The State ex rel. Joplin & Pittsburg Railway Company v. Public Service Commission
| Decision Date | 22 July 1921 |
| Citation | 233 S.W. 388,289 Mo. 452 |
| Parties | THE STATE ex rel. JOPLIN & PITTSBURG RAILWAY COMPANY v. PUBLIC SERVICE COMMISSION |
| Court | Missouri Supreme Court |
Rehearing Granted 289 Mo. 452 at 460.
Writ granted.
Clyde Taylor for relator.
(1) The five-year limitation provision, if applied to the mortgage contract in question, is unconstitutional, null and void and constitutes no defense for the failure of the Commission to grant the authority in reliance thereon because (a) such provision so applied impairs the obligations of the mortgage contract, and (b) deprives the company of its property, i e., its vested right to issue these bonds and receive the proceeds thereof, without due process of law. The mortgage is a contract and the mutual rights thereunder rest in contract. 6 Ency. U. S. Supreme Court Reports 765, 782, 874; Fletcher v. Peck, 6 Cranch. 87, 137, 3 L.Ed. 178; Green v. Biddle, 8 Wheat, 1, 5 L.Ed. 547, 570; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed 629, 657; Ogden v. Saunders, 12 Wheat. 213, 316, 6 L.Ed. 606. But the socalled five-year provision of Section 57 of the Public Utility Act as applied by the Commission in this case limits, modifies and impairs such contract and the rights of the parties thereunder. (2) The constitutional inhibition is absolute and prohibits any impairment. 6 R. C. L. secs. 319 and 320, p. 329; Curran v. Arkansas, 15 How. 304, 14 L.Ed. 705; McGahey v. Virginia, 135 U.S. 662, 34 L.Ed. 314; Louisiana v. New Orleans, 102 U.S. 203, 26 L.Ed. 133; Murray v. Charleston, 96 U.S. 432, 24 L.Ed. 764; Cleveland Railroad v Pennsylvania, 15 Wall. 300, 21 L.Ed. 187; Green v. Biddle, 8 Wheat. 1, 5 L.Ed. 568; Schuster v. Weiss, 114 Mo. 174; Red Rock v. Henry, 106 U.S. 596, 27 L.Ed. 251; Public Service Com. v. Railroad, 271 Mo. 266, 270. (3) Five-year limitation as applied by the Commission cannot be sustained upon the theory that it is an exercise of the state power pursuant to its reservation of authority to alter, amend or repeal charter provisions of a corporation. Shields v. Ohio, 95 U.S. 319, 24 L.Ed. 357; Berea College v. Kentucky, 211 U.S. 66, 53 L.Ed. 90; 7 Fletcher Ency. Corp., p. 7596, sec. 4310; 7 R. C. L. sec. 94, p. 122; Brenner v. Chicago St. Rys. Co., 246 Ill. 170, 138 Am. St. 233. (4) The five-year limitation as applied by the Commission cannot be sustained as a Statute of Limitations. Stephens v. St. Louis Natl. Bank, 43 Mo. 385, 388; Cranor v. School District, 151 Mo. 123; Smith's Commentaries on Const. & Satutory Const., secs. 254, 265; Tice v. Fleming, 173 Mo. 55. (5) The five-year provision as applied by the Commission to the principles of this case cannot be sustained as a valid exercise of police power. State ex rel. v. Stevens, 197 N.Y. 1; United States v. D. & H. Co., 213 U.S. 366; Harriman v. I. C. C., 211 U.S. 411; 6 R. C. L. sec. 266, p. 236; State v. Smith, 233 Mo. 265; State v. Fisher, 52 Mo. 177; 17 R. C. L. 670, 676. (6) Mandamus is proper remedy. 18 R. C. L. 105, 106; State ex rel. v. Turner, 210 Mo. 77. (7) Writ should not be denied because concurrent remedy of appeal or other method of review. State ex rel. v. Elkins, 130 Mo. 109; State ex rel. v. Spencer, 166 Mo. 271; Carter v. Bolster, 122 Mo.App. 144; State v. Aloe, 152 Mo. 466; State ex rel. v. Denton, 128 Mo.App. 314; Albridge v. Spears, 101 Mo. 406; St. Louis R. R. Co. v. St. Louis, 92 Mo. 165; State v. Equitable Co., 142 Mo. 337.
