Union Terminal R. Co. v. Board of Railroad Com'rs of Kansas
| Decision Date | 06 January 1894 |
| Citation | 52 Kan. 680,35 P. 224 |
| Parties | THE UNION TERMINAL RAILROAD COMPANY v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF KANSAS |
| Court | Kansas Supreme Court |
Error from Shawnee District Court.
ACTION by the Railroad Company against the Board of Railroad Commissioners of Kansas for an injunction. The plaintiff brings here for review an order denying a temporary writ. The opinion states the material facts.
Judgment affirmed.
Trimble & Braley, G. A. Vandeveer, and Rossington, Smith & Dallas, for plaintiff in error:
It is clear that the act of 1887 with reference to crossings is an exercise of the power of eminent domain. N. P. Rld. Co. v St. P. &c. Rld. Co., I McCr. 502; U. P. Rld. Co. v Burlington &c. Rld. Co., 1 id. 452. See, also, C. B. U. P. Rld. Co. v. A. T & S. Rld. Co., 28 Kan. 453; Hunt v. Smith, 9 id. 137; 6 Am. & Eng. Encyc. of Law, 604.
The board of railroad commissioners has no power or jurisdiction to make any order with reference to the crossing of one railroad by another, under the act of 1887, until the railroad company desiring to make the crossing shall make application in writing to the board. This is a jurisdictional prerequisite, and the railroad company whose track is about to be crossed cannot put the machinery of the law into motion. K. P. Rly. Co. v. Streeter, 8 Kan. 133.
The act of 1887 being an exercise of the power of eminent domain, and the board of railroad commissioners acting ex officio as condemnation commissioners, and having only such powers as are expressly given them by the statute itself, and there being no provision in the statute authorizing the board to grant rehearings in such cases, or vacate, modify or set aside any award made by them, it is clear that the same rules of law applicable to ordinary condemnation commissioners are applicable in this case, and when the board has heard an application, visited the premises, considered the evidence, rendered its decision, and made its award of compensation, they are then like other condemnation commissioners, functus officio, and can take no further action in the premises. People, ex rel., v. Mott, 60 N.Y. 649; West v. W. & E. Rld. Co., 61 Miss. 530; Pollard v. Ferguson, 1 Litt. (Ky.) 196; Baldwin v. Calkins, 10 Wend. 181.
The law of 1887 provides for an appeal as to the compensation and the terms of crossing, and, if either party feels aggrieved by the decision of the board, it should have pursued the statutory remedy, viz., that of appeal, and it has no other remedy. Masters v. McHolland, 12 Kan. 17-26; 19 P. 702.
The award made by the board of railroad commissioners is, like the award of any other condemnation commissioners, valid and binding as the judgment of a court until appealed from. An appeal would have the effect of vacating the award as to the amount of damage and the terms of crossing, the same as an appeal from a justice of the peace to the district court vacates the judgment of the justice. Blackshire v. A. T. & S. F. Rld. Co., 13 Kan. 515. And the board having power under the law to make the award which it did, and no appeal having been taken, and the plaintiff having tendered the amount of compensation awarded, rights became vested, and the decision of the board has the same effect as if a voluntary agreement had been made and entered into between the companies. C. & A. Rld. Co. v. K. C. &c. Rld. Co., 19 S.W. 826.
We are therefore of the opinion that when one railroad company, desiring to cross the track and right-of-way of another, presents, under the act of 1887, to the board of railroad commissioners, its petition and application, and when the board has duly considered the matter, visited the premises, and a full hearing has been had, and when the board has made its decision and determined that there is a necessity for such crossing, and the manner, place and terms thereof, and awarded the compensation, and neither company appeals within the statutory time, it is then beyond the power of the board of railroad commissioners to take any further action regarding the matter.
John T. Little, attorney general, Frank Doster, and David Martin, for defendants in error; A. L. Williams, and N. H. Loomis, of counsel.
A temporary injunction should not be granted against the defendants, as they are only nominal parties. The railway companies are the real parties in interest. See The State v. Anderson, 5 Kan. 90, 114, 115; Gilmore v. Fox, 10 id. 509, 511, 512; Hays v. Hill, 17 id. 360-362; Voss v. School District, 18 id. 467, 471; A. T. & S. F. Rld. Co. v. Wilhelm, 33 id. 206-209; McCarthy v. Marsh, 41 id. 17-19.
Trimble & Braley, G. A. Vandeveer, and Rossington, Smith & Dallas, for plaintiff in error, in reply:
Is there a defect of parties defendant? We think not. There is involved here not simply the rights of the Missouri Pacific and Union Pacific companies on the particular facts of this case, but the power of the board of railroad commissioners. Township v. Comm'rs of Sumner Co., 25 Kan. 519.
Making the railroad companies parties defendant would only result in a vexatious delay by the removal of the case by the Union Pacific company to the federal court, and withdrawing from this court the construction of one of the statutes of this state. All the railroads as well as the people are as much interested in this case as are the Missouri Pacific and Union Pacific companies, and the statute should be construed by this court.
Upon application, and after due notice and a hearing, the board of railroad commissioners, on January 3, 1893, made an order allowing the Union Terminal Railroad Company to cross the tracks and rights-of-way of the Union Pacific Railway Company and the Missouri Pacific Railway Company at a point near the west end of the bridge across the Kansas river, in Wyandotte county. The order provided that the crossing should be made at grade, and prescribed the terms and manner of crossing, as well as fixed the compensation to be paid. On May 8, 1893, and after the membership of the board had been changed, the Missouri Pacific Railway Company and the Union Pacific Railway Company filed motions...
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