191 Ind. 627 | Ind. | 1922
—This action was commenced by the appellant, the New York Central Railroad Company, against the appellee, the Public Service Commission of Indiana, in the St. Joseph Circuit Court, to set aside a certain order of the Public Service Commission. The action was brought under §6 of the Railroad Commission Act. §5586 Burns 1914, Acts 1913 p. 820.
The appellee, Chicago, Lake Shore and South Bend Railway Company, applied for and obtained leave to become a party defendant and on motion of last named appellee, the Chicago, Lake Shore and South Bend Railway Company, the venue of this action was changed to the Laporte Superior Court.
The amended complaint also alleges in substance that the equipment and the car-load freight of the Chicago, Lake Shore and South Bend Railway Company are not sufficient to justify said interchange tracks; that said interchange tracks would seriously impair the operation of the New York Central Railroad; that said interchange tracks would not serve any public necessity; that the order of the Public Service Commission requires the New York Central Railroad Company and the- Chicago, Lake Shore and South Bend Railway Company to construct said interchange tracks across the right of way and tracks of another railroad company, the Chicago, South Bend and Northern Indiana Railway Company, which right of way and tracks are adjacent to and lie between the right of way and tracks of the Chicago, Lake Shore and South Bend Railway ^Company and of the New York Central Railroad Company; that the New York Central Railroad Company has no right of way across said right of way and tracks of the Chicago, South Bend and Northern Indiana Railway Company which would permit the construction and operation of said interchange tracks in accordance with said order; that the commission has no power to grant to the New York Central Railroad Company and to the
The case was tried in the Laporte Superior Court and the court entered a decision and judgment affirming the order of the Public Service Commission of Indiana.
A motion, for a new trial was filed and overruled. The appellant appealed from said judgment and assigned as error, “The court erred in overruling appellant’s motion for new trial.” The specifications of error alleged by appellant under this motion are: (1) The decision of the court is not sustained by sufficient evidence; (2). the decision of the court is contrary to law.
The brief of the appellant confines its discussion solely to the legal right of the commission to order the appellant to construct interchange tracks over and -upon the tracks and right of way of the Chicago, South Bend and Northern Indiana Railway Company without the proper statutory procedure, and to the terms of the order of the commission, which the appellant claims are incomplete, uncertain, unenforcible and void, and the questions thus raised by appellant’s brief are the only ones considered in this opinion.
The court in that case further says that the statutes provide that “ ‘the commission shall have authority to grant rehearings in any case in which it has made a final order, or to alter, change or modify any final order made by it.’ This section vests unlimited power in the commission to vacate, alter, change or modify any order, and thus to correct its own errors, and we perceive no good reason why the courts should be appealed to, in the first instance, to grant the relief that is within the power of the commission to give.”
The order of the Public Service Commission, after setting out a part of the statutes governing the case and a part of the evidence, is as follows:
“It is therefore ordered by the Public Service Commission of Indiana that the petitioner and respondent be and they are hereby required to construct and maintain proper interchange tracks and switches at the junction of their railroads in the city of South Bend, Indiana, so that carload traffic moving in intrastate traffic may be conveniently interchanged between said carriers at said point. In event that said connecting carriers cannot agree as to the expense of making and maintaining such facilities or tracks, either party may apply to this commission to determine the division of said expense.”
The statutes under which the Public Service Commission derives its power to act, are found in Acts of 1917 p. 118, §5533 Burns’ Supp. 1918. Also §10052d Burns 1914, Acts 1913 p. 167. The statute provides as follows:
“The .power and authority is hereby vested in the railroad commission of Indiana, and it is hereby made its duty as hereinafter provided to supervise all railroad freight and passenger tariffs, and to adopt all necessary rules and regulations to govern car distribution and delivery, train service and accommodations and demurrage rules and charges and for car service or the transfer and switching of cars from one railroad to another at junction points, or where entering the same city or town, and to supervise charges therefor; to require and supervise the location and construction of sidings and., connections between railroads; to supervise the crossing of the tracks and sidetracks of railroads by other railroads now in process of construction or extension, and to prescribe the terms and conditions and manner
“All such carriers, handling freight in carload lots, at all points in this state, where they connect with, or cross at, over or under grade, the line or lines of any one or more carriers engaged in like business, shall construct and maintain proper interchange tracks and switches at all such points so that carload traffic may be conveniently interchanged between such carriers at such points, and for the purpose of enabling such carriers to comply with this requirement they are empowered to jointly purchase and own, or appropriate under the present or future laws of this state concerning the exercise of the powers of eminent domain, any additional lands or property necessary to enable them to comply with this requirement: Provided, That upon a sufficient showing the commission may relieve any such carrier from the operation of this provision until such time as the necessity therefor shall arise. * ■* *
“No such' carrier shall hereafter construct a line of railroad across another line of railroad in this state without the approval of such commission, nor until an application therefor, and an instrument of appropriation to acquire such rights has been filed with the commission and notice given to the connecting lines and a hearing thereon had. Full power and authority are given to the commission in any such proceedings to determine in what manner and at what point any such crossing shall be made, and whether the crossing shall be at grade, or over or under grade. When the commission - determines the place and manner of crossing it shall determine the damages, if any, which the junior line shall pay to the senior line, or lines, for the privilege of crossing. The commission, by its order, shall determine and define the manner in which the crossing
In this state it has been held that the State Board of Tax Commissioners is a body of special statutory powers, and acts outside of its granted powers are absolutely void. State Board Tax Comrs. v. Belt R., etc., Co. (1921), ante 282, 130 N. E. 641, and cases there cited.
The appellees in support of their contention cite Pittsburgh, etc., R. Co. v. Railroad Com., etc. (1908) 171 Ind. 189, 86 N. E. 328 and say that “all of the questions urged in the instant case were decided adversely by our Supreme Court to the contention of appellant here.”
Pittsburgh, etc., R. Co. v. Railroad Com., etc., supra, was a case. in which the appellant railroad company was ordered by the commission to construct an interchange track. The order made in that case is set out in full in the opinion, 171 Ind., beginning on page 192. An examination of such order shows that it is not open to the objections urged against the order in the instant case. The order in that case is instructive, in that it shows that the requirements of the.statute under which the commission derives its power to act in the instant case were complied with.
In State v. Chicago, etc., R. Co. (1920), 46 N. D. 313, 179 N. W. 381, the court says: “It is elementary that the Board of Railroad Commissioners possesses only the
In Railroad Comrs. v. Railway, etc., supra, the court holds that a power conferred by the legislature upon a board of commissioners, required to be exercised with reference to the affairs of certain corporations, will not be extended by implication, and the acts which the board attempts to do under the power, will not be upheld unless the authority to do them is affirmatively shown to be included in it. In that case the court said (see p. 707), “It has for a very long time been considered the safer and better rule in determining questions of jurisdiction of boards and officers, exercising power delegated to them by the legislature, to hold that their authority must affirmatively appear from the commission under which they claim to act.”
We hold the order in the instant case is ineffective and void, for failure to comply with the provisions of the statute, and therefore contrary to law. As sustaining this view. See State v. Chicago, etc., R. Co., supra; Railroad Comrs. v. Railway, etc., supra; State v. Chicago, etc., R. Co. (1903), 16 S. Dak. 517, 94 N. W. 406; Old Colony & Fall River R. Co. v. County Comrs. (1858), 11 Gray 512; City of Roxbury v. Boston & Providence R. Corp. (1854), 2 Gray 460.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.