*1 ex rel. KANSAS Missouri STATE Municipal
CITY, Missouri, Corpo
ration, Relator-Appellant, COMMISSION
PUBLIC SERVICE Jones, Missouri, E. and Marvin
State of
Chairman, al., Respondents, et Railway Company,
Intervenor-Respondent. 58285.
No. Missouri,
Supreme Court Banc. En
June 1975.
Rehearings July Denied
reassignment. We reverse and remand with directions. right
No issue is raised as to
to direct
P.S.C.
the work on the viaducts.
determined whether
cost thereof is to be borne
Terminal
pursuant
prior
to a
contract between it and
City
agreed
wherein Terminal
to assume all
expense
or whether that contractual
provision
abrogated
adoption
Service Commission
orAct
1963 amendment of that Act.
City
In 1909
and Terminal entered into a
year
awarded Terminal 200
franchise for the operation
system
the city,
within
including the
to use
alleys
streets and
purpose.
for that
As
agreement
City agreed to and
streets,
did
alleys
vacate various
places in order
right-of-way
to make
availa-
ble for Terminal. One hundred and two
return,
such tracts were involved. In
Ter-
minal assumed
obligations,
certain
includ-
Wilson,
Atty.,
City
A.
Carrol C.
Aaron
expense
to bear the
Kennett,
City, for
City Atty.,
Asst.
Kansas
construction, maintenance and reconstruc-
relator-appellant.
tion, necessary,
specifically
of certain
des-
Parker,
D.
Stapleton,
M.
Sam
William
ignated
tracks,
viaducts over Terminal’s
Downey, Jefferson
City, Thomas J.
Kansas
plus
subways
such other viaducts or
intervenor-respondent.
City,
might
required during
the term the
franchise. This contract was embodied in
FINCH, Judge.
an ordinance which was submitted to and
approved by
City
the voters of
Kansas
judgment af-
appeal from a
is an
This
formally accepted
then
by Terminal.1
Service Com-
firming an order of the Public
(P.S.C.)
City
determined that
ne-
that directed
In 1922
mission
required
cessity
over
a viaduct
Terminal’s
viaducts
over
of certain
reconstruction
Railway
it called
City Terminal
tracks at Oak Street and
of Kansas
tracks
pur-
apportioned
(Terminal) and
Terminal to construct such
viaduct
Company
provisions
Kansas
contract.
suant
of the 1909
thereof between Terminal
affirming
comply, following
opinion
refused to
(City). An
City
I. On
proceeding
in Division
which a
was instituted before
was written
judgment
motion,
seeking approval
proposed
case was then
court’s own
After
banc.
viaduct and a direction to Terminal
erect
to the court en
transferred
failed of
opinion
approved
it.
Commission
the viaduct
the divisional
reargument,
bear the
written on and directed that Terminal should
and the case is now
adoption
Ry.,
ar
franchise
(banc
nal
324 Mo.
details
S.W.2d 1055
1. Additional
1929).
rangement
are set out
City
City
Termi
Kansas
Kansas
court
reaching
In 1969 information
the P.S.C.
Ter-
cost of construction
maintenance.
investigation
undertake an
caused it to
This
sought
minal
review
that order.
Prospect
Avenue and Main
inso-
court affirmed the order of the P.S.C.
over
Street viaducts
Terminal’s tracks
far
that a viaduct should
determined
City.
Both
were
Terminal and
be constructed at Oak
in accordance
Street
*3
appear
present
ordered to
and
facts con-
plan,
approved
with an
but reversed
safety of
cerning the
these viaducts and the
judgment
as it
the cost of
insofar
allocated
employment
Commission ordered
of an
construction and maintenance of the via-
making
engineering
purpose
firm
City
rel.
Terminal
duct.
ex
Kansas
State
Meanwhile,
1970,
a study thereof.
