The State ex rel. Public Service Commission v. Missouri Pacific Railroad Company

• Citation: 218 S.W. 310,280 Mo. 456
• Parties: THE STATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI PACIFIC RAILROAD COMPANY and ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Decision Date: 26 January 1920
• Court: United States State Supreme Court of Missouri

218 S.W. 310

280 Mo. 456

THE STATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI PACIFIC RAILROAD COMPANY and ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

Supreme Court of Missouri

January 26, 1920

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Affirmed in part; reversed in part.

W. F Evans and E. T. Miller for appellant.

(1) Respondent is seeking to enforce its order according to its terms, and the judgment and the peremptory writ follow the alternative writ with the enlargement that the Frisco shall permit, without interference, the Missouri Pacific to perform the work. The writ was improvidently and unlawfully issued against the Frisco in that it was not in default under the order of the Commission, if valid, and because there was neither a present duty on the part of the Frisco to comply with the order, nor was there a present, clear, existing right on behalf of the Commission to the remedy sought against the Frisco. State ex rel. v. Associated Press, 159 Mo. 410; State ex rel. v. McIntosh, 205 Mo. 616; State ex rel. v. Bridge Co., 206 Mo 134; State ex rel. v. Hudson, 226 Mo. 239; State ex rel. v. Thomas, 245 Mo. 65; State ex rel. v. Gas Co., 254 Mo. 515; State ex rel. v. Stone, 269 Mo. 334; State ex rel. v. Bank, 174 Mo.App. 589; State ex rel. v. Appling, 191 Mo.App. 589; Northern Pacific v. Dustin, 142 U.S. 492; 26 Cyc. 340; 26 Cyc. 436; Section 64, Missouri Public Service Act, Laws 1913, p. 600. (2) The order of the Commission is unreasonable, arbitrary, unlawful, unjust and oppressive. It should have respected the provisions of the valid contract between the railroad companies. The interests of the public did not require that the contract be disregarded. The public was interested in having an interlocking plant and not in who paid for it. As the parties had agreed on the question of the expense of the construction, maintenance and operation of the plant, the Commission should have left that matter where the parties had placed it. The police power is exercised in the interest of the public safety and not in the attempted destruction of private property rights. Observance of the contract was not inconsistent with the full and complete exercise of the police power. The judgment of the circuit court should have been for this appellant. State ex rel. v. Vandiver, 222 Mo. 206; Tranbarger v. Railroad, 250 Mo. 46; State ex rel. v. Roach, 267 Mo. 315; State ex rel. v. Eastin, 270 Mo. 193; Home Telephone Company v. Sarcoxie Telephone Company, 236 Mo. 114; Wiggins Ferry Company v. Railway, 73 Mo. 389, 128 Mo. 224; Sec. 3106, R. S. 1909; Railroad v. Railroad, 135 Mo. 173; Railroad v. Richmond, 86 U.S. 584; Railway v. Railway, 163 U.S. 564. (3) The order of the Public Service Commission and the judgment of the circuit court upholding it violate Section 15, Article II, Constitution of Missouri, by impairing the obligation of the contract of June 2, 1904; violate Section 21, Article II, Constitution of Missouri, in taking and damaging for public use the property of the Frisco without just compensation; violate Section 30, Article II, Constitution of Missouri, in attempting to deprive the Frisco of its property and of the use thereof without due process of law; violate Section 1, Article XIV, Amendment of the Constitution of the United States in abridging the privileges and immunities of the Frisco, depriving it of its property without due process of law and denying it the equal protection of the law. If Sections 50 and 116 of the Public Service Commission Act attempt to give to the Commission the power upheld by the trial court, they are to that extent unconstitutional and void when tested by the above constitutional guarantees. State v. Loomis, 115 Mo. 307; State v. Miksicek, 225 Mo. 561; Lochner v. New York, 198 U.S. 45; Cooley on Const. Lim. (5 Ed.) 712.

