the State ex rel. Public Service Commission v. Missouri Southern Railroad Company

• Decision Date: 09 July 1919
• Citation: 214 S.W. 381,279 Mo. 455
• Parties: THE STATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI SOUTHERN RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

214 S.W. 381

279 Mo. 455

THE STATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI SOUTHERN RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

July 9, 1919

Appeal from Jefferson Circuit Counrt. -- Hon. E. M. Dearing, Judge.

Affirmed.

J. B Daniel for appellant.

(1) The trams in question are not railroads or parts of the railroad of appellant within the meaning of the Public Service Act or any other Missouri statute. Palm v. New Haven & Hartford Railroad Co., 17 N.Y.S. 471. (2) Neither the Public Service Commission nor the courts have power to require appellant to furnish transportation not included in the exercise of its franchise. Palm v. Railroad Co., supra; Northern Pacific Railway v. Teratone, 142 U.S. 492; Elliott on Railroads (2 Ed.), sec. 457; People ex rel Van Dyke v. Colorado Central Railway, 42 F. 638; State ex rel. United Railways Co. v. Public Service Commission, 270 Mo. 429. (3) Mandamus is a discretionary writ, and, if the law would warrant its issue in any case to compel a railroad company to perform an act not included in the exercise of its franchise, the granting of the writ in this case was a gross abuse of the discretion of the court. State ex rel. Caster v. Kansas Postal Telegraph-Cable Co., 150 P. Rep. 549; State ex rel. Lyons v Bank, 174 Mo.App. 593; State ex rel. Crow v. Bridge Co., 206 Mo. 74; Merril on Mandamus, sec. 62; State ex rel. Railroad Co., 199 Mo.App. 671. (4) The judgment rendered herein confiscates the property of appellant in violation of Section 1 of Article 14 of the Constitution of the United States and in violation of Section 20 of Article 2 of the Constitution of Missouri.

A. Z. Patterson, General Counsel, and J. D. Lindsay, Assistant Counsel, for Public Service Commission.

(1) The railroad company's conduct in assuming the functions of a chartered common carrier in the operation of its branch lines or tracks fixes its responsibility and obligations, and determines its duty to obey the laws applicable to chartered common carriers. Terminal Taxicab Co. v. District of Columbia, 241 U.S. 252; Diamond v. Northern Pac. Railroad Co., 6 Mont. 580; 33 Cyc. 651. (2) A company will be held to be "operating" a railroad within the meaning of regulatory statutes if it runs trains on a track for any purpose. Webb v. South. Mo. Ry. Co., 92 Mo.App. 53. (3) The Public Service Act has conferred upon the Public Service Commission the power to determine whether a railroad branch line or track, long established and operating, should be abandoned. State ex rel. Caster v. Kansas Postal Tel. Co., 150 P. 544, P. U. R. 1915E, p. 222; Articles 2 and 3, Mo. P. S. C. Law. (4) Though appellant's operation of its branch lines and spur tracks was conducted at a loss, it should have applied to the Public Service Commission for permission to discontinue such operation, and it was unlawful to cease operation until such permission had been granted. State ex rel. Caster v. Kansas Postal Tel. Co., supra.

BLAIR, P. J. Graves, J., concurs; Bond, J., concurs in the result; Woodson, J., absent.

OPINION

BLAIR, P. J.

Upon entry of the order considered in Missouri Southern Railroad v. Public Service Commission, a companion case, appellant attempted to abandon the operation of the spur tracks to which the Commission's order applied. Complaint was made, and the Commission ordered its counsel to institute such legal proceedings as might be effective to compel a continuance of the carriage of freight over the spurs. Counsel thereupon instituted this proceeding by mandamus, and, upon the filing of the return, relator filed its motion for judgment, which was sustained and a peremptory writ awarded. This appeal followed.