Ter-
Commission,
Ry. v. Public
308 Mo.
emergency repairs
minal made
to the Oak
359,
(1925).
held
That
and,
Street viaduct
at
request,
its
that via-
that the decision as where and when
proceedings.
duct was included in the P.S.C.
to be
viaduct should be constructed was one
Terminal
requesting
filed
motion
P.S.C.,
by the
but
made
Commis-
to allocate costs
P.S.C.
between it and the
sion
leave for
in an
should
determination
ruling thereon,
City.2 Before
the Commis-
appropriate
interpretation
forum the
and
sion
Terminal
City
present
ordered
and
alleged
enforcement of the
contract with
agreement
their
repairs
needed on
respect to cost of such viaducts.
the various viaducts and allocation of those
City
Subsequently,
instituted an action in
made,
City
costs. No
compel
the circuit court to
Terminal to com-
taking
position
the 1909
that under
ply with
contractual obligation
its
to build
contractually
contract Terminal was
obli-
of the
pay
and
the cost
Oak
viaduct.
Street
gated
pay
all of the costs and that the
City
In
City
Kansas
v.
Terminal
Kansas
validity of that
been estab-
contract had
Ry.,
882,
(banc
324 Mo.
S.W.2d 1055
litigation
parties
lished in
between
1929),this court held that the 1909contract
the second Oak Street case.
City
and
Terminal was
valid
1972,
its
issued
the P.S.C.
March
On
consideration;
supported by
contract
that it
In-
proceeding.
in this
and order
report
limit, abridge
did not
or hamper the exer-
finding:
therein was this
cluded
state;
cise of the
this
jurisdiction
has
in 1913
“This Commission
enactment
the Public
Serv-
389.640,RSMo
ice
cause under Section
abrogate
Commission Act did
not
V.A.M.S.,
to determine
destroy
1909 contract or
carrying
viaducts
City
mentioned
paid
thereunder to have
above
viaducts
tracks,
order
and to
over railroad
Terminal.
streets
Accordingly, the court di-
if such
thereof
and reconstruction
specific performance
repairs
rected
of Terminal’s
there-
needed,
the cost
and to allocate
obligation to construct
are
for the Oak
Street viaduct.
of.”
(originally
50 of
of
RSMo 1969
intervening
3. Sec. 389.640
Apparently,
Terminal
in the
Act,
Service Commission
Laws
years
the Public
Mo.,
acquiesced in
had
the 1909
589),
p.
in the P.S.C.
referred to
in the
case.
construed
second
Street
Oak
railroads,
order,
crossings
provides that
City’s brief so states and Terminal has not
roads,
fact,
shall
streets
street railroads
contended otherwise. As a matter of
permission during
successfully
be constructed without
period
Terminal
power to
which shall have exclusive
sought recovery
City
P.S.C.
from Kansas
Transit
manner,
prescribe
in-
“the
determine
cluding
its cost of
of some of
maintenance
crossing,
particular point of
City
Ry.
viaducts. Kansas
installation, operation, mainte-
City Transit, Inc.,
the terms
There railroads of intersections crossing by at ment of the cost of the of proper exercise is a inseparably roads was so of streets Missouri, K. ex rel. police State Commission’s action under power. police Commission, 271 necessarily had the effect its exercise v.Ry. T.& ex 1917); State (banc abrogating 270, Mo. they between the wherein had Terminal in city relies. The that case ar- agreed pay that Terminal would gued cost of the provision in the contract be- projects. discussing question, such this it tween whereby the railroad lat- Terminal’s brief assumes the inevitability of ter would entire cost reconstruc- question. affirmative answer to an It any tion not way did limit the any not in does manner demonstrate that powers of the Commerce Commission and the P.S.C. does not allocate costs of the simply provi- was a voluntary contractual viaducts, protection sion entered into for a valid consideration. police power by means of the will be argued frus- primary concern of the trated even hindered. Cases on which Commerce Commission was to determine also assump- Terminal relies make whether the reconstruction was sufficient example, tion. For Terminal cites two Illi- preserve promote public safety support nois cases in contention that require done, the work to be not with second case wrongly Oak Street paid opinion who therefor. court in its City Chicago The first decided. v. depart concluded that would it not from the Commission, Illinois Commerce Ill. principles announced in the case earlier (1934). N.E. Examination of that Chicago Illinois Commerce Com- appellant city argued mission, discloses that supra, stating, 122 at N.E.2d 558: “ provisions therein that * * * contract be- conclude, therefore, We requiring it tween the lat- there, we did defray ter to the improvement cost of reconstruction the viaduct public safety per- did not involve the but grade crossing over the is an only private arrange- tained financial inseparable element of the parties. ments between For rea- exclusively vested the Com- son, contended, said financial ar- Commission, may merce rangements scope did not come within the abrogated by the contract subsequent exercise of the state’s seeks enforce.” *6 power police thereby. and were not affected Obviously, the what court said in the two did opinion say response What the court’s provided analysis Illinois cases no of wheth- Simply thereto? of “contracts the er objective achievement of the of the exer- character of the ordinance under review are power the police any cise of was affected subject by to subsequent modification stat- permitting way by the to cost be allocated the fide utes enacted in bona exercise of the parties pursuant pre- between the to their power police promote public health, to the a contract rather than on basis morals, safety, general welfare, or the by ordered the Commission. did not con- not, do reason the by and of contract clause sider whether the health or of the (Const. of the Federal or State Constitution protected just would be as much if 10, 1; 1, 2, art. Ill. subd. Const. art. § according paid the were to the con- costs 14), enjoy any immunity legis- from such according tract as to the Commission’s di- lation.” 190 N.E. at sim- rective. ply unsupported stated the conclusion that We find that other cases cited Termi- part nal not do demonstrate that allocation of police power superceded its and exercise of improvements cost so directed is in- allocating expenses. contract those
separably
part
a
of
police power
as to
Subsequently,
question
again
arose
require impairment
obliga-
of contractual
City
Chicago
Chicago
of
Ry.,
v.
