State v. The Missouri Pacific Railway Company.

• Decision Date: 09 November 1907
• Docket Number: 14,999
• Citation: 92 P. 606,76 Kan. 467
• Parties: THE STATE OF KANSAS, ex rel. Carr W. Taylor, as Attorney for the Board of Railroad Commissioners, and ex rel. C. C. Coleman, as Attorney-general, v. THE MISSOURI PACIFIC RAILWAY COMPANY. [*]
• Court: Kansas Supreme Court

92 P. 606

76 Kan. 467

THE STATE OF KANSAS, ex rel. Carr W. Taylor, as Attorney for the Board of Railroad Commissioners, and ex rel. C. C. Coleman, as Attorney-general, v. THE MISSOURI PACIFIC RAILWAY COMPANY. ^[*]

No. 14,999

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Original proceeding in mandamus.

Peremptory writ issued.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW--Act Creating Board of Railroad Commissioners--Separation of Governmental Departments. The statute creating a board of railroad commissioners (Laws 1901, ch. 286; Gen. Stat. 1901, ch. 84, art. 3) and the acts supplementary and amendatory thereto (Laws 1903, ch. 391; Laws 1905, ch. 340) are not in violation of the constitutional requirement that the legislative, executive and judicial departments of government shall be kept separate.

2. CONSTITUTIONAL LAW--Delegation of Legislative Powers. The act does not delegate to the board of railroad commissioners legislative powers. The legislature in the exercise of its power to regulate and control public corporations, such as common carriers, may delegate to a board of railroad commissioners certain functions administrative in character which cannot well be performed by the legislature itself.

3. CONSTITUTIONAL LAW--Delegation of Executive or Judicial Powers. The act does not confer upon the board executive or judicial powers, although the board is required to exercise judgment and discretion and to make orders for the regulation and control of railroads and other common carriers.

4. CONSTITUTIONAL LAW--Legislative Jurisdiction--Creation of Board of Railroad Commissioners. The act is not invalid because the constitution does not specifically provide for the creation of a board of railroad commissioners. The subjects upon which the legislature may enact laws are not enumerated in the constitution.

5. CONSTITUTIONAL LAW--Power of the Legislature to Regulate and Control Railroads. The legislature has the power to regulate and control the operation of railroads. The question of the extent of the control and regulation must be left to the legislature to determine, subject always to the constitutional guaranties for the protection of property.

6. CONSTITUTIONAL LAW--Commerce--Regulation. The act creating such board applies solely to the business of railroads within the state, and is not designed to affect, and does not apply to or regulate, interstate commerce.

7. CONSTITUTIONAL LAW--Due Process of Law. Nor is the act in question unconstitutional upon the ground that it provides for taking the property of persons or corporations without due process of law.

8. CONSTITUTIONAL LAW--Notice--Appearance--Due Process of Law. Defendant having been notified of a hearing before the board of railroad commissioners upon a complaint filed with such board, and having appeared before the board and participated in such hearing, cannot claim that an order issued by the board after such hearing is not due process of law.

9. CONSTITUTIONAL LAW--Jurisdiction of the Supreme Court--Mandamus--Delegation of Powers. This court has jurisdiction of original proceedings in mandamus to compel obedience to an order made by the board of railroad commissioners. The power which the act confers upon the court is not a legislative or non-judicial power. It is a judicial power simply. In such a proceeding the only question to be determined by this court is whether such order is reasonable.

10. RAILROADS--Order of Board of Railroad Commissioners--Conclusiveness. The provisions of section 11 of chapter 340, Laws of 1905, making certain orders of the board conclusive after the lapse of thirty days from the time such orders shall have been made is a rule of evidence and not a limitation upon the right of a defendant railroad company to offer evidence in defense of an action in mandamus to compel obedience to an order of the board. Defendant is not estopped in this action from offering evidence to show that the order of the board is unreasonable by the failure to avail itself of the right to commence an action to vacate such order within thirty days.

11. RAILROADS--Separate Passenger Service--Reasonableness of Order. The order of the board requiring defendant to operate separate passenger-trains is not unreasonable upon its face.

