The State ex rel. Wabash Railway Co. v. Public Service Commission

• Decision Date: 19 December 1924
• Docket Number: 25086
• Parties: THE STATE ex rel. WABASH RAILWAY COMPANY and CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants
• Court: Missouri Supreme Court

267 S.W. 102

306 Mo. 149

THE STATE ex rel. WABASH RAILWAY COMPANY and CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants

No. 25086

Supreme Court of Missouri

December 19, 1924

Motion for rehearing and motion to transfer to Court in Banc Overruled December 19, 1924.

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

Reversed and remanded (with directions).

L H. Breuer and Frank E. Atwood for Public Service Commission; George F. Haid and Oliver Senti for Mayor and City.

(1) The Legislature may confer upon an administrative body powers that are not strictly and exclusively legislative. Pub Serv. Comm. v. Railroad, 271 Mo. 258. (2) It was entirely competent for the Legislature to confer upon the Public Service Commission power to order the separation of grade crossings. State ex rel. v. Pub. Serv. Comm., 272 Mo. 645. (3) The expense incurred incident to obedience to a regulation enacted for the public safety under the police powers is not a deprivation of private property without compensation. C. B. & Q. Ry. v. Drainage Commrs., 200 U.S. 593. (4) The commission is authorized to apportion the expenses incident to grade separations among the interested parties. State ex rel. v. Pub. Serv. Comm., 272 Mo. 645. (5) The approval by the commissioners of Forest Park of the grades at which the Wabash tracks were constructed does not prevent the alteration of those grades by the Public Service Commission. It is beyond the power of the State or a municipality to abrogate or limit by contract the right of the State to exercise its police powers in the preservation of the public safety. State ex rel. v. Pub. Serv. Comm., 271 Mo. 270. (6) Public service commissions may require the separation of highway and railway grades whenever, in the exercise of their sound discretion, the public safety may require the separation of such grades. It is not necessary that they defer the making of such an order until after an accident in which persons are killed or injured has occurred. Erie Railroad Co. v. Pub. Utility Commrs., 254 U.S. 412. (7) The right of the State to impose a part of the cost of a grade separation upon a railroad company does not depend upon the railroad being thereby benefited. Erie Railroad Co. v. Pub. Utilities Commrs., 254 U.S. 394. (8) The burden of proving that an order of the Public Service Commission is unreasonable or unlawful is upon the party adverse to the commission or who is seeking to set the order aside. State ex rel. Harrisonville v. Pub. Serv. Comm., 291 Mo. 457; State ex rel. v. Pub. Serv. Comm., 271 Mo. 155. (9) The courts are not concerned with the expediency or wisdom of an order made by the Public Service Commission. If the power of the Commission has not been arbitrarily exercised and is supported by substantial evidence, the courts will accept it as final. State ex rel. Harrisonville v. Pub. Serv. Comm., 291 Mo. 457. (10) The power to determine whether a grade separation shall be accomplished by elevating or depressing the railroad tracks is lodged in the public authorities and not in the railroad company. American Tob. Co. v. St. Louis, 247 Mo. 474; State ex rel. v. Missouri Pacific, 262 Mo. 720.

Homer Hall, Luther Burns and N. S. Brown for respondents.