& Nw.
4
Furthermore,
they
tions.
do not deal with
(1954),
Ill.2d
861
community and
to
Commission,
(Mo.
threat
the health
334
54
Service
S.W.2d
The ordi-
they
be eliminated.
Wellston,
must
1960);
City
v.
Wabash R.R.
of
276
specified date all
provides that
(Mo.1955);
nance
208
State ex rel. St. Paul
S.W.2d
they
removed and
outhouses must be
K. C. Short Line R.R. v. Public Service
&
toilets which
Commission,
by inside
replaced
Mo.
126 shall be
338
92 S.W.2d
to
obligated
install
(1936);
property
rel.
v.
owners of
State ex
Alton R.R.
Public
cases,
Commission,
Clearly, under decided
pay
334
70
for.
Service
Mo.
S.W.2d
city’s
of
(1934);
valid exercise
ex rel.
Kirkwood
this would be a
City
57
State
v.
v.
Hoevel
Commission,
power. City of
Louis
police
Mo.
St.
330
50
Co., 59
617
Building
S.W.2d
(1932).
Real
&
S.W.2d
Other cases cited deal
Estate
Nash,
v.
(Mo.1933); City of St. Louis
with situations wherein
held
the court
However, suppose that
(Mo.1924).
fixing-
charg-ed
rates
specifying services
S.W.
ordinance a
shortly prior
passage of that
by public
companies
be
utility
rendered
is
his tenant entered into
police
an exercise
landowner and
agreed
do
whereby
owner
contracts which undertake to fix or limit
contract
tenant includ-
police
rates or
impinge
things
such
services
on the
various
desired
bedroom,
power and
installa-
Typical
are invalid.
of another
addition
paving
group of
of a
cases are State ex rel. Kansas
inside toilet
City
tion
an
Latshaw,
909, driveway.
Public Service
entered into
Co.
