The State ex rel. Missouri, Kansas & Texas Railway Company v. Public Service Commission of Missouri

• Citation: 210 S.W. 386,277 Mo. 175
• Parties: THE STATE ex rel. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION OF MISSOURI et al
• Decision Date: 04 March 1919
• Court: United States State Supreme Court of Missouri

210 S.W. 386

277 Mo. 175

THE STATE ex rel. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION OF MISSOURI et al

Supreme Court of Missouri, Second Division

March 4, 1919

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

Affirmed.

J. W Jamison for appellants.

(1) "The Public Service Commission derives its power to act from the terms and intendment of the legislative enactments which create that body." State v. Pub. Serv Com., 199 S.W. 1001; State ex rel. United Ry. Co. v Pub. Serv. Com., 270 Mo. 429. The Commission derives its authority to order changes in train schedules or additional service solely and exclusively from Sec. 51, Laws 1913, p. 590. By said section the Commission was without authority to interfere with appellant's interstate train schedules at Pilot Grove. State ex rel. Mo. Pac. Ry. Co. v. Publ. Serv. Com., 201 S.W. 1143; Warner v. Railroad, 156 Mo.App. 523. (2) Under the evidence there was no public necessity for the stopping of appellant's through trains at Pilot Grove on flag. The stopping of said trains there would merely serve the convenience of a very few residents and more particularly the convenience of two traveling men, resident in that city. The order was, therefore, in excess of the Commission's authority. Warner v. Railroad, 156 Mo.App. 523; Delaware, L. & W. R. Co. v. Van Santvoord, 232 F. 984; Gt. Northern Ry. v. Minnesota, 238 U.S. 340. (3) Inasmuch as it is conclusively shown by the evidence that defendant is carrying intrastate passengers at a loss, the order of the Commission requiring the stopping of interstate trains 9 and 10 would be the taking of the property of the carrier without due process of law, contrary to United States Constitution, Fourteenth Amendment. Miss. Railroad Commission v. Mobile & Ohio R. Co., 37 S.Ct. 602. (4) Under the evidence, the order of the Commission amounts to a regulation and interference with and a burden upon interstate commerce under the commerce clause of the Federal Constitution. Chicago, B. & Q. R. Co. v. Wis. Railroad Com., 237 U.S. 220; Miss. Railroad Com. v. Ill. Central R. Co., 203 U.S. 335; Ill. Cen. R. Co. v. Miss. Railroad Com., 138 F. 327; C., B. & Q. Railroad v. Pub. Serv. Com., 181 S.W. 61; Illinois C. R. Co. v. Illinois, 163 U.S. 142; C., B. & Q. Railroad v. Chicago, 166 U.S. 227; Railroad v. Ohio, 173 U.S. 285; Cleveland Ry. v. Illinois, 177 U.S. 514; Atlantic Coast Line v. Wharton, 207 U.S. 328; Herndon v. C., R.I. & P. Ry., 218 U.S. 135; Oregon Railroad v. Fairchild, 224 U.S. 510; Gt. Northern Ry. v. Minn., 238 U.S. 340. (5) Secs. 110, 111 and 112 of the Public Service Act providing for a rehearing before the Commission; the court procedure for review, and for writ of review, and Sec. 130 of said law providing a penalty for a violation of the orders of the Commission, and each of said sections, are void in that they seek to deprive appellants of their property without due process of law, and deny to them the equal protection of the law in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States, by requiring immediate, unconditional compliance with and obedience to mere orders of a non-judicial administrative, representative agency. Lusk v. Atkinson, 268 Mo. 109; Chicago, Milwaukee & St. Paul Ry. Co. v. Minn., 134 U.S. 418; Ex parte Young, 209 U.S. 123; Wadley Southern Ry. v. Georgia, 235 U.S. 660; Mo. Pac. Ry. Co. v. Nebraska, 217 U.S. 196. (6) The complaint in this case fails to state facts sufficient to constitute a cause of action. It was not alleged in the complaint that the existing train service was not reasonably adequate.

Alex. Z. Patterson, General Counsel, and James D. Lindsey, Assistant Counsel, for respondent, Public Service Commission.