(1) The order of the commission was void and was properly reversed because the commission had no power or authority under the law to prescribe the manner of the separation under the provisions of Sec. 10459, R. S. 1919. (2) The order is void because the commission was without authority to make any order for the separation of grades at Delmar crossing for the reason that under the provisions of the Act of Congress approved February 28, 1920, entitled the Transportation Act of 1920, which amended the Interstate Commerce Act, the Public Service Commission was deprived of all jurisdiction and authority over the subject-matter of this proceeding, and such jurisdiction and authority are exclusively vested in the Interestate Commerce Commission. Transportation Act of 1920, 41 Stat. L. 456; Shealy v. So. Railway Co., 120 S.E. 561; Atchison, Topeka & Santa Fe Ry. Co., v. Railroad Comm., 211 P. 460; State ex rel. N. Y. Cent. R. Co. v. Pub. Serv. Comm., 233 N.Y. 113; Lake Erie A. & W. R. Co. v. Pub. Utilities Comm., 141 N.E. 847; Pittsburgh & W. V. Ry. Co. v. Interstate Com. Comm., 293 F. 1001. (3) The Public Service Commission is a body unknown to the common law and not provided for in the Constitution of the State. It, therefore, has only naked statutory powers which must be expressly conferred upon it by the statute in order to give validity to its action. 2 Elliott on Railroads (2 Ed.) sec. 675; Wabash Railroad Co. v. Railroad Comm., 176 Ind. 438; State v. Atlantic Coast Line Railroad Co., 60 Fla. 465; Railroad Commissioners v. Oregon Railroad Co., 17 Ore. 65, 2 L. R. A. 195. (4) The power given the commission must be held within constitutional limitations. The railroad company's property may not be burdened with a use and public benefit foreign to its purpose and organization and its public duty, and the Public Service Commission has no power or authority to impose any such burden upon it. The commission is not a general manager of the railroad property. It can exercise only such powers as are expressly conferred upon it. State ex rel. v. Pub. Serv. Comm., 229 S.W. 785; State ex rel. v. Pub. Serv. Comm., 192 S.W. 962; Interstate Com. Comm v. C., G. W. Ry. Co., 209 U.S. 118; Great Northern R. Co. v. Minnesota, 238 U.S. 340, 59 L.Ed. 1337; Chicago, M & St. P. R. Co. v. Wisconsin, 238 U.S. 491, 59 L.Ed. 1423; L. R. A. 1916A, 1133; Atchison, T. & S. F. Ry. Co. v. Railroad Comm., 173 Cal. 577. (5) The order of the Public Service Commission is illegal and void because it is not based upon a consideration of and is not necessary to secure the safety or convenience of the public or of railroad employees. The commission is limited in its jurisdiction to the question of the safety of the public and the employees of the railroad. Sec. 10458, R. S. 1919. (6) The order of the commission cannot be sustained as an exercise of the police power of the State, for it is not based upon a consideration of public safety, health, good morals or good government. St. Louis Gunning Co. v. St. Louis, 235 Mo. 99; St. Louis v. Dreisoerner, 243 Mo. 223; 41 L. R. A. (N. S.) 177; St. Louis v. Evraiff, 256 S.W. 489; State ex rel. v. McKelvey, 256 S.W. 474; 5 R. C. L. 702. (7) Neither the city nor the Public Service Commission has the power under the law of eminent domain to force the separation of grades according to the city's plan. The right of eminent domain is conferred for a particular purpose, and when conferred it is to be treated as an invasion of the rights of the individual whose property is to be taken and therefore must be strictly construed. Chicago Railroad Co. v. McCooey, 273 Mo. 29; Light Co. v. Scheweich, 174 Mo. 241; Kansas City v. Marsh Oil Co., 140 Mo. 458; Western Union Co. v. Railroad, 195 U.S. 540, 570; American Tel. Co. v. Railroad, 202 Mo. 656; Jackson v. New York, 213 N.Y. 34; City of Waterbury v. Platt Bros., 76 Conn. 435. (8) The order is not based upon a consideration of the safety or the protection of the public or of railroad employees, but is based purely on an aesthetic consideration, which is beyond the powers of the commission, and therefore cannot be sustained. St. Louis v. Dreisoerner, 243 Mo. 223; State ex rel. v. McKelvey, 256 S.W. 475; St. Louis v. Evraiff, 256 S.W. 493; St. Louis Gunning Co. v. St. Louis, 235 Mo. 173.

Small, C. Lindsay, C., concurs.

OPINION

SMALL

This is an appeal by Henry W. Kiel, Mayor of the City of St. Louis, and by said city and certain intervening property owners, from a judgment of the Circuit Court of Cole County, setting aside an order of the Public Service Commission, abolishing the grade crossing of the Wabash Railroad over Delmar Boulevard, in said city.

The order set aside was made by a majority of the commission and required a viaduct, according to the City Plan, to be constructed in Delmar Boulevard, carrying said boulevard over the tracks of the railroad at said crossing. There was a dissenting opinion by Commissioner McIndoe, holding that the "Wabash Plan" of elevating the tracks of the railroad over the street at this crossing should be adopted. The majority opinion and order required the city of St. Louis to pay forty per cent, and the Wabash Railroad Company sixty per cent, of the cost of constructing said viaduct, and the street railway and other public utilities using said crossing to pay the expense of adjusting their facilities to the changed conditions. The order suggested by the dissenting commissioner and adopted by the circuit court was, that the city should pay twenty per cent of the cost of separating the grades according to the "Wabash Plan," and the street railway to pay five per cent of the cost of the subway at Delmar Boulevard -- all other public utilities and industries affected to pay the cost of adjusting their facilities to the new conditions, and the Wabash Railroad Company to pay the balance of the expense.

The Wabash Railroad enters the city of St. Louis from the north and crosses the westerly line of the city limits at Maple Avenue. It then runs south and southeasterly in a somewhat irregular course to Kingshighway, a distance along the railroad of about three miles. Kingshighway runs north and south along the eastern line of Forest Park. In its course from Maple Avenue, an east and west street, which it crosses on grade, to Kingshighway, the railroad crosses successively, on grade, Olive Street Road, Delmar Boulevard, Hamilton Avenue, Waterman Avenue, then De Baliviere Boulevard, where it crosses the tracks of the Rock Island...