The State ex rel. United Railways Company v. Public Service Commission
| Decision Date | 24 March 1917 |
| Parties | THE STATE ex rel. UNITED RAILWAYS COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION |
| Court | Missouri Supreme Court |
Editorial Note:
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Reversed and remanded (with directions).
Boyle & Priest and William E. Baird for appellant.
(1) The Constitution provides that the privilege of operating a street railroad shall be acquired by securing the consent of the local authorities and this is the only manner in which such privilege can lawfully be acquired. Mo. Constitution art. 12, sec. 20; Grand Ave. Railroad v. Lindell Railroad, 148 Mo. 637; State ex rel. v. Lindell Railroad, 151 Mo. 162. (2) While this consent may impose upon the grantee duties which are essentially public, it creates a relation which in many respects is wholly contractual between the street railroad and the city as a corporation. Springfield Railroad v. Springfield, 85 Mo. 674; State ex rel. v. Railroad, 85 Mo. 282; Railroad v. Kirkwood, 159 Mo. 252; Cleveland v Electric Co., 201 U.S. 529. (3) In the city of St. Louis this consent can be given only by ordinance and an acceptance by the street railroad; this is purely a legislative act, the city acting as the delegated agent of the State. City Charter, art. 1, sec. 1, clause 12; Railroad v. Railroad, 148 Mo. 645; State ex inf. v. Railroad, 151 Mo. 183; Township v. Railroad, 130 Mich. 363; People ex rel. v. Railroad, 178 Ill. 594; State v. Railroad, 51 Kan. 609; Railroad v. Brown, 97 Va. 26; City v. Railroad, 95 Mich. 456. (4) The power of the commission is limited to the regulation of the service afforded and which may be afforded under existing franchises; it has no power to grant the privilege to operate or to compel a street railroad to make a contract with the city. Pub. Ser. Comm. Law, sec. 49; Towers v. Pub. Ser. Comm., 95 A. 170; Railroad v. Dustin, 142 U.S. 492; Pub. Ser. Comm. v. Railroad, 89 A. 726; Laird v. Railroad, 88 A. 347; Railroad v. Towers, 94 A. 330; Railroad v. Willcox, 94 N.E. 212. (5) The regulation of rates charged by a public utility as well as the character of service afforded by it under existing franchises is a matter of general State concern. State ex rel. v. Telephone Co., 189 Mo. 83; Dillon, Mun. Corp. (5 Ed.) sec. 63. (6) The charter provision purporting to give this power to the city, being in conflict with the State law on the same subject, is unconstitutional and void. It was not competent for the city to make such provision in its charters. State ex rel. v. Court, 120 P. 861; Elec. Co. v. Seattle, 206 F. 955; Power Co. v. Grant's Pass, 203 F. 173.
Alex. Z. Patterson and James D. Lindsay for respondent.
(1) The legislation embodied in the Public Service Commission Act and the finding and order of the Commission in the instant case constitute an exercise of the police power of the State, which is never to be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State. Constitution, art. 12, sec. 5; Public Service Commission Act, Laws 1913, and especially section 47, subdivision 2, and sections 49 and 127. (2) The finding of the Public Service Commission in this case is a determination of the coexistence of the conditions prescribed by the legislative power, as authorizing the direct exercise of that portion of the police power of the State delegated to the Commission, and expressed in its order, in this proceeding. Public Service Comm. Act, Laws 1913, sec. 49; Lime Co. v. Railroad Comm., 144 Wis. 523; Florida v. Railroad, 56 Fla. 617, 32 L. R. A. (N. S.) 639. It is not necessary to decide whether the Legislature, by the Public Service Commission Act, delegated either judicial or legislative power, or neither of them, to the Public Service Commission. The Commission was empowered by said act to ascertain whether certain specified conditions exist in a given case, and to act upon the same pursuant to a prescribed method, and in accordance with the conditions found to exist. Monongahela Bridge v. United States, 216 U.S. 177; Railroad v. Taylor, 210 U.S. 281. (3) The Public Service Commission of Missouri has the power, having found the coexistence of the required conditions, to order the Railways Company to make extensions of its lines in the city of St. Louis, and to extend and operate such lines upon streets not covered by existing franchises, subject, however, to the concurrent constitutional right of the authorities of said city, to withhold consent to the use by the company of such streets, or to grant such use upon conditions; such conditions to be consistent with the powers possessed by the city, local, and incidental to its government as a municipality only, closely appurtenant