(1) The State has the power to require adequate local facilities, even to the stoppage of interstate trains, or the rearrangement of their schedules. (a) Appellants' first contention is that the Commission has no power under the act creating it and under the facts of this case, to interfere with interstate train schedules. This question of law has been definitely and positively settled. State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Com., 201 S.W. 1143; Chicago, Burlington & Quincy R. Co. v. Railroad Com. of Wisconsin, 237 U.S. 26. The general rule is also stated in Mississippi Railroad Com. v. Illinois Central Railroad, 203 U.S. 344, 51 L.Ed. 209; Herndon v. Railroad, 218 U.S. 156, 54 L.Ed. 970; Illinois Central Railroad Company v. Illinois, 163 U.S. 142, 41 L.Ed. 107; Gladson v. Minnesota, 166 U.S. 427, 41 L.Ed. 1064; Lake Shore Ry. Co. v. Ohio, 173 U.S. 285, 43 L.Ed. 702; Cleveland Ry. Co. v. Illinois, 177 U.S. 514, 44 L.Ed. 868; Atlantic Coast Line Co. v. Wharton, 207 U.S. 328, 52 L.Ed. 230; Atlantic Coast Line v. North Carolina Corp. Com., 206 U.S. 1, 51 L.Ed. 933, 11 Ann. Cas. 398; Oregon Railroad Co. v. Fairchild, 224 U.S. 510, 56 L.Ed. 863; Railroad v. Vant Santwood, Public Service Com. (D. C.), 216 F. 252; Ohage v. Northern Pacific Ry. Co., 200 F. 128, 118 C. C. A. 302. (b) The facts conclusively show that the local service rendered the city of Pilot Grove, without the limited flag stop of trains Nos. 9 and 10 as ordered by the Public Service Commission, was clearly inadequate and insufficient. (2) Neither the law nor the facts support the appellants in their contention that the order of the Commission is an arbitrary and unlawful taking of property. The evidence wholly fails to show that trains Nos. 9 and 10 are being operated at a loss, or that the order will cause them to be operated at a loss. The order of this Commission requires the stopping on flag of two trains each day, a practice long followed by the railroad company voluntarily, and in no event costing it more than a few dollars a day. (3) Sections 110, 111, 112 and 130 of the Missouri Public Service Act provide for a full, adequate and prompt judicial review of an order of the Public Service Commission, and for suspension thereof during such review, and the penalties for disobedience of a Public Service Commission order are inoperative until final determination of the validity of the statute. (a) Appellants' objection to these statutes is based wholly upon a theoretical or assumed condition, which it contends might arise under the procedure authorized by the Public Service Commission Act. No showing was made or can be made under the record that the procedure in this case has operated as an actual invasion of the appellants' constitutional right to "due process of law." Burlington R. Co. v. Dey, 82 Iowa 312, 12 L. R. A. 436; Portland Railroad Co. v. Railroad Commission of Oregon, 229 U.S. 397. The essential concomitants of statutes providing procedure for public service commissions in order that proceedings thereunder may constitute "due process of law," fully appear in the Public Service Commission Act. (b) The motion for rehearing is a necessary and vital part of the review proceeding, and during its pendency, the applicant is not subject to penalties and forfeitures for failure to obey an order of the Commission, provided the review proceeding is prosecuted in good faith. Secs. 106, 110, Publ. Serv. Act; State ex rel. Mo. Pac. Ry. Co. v. Commission, 192 S.W. 6. (4) It is the duty of appellants to reasonably and adequately serve not only necessities, but the local convenience, of the communities through which their railroad operates. The order of the public service commission herein merely requires the performance of this duty. Such regulation may, in a proper case, require the stopping of interstate trains, though this may involve some pecuniary loss. Miss. Railway Com. v. Mobile & Ohio Railroad, 244 U.S. 391; Atlantic Coast Line v. North Car. Corp. Com., 206 U.S. 1; Mo. Pac. Ry. Co. v. Kansas, 216 U.S. 262.

WALKER, J. Faris, J., concurs; Williams, P. J., concurs in the result, and in all except paragraph five.

OPINION

WALKER, J.

This appeal seeks the review of a judgment of the circuit court of Cole County, affirming an order of the Public Service Commission.

The complaint filed with the Commission, upon which its order was based, is as follows:

"The complaint of W. A. Scott, Mayor of Pilot Grove, Cooper County, Missouri, respectfully shows that the Missouri, Kansas & Texas Railroad Company has and does refuse to stop trains Nos. 9 and 10 at this, Pilot Grove, station for any point on their system other than St. Louis on the east and Parsons, Kansas, on the south; that this city has enjoyed this train service continually and that now service to Sedalia, Boonville, New Franklin, Fayette, Higbee, Moberly and all points north, as well as McBaine, Columbia, Jefferson City, and all points on the east excepting St. Louis, may only be had on very early trains in the morning or late at night; that we now have no midday train service, much to our discomfort.

"We were granted service on trains Nos. 9 and 10 even while we had former train No. 1 and the removal of trains Nos. 9 and 10 or service from those trains is also working a hardship on Sedalia and Boonville and on the traveling public at large, and we respectfully ask that the service of trains Nos. 9 and 10 be restored to us."

A hearing upon this complaint was held before a member of the Commission at Pilot Grove. The evidence showed that the appellant railroad company had, for a considerable length of time, regularly stopped trains Nos. 9 and 10 at Pilot Grove, for the reception and discharge of passengers to and from all points; this practice was continued until August, 1917, when appellant put into effect a rule providing that train No. 9 should stop at Pilot Grove only for the discharge of passengers from St. Louis, and the reception of passengers for Sedalia and beyond; and that...