The State ex rel. Kansas City Terminal Railway Co. v. Public Service Commission of State

• Decision Date: 23 May 1925
• Docket Number: 25314
• Parties: THE STATE ex rel. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF STATE OF MISSOURI; Kansas City, Intervener
• Court: Missouri Supreme Court

272 S.W. 957

308 Mo. 359

THE STATE ex rel. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF STATE OF MISSOURI; Kansas City, Intervener

No. 25314

Supreme Court of Missouri

May 23, 1925

Rehearing Granted, Reported at 308 Mo. 359 at 378.

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed (in part) and reversed (in part).

Samuel W. Sawyer, John H. Lathrop and Richard S. Righter for appellant; Cyrus Crane, Luther Burns, Herman M. Langworthy and Fred S. Hudson of counsel.

(1) The Commission refused to exercise the jurisdiction and powers conferred upon it by the Public Service Act, and undertook to usurp and exercise the powers of a court of equity. State v. Railroad, 280 Mo. 456; State ex rel. v. Pub Serv. Comm., 259 Mo. 704; Missouri So. Railroad Co. v. Pub. Serv. Comm., 279 Mo. 484; Pub. Serv. Comm. v. Railroad, 256 S.W. 226; State ex rel. Wabash v. Pub. Serv. Comm., 271 Mo. 270; American Tobacco Co. v. St. Louis, 247 Mo. 374; State ex rel. v. Pub. Serv. Comm., 272 Mo. 645; Kirksville v. Hines, 285 Mo. 233; New York Railroad Co. v. Bristol, 151 U.S. 556; Chicago Railroad Co. v. Chicago, 106 U.S. 226; Wabash Railroad Co. v. Defiance, 167 U.S. 88; Chicago Railroad Co. v. Nebraska, 170 U.S. 57; Northern Pacific Ry. Co. v. Duluth, 208 U.S. 583; Cincinnati Ry. Co. v. Connersville, 218 U.S. 336; Chicago Ry. Co. v. Minneapolis, 232 U.S. 430; Mo. Pac. Ry. Co. v. Omaha, 235 U.S. 121; Northern Pac. Railroad Co. v. Puget Sound, 250 U.S. 332; Erie Railroad Co. v. Commrs., 254 U.S. 394; Yick Wo v. Hopkins, 118 U.S. 356; Grand Truck Railroad Co. v. Railroad Comm., 221 U.S. 400; State ex rel. Railroad Co. v. Pub. Serv. Comm., 259 Mo. 704; State ex rel. Sedalia v. Pub. Serv. Comm., 275 Mo. 201; Fulton v. Pub. Serv. Comm., 275 Mo. 67; St. Louis v. Pub. Serv. Comm., 276 Mo. 509; Kansas City v. Pub. Serv. Comm., 276 Mo. 539; Southwest Mo. Ry. Co. v. Pub. Serv. Comm., 281 Mo. 52; Milwaukee v. Railroad Comm., 155 N.W. 948. The Commission is not a court. State ex rel. Mo. So. Railroad Co. v. Pub. Serv. Comm., 259 Mo. 704; Macon v. Atkinson, 266 Mo. 