State v. Public Service Commission

• Decision Date: 26 February 1917
• Docket Number: No. 19643.,19643.
• Parties: STATE ex rel. UNITED RYS. CO. OF ST. LOUIS v. PUBLIC SERVICE COMMISSION OF MISSOURI.
• Court: Missouri Supreme Court

192 S.W. 958

STATE ex rel. UNITED RYS. CO. OF ST. LOUIS v. PUBLIC SERVICE COMMISSION OF MISSOURI.

No. 19643.

Supreme Court of Missouri. In Banc.

February 26, 1917.

On Motion to Modify Opinion, March 16, 1917.

Concurring Opinion March 24, 1917.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Application by the State, on relation of United Railways Company of St. Louis, against the Public Service Commission of Missouri, for a writ of review to determine the validity of a portion of an order made by the Commission. From a judgment of the circuit court sustaining the order of the Commission, the relator appeals. Reversed and remanded, with directions to enter a judgment annulling the order.

Boyle & Priest and William E. Baird, all of St. Louis, for appellant. Alex. Z. Patterson, Gen. Counsel, and James D. Lindsay, Asst. Counsel, both of Jefferson City, for respondent.

WALKER, J.

In April, 1914, complaints were filed with the Public Service Commission praying that an inquiry be made into the character of service, rendered by the United Railways Company of the City of St. Louis. The specifications in said complaints were comprehensive, and embraced many phases of street railway service. The Commission, after hearing evidence and making such other investigations and inquiries as it deemed proper, made an order, set forth under six headings or subdivisions. The first, third, and fourth related to the manner in which the Railways Company was to operate, manage, and conduct its cars; the fifth and sixth prescribed the time and manner of the company's acceptance and compliance with the order; and the second required the company, within a specified time, to apply to the city authorities for permission to construct and operate certain extensions of the company's system as designated in the order. The company formally expressed its willingness to comply with the order except as required by the second subdivision, which is as follows:

"Ordered 2, that the United Railways Company, defendant herein, be and it is hereby directed and required to make application, within thirty days from the effective date of this order, to the proper municipal authorities of the city of St. Louis, Missouri, for the necessary franchises, permits and authority, and to the property owners for the necessary consents, authorizing said defendant company to construct all of the following sections of track, and that the construction of all of said tracks, which may be so authorized, shall be made within the time herein specified."

Following this the particular lines of the company required to be extended are designated and the times prescribed within which each extension is to be made. Upon the promulgation of this order the company filed a motion for rehearing, and upon its denial made application to the circuit court of the city of St. Louis for a writ of review to determine the validity of that portion of the order to which objection had been made. The circuit court sustained the order of the Commission, and the company appeals.

While the proceedings were pending before the Commission the city of St. Louis adopted a new charter, which provides that the city shall have power to regulate rates, quality of use, service, and products and methods of conduct and operation of public utilities, and at certain times to buy the plant and property of such utilities; and to compel from time to time reasonable extension of facilities for such service. Section 1, art. 1, and section 2, art. 19, Charter St. Louis.

There is no controversy as to the facts or the regularity of the proceedings, and the parties stipulate that the only issues are questions of law, viz.: (1) The power of the Commission to order the Railways Company to apply to the municipal authorities of the city of St. Louis for franchises to operate a street railway or extensions thereof in the public streets of said city; and (2) the constitutionality of that portion of the charter of said city authorizing a municipal regulation of public utilities as therein prescribed.

I. Acts creating public service commissions and defining their powers are comparatively new ventures in legislation. Their newness, coupled with their comprehensive character, usually coextensive with the state, has, as is usual with new laws, caused frequent applications to be made to the courts to secure their construction. This has been especially true in regard to the Missouri law, although it was but recently enacted. Despite this fact, the vexed questions here have not received judicial interpretation, and, except by analogy, little aid is to be derived from the construction given to statutes of this character by courts of last resort in other jurisdictions. The statutes may be, and often are, similar to, if not identical with, our own. But the organic laws of these states are different from ours. In construing our own statute, therefore, the plain limitations of our Constitution must, in conformity with one of the elementary rules of construction, always be kept in mind. It is appropriate in this connection that the provision of our Constitution applicable in the construction of the statute here under review should be quoted. It is as follows:

"No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by said street railroad and the franchises so granted shall not be transferred without similar assent first obtained." Section 20, art. 12, Con. Mo.

The pertinent parts of the Public Service Act, under which the Commission is seeking to exercise the power here complained of by appellant, is as follows:

"If in the judgment of the Commission, additional tracks, switches, terminals or terminal facilities * * * or any other property, construction, apparatus, equipment, facilities or device for use by any * * * street railroad corporation in or in connection with the transportation of passengers * * * ought reasonably to be provided, or any repairs or improvements to or changes in any thereof in use ought reasonably to be made, or any additions or changes in construction should reasonably be made thereto in order to promote the security or convenience of the public * * * or in order to secure adequate service or facilities for the transportation of passengers, * * * the Commission shall, after a hearing, * * * make 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 * * * street railroad corporation is hereby required and directed to make all repairs, improvements, changes and additions required of it by any order of the Commission served upon it. * * *" Section 49, Public Service Commission Act, p. 588, Laws 1913.

The constitutional provision quoted is definite in its terms; discussion as to its purpose would therefore seem superfluous. Under ordinary circumstances little or no question can arise as to the uses and purposes of streets and public highways; and the wisdom in confiding their supervision and control to local authorities, being evident, need not be commented upon. The Constitution but gives affirmative recognition to these facts. However, the enactment of the statute creating the Public Service Commission to effectuate its purpose in the supervision of public utilities, among others street railways, has, under section 49, supra, given, or attempted to give, certain powers to the Commission over streets and highways. The extent of this power under the Constitution is the matter here to be determined.

While recognizing the rule that constitutional limitations upon legislative action must be construed in favor of the power of the Legislature and be either expressly declared or clearly implied (State v. Wilson, 265 Mo. 1, 175 S. W. 603), it must also be borne in mind that, when so expressed or implied, they are to be construed as mandatory rather than directory (State ex rel. v. Hitchcock, 241 Mo. 433, 146 S. W. 40), and consequently exclusive in their terms.

It not infrequently occurs that words employed in a Constitution or statute are so clear and explicit that an attempt to define them serves but to confuse rather than enlighten. The words "construct" and "operate" as employed in the constitutional provision under consideration are illustrative of this truth. We, therefore, hazard no further comment as to their meaning and application than to say that to "construct" as here used means to build upon the street or highway, whether by initial location or extension; and to "operate" means to use for the purposes of the construction.

The constitutional provision plainly requires as a prerequisite to the enactment of a valid statute for the construction and operation of street railroads that the consent of the local authorities therefor be first acquired. While the language employed in the Constitution, if literally construed, may be held to be directed only to corporations seeking the privilege to construct and operate such public utilities, a reasonable construction of the provision will not justify this limitation upon its meaning; its purpose is not so much to limit the power and define the course to be pursued in securing the right to construct and operate as it is to declare where the power rests, which is necessary to be invoked before the rights sought are granted.

The source of this power, viz., the local authorities, having been defined, the terms under which it is granted authorize the conclusion that it is absolute. It is a general rule, applicable here as elsewhere, that constitutional provisions are mandatory; their prohibitions and injunctions must therefore be obeyed. State ex rel. v. Hitchcock, 241 Mo. 433, 146 S. W. 40; 8 Cyc. 762...