The return makes numerous formal admissions and then admits appellant's ownership and operation of its main line, and "that for several years prior to July 23, 1917, respondent [appellant here] maintained and operated two lateral spur tracks, known respectively as Industrial Spur Tracks Nos. 1 and 2," giving their lengths, "on which spur tracks respondent has, up to July 23, 1917, supplied cars to shippers at various points along said industrial spur tracks for the shipment of lumber, ties and other commodities in carload lots, other than live stock and perishable freight, and that respondent offered said service, so long as furnished, as aforesaid, to the public generally, on equal terms;" admits that in May, 1916, it filed with the Commission tariffs applying to the spur tracks, and that "these tariffs provide that all carload traffic, except live stock and perishable freight, will be switched between main line stations and loading yards on such spur tracks at a charge of $ 7.50 per car;" admits that on July 23, 1917, it abandoned all freight service on the spur tracks. The return then avers that the spurs were constructed in 1900 by an incorporated saw-mill company, owning timber near the spurs, and operating saw and planing mills at Leeper, and were constructed to transport that company's timber to appellant's railroad; that the saw-mill company had no ties, switches, track fastenings and bolts in said" spur until it completed its work, and then sold the "rails, ties, switches, track fastenings and bolts in said" spur tracks to appellant; that thereafter appellant agreed with certain owners of timber in the vicinity of the spurs "to place cars for shipment, in carload lots, of freight other than live stock and perishable freight and to move the same when loaded to its railroad for five dollars per car; that thereafter, for the accommodation of all persons who might desire such service, respondent [appellant here] published tariffs showing that while it operated said industrial spur tracks it would extend the contract aforesaid to all persons so desiring such service;" that thereafter the spur tracks, as tonnage failed near their extremities, were in part abandoned and taken up, and they were gradually reduced to their present length; that in 1914 appellant concluded the exhaustion of timber had progressed so far that further operation of the spurs would be abandoned; whereupon certain persons agreed with appellant that if it would repair the spurs for their then length and operate them for two years, these persons would furnish their timber for transportation over the spurs and pay appellant $ 7.50 per car transported; that appellant accepted the contract "on the condition that the same was approved by relator;" thereafter appellant "filed with relator said contract and prayed the approval of relator thereof; that respondent [appellant] was advised by relator that tariffs in conformity therewith would be filed by relator, when offered . . . if not objected to;" that appellant repaired the spurs at great expense, and filed tariffs as alleged in the application for the writ; that thereafter J. M. Mooney, a party to the contract above mentioned, filed with relator a complaint praying that appellant be required to "operate said industrial spur tracks as a part of its main line" and to be prohibited from collecting charges therefor in excess of those applicable to "any other part of the railroad;" that a hearing on this complaint was had, and the Commission found appellant had expended $ 5049.30 for repairs of the spurs; that for one year of operation on the spurs appellant had collected (switching charge) $ 2910; that the spurs contain five and eight per cent grades; that relator refused to pass upon the question whether appellant had a right to abandon the spurs, and found that the relation of common carrier existed between appellant and the public with respect to the spurs, and held that "as long as that relation exists" appellant will be "required to treat the industrial spurs the same as other parts of its line in the application of freight charges upon carload traffic other than live stock and perishable freight, and will be prohibited from charging the switching charges for the movement of freight on said spur; . . . that this order took effect upon July 23, 1917, and on that date appellant" elected to abandon the operation of said industrial spur tracks rather than suffer relator to confiscate its property by the order aforesaid; and did abandon and refuse to operate the spurs.

It is then averred that in November, 1915, relator made an order prescribing rates for appellant's railroad and that an appeal from that order is pending; that under the rates in force appellant was not receiving adequate compensation; that the order of July 23, 1917, denying the right to enforce the $ 7.50 switching charge, further reduced appellant's revenue $ 2000 per year, "and the commission in that case refused to grant to it higher rates or any other revenue from any other source, and the continued operation of Industrial Tracks 1 and 2 under said order would constitute a confiscation of respondent's property to the extent of $ 2000 per year; wherefore, it says the Public Service Commission is estopped to complain that it ceased the operation of said trams, and the respondent [appellant] on that account had a right to abandon the operation of said industrial tracks;" that in its answer to Mooney's complaint, appellant pleaded "that any reduction of its revenue, not compensated in some way by an increase elsewhere, would operate as a confiscation of the property" of appellant, in violation of Section one of the Fourteenth Amendment to the Federal Constitution and of Section 30 of Article 22, of the State Constitution, and appellant "now pleads the provision aforesaid" of the Constitutions "in bar of the right of relator to the writ of mandamus prayed for in this action." The return then avers relator's authority to require appellant to operate the spurs is given solely by Section 116 of the Act...