325 Mo.
a new
(banc 1930);
lease
City
abrogation of contract between Under system pow- our the owner and Recognizing his tenant. and lodged er is branch of legislative with the enforcing the allocating costs government. belongs It to that would not hinder city’s or frustrate the department are to exert what known police power. state, police powers and to determine, primarily, what measures are There is an analogy hypo- between that protection appropriate or needful for example thetical and the facts case morals, health, public public objective at bar. It is clear that the sought safety. by protect safety P.S.C. was to every “It does not at all follow that traveling public by making the viaducts ostensibly promo- statute enacted sufficiently safe, strong specify not to ends, accepted tion of these is to be degree The who should therefor.5 legitimate police powers exertion of the safety by is not affected the allocation are, necessity, There of the State. parties. pub- between the costs beyond legislation limits cannot just pays if Terminal lic will as safe be every possible pre- rightfully go. While pur- improvements repairs costs of the indulged in favor of sumption is to be obligations under suant contractual Cases, statute, Sinking validity Fund of a per it will contract as be if the 1909 496], L.Ed. the courts 99 U.S. [25 per cent of the cost of construction rather obey Constitution than must by is cent of the cost of borne law-making department govern- order of the Com- City as directed ment, must, upon responsi- their own mission. whether, any bility, particu- determine passed. limits have been lar these the function of the courts to Marbury it was said in purpose,’ ‘To what determine whether statute purporting Cranch, 137, Madison, v. [5 constitute exercise limited, powers 60], ‘are 2 L.Ed. has a real and substantial relationship to is that commit- purpose limitation what protection health, safety, any may, if at writing, these limits ted unjustifi morals or welfare and whether it time, by those intended to be passed ably invades secured the Constitu distinction restrained? long tion. recognized principle This is well limited unlimited government with Kansas, Mugler stated in 123 U.S. abolished, limits do not if those powers 273, 297, (1887). 31 L.Ed. S.Ct. they persons on whom are confine the court, discussing In that case the imposed, prohibited and acts acts police power, extent, its exercise and its obligation.’ equal allowed are stated: forms, bound mere nor courts dissenting opinion Judge 5. The Seiler sion. No contention whatsoever was made contends the interest of the in this party case either that allocation of this case was not limited to the the Commission pur- was for the *8 Rather, says, pose protecting viaducts. he it was interested stability financial stability also in the financial condition and the railroad or the charge rates it would ability of Terminal and its to serv- maintain services fact, it would during In render. comply requiring argument ice Terminal to oral arguing counsel respon- might equipment expressly with its contract to cause its dents response ques- stated in to a become unsafe and service to deterio- tion from the bench that the Commission’s making rate. ing In this assertion and seek- allocation of solely costs was based on evi- justify to on allocation costs herein dence as to vehicular traffic count over the basis, position takes a the dissent viaduct passing and trains on the tracks by supported appeal or con- the record below nomic relationship no had to the eco- by by tended for Terminal the Commis- situation the railroad.
863 pretences. they by companies, to be misled mere it did not utility property of liberty indeed, are They impair- are at under extent of possess right — duty look at the substance of rights solemn when it did not ing existing contract —to they upon the in- things, good whenever enter public would appear legislature tran- quiry company whether the has withholding from the by served If, authority. the limits of its authority scended issue bonds in accordance therefore, purporting a statute to have rights. with its contractual health, protect been enacted to state, case, morals, acting public safety, By analogy the or the Commission, right through
has no real or substantial relation to had objects, reconstruction of via- palpable those or is a invasion of direct law, safety of the rights by protection secured the fundamental it ducts for the duty adjudge, authority to abro- is the of the courts to so but it did not thereby give gate effect to the Constitu- the contract between and Termi- nal with reference to allocation of the costs tion.” thereof when it was not shown that rule is The above followed Missouri. taking public good served would be 474, 61 Layton, In 160 Mo. State right to have away City’s contractual 171, (1901), ap- quoted 174 the court enforcing pay Terminal those costs or that including proval Mugler from v. Kansas frustrate or hinder the those quotation. much of the above also 16 See police power. exercise of the state’s 281, 282, Am.Jur.2d Law Constituutional §§ 283; 16 C.J.S. Constitutional Law 198. § Missouri, supported also