484; Lusk v. Atkinson, 268 Mo. 109; State ex rel. Electric Co. v. Atkinson, 275 Mo. 325; Mo. So. Ry. Co. v. Pub. Serv. Comm., 279 Mo. 484; Santa Fe Ry. Co. v. Pub. Serv. Comm., 192 S.W. 460; State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Comm., 259 S.W. 445. The void contract should be treated as nonexistent. City of St. Paul v. Ry. Co., 193 N.W. 175. The Commission did not even exercise independent judgment to determine manner and point of crossing. Kirksville v. Hines, 285 Mo. 233; In re Town Board of Royalton, 122 N.Y.S. 844. For meaning of Section 8, see State ex rel. v. Harter, 188 Mo. 516; Strottman v. Railroad, 211 Mo. 227; Otto v. Young, 227 Mo. 193; Sconce v. Surmeyer, 258 Mo. 616; Perry v. Strawbridge, 209 Mo. 621; United States v. Standard Oil Co., 221 U.S. 1; People ex rel. Railroad v. Pub. Serv. Comm. 231 N.Y. 1; Highway Commrs. v. Wabash, 148 Mich. 436; State v. So. Pac. Ry. Co., 157 Cal. 363. Section 8 is not a contract but a regulation. Kansas City v. Kansas City Belt Railroad Co., 102 Mo. 633; Hook v. Railroad, 133 Mo. 313; Railroad v. Gordon, 157 Mo. 71; Wabash v. Defiance, 167 U.S. 88. (2) The public safety is not involved. The conditions which required the street to be carried by a viaduct, if the street were extended, were created by nature not by the Terminal Company. Consequently there was no basis under the police power for the imposition of any part of the cost upon the Terminal Company. The Commission's power was limited to permitting the city to cross. Miss. Railroad Comm. v. Railroad Co., 244 U.S. 388. As a basis of police power, see Oregon Railroad Co. v. Fairchild, 224 U.S. 510; Norfolk Ry. Co. v. Pub. Serv. Comm., 44 Sup. Ct., Rep. 439; C. B. & Q. Ry. Co. v. Pub. Serv. Comm., 266 Mo. 333; State ex rel. Wabash v. Pub. Serv. Comm., 271 Mo. 155. As to application of police power in crossing cases, see New York Railroad Co. v. Bristol, 151 U.S. 556; C. B. & Q. Railroad Co. v. Nebraska, 170 U.S. 57; C. B. & Q. Railroad Co. v. Drainage Commrs., 200 U.S. 561; North Pac. Ry. Co. v. Duluth, 208 U.S. 583; Cincinnati Ry. Co. v. Connersville, 218 U.S. 336; Chicago Ry. Co. v. Minneapolis, 232 U.S. 430; Mo. Pac. Railroad Co. v. Omaha, 235 U.S. 121; Erie Ry. Co. v. Pub. Utilities Comm., 254 U.S. 394; Woodruff v. Catlin, 54 Conn. 277; New York Railroad Co.'s Appeal, 58 Conn. 532; Railroad v. Tranbarger, 238 U.S. 67.

