The State at Relation and to Use of Wabash Railway Company v. Public Service Commission of Missouri

• Citation: 295 S.W. 86,317 Mo. 172
• Decision Date: 24 May 1927
• Docket Number: 25086,25087,25088
• Parties: The State at Relation and To Use of Wabash Railway Company v. Public Service Commission of Missouri et al., Appellants
• Court: Missouri Supreme Court

295 S.W. 86

317 Mo. 172

The State at Relation and To Use of Wabash Railway Company v. Public Service Commission of Missouri et al., Appellants

Nos. 25086, 25087, 25088

Supreme Court of Missouri

May 24, 1927

Appeal from Cole Circuit Court; Hon. H. J. Westhues, Judge.

Prior judgment reinstated.

D D. McDonald, Julius T. Muench, Oliver Senti, Marion C Early and Lawrence McDaniel for appellants.

(1) Section 1, Act of 1925, is not retroactive and is not applicable to the Delmar Boulevard viaduct. Williams v Railroad Co., 71 Conn. 43, 40 A. 925. (2) The judicial power of the State is vested in the courts. Sec. 1, Art. 5 Mo. Constitution. The modification of a final judgment is a judicial act, and a statute, in so far as it undertakes to vacate or nullify a final judgment, is unconstitutional, as an unwarranted invasion of the powers of the judiciary by the legislative branch of the State Government. Williams v. Railroad Co., 71 Conn. 43, 40 A. 925; McNichol v. Mercantile Reporting Agency, 74 Mo. 457; McCullough v. Commonwealth, 172 U.S. 102, 43 L.Ed. 382; United States v. Peters, 5 Cranch. 115, 3 L.Ed. 53; Central of Georgia Ry. Co. v. Railroad Commission of Alabama, 161 F. 925; Denny v. Mattoon, 2 Allen, 361, 79 Am. Dec. 784; Ex parte Darling, 16 Nev. 98, 40 Am. Rep. 495; Commonwealth v. Holloway, 42 Pa. St. 448, 82 Am. Dec. 526; DeChastellux v. Fairchild, 15 Pa. St. 18, 53 Am. Dec. 570; Menges v. Dentler, 33 Pa. St. 495, 75 Am. Dec. 616; Cooley Const. Lim. (6 Ed.) p. 111. (c) The opinion of this court having upheld the Public Service Commission which held that a greater clearance than eighteen feet at the crossing in question was not practicable leaves no reason for this court to remand this cause to the Public Service Commission for further proceedings. (3) The respondents having resisted the execution of an order of the Public Service Commission, lawful when made, until the law is changed, cannot invoke the subsequently enacted statute. State ex rel. v. Railroad, 262 Mo. 720, 731.

Homer Hall and N. S. Brown for respondents.

We recognize the elementary and well-settled rule that an act of the Legislature cannot operate retroactively to disturb the rights of parties vested by a prior final judgment of a court; but that well-settled principle can have no application in the present status of these cases for several reasons, namely: (1) The principle relied upon has general application only to final judgments or decrees; it does not apply in a case of this kind to judgments or decrees which are under review by appeal, writ of error or certiorari at the time the statute in question was enacted. American Steel Foundries v. Tri-Cities Central Trades Council, 257 U.S. 184; Rafferty v. Smith, 257 U.S. 226; Eastern B. & L. Co. v. Welling, 103 F. 352; Ketchum v. Thatcher, 12 Mo.App. 185; Rodney v. Gibbs, 184 Mo. 1. (2) The judgment of this court entered in these cases on November 25, 1924, has by proper order of the court, been set aside and in consequence these cases are now before the court for review by appeal with the Act of 1925 having been passed pending the appeal. The only existing judgment which it could be claimed was affected by the Act of 1925 is the judgment of the Circuit Court of Cole County, from which these appeals have been taken. (3) An order of the Public Service Commission is neither a judgment nor a legislative act. Such order is merely the report of the Commission of its investigation of the facts and its conclusions thereon, made in the exercise of its statutory powers as a legislative agency or administrative body of the Legislature. (4) It cannot be claimed that any rights of the parties became vested under the order of the Commission, for the further reason that the order itself in express terms reserves to the Commission jurisdiction of the subject-matter for the purpose of making such further or supplemental orders as may in the future be required. (5) The third contention of appellants is that the finding required by the Act of April 30, 1925, has already been made. The act in question, in specific terms, requires the Public Service Commission, after hearing, to make a finding that the construction of the overhead viaduct with a clearance of twenty-two feet, or more, is impracticable. Appellants do not claim that the Commission has ever made the finding required by that act, and the only support submitted for the contention made is the quotation of a single sentence from the opinion rendered by this court on November 25, 1924, as follows: "It is shown that the topography is such that a greater clearance is not practicable." The Act of 1925 requires such a finding to be made by the Public Service Commission, and not by the court. Moreover, whatever effect may be given to the quoted sentence, had the judgment of this court become final, no binding effect can be ascribed to the quoted sentence in the face of the fact that the said judgment of this court now stands reversed and set aside.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

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 eighteen 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. 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 1925, pages 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 twenty-two feet in the clear from the top of the rails. The Supreme Court of the United States, 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, foot-bridges, 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 cross-beam, and the lowest downward projection on the bridges, viaduct, tunnel, overhead roadway or foot-bridge."

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, Revised Statutes 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.]

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. l. c. 577, 578, in Court en Banc, it was said: "The settled rule of construction in this State, applicable alike to constitutional and statutory provisions, is that, unless a different inent is evident beyond reasonable question, they are to be construed as having a prospective operation only. [State ex rel. v. Greer, 78 Mo. l. c. 190; State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. Johnson County, 144 Mo. 76.)" In State ex rel. v. Wright, 251 Mo. l. c. 325, also in Court en Banc, the substance of the foregoing was reiterated and it was said the rule is in...