This view is Oklahoma, 271 Ry. v. U.S. K. & T. The conclusion harmony we reach is in (1926), 70 L.Ed. S.Ct. with our Joplin decision in State ex rel. & the second Oak upon in discussed and relied Pittsburg Ry. Commission, v. Public Service T., city In M. K. & the en- case.6 Street (banc 289 Mo. 1921). S.W. 388 In with the railroad tered into a contract company the railroad had a 1910 city right- granted the whereby the latter mortgage contract to issue bonds on tracks and the under its of-way for a street subsequent property additions. Sec. 57 of for the agreed to construct city prohibited P.S.C. Act issuance of bonds Thereafter, obtained street. for additions made more than years five corporation commis- the state order from prior application to the Commission for construct an directing the railroad sion bonds, leave to issue and when the railroad the cost thereof. pay half underpass and sought authority from the Commission to that the contract held Supreme Court bonds, issue it approve declined to on the the railroad did not prohibited by basis that it was 57 of the police power, on the a restraint constitute authorizing court, Act from issuance. This supported it was a valid proceeding mandamus, in a directed the and that it was adequate consideration grant authority Commission to to issue the of the constitutional protection within the bonds, holding although the state un- the obli- forbidding impairment of provision authority regu- der its had by the state. gation of contracts prohibit late and issuance of bonds omm’n, C 306 Mo. urging S.W. 102 that these two cases should not (Mo.1924). However, followed, should be noted Judge Bardgett be relies dissent of that M. K. & T. is a later heavily decision on the cases of Northern Pa Supreme U.S. Court than Duluth, Northern Pacific cific R.R. v. Minnesota ex rel. and second Oak Street is a later (1908), decision S.Ct. L.Ed. 630 *9 this court than the Ry. Wabash case. and State ex rel. Wabash v. Public Service distinguish seeks to how the costs improvements M. K. & T. from the of such should they case at bar be analogous.7 but borne since there has been no show-
ing that enforcing those will frus- appro We hold that when the state trate or hinder police power the state’s or priately directs that work be done in order the achievement objective, of its the state’s protect safety, to health or police power should not abrogate be held to police power right state includes obligation Terminal’s pay to for the im- payment to direct for the work ordered to provements involved prior herein under said necessary the extent to the achievement of arrangement.8 contractual objectives police power for which the is adopt recognizes rule we that exercised, being even if the result is to police power is essential to the achieve infringe rights, contractual but objectives ment of such protecting beyond necessity, that allocation of health and of the and that it is inseparable part such costs is not an objec as broad as need be to achieve those police power. A that denial determination time, recognizes tives. At same it city of the state or police power powerful is not so it agency frustrate to allocate will impairs obligations of contracts where police power hinder enforcement impairment necessary is not objective necessary is achievement of its objective achievement of the for which the abrogating existing a condition to contrac interpreta exercised. Such rights. tual harmony tion is in with the definition of the police power adopted by state’s this court in case, in the absence of the instant In City, Marshall v. Kansas 355 S.W.2d re agreement between an 1962): (Mo. banc costs, to allocation spect for under 389.640 proper § been Carpenter ex rel. “State St. the work only specify not Commission Louis, 722[13], Mo. S.W.2d thereof also how but done be adopted this pow- has definition However, par since the be borne. should appears er as it now in 16 C.J.S. Constitu- a valid and into had entered previously ties p. tional Law 889: ‘Police they spelled out whereby binding contract sovereign right the exercise of the of a city right-of- 7. In M. K. & T. received a an issue is wherein raised as to whether the way from the railroad for allocating which it under- costs of or recon- obligations including took agree- certain does frustrate or struction hinder the state’s pay ment to construct and for the police power, street. In exercise of its the court can rights-of-way this case Terminal received issue on the basis of the resolve evi- year and a 200 franchise from presented in that case. dence obligations, which it including assumed agreement pay constructing and re- Actually, 389.640(2) amendment to § pairing agree- viaducts. In both cases the adopted in 1963 confirms this conclusion in ment between the railroad and the impliedly recognizes that it that allocation supported by substantial consideration. improve- of the costs of the intersection showing both cases there was no that the necessary ments inseparable part the P.S.C. is not a agreement allocating costs constituted a re- directing of the act of what straint on the exercise of the or frustrated in provides if, work is to be done. in an any way the achievement of agreement 13, 1963, dated after October objective. city (or governmental other unit) agree upon The fact that the cost, contract has a considerable allocation of the years thereby number may to run is not decisive. Dur- P.S.C. is bound tion appor- enjoy Only time Terminal the costs continues to otherwise. in the ab- right-of-way agreement sence of such franchise and which it re- is the Commission ceived costs of viaducts. Under return for its allocate the insepara- costs. If it were an police power, ble the rule an- arrange- herein, nounced inappropriate. a case ment would arises the future *10 (hereinafter Act), by State Mis- order, safety, promote government souri rendered contracts between certain morals, general welfare of health, types parties, railroads, to wit: which The limits.’ within constitutional society, subject jurisdiction P.S.C., attribute of is an essential police power municipalities, and prior to the which constitutional government without adoption of police the Act exercised their property and personal guaranties power with respect to railroads contracts meaning and ineffective would be railroads, with or affecting ordinances un- nature, very neither less. In their enforceable to the extent that such con- police nor constitutional limita power tracts or subject ordinances concerned absolute; they are necessar tions can be matter over which the given P.S.C. was dependent the com ily and relative jurisdiction. McQuillin, plexities modern life. Ed., 19.22, p. Corporations, 3d Municipal Whether municipality exercised its 531; Smith, 231 Mo. parte Ex police power by contract or ordinance 609[3].” should not be any great concern. This is so because municipality, prior to the judgment reverse the Accordingly, we adoption of the Act in pow- had the remand with directions circuit court do it ordinance remanded to the Public the case be er — —to (law). an order consistent Service Commission expressed. In herein so with the views principal opinion undertakes to de- not, suggested by Ter- directing we are whether, case, the allocation cide in this minal, inter- ordering that Commission improvements inseparably costs of is so the 1909 contract. That pret and enforce require power so as to by this court in the second has been done impairment obligations. of contractual ease and that decision is reaf- Oak Street merely direct firmed We herein. I do not believe that it is for this court to recognize and abide Commission effect give decide whether con- how judicial the costs of determination apportionment tractual deciding of costs are to reconstruction be borne case-by-case apportionment on a if the basis under the 1909 contract. of costs is the attainment of essential to
improvement. me that It seems to DONNELLY, J., MORGAN, preempted Act the has C. HOL- P.S.C. state field HENLEY, JJ., law and concur. a matter of MAN and declared as else, P.S.C., policy that the and no one has BARDGETT, J., separate dissents in dis- authority to allocate costs. senting opinion filed. language of the Act—-“The commis- SEILER, J., separate dissents dissent- sion shall the exclusive de- separate prescribe and concurs in manner . filed termine and BARDGETT, apportionment J. the terms . . dissenting opinion of . ” mine)— expenses (emphasis . . . BARDGETT, Judge (dissenting). the courts means not left to case-by-case basis whether respectfully I dissent. basic issue determine necessary authori- costs was this the extent of case is obtaining improvement. ty of the Public Service Commission other words, P.S.C.). (hereinafter Put in more limited I do not the continued believe validi- ques- ty this way applicable to of enforcement of contractu- adoption provisions depends upon the P.S.C. al what court tion whether 389.640, Act, relationship concerning RSMo thinks now § *11 obtaining improvement the one-half of the costs of subway vis-a-vis the a ap- portionment legislature of costs. The under its tracks. The P.S.C. ordered the made improvement that decision adopted apportioned in when it costs the the $18,246; Act opted Railway, P.S.C. in follows: Wabash placing favor of M. the K. $14,749; Railway, city $11, T. Moberly, authority exclusive in the P.S.C. In so doing, the state took part police that of the
power to
municipalities,
itself and ousted
said,
This court
cit.
loe.
59-60: “Assum-
railroads, and all other entities from exer-
ing,
deciding,
but without
that the above-
it,
cising
whether
ordinance
contract.
duly
in
mentioned contract was
fact
exe-
that,
the
requires
would seem
cuted as
law
exe-
principal
under the
contracts
opinion,
by municipality, yet
if in
cuted
a
year
or so
the contract
the P.S.C. orders
improvement
appellant
cannot
the
respect
made
avail
[Wabash]
proceeding,
crossing
one
the
for
viaducts
the reason
such a con-
Terminal’s
tracks,
against public
that,
tract is
policy,
street or viaduct was
void
referred
valid,
the
to in
if held
it
ordinance of
would amount to a
City,
limita-
again
then
court will
tion on
the
decide
the
the exercise
state of its
alloca-
power.
tion of
point
costs to obtain
This exact
improvement
passed upon
was
Supreme
inseparably necessary
was
the
objective
Court
United States
sought, so
improvement
that if the
the case of
Railway
Northern Pacific
cannot
except
Duluth,
by allocating
be obtained
208 U.S.
S.Ct.
some of
L.Ed.
cost to
the
the railroad then the
630. In that case a contract was
allocation
entered
bewill
valid.
the
If
court decides
into between the railroad company
that the
and the
improvement
city
provided
be accomplished by
can
of Duluth which
the
con-
point
enforcement of the
struction of a
at a
1909 ordinance—all
viaduct
where one
paid by
city,
city’s
then the court
streets crossed
will
the railroad.
again
paid, $50,000
enforce the contract.
initial cost
was
$23,000by
railroad and
the city. The con-
I do not
appropriate
believe that
provided
city,
tract
period
for a
determine the
of whether
years,
should maintain
impaired
unconstitutionally
P.S.C.
bridge
right way,
over the
railroad’s
under
contracts on the basis
city
perpetually
should
maintain
improvement
of whether or
not
can be
approaches.
