McInnis v. New Orleans & N. E. R.

68 So. 481 | Miss. | 1915

Cook, J.,

delivered the opinion of the court.

The averments of the declaration in this case, taken most favorably for plaintiffs, make this case: Plaintiffs were the owners of and operated a gravel pit somewhere near the main line of the New Orleans & North Eastern R. R. Company in Forrest county. Being unable to induce the company to build a spur track to this pit, plaintiffs sought the aid of the railroad commission. After hearing plaintiff’s complaint the railroad commission made the following order, viz:

“The Southern Cement Building Material Company v. The New Orleans and North Eastern Railroad Company.

“On this,'a day of the regular July term of the railroad commission court, came on to be heard the application of the Southern Cement Building Material Company, a partnership composed of A.-K. Mclnnis and P. Bechgard, against the New Orleans & North Eastern E. E. Co., a corporation engaged in the business of common carrier; the plaintiffs and defendants, being called, appeared in open court and announced ready for trial, whereupon the application was read by the secretary of said Commission, and the testimony of both the plaintifs and the defendant was introduced and the arguments of counsel made; and, it appearing to the Commission, after hearing all the testimony in the case and being advised in the premises, that as a matter of fact the applicants are entitled to the relief prayed for ih their petition; that the applicants are a sand and gravel mining manufacturing plant; that -a practical and feasible route can be found along which to extend a spur track as prayed for by the applicants connecting their plant with the main line of the defendant company; and, it further appearing that the construction of such a spur track is necessary to the successful operation of their said plant by the applicants, and that the construction and operation of the same would be beneficial to the defendant company as well as to the applicants; and it further appearing to the said Commission that the applicants are entitled to the extension of said spur track as a matter of law — it is accordingly ordered and adjudged by said Commission that the defendant, the New Orleans & North Eastern E. E. Co., a. corporation, be and it is hereby ordered to proceed forthwith and without unnecessary delay to construct the said spur- track so as to connect the plant of the applicants with the main line of said company,, under and pursuant to the terms, provisions, and' conditions contained in chapter 88 of the Acts of the legislature of the state ■ of Mississippi, enacted at the 1908 session thereof, upon compliance by the applicants for said track with all the terms and conditions -of said act obligatory and binding upon them; and it further appearing to the commission that route No. 2, as indicated in the plat marked ‘Exhibit B’ to the testimony of J. H. Putnam, civil engineer, and now on file among the papers in said cause, is a .practical and feasible route, and that the operation of engines and trains over same would not unduly hazard the trains and property of the defendant company, it is accordingly further ordered that said defendant company be, and it is hereby, ordered forthwith and without unnecessary delay to construct a spur track along said line as indicated in said Exhibit B and marked ‘proposed siding No. 2’ upon compliance by the applicants with all the terms, provisions, and conditions of said' chapter 88 of the Acts of the legislature of the state of Mississippi of 1908.

“The grading, switches, rails, ties, etc., to be used in the construction of the spur track hereby ordered shall be of the same grade and character of material as is now used by the Louisiana Sand & Gravel Company and J. M. Chapman in the same locality and the present track of the Southern Cement Building & Material Company, and according to the uniform custom in building such tracks; the grade of the said spur track shall be in accordance with the profile plan of said spur track, as appears in Exhibit C, and marked ‘profile of proposed switch S. C. B. & M. Co.’

“The said railroad company shall connect the spur track hereby ordered to be constructed with' their line known as the Gravel Pit Line, and upon its completion shall supply such cars and engines to the said Southern Cement Building & Material Company over said spur track as may be necessary for the handling of its said product.

“Ordered July 6, 1910.”

It is alleged that plaintiffs fully complied with chapter 88, Laws 1908, which required that applicants for spur tracks secure the right of way, do the grading, and furnish al] the material for the building of the spur; that defendant refused to construct the spur track and to maintain same after its construction; that plaintiffs, in order to reduce their damages, then proceeded to construct and maintain the spur at their own expense. Judgment is demanded for the amount of money expended by them in doing the work which the law and the order of- the Railroad Commission required the railroad company to do. The aggregate amount claimed is nine hundred and fifty-five dollars and fifty-five cents.

