State v. Public Service Commission
| Decision Date | 24 May 1927 |
| Docket Number | No. 25087.,No. 25086.,No. 25088.,25086.,25087.,25088. |
| Citation | 295 S.W. 86 |
| Parties | STATE ex rel. and to Use of WABASH RY. CO. et al. v. PUBLIC SERVICE COMMISSION et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.
Action by the State of Missouri, on the relation of and to the use of the Wabash Railway Company and another, against the Public Service Commission and others, to set aside an order of the Commission. On appeal, judgment for plaintiffs was reversed (306 Mo. 149, 267 S. W. 102), and the order of the majority of the Public Service Commission directed to be affirmed. On writ of error, the United States Supreme Court reversed and remanded the case (273 U. S. 126, 47 S. Ct. 311, 71 L. Ed. ___), so that the Missouri Supreme Court might consider the effect of a state statute passed subsequently to the reversing judgment. That judgment was set aside, and the case is before the Supreme Court of Missouri on supplementary proceedings. Judgment reinstated.
D. D. McDonald, of Jefferson, General Counsel for appellant Public Service Commission of Missouri.
Julius T. Muench, City Counselor, and Oliver Senti, First Associate City Counselor, both of St. Louis, for appellant City of St. Louis.
Marion C. Early, of St. Louis, for appellants Gerhart, May, and Guiseffe.
Lawrence McDaniel, of St. Louis, for Rodehaver, Keiffer, and West End Grade Crossing Association.
Homer Hall and N. S. Brown, both of St. Louis, for respondent Wabash Ry. Co.
There was a former hearing of these appeals, in which all the issues then raised were determined, and judgment was entered, setting aside the order of the circuit court of Cole county, and sustaining the order of the public service commission. The order of the commission required a separation of grades, and the construction of a viaduct to have a vertical clearance of 18 feet over the railway tracks, at the Delmar boulevard crossing in the city of St. Louis. The grounds of that judgment are stated in the opinion rendered upon that hearing, and reported in 306 Mo. 149, 267 S. W. 102. The present hearing is supplemental in character, and arises upon proceedings had since the rendition of that judgment. Following that judgment, and on March 12, 1925, respondents Wabash Railway Company et al. were allowed their writ of error by the Supreme Court of the United States. Thereafter the Legislature passed the act approved April 30, 1925 (Laws of Missouri 1925, pp. 323, 324), whereby it was provided that, except in cases in which the public service commission finds that such construction is impracticable, viaducts thereafter built over any railroad tracks should be not less than 22 feet in the clear from the top of the rails. The Supreme Court of the United States (273 U. S. 126, 47 S. Ct. 311, 71 L. Ed. ____), when it came to consider the case, held that the situation created by the statute, enacted after the entry of the judgment by this court, presented a question of state law, which that court in the exercise of its appellate jurisdiction could decide, but was not obliged to decide, and said that the question of the meaning, and effect of the statute upon the order of the commission, the judgment of this court, and upon action taken pursuant to them, was primarily for determination by this court. To the end, therefore, that this court might be free to consider the question, and make proper disposition of it, the judgment of this court was reversed and the cause remanded for further proceedings. In obedience to such mandate and opinion, this court set aside its own judgment, the cause was set for such hearing as directed by the Supreme Court of the United States, and pursuant thereto counsel for the parties have been heard in oral argument, and have filed briefs directed to the question so put at issue.
The statute to be considered is section 1 of the act mentioned, and it is as follows:
"Except in cases in which the public service commission finds that such construction is impracticable, bridges, viaducts, tunnels, overhead roadways, footbridges, wire or other structure hereafter built over the track or tracks of a railroad or railroads by a county, municipality, township, railroad company, or other corporation, firm or person, shall be not less than twenty-two feet in the clear from the top of the rails of such track or tracks, to such wire or other structure or to the bottom of the lowest sill, girder or crossbeam, and the lowest downward projection on the bridges, viaduct. tunnel, overhead roadway or footbridge."
Prior to the passage of this act, there was no statute prescribing uniformity of clearance in the separation of grades, and construction of viaducts at the crossings of streets or highways by railroads or street railroads; but, by section 10459, R. S. 1919, the commission was given the exclusive power to determine the manner of installation and operation of any such crossing, and to require, where, in its judgment, it would be practicable, a separation of grades at any such crossing and prescribe the terms upon which such separation should be made. State ex rel. St. Joseph Ry. L. & P. Co. v. Public Service Commission, 272 Mo. 645, 199 S. W. 999.
The question we have is one of the meaning to be given to the act of 1925 and of its effect under the circumstances shown. It is to be considered in the light of constitutional and statutory provisions of the state, and in view of the relation of the parties and the nature of the subject-matter. Section 15 of article 2 of the Missouri Constitution provides:
"That no * * * law * retrospective in its operation * * * can be passed by the General Assembly."
In State ex rel. v. Dirckx, 211 Mo. loc. cit. 577, 578, 111 S. W. 3, in banc, it was said:
In State ex rel. v. Wright, 251 Mo. loc. cit. 344, 158 S. W. 829, Ann. Cas. 1915A, 588, also in banc, the substance of the foregoing was reiterated, and it was said the rule is in consonance with the text-book law. "In every case of doubt the doubt must be resolved against the retrospective effect." 36 Cyc. 1208.
The act of 1925 does not express a retroactive purpose, but by its terms it is plainly prospective in operation. It refers to viaducts to be constructed thereafter, and this reference, inevitably, is to viaducts which are to be constructed under orders of the public service commission, and therefore necessarily under orders to be made by the commission, after the passage of the act. Under the act, such order must require a construction affording a clearance of 22 feet, or, if directing a less clearance, must be predicated upon the finding of fact made that the making of a clearance of 22 feet in the given instance would be impracticable.
The discussion of the respective counsel turns upon the question whether there is a final judgment or was one when the act of 1925 went into effect. Counsel for appellants treat the judgment of this court as a final judgment, and urge that, since by the Constitution (section 1, art. 6) the judicial power of the state is vested in the courts, this subsequent legislative act cannot be construed so as to vacate or nullify such judgment. Counsel for respondents say there is no final judgment, and insist that the principle mentioned applies only to final judgments or decrees, and cannot apply where the judgment in question was under review by appeal, or writ of error, at the time the statute in question was enacted. For that reason it is urged that the act of 1925 was not ineffective, as foreclosed by an existing, final judgment, but was effective as a controlling factor in a cause pending. Upon that, citation is made to several cases. American Steel Foundries v. Tri-Cities Central Trades Council et al., 257 U. S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360; Rafferty v. Smith et al., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; Eastern B. & L. Ass'n v. Welling (C. C.) 103 F. 352; Ketchum v. Thatcher, 12 Mo. App. 185; Rodney v. Gibbs, 184 Mo. 1, 82 S. W. 187. There are also other cases cited in support of the contention that a judgment pending a review does not have the finality of an adjudication, and attention is directed to the fact that this court has set aside its judgment.
In the American Steel Foundries Case, the complainant's bill was one for injunction against employees engaged in a strike. An injunction was granted by a federal District Court. An appeal was taken to the United States Circuit Court of...
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