Later
viaduct
obtained
there without
an allocation
approaches
dangerous
became
of costs different from the 1909 ordinance
use,
city
under
exercise
provisions.
franchise
power
delegated
from the state undertook
require
company
the railroad
at its own
make the
Act
does
P.S.C.
expense
improvement.
to make
needed
costs de-
to allocate
commission’s
city
proceeding
mandamus
under-
upon any such considerations.
pendent
took to enforce its order. The railroad com-
gives
exclusive
simply
the P.S.C.
Act
That
pany pleaded
defense.
the contract as a
controls—
costs. Which
allocate
granted
The trial court
the relief
or the
ordinance
1909 franchise
Supreme
prayed. Upon appeal the state
Act?
judgment.
Court affirmed the
98 Minn.
Ry.
M. K. T.
Co. and
ex rel.
In State
Upon
Thus authority to exclusive court held a contract Commission. Commerce Illinois tract involved in Missouri Act also exclusive au- this case if it vests even were thority in into after apportion our P.S.C. to costs entered the amendment became should, given effective. The my opinion, effect entire be context and, amendment operative as stated in Erie R. Board of shows that it is only Co. Com’rs, 394, 411, Utility specific where improvement been has or- 169, 171, (1921), particular S.Ct. L.Ed. “Con- dered P.S.C. and as to improvement made agreed upon tracts road made [railroad] subject possible constitutionality to the of the sover- cost allocation. The exercise amendment, eign right.” scope, even in its limited is not before the court in this case. think, accepted, It must be I that our The P.S.C. order in this allocated case Act did render unenforceable certain 90% of the cost of viaduct to relating which under the laws and 10%to the The costs railroad. private contracts been could not have void- of construction were allocated 100% provisions ed under United city. study The costs of the engineering and Missouri relating States constitutions were allocated 90% the and 10% impairment of contracts. But this is not railroad, expenditures were the where, here, unconstitutional $148,663.48 the railroad of for the Oak continuing obligation constitutes a repairs. Street viaduct upon the opera- state to oversee railroad improvements necessary tions vis-a-vis only the com- presented evidence public. obligation, my And this opin- by the mission was a traffic count made ion, must exercised as the need arises. of motor showed the number railroad which permitted It cannot be to lie dormant for a using the the number vehicles viaduct and period years, of 200 term of contract (not cars) passing under trains ordinance the instant under a theo- testimony city put no viaduct. ry that the ordinance was an exer- benefits, Ap- etc. respect to relative cise of an abandon- this was because this court parently of it. ment *15 upheld validity Street case Second Oak supra two Illinois cases cited held the ordinance and the relied of the 1909 power apportion of the commission to Re- upon that decision before the P.S.C. improvements inseparable that, expense of should have come gardless was of upon necessity bearing cost from to determine with evidence forward allocation, accomplishment. agree of I and manner and had there been substantial Supreme holdings Illinois the allo- support with the Court’s evidence to competent entered, a requires the Missouri favor and believe Act I would not cation order interpretation. supra, As stated record same is on that issue. As the rehearing legislature however, that my opinion stands, the Missouri the allocation supported by that decision when is made it enacted the Act the commission not made It is competent in 1913. and substantial evidence. or- to base an allocation simply unrealistic agree ruling I a principal involving projects in of size on com- der train, that the amendment 389.- one automobile with one parison § required may 640 which the commission consist of to ac- when the train particularly any agreement cept entered into after the to 150 more anywhere from one date of the may effective amendment alloca- also affect factors cars. Other crossing controlling allocating tion of costs is not in order commission’s not, That amendment on my presented this case. does in the commission may be type validate the of ordinance opinion, con- remand. public anvil on the policy out hammered
For the reasons in stated this dissent and certain recognizes apparently It discussion. Seiler, J., those stated in the I dissent principles accepted economic generally City City would overrule Kansas v. Kansas (like utility conditions, a wit: That Co., Ry. Terminal Mo. S.W.2d service, nature etc.) in its water, is car gas, authority and hold that the exclusive is inade- competition monopoly; in is to allocate costs mentioned 389.640 in exists, and, if it public, protect quate to the Public Service Commission and that the waste; economic likely to become 1909 ordinance involved in this case is void place regulation takes state insofar it undertakes to allocate costs of regula- competition; stands crossing improvement over 200-year pe- patron or respect tion, from