State v. Public Service Commission

• Decision Date: 30 June 1917
• Docket Number: No. 20088.,No. 20061.,20061.,20088.
• Court: Missouri Supreme Court
• Parties: STATE ex rel. MISSOURI, K. & T. RY. CO. et al. v. PUBLIC SERVICE COMMISSION et al. STATE ex rel. WABASH RY. CO. v. SAME.

197 S.W. 56

271 Mo. 270

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

STATE ex rel. WABASH RY. CO. v. SAME.

No. 20061.

No. 20088.

Supreme Court of Missouri. In Banc.

June 30, 1917.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

Certiorari by the State of Missouri, on the relation of the Missouri, Kansas & Texas Railway Company and others and the Wabash Railway Company, to review an order of the Public Service Commission, ordering a subway at a street crossing of the roads to be constructed, and apportioning the cost between them and the city of Moberly. The order was affirmed, and the Railroads appeal. Judgment affirmed.

This proceeding was originally instituted before the Public Service Commission by the city of Moberly asking the Commission to require the Missouri, Kansas & Texas Railway Company and the Wabash Railway Company to bear a portion of the expense in constructing a subway at the Rollins street crossing of said railway companies' tracks in said city of Moberly. Upon a hearing, the Public Service Commission ordered the subway to be constructed at an estimated cost of $44,700, and apportioned the cost of the same as follows: To the Wabash Railway Company, $18,246; to the Missouri, Kansas & Texas Railway Company, $14,759; to the city of Moberly, $11,695.

Upon certiorari, the order of the Public Service Commission was reviewed and affirmed by the circuit court of Randolph county. Thereupon each of said railway companies appealed to this court. The appeals were separate. The appeal of the Missouri, Kansas & Texas Railway Company et al. is numbered 20061 in this court, and the appeal of the Wabash Railway Company is numbered 20088. Since both appeals involve the same record, and practically the same legal propositions, they were argued together in this court, and treated as consolidated, and we will so treat them in this opinion. A sufficient understanding of the issues and facts involved may be had from the following excerpts from the opinion of the Public Service Commission:

"The amended complaint charges that the street crossing situate under the tracks of the defendant railroad companies at Rollins street, in the city of Moberly is wholly inadequate to accommodate the public in the use of the street, in that the street crossing is not of sufficient width; that it is so defectively constructed and maintained as to permit dirt and cinders and water to accumulate thereon to the annoyance of the public; that the undercrossing as now maintained was constructed 30 years ago, and is not sufficient to accommodate the present use of the same by the public. Complainant asks that defendants be required to erect and maintain a crossing at Rollins street that will reasonably accommodate the public in the use of the street. * * *

"The substance of the answer of the Wabash Railway Company is that the grades of the street and railway crossing at Rollins street were separated in 1887 at the joint expense of the city and Wabash Western Railway Company in pursuance of a contract between the Wabash Western Railway Company, the predecessor in title of the defendant Wabash Railway Company, whereby it was agreed that a subway or tunnel should be built at Rollins street beneath the railroad tracks at the joint expense of the city and said railway company; that the city should maintain the subway and keep it in repair, and should it become necessary to change or repair the railroad bridge over the subway, it should be done by mutual consent of the city and said railway company or its assigns, the city and railway company each to pay one-half the cost. Defendant averred that the city had by the terms of said contract abandoned all the remaining part of Rollins street not included in the subway; that defendant has been ready to perform the work of widening the subway at Rollins street, provided complainant would pay one-half of the cost as provided by the contract.

"Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company by appointment of the United States District Court for the Eastern Division of the Eastern District of the state of Missouri, filed answer, denying the allegations of the complaint and averring that the Commission had no power to make him a party to the proceeding or to direct an order against him as receiver, for the reason that the property of said railway company was through him, as receiver, subject to the sole control of the said United States District Court.

