State v. Public Service Commission

• Decision Date: 04 March 1919
• Docket Number: No. 20961.,20961.
• Citation: 210 S.W. 386,277 Mo. 175
• Court: Missouri Supreme Court
• Parties: STATE ex rel. MISSOURI, K. & T. RY. CO. et al. v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.

210 S.W. 386

277 Mo. 175

STATE ex rel. MISSOURI, K. & T. RY. CO. et al. v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.

No. 20961.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

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

On complaint by the city of Pilot Grove, in Cooper county, Mo., the Public Service Commission granted an order requiring the Missouri, Kansas & Texas Railway Company and Charles E. Schaff, its receiver, to stop certain trains at said city, and to renew said order the state, on the relation of the railway company and its receiver, brought certiorari against the commission. From judgment confirming the order, the railway company and its receiver appeal. Affirmed.

J. W. Jamison, of St. Louis, for appellants.

Alex. Z. Patterson, Gen. Counsel, and Jas. D. Lindsay, Asst. Gen. Counsel, both of Jefferson City, for respondent Public Service Commission.

WALKER, P. J.

This appeal seeks the review of a judgment of the circuit court of Cole County affirming an order of the Public Service Commission.

The complaint filed with the commission, upon which its order was based, is as follows:

"The complaint of W. A. Scott, mayor of Pilot Grove, Cooper county, Missouri, respectfully shows that the Missouri, Kansas & Texas Railroad Company has and does refuse to stop trains Nos. 9 and 10 at this, Pilot Grove, station for any point on their system other than St. Louis on the east, and Parsons, Kansas, on the south; that this city has enjoyed this train service continually, and that now service to Sedalia, Boonville, New Franklin, Fayette, Higbee, Moberly, and all points north, as well as McBaine, Columbia, Jefferson City, and all points on the east excepting St. Louis, may only be had on very early trains in the morning or late at night; that we now have no midday train service, much to our discomfort.

"We were granted service on trains Nos. 9 and 10 even while we had former train No. 1, and the removal of trains Nos. 9 and 10 or service from those trains is also working a hardship on Sedalia and Boonville and on the traveling public at large, and we respectfully ask that the service of trains Nos. 9 and 10 be restored to us."

A hearing upon this complaint was held before a member of the commission at Pilot Grove. The evidence showed that the appellant railroad company had, for a considerable length of time, regularly stopped trains Nos. 9 and 10 at Pilot Grove for the reception and discharge of passengers to and from all points. This practice was continued until August, 1917, when appellant put into effect a rule providing that train No. 9 should stop at Pilot Grove only for the discharge of passengers from St. Louis and the reception of passengers for Sedalia and beyond, and that train No. 10 should stop only for the discharge of passengers from Parsons, Kan., and the reception of passengers for Columbia and beyond. In pursuance of this course; these trains were compelled to make frequent stops at Pilot Grove; yet the appellant refused to carry passengers between Boonville and Pilot Grove on those trains, although stops were regularly made at Boonville and frequently at Pilot Grove. The principal passenger business at Pilot Grove was to Boonville and Sedalia; that during the months of August and September immediately preceding the hearing on the complaint train No. 9 in thirteen days stopped nine times at Pilot Grove, and train No. 10 in sixteen days stopped there eleven times; that at the time of this hearing appellant operated three trains daily between St. Louis, Mo., and Sedalia, Mo., with final destination beyond the state. The time schedules of a number of appellant's other trains were shown to demonstrate the fact that the amount of time they consumed in running from Sedalia to Pilot Grove and from the latter place to St. Louis was not appreciably different from that consumed by the two trains sought to be affected by the complaint in running between the same points. The testimony of a number of witnesses was introduced to show the inconvenience to the public at Pilot Grove on account of the manner in which the appellant ran the two trains in question.

The finding of the commission based on this testimony was that the principal passenger business at the station of Pilot Grove was to Boonville and Sedalia; that trains No. 9 and No. 10 stopped at Pilot Grove for passengers from and to St. Louis and beyond, and from and to Parsons, Kan., and beyond, and that said trains seldom passed Pilot Grove without stopping; and that the stops for the discharge and reception of Boonville and Sedalia passengers at Pilot Grove could be made without material delay or expense to the appellant.