command riod. the name of owner, be in utility must However, because, my opinion, in the al- effective, state, overlord, to be respect building location order with intelligent visita- power of possess the must improvement was not based every plenary supervision tion evidence, competent substantial I finally (however in- feature business would reverse the order the circuit court quality of in rates visible) reflected which affirmed the order of the commission every expendi- recognizes service. and remand the matter to the commission stock, dereliction, every ture, share of every for a full hearing the cost allocation finally surely is bond, issued as or note question. service to quality reflected rates reasons, For the foregoing I dissent. which arises public, does the moisture in rain finally descend atmosphere in the (em- unjust nilly” willy just and SEILER, upon the Judge (dissenting). supplied). phasis I respectfully required, This dissent. opinion, 389.640, my because Sec. subd. said, my opinion, It cannot be 1969, provides RSMo that “The commission only here is interest shall have the exclusive to determine also has the viaducts. expenses provid- of service quality an interest such viaduct and re- [of City Terminal Railroad Com- ed city] construction between the railroad and Railroad If Kansas pany. (emphasis supplied). This per cent Company has to provides the 1909 contract which otherwise of the viaducts repair and reconstruction yield must to this exercise of the (this being the years next 134 over the
power of the state. year remaining in the 200 of time *16 balance such burden contract), it could become on ourselves enlightening to refresh It is company have no railroad the Public purpose of overall the broad Its money any purposes. other left Act, deals with which Commission Service might deteriorate. Its of service quality are mo businesses regulation Other might become unsafe. equipment in is in this such as the nopolies, It disrepair. -into might fall viaducts first case to As was said stance. of these broad considerations because Act, Utilities new Public analyze the then give saw fit to legislature City v. rel. Kansas ex on Inf. Barker State ap- power exclusive Commission 515, 163 Company, 254 Mo. City Gas costs such repair and reconstruction portion 1914): (banc 857-8 to be con- There had as are here involved. law bottomed more than immediate is an elaborate sidered “That act making safe. There also evidences the viaducts police power. had range ques- the long considered were safe see viaducts tions of how to what Judge extent the cost of comparable situation would be repairs ability would affect the railroad’s example. Finch’s But this is not what operations conduct its as a railroad. What provides we my opinion statute and in the 1909 contract does as the ma- ruled should not arrive at a result which is the jority opinion per to make cent cost opposite pre- exact of what statute repair reconstruction of the position viaducts scribes. mere statement a first priority on the assets of the railroad that the contract before us controls who company. may happen Whatever else every subway the pays for each and viaduct or railroad company must for next city re- might now or which the years pay percent charges in- quire the construct for the bal- railroad to volved prove and this could year disastrous to of the full hundred term ance two operation. majori- balance of their invalidity the contract demonstrates ty opinion removes from the Commission against contract as the exercise of determine what is best of the state set forth in Sec. as of the time it 389.640, is called subd. 22. decide. expressed by concur in the views I also put In the example by Judge Finch about BARDGETT, J., dissenting opinion his requiring ordinance elimination of , herein. toilets, outdoor while the force of the ordi-
nance against was directed the landlord or
owner and he would be the one who would prosecuted outdoor toilet were not
removed, it pub- made no difference to
lic health paid who for the
improvement, long so as the outdoor toilet NIBECK, Respondent, Donald G. replaced by removed and an inside toilet.
But in our the statute makes no DISTRICT, WELLSTON SCHOOL attempt against party to direct its force one Appellant, or the fix repairs. other to the cost of Instead it this to the leaves exclusive deter-
mination of the Public Service Commission. System The Public School Retirement This is the case because in utilities Missouri, Defendant. pays does make a difference who and how No. 58701. much; regulation a monopoly is involved and reconstruc- Supreme of Missouri, Court tion is one of the factors which affect the Division No. 2. utility overall ability being regulated June 1975. perform public. to the services Allo- important objective cation of for Rehearing costs is Motion or to Transfer en sought. July Banc Denied *17 parallel For our example case to be Finch,
put by Judge statute would provide city (or railroad) all the costs of and recon-
struction on viaducts. could then said only was to interest state