R. Perry Spencer, General Counsel, and James D. Lindsay, Assistant Counsel, for respondent.
(1) The Commission was without power to grant the application. By Section 54 of the Public Service Commission Law, Sec. 10463, R. S. 1919, it was declared that the power of railroad corporations to issue bonds and to create liens upon their property situated in this State "is a special privilege, the right of supervision, regulation, restriction and control of which is and shall continue to be vested in the State, and such power shall be exercised as provided by law and under such rules and regulations as the Commission may prescribe." The extent and manner of exercise of the power granted the Commission are specified in Section 57 of the Act, Sec. 10466, R. S. 1919. It is there provided that a railroad corporation or common carrier may issue bonds "payable at periods of more than twelve months after the date thereof," for the reimbursement of moneys actually expended from income, for acquisition, extensions, improvements and the like, except for maintenance of service and except for replacements, "within five years next prior to the filing of an application with the Commission for the required authorization" provided, there shall have been secured from the Commission an order authorizing such issue. (2) The fixing of the five year period is not entirely a Statute of Limitation of time, but it is also a limitation upon the power of the Commission, and this is so, even though it should be held that the limitation as to mere time in the statute cannot annul the contractual provisions of the mortgage. (3) If the contractual provisions in issue in the mortgage, applicable to the company and the bond-holders present and prospective, are of such a nature that they cannot be affected or controlled by a statute subsequently passed, which we deny; they cannot, in any event, confer upon the Commission a power which was denied to the Commission by the Legislature. (4) The subjects confided to the Public Service Commission as a creature of the statute are defined by the statute creating it. Its power over those subjects is, in general, exclusive, but that power cannot be extended to other subjects than those enumerated, or exercised beyond the limits prescribed. State ex rel. United Rys. v. Pub. Serv. Comm., 270 Mo. 429. (5) Relator is not entitled to a peremptory writ of mandamus. The writ of mandamus does not run unless the relator shows a clear right to the thing demanded and an imperative duty upon the respondent to perform the act required. The writ cannot confer power nor enlarge duty to act. 19 Am. & Eng. Ency. Law (2 Ed.) 725; 18 R. C. L. Mandamus, sec. 30; State ex rel. Doud v. Lesueur, 136 Mo. 452; State ex rel. See v. Appling, 191 Mo.App. 589; State ex rel. Crandall v. McIntosh, 205 Mo. 589. If, as seems clear, the Legislature did not give the Commission power to approve such an issue of bonds as is here under consideration, and did not provide that relator should have a statutory right of approval from the Commission of such bonds, then relator's prayer for the writ cannot be granted. The act, in its relation to the rights of relator, does not give the right here asserted, and in respect to the powers given the Commission, does not confer the power here sought to be set in motion.
OPINION
In Banc.
Mandamus.
This is a proceeding by mandamus instituted in this court by the relator against the respondent to compel them to authorize the former to issue its bonds in the sum of $ 278,000 as authorized by its first mortgage, dated March 1, 1910, to be more fully mentioned later.
The facts of the case are undisputed, and appear from the petition for the writ, and the return thereto, which is a demurrer, to be substantially as follows:
The company has the contract right, by the terms of the mortgage mentioned, to issue these bonds on account of additions and extensions to and of its property made since the date of the mortgage and to sell the same and receive the proceeds thereof. That mortgage was upon all of the property of the company then existing or thereafter acquired. By its terms, the company could not create another first lien upon property thereafter acquired and borrow money by reason thereof, having disabled itself from so doing by reason of the after-acquired property clause, by the terms of which the mortgage covered not only all property in existence at its date but also all thereafter acquired. Hence, it was provided that the company should have the right to borrow money by way of additional first mortgage bonds on a parity with those already issued to the extent of eighty per cent of the value of the property acquired by the company subsequent to the date of the mortgage. It was further provided in this mortgage that after the expenditures were made the company should not issue bonds on account thereof unless and until the company could show that its net earnings, for twelve months preceding the issuance, were equal to twice its interest charges. The company was unable to make such showing as to interest, and hence unable to exercise the right to issue these bonds, until shortly before the date of its application to the Commission. In other words, the company made its application as soon as it was entitled under the terms of its mortgage to issue the bonds. The provisions of the company's first mortgage enabling it to issue these additional bonds constituted a property right springing from the contract.
Application was duly made to the Commission for the requisite authority to issue these bonds. A hearing was regularly held and the authority denied. The Commission found and declared that: (a) the company was given the right by the mortgage to issue the bonds; (b) it had actually made the additions to property claimed; (c) had complied in all respects with the terms of the mortgage contract to be performed by it as a condition to such issuance; (d) was entitled under the law and facts to be authorized...
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