Union Pacific Railroad Co. v. The Public Service Commission

• Decision Date: 18 July 1916
• Citation: 187 S.W. 827,268 Mo. 641
• Parties: UNION PACIFIC RAILROAD COMPANY v. THE PUBLIC SERVICE COMMISSION, Appellant
• Court: Missouri Supreme Court

187 S.W. 827

268 Mo. 641

UNION PACIFIC RAILROAD COMPANY v. THE PUBLIC SERVICE COMMISSION, Appellant

Supreme Court of Missouri, First Division

July 18, 1916

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

Reversed and remanded (with directions).

Wm. G Busby and Alex Z. Patterson for appellant.

(1) The circuit court committed reversible error in finding that respondent was not barred and estopped from denying the authority and capacity of the appellant to approve respondent's bond issue, after it had expressly recognized such authority and capacity by its application and proceeding for such approval and by its formal acceptance of appellant's certificate of approval. 8 Cyc. 791; 6 Ruling Case Law, pp. 94, 95; State v. Collins, 225 Mo. 633; State v. Seebold, 192 Mo. 720; Sheppard v Barron, 194 U.S. 553; Ficklen v. Shelby County, 145 U.S. 1; Mfg. Co. v. Garland, 124 U.S. 581; State v. Railroad, 75 N.H. 327; White v Manning, 46 Tex. Civ. App. 298; Ferguson v. Landrum, 5 Bush (Ky.), 230; Gans v. Railroad Co., 114 Iowa 713; Hansford v. Barbour, 10 Ky. 515; State v. Stone, 46 La. Ann. 147; Weir v. Railroad, 18 Minn. 155; Railroad v. Railroad, 123 Iowa 543; Hudson v. Brown, 154 N.Y.S. 131; Green County v. Lydy, 172 S.W. 376; Lewis v. Chamberlain, 139 P. 571; In re Devlin v. Judah Co., 107 P. 583. (2) Section 57 of the Public Service Act applies to both domestic and foreign railway corporations, since it, together with the other four sections of the Public Service Commission Law relating to the regulation by the commission of the issuance, sale and holding of bonds and stock by railway corporations, all have the same general purpose, and in construing one the others should be read in connection with it, as together constituting one law creating a uniform and connected system. Sections 54, 56, 57, 58 and 59, Public Service Commission Law; Curtwright v. Crow, 44 Mo.App. 563; Swinney v. Railroad, 59 Ind. 205; Smith v. People, 47 N.Y. 330; 36 Cyc. 1151. (3) The sections of the Public Service Commission Law relating to regulation of issuances, sales and holdings of bonds, stock and other securities by interstate carriers are not unconstitutional as violative of the commerce clause of the United States Constitution. Railroad v. Georgia, 135 Ga. 545; Railroad v. New York, 165 U.S. 625; Laird v. Railroad, 121 Md. 179.

R. W. Blair and I. N. Watson for respondent.

(1) The respondent is not estopped from questioning the amount of the fee because the payment was made under duress and was involuntary. Ex parte Young, 209 U.S. 123; Railroad v. Tucker, 230 U.S. 340; Trust Co. v. Railroad, 216 F. 225; Railroad v. O'Connor, 223 U.S. 280; Swift Company v. United States, 111 U.S. 22; Ins. Co. v. Herriott, 80 N.W. 665. (2) Section 57 of the Public Service Commission law applies only to domestic corporations. Tel. Co. v. Kansas, 216 U.S. 27; Railroad v. Pennsylvania, 136 U.S. 114. (3) Sections 21 and 57 of the Public Service Commission Law are unconstitutional and void insofar as they are construed to apply to corporations engaged in interstate commerce: (a) As being in violation of the commerce clause of the Constitution by the imposition of an illegal burden upon interstate commerce; and (b), because violative of the fourteenth amendment to the Constitution and its due process of law clause as in effect taxing property situated beyond the jurisdiction of the State. Fargo v. Michigan, 121 U.S. 230; Ratterman v. Tel. Co., 127 U.S. 411; Railroad v. Pennsylvania, 136 U.S. 114; Crutcher v. Kentucky, 141 U.S. 47; Allen v. Pullman Co., 191 U.S. 171; Tel. Co. v. Massachusetts, 125 U.S. 530; Pullman Co. v. Pennsylvania, 141 U.S. 18; Tel. Co. v. Taggart, 163 U.S. 1; Maine v. Railroad, 142 U.S. 217; Tel. Co. v. Kansas, 216 U.S. 1; Transit Co. v. Kentucky, 199 U.S. 194; Railroad v. O'Connor, 223 U.S. 280; Laird v. Railroad Co., 121 Md. 179; Halsey & Co. v. Merrick, 228 F. 805; Bracey v. Darst, 218 F. 482; Wm. R. Compton Co. v. Allen, 216 F. 537; Transportation Co. v. Doyle, 210 F. 173. (4) Sections 21 and 57 of the Public Service Commission Law should be construed so as to sustain in part their constitutionality by applying them only to property situated within the State and to corporations not engaged in interstate commerce.

