second subdivision of section 10459, on the Commission is not in reference to the granting of the permission to install crossings but to the place and manner where they are to be installed, operated, and maintained. Whether this power, therefore, is general or limited there is nothing in the section or the entire act, when construed with reference to its evident meaning and purpose, which will lend substantial aid to the conclusion that the power of the Commission in regard thereto was intended to be exclusive.

However, we are particularly concerned here with the effect of the enactment of section 10459 upon section 9850. Generally the entire Public...