A. Z. Patterson and James D. Lindsay for respondent.

(1) The Public Service Commission has the exclusive power to determine and prescribe the manner and the terms of construction, alteration, operation, maintenance, apportionment of expenses, use and protection of each crossing of one railroad by another railroad, and the alteration of any such existing crossing, by the installation of an interlocking plant or other device, and to prescribe the proportions in which the expenses of such alteration, construction or installation, and operation shall be divided between the corporations affected. Secs. 50 and 116, Public Service Commission Act; State ex rel. Ry. Co. v. Public Service Commission, 271 Mo. 270; State ex rel. St. Joseph L., H. & P. Co. v. Public Service Commission, 272 Mo. 645; State ex rel. Chicago & Alton v. Public Service Commission, 204 S.W. 531; State ex rel. v. Public Service Com., 130 App.Div. (N.Y.) 335. (2) The Public Service Commission is not a court, and has no judicial power. It cannot construe, nor can it enforce, the provisions of contracts in private interests. It must exercise that kind of power which has been conferred upon it by statute, and no other, and in the manner provided by statute, and not otherwise. Lusk v. Atkinson, 268 Mo. 109; State ex rel. A., T. & S. F. v. Commission, 192 S.W. 460; State ex rel. United Rys. Co. v. Commission, 270 Mo. 429; State ex rel. Mo. Valley Realty Co. v. Cupples Station L., H. & P. Co., 199 S.W. 151; Augusta v. Lewiston Ry. Co., 114 Me. 24. (3) The power exercised is legislative in character both as to requirement of installation, and as to apportionment of expenses; and the resultant order is of the nature of a law of the State. It is therefore binding upon the present owners. Grand Trunk Ry. v. Indiana Railroad Com., 221 U.S. 400; Atlantic Coast Line v. Goldsboro, 232 U.S. 555; Wadley Southern Ry. Co. v. Georgia, 235 U.S. 660; Public Service Commission v. Union Pacific Ry. Co., 271 Mo. 258. The power to require the expenses to be incurred, and the power to apportion the expenses, are identical and inseparable. The word, apportionment, as here used, has the same significance as when used in reference to taxation. Cooley on Taxation (3 Ed..), p., 411; Simpson v. Kansas City, 46 Kan. 438. And the power of apportionment is therefore unlimited, unless it be restrained as a part of the power to assess the expense. Cooley, p. 412; Hagar v. Reclamation District, 111 U.S. 701; Walston v. Nevin, 128 U.S. 578; Glasgow v. Rouse, 43 Mo. 479. (4) The exercises of this power, to require the installation of the interlocking plant in the interest of the public safety, and to require the incurring of the necessary expenses incident thereto, and the coincident making of apportionment of those expenses between the parties involved, cannot be controlled or affected by a contract on the subject in the private interests of the parties. State ex rel. Wabash Ry. Co. v. Public Service Commission, 271 Mo. 270; State ex rel. St. Joseph L., H. & P. Co. v. Commission, 272 Mo. 645; Kansas City Bolt & Nut Co. v. Kansas City L., H. & P. Co., 204 S.W. 1074; Tranbarger v. C. & A., 250 Mo. 46; American Tobacco Co. v. St. Louis, 247 Mo. 374; State ex rel. Sedalia v. Public Service Com., 204 S.W. 497; State ex rel. Fulton v. Public Service Com., 204 S.W. 386; Northern Pacific Ry. Co. v. Duluth, 208 U.S. 583; Chicago, M. & St. P. Ry. Co. v. Minneapolis, 232 U.S. 430; Missouri Pacific Ry. Co. v. Omaha, 235 U.S. 121; New Orleans Gas Light Co. v. Drainage Com., 197 U.S. 453; New York & New England Railroad Co. v. Bristol, 151 U.S. 556. (5) The Frisco is a necessary and indispensable party to this proceeding because the order is, and must be considered as, an entirety, wholly valid and enforceable according to its terms, or wholly invalid. Authorities under Point 3. And it is so, because the Frisco has an undivided interest in the physical property involved, and in the use of it; the rights and obligations of one company cannot be determined without also, and at the same time, determining the correlative rights and obligations of the other company. Merrill on Mandamus, sec. 243. (6) Both companies being concerned in the separate, but cooperative steps, necessary to attain the complete result sought, are properly joined in the writ of mandamus. A narrow rule of construction is not applicable here. Section 64, and Section 127, Public Service Commission Act; State ex rel. Mo. Southern Ry. v. Public Service Commission, 259 Mo. 704; State ex rel. Missouri Pacific v. Garesche, 202 S.W. 400; State ex rel. Thomas v. Williams, 99 Mo. 291; Labette County Commrs. v. United States, 112 U.S. 217; Bunch v. United States, 252 F. 680; Merrill on Mandamus, secs. 235, 243; 18 R. C. L. Mandamus, secs. 36 and 33; State ex rel. v. Robert Jones, 23 N.C. 129.

BLAIR, J. Walker, C. J., and Williams and Williamson, JJ., concur; Goode, J., concurs in the result; Graves, J., concurs in separate opinion; Woodson, J., not sitting.

OPINION

In Banc

BLAIR J.

This is a proceeding by mandamus to compel appellant railways to comply with relator's order that an interlocking plant be installed at the intersection of their lines at Aurora, Missouri.

The order referred to, in so far as material to the issues, reads as follows:

"Ordered 1. That the St. Louis, Iron Mountain & Southern Railway Company and B. F. Bush, its receiver, and the St. Louis & San Francisco Railroad Company and James W. Lusk, Wm. C. Nixon and Wm. B. Biddle, its receivers, be and they are hereby ordered to construct, maintain and operate an interlocking plant at Aurora, Missouri, in accordance with the plans filed with the Commission within six months after the effective date of this order.

"Ordered: 2. That the actual work of construction, operation and maintenance be carried out by the St. Louis, Iron Mountain & Southern Railway and B. F. Bush, its receiver.

"Ordered: 3. That the cost of...