Union Pac. R. Co. v. Missouri Pac. R. Co.

• Decision Date: 07 May 1932
• Docket Number: 30837.
• Parties: UNION PAC. R. CO. v. MISSOURI PAC. R. CO.
• Court: Kansas Supreme Court

10 P.2d 893

135 Kan. 450

UNION PAC. R. CO. v. MISSOURI PAC. R. CO.

No. 30837.

Supreme Court of Kansas

May 7, 1932

Syllabus by the Court.

Courts under statute, are prohibited from restraining or staying orders or decisions of Public Service Commission on ex parte application without notice (Rev. St. Supp. 1931, 66--118a 66--118d, 66--118g).

The statute prohibits the courts from restraining or staying the orders or decisions of the Public Service Commission on an ex parte application without notice. R. S. 1931, Supp. 66--118g.

Appeal from District Court, Wyandotte County, Division No 4; Charles A. Miller, Judge.

Proceedings by the Union Pacific Railroad Company, opposed by the Missouri Pacific Railroad Company, before the Public Service Commission involving the right to construct a switch track. From an order of the district court sustaining on review an order of the Public Service Commission ordering construction of the switch track, the Missouri Pacific Railroad Company appeals. On motion to set aside stay orders entered by the Supreme Court.

Motion allowed.

W. P Waggener, O. P. May, B. P. Waggener, and J. M. Challiss, all of Atchison, for appellant.

T. M Lillard, Bruce Hurd, and O. B. Eidson, all of Topeka, for appellee.

SLOAN J.

This is an appeal from an order of the district court sustaining on review an order of the Public Service Commission. The judgment of the district court was entered December 15, 1931. An appeal was taken to this court on March 28, 1932, and on the next day orders were made by this court staying all proceedings under the judgment of the district court until the hearing and determination of the appeal. Thereafter a motion was filed by the appellee to set aside the stay orders entered by this court, on the ground that the orders were issued ex parte, without notice, and for the purpose of staying and suspending an order of the Public Service Commission. Briefs have been filed on this motion, and we shall determine the validity of the stay orders made by this court without reference to the merits of the appeal.

On October 3, 1931, the Public Service Commission ordered the construction of a switch track in Kansas City, Kan., by the appellee, crossing a switch track of the appellant. On the application of the appellant, the order was modified in some particulars on October 16, 1931. From this order the appellant appealed to the district court of Wyandotte county, and that court, on December 15, 1931, found that the order made by the Public Service Commission was lawful and reasonable, and entered a judgment sustaining the order.

The order of the Public Service Commission was made under and by virtue of R. S. 66--161, which authorizes the commission after hearing to determine "the manner of such crossing and the terms upon which the same shall be made and maintained." This statute, as it was originally enacted, provided a procedure for an appeal to the district court. The procedure was modified by subsequent legislation (In re Luttgerding, 83 Kan. 205, 110 P. 95) culminating in the enactment of R. S. 66--118. This statute not only provided for a review of the orders of the commission in an action in the district court, but also for an appeal to this court, and that the order of the district court remain in effect unless stayed by this court. The Legislature of 1929 (Laws 1929, c. 220) adopted an act "providing for rehearings and for review of orders or decisions of the public service commission," and repealed R. S. 66--118. This statute, which is now R. S. 1931 Supp. 66--118a et seq., provides an entirely new and complete procedure for the review of decisions made by the Public Service Commission, including appeals to this court. Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 P. 668.

It is provided that:

"*** No court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided." (R. S. 1931 Supp. 66--118d.)

"*** No order so staying or suspending an order or decision of the commission shall be made by any court of this state otherwise than on five days' notice and after a hearing, and if a stay or suspension is allowed the order granting the same shall contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage." (R. S. 1931 Supp....