"The answer of the Missouri, Kansas & Texas Railway Company avers in effect that by the terms of the contract set forth in the answer of the Wabash Railway Company the city of Moberly agreed to pay one-half of the cost of constructing a permanent crossing at Rollins street, and that the defects therein complained of, if any, are due to the failure of the city to carry out that agreement; that the Commission has no power to require the street crossing to be widened; and, further, that defendant's property is in the hands of a receiver, and it is not now operating a railroad.

"The city of Moberly has 15,000 inhabitants. It was organized under a special act of the Legislature in 1873, and continued under that act until 1889, at which time the city became a city of the third class as provided by the statutes of this state, and has so continued.

"The general direction of right of way and tracks of the Wabash Railway Company through the city of Moberly is north and south. The right of way and tracks of the Missouri, Kansas & Texas Railway are almost parallel to the Wabash Railway and a short distance east thereof. About 5,000 people reside east of the railroad tracks. The crossings now maintained at grade across the railroad tracks of defendants from the east part of the city to that west of the railroad tracks are at Coates street, Wightman street, Carpenter street, and McKensie street.

"At the place of crossing the railroad tracks of the defendants by each of the streets above named, except McKensie street, there are at least five railroad tracks. Watchmen are kept at the Coates and Wightman street crossings to protect the public. Wightman street is the first crossing south of Rollins street, and is one-eighth of a mile distant therefrom. The Carpenter and McKensie street crossings are south of Wightman street. Train movements are frequent on the tracks of defendants at all the street crossings.

"The crossing receiving the largest use by the public is the crossing at Coates street, which is one block north of Reed street, where the Union Passenger Depot of the defendants is located. Rollins street is one block south of Reed street. It is 80 feet in width, and is one of the main streets of the city.

"Sturgeon street extends north and south and is crossed by Rollins street at the west line of the right of way of the Wabash Railway Company. Rollins street intersects Moulton street immediately east of the railroad tracks.

"On the 14th day of September, 1887, the city of Moberly entered into a contract in writing with the Wabash Western Railway Company for separating the grades at the Rollins street crossing. By said contract the parties thereto agreed that the city and railroad company should each pay one-half of the cost and expense of excavating for a tunnel under said railway company's tracks at Rollins street and for erecting a wooden bridge over the same for use by the railway company. Under the terms of the contract the city was to take control and management of the tunnel as of its other property and keep it in good repair, except the bridge and its supports. It was also agreed that the railway company or its assigns shall have control of the bridge, and should the bridge or its supports be changed in workmanship, design, or material, it shall be by the mutual consent of the city and railway company, or its assigns; in either event the railway company or its assigns and the city shall each pay one-half of the cost of said repairs or changes in the construction thereof. The contract further provided that upon completion of the tunnel the city would permit the Wabash Western Railway Company to fence or close in Rollins street on grade with its tracks, and that the city would abandon the street and sidewalks on grade with the tracks on Rollins street. The contract was made on behalf of the city by the mayor. There was no showing that it had been authorized by ordinance.

"The tunnel or subway for an undercrossing at Rollins street and the bridge above the same were constructed in pursuance of the contract above named, and the cost was paid as provided therein. The evidence does not show at what time the overhead structures at Rollins street were erected by the Missouri, Kansas & Texas Railway Company. At the time of the hearings and long prior thereto said railway company maintained two separate overhead structures for a main track and a switch track at Rollins street, a short distance east of the Wabash bridge over Rollins street. The bridge of the Wabash Railway Company supports four tracks, and is about sixty feet in width. It is across Rollins street at a right angle. The other structures cross the street obliquely. At the time of the hearings a roadway 16 feet in width, paved with brick, had been built by the city on Rollins street through the tunnel or subway. About 1 year prior to the first hearing in the case the railroad companies built a cement sidewalk 5 feet in width through the tunnel on the north side of Rollins street. The overhead structures are much the same in the manner of their construction, and are supported by wooden piling at each end. There is a row of piling between the sidewalk and roadway, under the bridge of the Wabash Railway Company.

"The overhead structures are reasonably safe for carrying the trains of the railroad companies, and with repairs may be used for 5 or 6 years. The bridge of the Wabash Railway is less than 10 feet...