The State ex rel. Kansas City Terminal Railway Company v. Public Service Commission of State
| Decision Date | 23 May 1925 |
| Docket Number | 25314 |
| Citation | 272 S.W. 957,308 Mo. 359 |
| 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 |
Original Opinion of May 23, 1925, Reported at 308 Mo. 359. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
ON MOTION TO MODIFY.
The respondent and the intervener have joined in a motion asking us to so modify our judgment herein that it will affirm, or direct the circuit court to affirm, the order of the Public Service Commission in so far as that order determines and prescribes the manner, including the particular point, of the crossing of the railroad by Oak Street. From suggestions offered in support of the motion it appears that it is the purpose of Kansas City, in its further efforts to bring about the construction of a viaduct at the proposed crossing, not to invoke the jurisdiction of the Commission to apportion the cost, but to institute a judicial proceeding to compel the Terminal Company to perform its alleged contractual obligation in that behalf. Such being the purpose of the city it is desirable, of course, if it may be properly done, that it be relieved of the expense and delay incident to the institution of another proceeding merely to have the Commission again go over grounds so thoroughly covered in the hearings already had and again determine and prescribe the manner, including the particular point, of crossing. Appellant, however, opposes the modification sought, and on these two principal grounds: First, that in a proceeding for a court review of an order of the Public Service Commission the statute does not permit of a partial affirmance or reversal. The order must be affirmed, or set aside, in its entirety. Second, that the order, even to the extent to which an affirmance of it is now sought, ought not to be permitted to stand, for these reasons, among others: The Commission did not of itself determine and prescribe the manner and particular point of crossing but merely approved the plans submitted by the city; the viaduct described in the order is unnecessarily wide, unnecessarily long and unnecessarily expensive; and it would interfere with the safe operation of the railroad company's team tracks and freight station, and reduce their capacity.
The statutory provision which appellant invokes as supporting its first ground of opposition to the motion to modify is as follows: "Upon such hearing (in a proceeding for review of an order of the Commission) the circuit court shall enter judgment either affirming or setting aside the order of the commission under review." [Sec. 10522, R. S. 1919.] The purpose of the Legislature in enacting this provision is entirely free from doubt. It was to prevent a reviewing court from usurping the legislative or administrative functions of the Commission by substituting its orders for those of the Commission. The organic law no doubt imposes the same restraint, but the Legislature did not leave the question open. The courts of this State authorized to review orders of the Public Service Commission cannot replace its orders with those of their own, or even modify them. On review such orders must be affirmed as made, or else set aside. But it frequently happens that "the order . . . under review" is separable into a number of distinct orders which are in no wise dependent upon each other. In such case there can be no reason why a reviewing court should not affirm such of the orders as it finds to be lawful and reasonable and set aside the others. The order of the Public Service Commission under review in this case as finally amended and modified by supplemental orders, except as to certain formal matters, is as follows:
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