to such constitutional right, and not violative of, but "subject to, and in harmony with," the general and paramount police power of the State. Public Service Commission Act, Laws 1913; Constitution, secs. 5 and 20, art. 12, and secs. 20, 21, 22, 23, 25, art. 9; State ex rel. v. Telephone Co., 189 Mo. 83; State ex rel. v. Stobie, 194 Mo. 14; Railroad v. State, 29 Okla. 640; Griffin v. Railroad, 150 N.C. 312; Dewey v. Railroad, 142 N.C. 392; State v. Railroad, 164 S.W. 491; Railroad Comm. v. Railroad, 185 Ala. 354, L. R. A. 1915-D, 98. (4) The power granted to the Public Service Commission to order public service corporations to make extensions, additions and improvements in plants, and in service, carries with it, by implication, the power to require all those intermediate things to be done, which are reasonably necessary for the accomplishment of the ultimate object. Railroad v. State, 29 Okla. 640; Railroad Comm. v. Railroad, 185 Ala. 354; State v. Railroad, 164 S.W. 491; Railroad v. Jacobson, 179 U.S. 287, 302; Railroad v. Minnesota, 186 U.S. 257-260; Griffin v. Railroad, 150 N.C. 312; Atlantic Coast Line v. Corporation Comm., 206 U.S. 1-27; Staton v. Railroad, 147 N.C. 428; Mayor v. Railroad, 109 Mass. 103; Railroad v. Railroad Comm., 231 U.S. 457; Railroad & N. Co. v. Fairchild, 224 U.S. 510. (5) The Railways Company was chartered by the State for the purpose of voluntarily acquiring, constructing and operating street railways, for public use, in the conveyance of persons and property in the city of St. Louis, with the consent of the said city, and with the reserved right in the State to alter and amend such charter in such manner, and to such extent as might be necessary for the well-being of the State; and, under this reserved right to alter, and amend, and to prescribe and impose duties from time to time in accordance with changed conditions, the State has the right to require the Railways Company to take those steps, necessary to be taken, to extend its transportation facilities for the public use, and for the satisfying of the public needs in the city of St. Louis. Sec. 5, art. 12, Constitution; Shields v. Ohio, 95 U.S. 319-324; Railroad v. New Haven, 203 U.S. 379-388; Stanislaus Co. v. Canal and Irrigation Co., 192 U.S. 201; and authorities cited under points 3 and 4. (6) The new charter provisions of the city of St. Louis undertaking to give the city power to compel street railways to make extensions, being out of harmony and inconsistent with the general laws of the State, are invalid. The power of consent or denial that may be exercised by the city, to the application of the Railways Company, partakes less of contractual than of governmental power. The court will not presume that the city will deny the application of the company, or that it will attempt to make its consent thereto dependent upon conditions inconsistent with the Constitution and general laws of the State. Sec. 23, art. 9, Constitution; Public Service Commission Act, Laws 1913; Hayes v. Railroad, 111 U.S. 228.
WOODSON, J., concurring. BOND, J., concurring in Per Curiam Opinion.
OPINIONIn Banc.
In April, 1914, complaints were filed with the Public Service Commission praying that an inquiry be made into the character of service rendered by the United Railways Company of the city of St. Louis. The specifications in said complaints were comprehensive and embraced many phases of street railway service. The Commission, after hearing evidence and making such other investigations and inquiries as it deemed proper, made an order, set forth under six headings or subdivisions. The first, third and fourth related to the manner in which the Railways Company was to operate, manage and conduct its cars; the fifth and sixth prescribed the time and manner of the company's acceptance and compliance with the order; and the second required the company within a specified time to apply to the city authorities for permission to construct and operate certain extensions of the company's system as designated in the order. The company formally expressed its willingness to comply with the order except as required by the second subdivision, which is as follows:
"Ordered 2nd, That the United Railways Company, defendant herein, be and it is hereby directed and required to make application, within thirty days from the effective date of this order, to the proper municipal authorities of the city of St. Louis, Missouri, for the necessary franchises, permits and authority, and to the property owners for the necessary consents, authorizing said defendant company to construct all of the following sections of track, and that the construction of all of said tracks, which may be so authorized, shall be made...
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