BROWN, C. Railey, C., not sitting. Woodson J., not sitting; Bond, J., concurs in result.

OPINION

BROWN, C. --

The Union Pacific Railroad Company is a Utah corporation. Its principal office is in New York City. It owns and operates about three thousand five hundred miles of railroad in the States of Iowa, Nebraska, Wyoming, Utah, Colorado, Kansas and Missouri, its main lines extending from Kansas City, Missouri, and Council Bluffs, Iowa, by way of Cheyenne, Wyoming, to Ogden, Utah. It was constructed more than twenty-five years ago and has been used for the transportation of freight and passengers from, to, through and between those states. It has about six-tenths of a mile of main track in Missouri, extending from the Kansas state line to the old Union Depot in Kansas City, and also has side tracks, freight house and other terminals upon its own lands in said city, all being of a value which it estimates at $ 3,058,893.29. The book value of its entire property investment on June 30, 1914, was $ 281,057, 730.06.

Of date June 1, 1908, it executed a "first-lien refunding mortgage" of all its property, securing a proposed issue of two hundred million of first-mortgage four per cent bonds, one hundred million of which were to be used in refunding a like amount outstanding of old first-mortgage bonds. None of the refunding bonds were issued, leaving the first mortgage still in force as a first lien. Of the remaining one hundred million, sixty-five million eighty-five thousand six hundred and forty dollars had been issued prior to June 1, 1910. On September 4, 1914, the company made application to the Public Service Commission of Missouri for permission to issue $ 31,848,900 more of bonds secured by said new mortgage, to reimburse it for expenditures made upon the property for purposes authorized by the mortgage, $ 124,930.38 of which had been expended upon the Missouri property. On September 22, 1914, the appellant commission, after a hearing, made its order, granting a certificate authorizing the issue of said bonds as applied for, taxed the amount of its fee to be charged for the issuance of said certificate at the sum of $ 10,962.25, which was the amount provided by the terms of section 21 of the Public Service Commission Act of March 17, 1913, on the full amount of bonds covered by said application. On the next day the secretary of the commission transmitted copies of the order to respondent's attorney at Topeka, Kansas, accompanied by its statement of the amount of fee taxed therefor as above stated, which order was afterward accepted by respondent in writing as follows: "Comes now Union Pacific Railroad Company, by A. L. Mohler, its president, duly authorized, and hereby accepts the order of the commission, dated September 22, 1914, in the above entitled cause, and agrees to obey the terms of said order." The respondent paid the said sum of $ 10,962.25, the amount of the fee so assessed, after offering to pay the sum of $ 125 based upon the proportion the amount so expended in Missouri bore to the whole amount of the bonds to be issued, which offer was refused by the commission. It then offered to pay $ 250, the minimum fee authorized by the statute, which was also refused. At the same time it made the following protest in writing:

"Union Pacific Railroad Company hereby pays under protest the sum of $ 10,962.25, being the amount of fees assessed and demanded for certificate authorizing the issue by said company of $ 31,848,900, face value, of additional first lien and refunding mortgage bonds.

"Protest is made upon the grounds:

"1st. That said assessment is not authorized by the Public Service Commission Law of the State of Missouri, approved March 17, 1913, under which it purports to have been made; and,

"2nd. That if such assessment is authorized by said statute, said statute and said assessment are in conflict with the Constitution of the United States and the amendments thereto, in that they impose a burden and tax on the interstate business of said company, and a burden and tax upon said company's property beyond the limits of the State of Missouri.

"And you are hereby notified that this payment is made involuntarily and under duress, and without waiving the assertion and claim that the assessment is illegal, unauthorized and void, and such payment is made solely to escape the penalties prescribed and to prevent the revocation of the certificate issued herein, and to enable said company to issue and sell the bonds referred to in said certificate which are necessary to the carrying on of the business as a common carrier.

"You are further notified that a petition for rehearing of the decision fixing the fees herein at the sum of ten thousand nine hundred and sixty-two dollars and twenty-five cents ($ 10,962.25) will be immediately filed and such further proceedings will be taken as are necessary to recover such sum less the sum of one hundred and twenty-five dollars, this day tendered as the legal fees herein, and you are further respectfully notified not to disburse the money hereby paid until the legality of the fees are finally determined."

It then immediately filed its motion for a rehearing upon said assessment of the fee, which was overruled by respondent and the record was then taken by writ of review as provided in section 111 of the Public Service Commission Act, to the circuit court for Cole County, where, upon hearing, it was considered and adjudged that the order of respondent "fixing the fee for...