The commission thus defines its reasons for the ruling in this regard:

"(1) That the appellant, after it had voluntarily stopped trains Nos. 9 and 10 at Pilot Grove for a long period of years, ceased making the stops solely for the purpose of answering the contention of complainant that, inasmuch as the trains stopped nearly all the time at Pilot Grove, it was possible, without detriment to the service, or additional delay, to permit the carriage of Boonville and Sedalia passengers thereon.

"(2) That the railroad company for a long period of time, in fact nearly ever since the inauguration of passenger train service over its line, has rendered flag-stop service for Pilot Grove on certain of its fast trains. This fact in itself is strongly indicative of the necessity for these stops.

"(3) Without the flag stops of trains Nos. 9 and 10 at Pilot Grove, the city of Pilot Grove and a populous community around it has service only on two trains each way each day—trains Nos. 3 and 7 west bound, and trains Nos. 4 and 8 east bound; train No. 7 west bound originates at McBaine, and the destination of train No. 8 east bound is McBaine.

"These facts make the conditions and circumstances affecting the service complained of in this case entirely different from the conditions and circumstances in the California Case (State ex rel. Missouri Pacific v. Public Service Commission , 201 S. W. 1143). In that case, California, having only about 400 more inhabitants than Pilot Grove, had six trains each way each day. Every passenger train operated by the Missouri Pacific through California, including its fastest through trains, stopped regularly or on flag, except one early morning train, west bound. At Pilot Grove, under the service inaugurated by the appellant November 25th, two of the fast M., K. & T. trains passed through each way daily without stopping."

An order was thereupon entered by the commission requiring the appellant to regularly stop trains No. 9 and No. 10 at Pilot Grove thereafter.

A rehearing of the case was granted by the commission, and additional testimony was offered by appellant, in which it was disclosed that appellant had prepared and put in operation a new schedule, prohibiting trains Nos. 9 and 10 to stop at Pilot Grove for passengers from or to any point. A cancellation, therefore, of the commission's order was sought by the appellant on the ground that the new schedule remedied the inadequate local service theretofore existing between Pilot Grove and Boonville, since daylight service was furnished such points on trains other than Nos. 9 and 10. The commission found, however, from the evidence adduced, that the failure to stop trains Nos. 9 and 10 at Pilot Grove rendered the service less adequate to and from St. Louis and from points south of Parsons, Kan. Whereupon the order theretofore made by the commission in regard to said trains was affirmed, and a supplemental order entered as follows:

"The commission having heretofore, on the 10th day of October, 1917, issued an order in the above-entitled proceeding, and on the 22d day of October, 1917, issued its first supplemental order in the above proceeding, and the case now being before the commission for rehearing and upon motion to set aside and dismiss, and the commission being fully advised in the premises, it is—

"Ordered, 1. That section 1 of the order entered herein on October 10, 1917, be, and the same is hereby, amended, so as to read as follows:

"Ordered, 1. That the defendant, the Missouri,. Kansas & Texas Railway Company, and Charles E. Schaff, receiver thereof, be and it is hereby required, from and after the effective date of this order, to stop west-bound passenger train No. 9 at Pilot Grove, Missouri, on flag, when it has passengers from St. Louis or Boonville, Missouri, destined Pilot Grove, Missouri, or when passengers at Pilot Grove, Missouri, desire to board said train for Sedalia, Missouri.

"And that it be required to stop east-bound passenger train No. 10 at the station of Pilot Grove Missouri, on flag, when it has passengers from Sedalia who desire to stop at Pilot Grove, Missouri, or when passengers at Pilot Grove, Missouri, desire to board said train for Boonville or St. Louis, Missouri.

"Ordered, 2. That defendants' motion for rehearing filed herein on November 9, 1917, be, and the same is hereby, overruled.

"Ordered, 3. That defendants' motion filed herein on December 17, 1917, asking that order entered herein on October 10, 1917, be set aside and held for naught, be, and the same is hereby, overruled.

"Ordered, 4. That this order shall be in full force and effect from and after the first day of January, 1918, and that the secretary of the commission forthwith serve upon defendants a certified copy of this order.

"Ordered, 5. That the defendants shall, on or before the effective date of this order, notify the commission, in the manner required by section 25 of the Public Service Commission Law, whether the terms of this order will be accepted and complied with."

It is with the foregoing order that we are concerned in determining the propriety of the commission's action.

I. That the Public Service Commission

derives whatever authority it possesses from the law of its creation there can be no...