State v. Public Service Com'n

• Decision Date: 24 January 1921
• Docket Number: 16140.
• Citation: 194 P. 982,114 Wash. 301
• Court: Washington Supreme Court
• Parties: STATE ex rel. CITY OF TOPPENISH v. PUBLIC SERVICE COMMISSION.

194 P. 982

114 Wash. 301

STATE ex rel. CITY OF TOPPENISH v. PUBLIC SERVICE COMMISSION.

No. 16140.

Supreme Court of Washington

January 24, 1921

Department 1.

Appeal from Superior Court, Yakima County; Harcourt M. Tayler Judge.

Proceeding by the State on the relation of the City of Toppenish against the Public Service Commission. From a judgment reversing its order denying a petition of the city for the establishment of a grade street crossing, the Public Service Commission appeals. Affirmed.

Mackintosh J., dissenting.

Lindsay L. Thompson, of Olympia, and R. M. Burgunder, of Seattle, for appellant.

D. H Bonsted, of Toppenish, for respondent.

PARKER C.J.

This is an appeal by the Public Service Commission from a judgment of the superior court for Yakima county reversing its order denying a petition of the city of Toppenish for the establishment of a grade street crossing over the right of way and tracks of the Northern Pacific Railway Company in that city.

There is no serious controversy as to the existence of the facts, which we regard as decisive of the case. They may be summarized as follows: Toppenish is a city of the third class, in Yakima county. The right of way and tracks of the Northern Pacific Railway Company run through the city in a direction which for present purposes we may assume as east and west, dividing the city into two parts of about equal size, both as to territory and population. The city has a population of about 3,000, and is a thriving trade center of a large and prosperous agricultural community. The business and public institutions of the city seem to be, in numbers, approximately equally divided between the north and south sides of the railway. There are in the city but two street crossings of the railway, being the only public ways of travel between the north and south sides of the railway. One of these, Toppenish avenue, crosses the railway at grade practically in the center of the business district of the city, over which there is a large amount of traffic which, during the business hours of the day, at times becomes considerably congested; a tally of such traffic upon a typical business day showing 4,387 pedestrians, 558 automobiles, and 590 teams, passing over the crossing. Two thousand feet west of this crossing is the other crossing, near the western limits of the city. The railway company's passenger depot, and its freight depot, and apparently most of its switching or passing tracks are east of the Toppenish avenue crossing. While there are as many side tracks west of that crossing, they seem to be for the most part such as may properly be designated as industrial or loading tracks; that is, side tracks for the loading of cars direct from motor and horse-drawn vehicles; there being a large amount of such loading of cars by reason of the nature of the agricultural products shipped from Toppenish. Beech street is parallel with and 560 feet west of Toppenish avenue, and extends both to the north and to the south of the railway right of way, but has never been extended or opened for travel across any part of the company's right of way, which at that point is 590 feet wide; within which width there are two main line tracks and six side tracks. In March, 1919, the city council duly made and adopted an order, evidencing its decision that Beech street should be extended and opened for travel across the right of way and tracks of the railway company so as to connect the existing northern and southern portions of that street, and directing the mayor of the city to petition the Public Service Commission for the establishment of a grade crossing of the right of way and tracks of the railway company along the projected line of Beech street. Soon thereafter the mayor filed a petition accordingly with the Public Service Commission. The matter was set down for hearing before the commission; the railway company, being notified, filed its answer to the petition of the city, admitting, in substance, the impracticability of an overhead or under crossing, and denied the necessity of the establishment of a grade or any other crossing upon the projected line of Beech street. The matter being submitted to the Public Service Commission for final decision, upon the evidence produced before it, resulted in findings and an order by the commission, the language of which, in so far as we need here notice its terms, is as follows:

'That it is not practicable to cross the railroad either above or below grade, both on account of the excessive cost and the physical obstacles to be overcome. 'There was a conflict of testimony as to the necessity for the opening of this crossing; and, while the weight of that testimony may be in favor of the applicant, we believe that that is outweighed by the dangerous condition of the proposed crossing, and other considerations. Believing, therefore, that the granting or refusal of grade crossing applications rests largely in the discretion of the commission, and from the foregoing findings the commission makes the following order: It is hereby ordered that the application of the city of Toppenish in the above-entitled matter be, and the same is hereby, denied, and the proceedings dismissed.'

Thereafter the city caused the proceedings to be removed to the superior court for Yakima county by a writ of review as provided by section 8626-86, Rem. Code, seeking a reversal of the order of the commission and an order from the court that the commission be required to make its order, granting the right to the city to have established and maintained a grade crossing as prayed for by it. The matter being heard in the superior court upon the record of the proceedings had before the commission, including all of the evidence introduced before the commission, and being submitted to the court for final decision upon the merits, counsel for the city, the commission, and the railway company appearing, judgment was rendered by the court as follows:

'It is ordered, adjudged and decreed, that the order of the Public Service Commission of Washington, dated the 26th day of January, 1920, dismissing the petition of relator, city of Toppenish, be, and the same is hereby, vacated and set aside; and, it is further ordered, adjudged, and decreed that the Public Service Commission of Washington, and the individual members thereof and each of them, be, and they are hereby, ordered and directed to make and enter an order herein, granting and allowing the petition of the relator, the city of Toppenish, to construct a grade crossing across the tracks of the Northern Pacific Railway at the point described in its petition.'

This is the judgment appealed from, and here sought to be reversed.

Our problem is stated in the beginning of the brief of counsel for the commission as follows:

'The appeal is taken to secure a construction by this court of the provisions of the Grade Crossing Law, particularly of sections 2 and 3 of chapter 30, Laws of 1913, being sections 8733-2 and 8733-3, Rem. 1915 Code. The specific question to be decided is whether the Public Service Commission, in the exercise of its discretion and judgment, may deny a petition of a city to extend one of

...