12. MANDAMUS--Order of Railroad Commissioners--Reasonableness--Burden of Proof. In mandamus proceedings in this court to compel obedience to an order of the board of railroad commissioners the order of the board is prima facie reasonable, and the burden of proof is upon defendant to establish its unreasonableness.

13. MANDAMUS--Evidence Insufficient to Overcome Presumption of Reasonableness. Defendant failed to produce sufficient evidence to overcome the prima facie presumption that such order is reasonable.

14. CONSTITUTIONAL LAW--Interstate Commerce--Separate Passenger Service. The order of the board requiring defendant to operate separate passenger service within the state is in the exercise of its police power to enforce local regulations necessary for the convenience, safety and comfort of the public, and is not an attempt to regulate interstate commerce, nor does it directly cast a burden upon such commerce.

Carr, W. Taylor, S. S. Ashbaugh, and G. F. Grattan, respectively, attorneys for the board of railroad commissioners, and Fred S. Jackson, attorney-general, for The State; A. E. Helm, and John W. Poore, of counsel.

B. P. Waggener, for defendant.

OPINION

PORTER, J.:

This is an original proceeding in mandamus to compel defendant to obey an order of the board of railroad commissioners requiring it to install and operate a separate passenger-train service on the Madison branch of its railway from the state line between Kansas and Missouri to Madison, Kan. The order of the board of railroad commissioners was made on the 7th day of December, 1905, after a regular hearing previously held at Blue Mound, Kan. The hearing was upon a written complaint filed with the board, to which defendant filed its answer. Defendant having refused to comply with the order, this proceeding was brought and the alternative writ issued May 24, 1906.

What is known as the Madison branch of defendant's railroad was originally the Interstate railroad, chartered in 1885 by the state as a common carrier, under the name of the Interstate Railroad Company. Afterward, in 1891, it was consolidated with eleven other roads, and became part of the Kansas, Colorado & Pacific Railway Company. It has been operated as a part of the Missouri Pacific Railway Company for a number of years.

To the alternative writ an answer was filed which denies that the company operated the Madison branch as a line of road wholly within the state of Kansas, and alleges that said branch is a part of the Missouri Pacific general system; that defendant maintains terminal facilities for the branch at Butler, Mo., twenty miles east of the Kansas state line, where the branch connects with the main line of defendant's railroad; that the company has no terminal facilities near the state line within the state of Kansas, and that the branch road cannot be operated as a road within the state of Kansas without such terminal facilities, to maintain which would involve the company in ruinous expense. It also alleges that the order is unreasonable and confiscatory and that the company cannot comply with it without great financial loss; that the entire revenue of the road within the state of Kansas, including passenger and freight business, is insufficient to meet the expense and cost of operating the road within the state; that from July 1, 1903, to April 30, 1905, it maintained separate passenger-train service upon this branch, but was obliged to abandon the same and return to the mixed passenger and freight service because the total receipts of passenger and freight business during that period proved wholly insufficient to meet the expenses of operation. It further alleges that compliance with the order of the board would compel defendant to divert its revenues from other lines and parts of its system outside the state of Kansas to the maintenance of separate passenger-train service in the state, and that the extent of such additional cost would amount to a confiscation of its property.

After the issues were joined the Honorable T. F. Garver was appointed referee. His report was filed May 27, 1907, and embraced findings of fact and conclusions of law. The referee found as a conclusion of law that the peremptory writ should not be allowed. Special reference will be made to these findings in another part of the opinion.

We have not attempted to state the allegations and averments of the alternative writ or those of the answer, except in general terms. There is, however, no question arising on the pleadings except that the state contends that it is entitled to judgment thereon because it appears that the defendant railway company failed to commence an action to vacate and set aside the order of the board within thirty days from the time such order was made, and that the order of the board thereby became a final order barring the railway company from all right to any defense to the alternative writ.

To this contention we do not agree. Section 11 of chapter 340, Laws of 1905, amending the general railroad law, provides that certain determinations and orders of the board shall be prima facie evidence in any action where they are offered as evidence--that is, prima facie evidence "of the reasonableness and justness of the classifications, rates and charges involved therein and of all other matters therein found and determined." It also provides that "after the lapse of thirty days from the time such determinations and orders shall be made, no suit...