L. H. Breuer, Solon T. Gilmore and J. C. Pether-bridge for respondents; Scarritt, Jones, Seddon & North, Henry S. Conrad and A. L. Cooper of counsel.

(1) The Commission did not refuse to exercise its powers; nor did it usurp the powers of the court. Its findings and orders were fully supported by the evidence and justified by the law. Chicago Ry. Co. v. Minneapolis, 232 U.S. 438; Erie Railroad Co. v. Public Utility Commrs., 254 U.S. 394; Northern Pac. Ry. Co. v. State, 208 U.S. 594; Mo. Pac. Ry. Co. v. Omaha, 235 U.S. 127; Denver & Rio Grande Railroad Co. v. Denver, 250 U.S. 241; C. B. & Q. Ry. Co. v. Nebraska, 170 U.S. 57; Commissioners v. Ry. Co., 52 N.W. 1083; New York Central v. Pub. Serv. Comm., 131 N.E. 549. (2) The evidence abundantly shows that a viaduct at this point is required and reasonably necessary for public travel and public safety; both elements of public safety and necessity were involved. The Commission had power under the Public Service Act and was fully justified, under all the evidence and circumstances, in assessing all of the cost of the viaduct against the Terminal Company; and its order is prima-facie correct and valid. State ex rel. v. Pub. Serv. Comm., 271 Mo. 159; Railroad v. Jacobson, 179 U.S. 287; Railroad v. North Carolina, 206 U.S. 224; Railroad v. Minnesota, 186 U.S. 257; State v. Pub. Serv. Comm., 137 P. 136; Interstate Comm. Comm. v. Railroad, 218 U.S. 88; Morgan Co. v. Railroad, 33 So. 220. (a) Whether there is any public necessity for extending a public street of a city across railroad tracks, is a legislative question, to be determined by the legislative body of the city; and the action of the city legislative body in determining that question will not be reviewed or set aside by the courts in the absence of fraud or gross abuse of authority, the Public Service Commission having power in the premises to determine the place and manner of crossing whether at grade by a viaduct over or subway under the tracks of the railroad. Kansas City v. Mo. Pac. Ry. Co., 229 S.W. 778; Kansas City v. Baird, 98 Mo. 215; Hannibal v. Hannibal Ry. Co., 49 Mo. 482; Sec. 8, Franchise Ordinance; Simpson v. Kansas City, 111 Mo. 242; Dickey v. Tennison, 27 Mo. 373; County Court v. Griswold, 58 Mo. 189; State ex rel. v. Englemann, 106 Mo. 628; Lewis on Eminent Domain (3 Ed.) sec. 162; 2 Dillon on Mun. Corp. sec. 600; Cape Girardeau v. Houck, 129 Mo. 618; In re Independence Avenue, 128 Mo. 272; Kansas City v. Mo. Pac. Ry. Co., 229 S.W. 778; Chicago Ry. Co. v. City of Morrison, 195 Ill. 271. (b) Property devoted to a public or semi-public use, such as a railroad, may be subjected by the State or municipality to a second public use, such as extending a public street across the same, if the second use does not destroy or materially interfere with the first use. Mo. Constitution, Art. 12, secs. 4 and 5; St. Louis Ry. Co. v. Lindell Ry. Co., 190 Mo. 254; Railroad v. Chicago, 166 U.S. 233; Railroad v. Gordon, 157 Mo. 77; St. L. Ry. Co. v. Depot Co., 125 Mo. 91; Lewis, Eminent Domain (3 Ed.) sec. 417, p. 751; American Tel. Co. v. Ry. Co., 202 Mo. 656; Kansas Ry. Co. v. Northwestern Coal Co., 161 Mo. 288; St. Louis & S. F. Ry. Co. v. Fayettesville, 75 Ark. 534; Terre Haute v. Evansville Ry. Co., 149 Ind. 174; Battle Creek Ry. Co. v. Tiffany, 99 Mich. 471; Chicago & N. W. Ry. Co. v. Cicero, 154 Ill. 656; Chicago & N. W. Ry. Co. v. Morrison, 195 Ill. 271; Sec. 8, Ordinance; Poulan v. Atlantic Coast Line Co., 123 Ga. 605; Chicago & N. W. Ry. Co. v. Chicago, 151 Ill. 348; Fohl v. Sleepy Eye Lake, 82 N.W. 1097. (2) The second modified plan of the viaduct submitted by the city and adopted by the Commission eliminates all alleged or imaginary interference with the use of the team track yards by the Company or the shippers. (3) The orders of the Commission are prima-facie correct and valid, and the burden of proving otherwise is on the Terminal Company. State ex rel. v. Pub. Serv. Comm., 271 Mo. 155.

Ragland, J. All concur, except Atwood, J., not sitting.

OPINION

RAGLAND

This is an appeal from a decree of the Circuit Court of Cole County, affirming an order of the Public Service Commission which requires the Kansas City Terminal Railway Company to construct and maintain at its sole expense a "viaduct and approaches thereto over and across its tracks, right of way and property" at the point where Oak Street in Kansas City, Missouri, if produced south, would cross.

The Terminal Company's railroad runs through Kansas City in a southwesterly and northeasterly direction from a point in the State of Kansas to the eastern city limits. At the point of the proposed crossing it has four main tracks used for the passage of trains to and from the Union Station, and also a freight yard which furnishes team-tracks facilities. These tracks occupy low ground through which a creek formerly ran as an open stream. Immediately south of the main tracks a bluff rises abruptly to an elevation of nearly forty feet the team tracks spread out fanlike from the north side as far as Twentieth (an east-and-west) Street. The width of the strip of ground taken up for right of way proper and freight yard, lying between Twentieth Street and the bluff, is approximately 600 feet. This strip, owing to the contour of the ground and its occupancy by relator's railroad, can be...