To the declaration the defendant demurred, which demurrer was sustained. We will only consider the second and fourth grounds of demurrer, which read:

“(2) The defendant was and is under no legal duty or obligation to the plaintiff, under the act relied upon, to wit, chapter 88 of the Acts of the legislature of Mississippi of 1908, or said order of said Railroad Commission to construct or maintain, at’ its own expense, the said spur track, or without due compensation being first made to it.”

“ (4) Because the said act of the legislature, if by its terms it requires the defendant railroad company, upon the order of said Railroad Commission, to construct the said spur track at its own expense, or without due compensation being first made to it, or to pay or reimburse to the plaintiff the cost and expenses of constructing the same, is in violation of the Constitution of the United States, and particularly the fourteenth amendment thereof, in that it deprives the defendant of its property without due process of law, and denies to the defendant the equal protection of the law.”

It will be observed that section 1 of the act in question confers upon the Railroad Commission the power to require railroad companies to construct,- without compensation, spur tracks “so as to connect their main line with manufacturing and other industrial plants,” if they can be constructed without causing hazard to the property or trains of the railroad company. The only limitation upon the power of the Commission is to see that the property and trains of railroad companies are not put in peril by the proposed spur tracks, and, after finding that the spur track can be constructed without this hazard, the statute gives it the power to require the railroads to construct the same at their own expense. It may be that the cost of construction and maintenance may be out of all proportion to the extra revenue which may he obtained therefrom; it may be that there is no real necessity for the proposed spur, nevertheless the .Commission is empowered' to require its construction, and the railroad company must obey its order, unless it can be shown that its property or trains will be hazarded thereby.

We think that statutes of this character are condemned as unconstitutional by the supreme court of the United States in Missouri P. R. Co. v. Nebraska, 217 U. S. 196, 30 Sup. Ct. 461, 54 L. Ed. 727, 18 Ann. Cas. 989.

In this case, as in the case decided by the supreme court of the United States,-“this statute has no reference to special circumstances. It is universal in its terms.” Any person or corporation engaged in the business of manufacturing, or in any other industrial pursuit, may secure at the hands of the' Railroad Commission, an order compelling any railroad company to construct a spur to serve his or its plant, whether it be reasonable to do so or not, if the Railroad Commission’ is of opinion that the spur track will not endanger the property or trains of the railroad company.

In Missouri Pac. R. R. Co. v. Nebraska, supra, the reason for the condemnation of the state law under consideration is expressed thus:

“We are of opinion that this statute is unconstitutional in its application to the present cases, because it does not provide indemnity for what it requires.”

We think that the law in question is also condemned in Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. 130, 41 L. Ed. 489.

The statutes of Nebraska, so far as the principles involved in this case are concerned, are, in all essentials, the same character of legislation as our statute under review. Our statute puts it in the power of a Con-mission to require railroad companies to spend money for the purpose of giving special facilities to certain named industries without requiring any indemnity for the money expended, and without regard to the circumstances, if, in the -opinion of the Commission, the property or trains of the railroad will not be endangered thereby. No matter what may be the special circumstances or necessities of the case, the Railroad Commission is given the power to order the construction of a side track to any or all industrial plants. What the Commission may or may not do in each case is immaterial, inasmuch as their statutory power is unlimited except as above noted. It may be that the Commission will, as suggested, consider each application‘for a spur track upon its merits, and with due regard for the public welfare, but such are not the requirements of the statute. The statute is the thing to be considered, and it is under the authority of the statute the Commission may take the property of railroads without requiring due compensation, and this statutory power is just what the Supreme Court of the United States has declared to be in contravention of the Constitution of -the United States. An unconstitutional grant of power cannot be exercised in a constitutional manner.

We do not feel justified in adopting counsel’s criticisms of the reasoning, of the supreme court in the Nebraska cases. Our judgment as to the correctness of the supreme court’s decisions is of little consequence. Upon all questions involving a construction of the National Constitution the decisions of the supreme court of the United States, are as binding on state courts as are the mandates of their own state' Constitutions. However, it seems to us that the reasoning in the cases cited is unanswerable. ' The action of the trial court is approved, and the cause is dismissed.

Affirmed.