257 S.W. 462 | Mo. | 1923
Lead Opinion
This is an appeal from a judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission in the case of Kansas City, appellant, and Ellen Cunningham et al., interveners, against the Public Service Commission et al., respondents.
The order of the Public Service Commission granted permission to the railway company to construct its tracks along and across certain streets in said city without having obtained authority from the latter so to do. The interest of the interveners arises from their ownership of *190 lots adjacent to the streets sought to be appropriated as rights-of-way by the Missouri, Kansas Texas Railway company, one of the respondents.
I. Neither convenience, expediency nor necessity are proper matters for consideration in the determination of the issue here submitted. Either or all of these can only be urged in support of an act of the Commission clearly authorized by the statute. We say clearly authorized because the statutoryConvenience origin and administrative character of theand Necessity. Commission render it necessary that its power be warranted by the letter of the law or such a clear implication flowing therefrom as is necessary to render the power conferred effective. It is conceded that express power to make the order in question is only to be found, if it there exists, in Sections 49 and 50 of the Public Service Statute (now Secs. 10458 and 10459, R.S. 1919). It appears, however, that there is an earlier general statute (Sec. 9850, R.S. 1919) limiting the power of railroad companies to use or occupy the streets of a city which is contended by the respondent to be in conflict with the sections of the Commission Act above cited. As a prerequisite, therefore, to the exercise of the power claimed to be conferred on the Commission by these sections it must be held that they repeal Section 9850. An analysis of these statutes is necessary to the determination of this question.
Section 10458 is as follows:
"If, in the judgment of the Commission, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation in or in connection with the transportation of passengers or property ought reasonably to be provided, . . . in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers or property, the commission shall, after a hearing, either *191 on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street railroad corporation is hereby required to make all repairs, improvements, changes and additions required of it by any order of the commission served upon it. . . ."
Section 10459 is as follows:
"1. . . . Nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade . . . without having first secured the permission of the commission. . . . The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.
"2. The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of . . . a public road or highway by a railroad or street railroad, and of a street by a road or vice versa, so far as applicable, and to alter or abolish any such crossing. . . ."
And Section 9850 is as follows:
"Every corporation formed under this article shall, in addition to the powers hereinbefore conferred, have power: . . . third, to lay out its road, . . . and to construct the same . . . fourth, to construct its road across . . . any street. . . . Nothing herein contained shall be construed to authorize . . . the construction of any railroad not already located . . . across any street in a city . . . without the assent of the corporate authorities of said city. . . ."
II. The power conferred on the Commission by these sections is purely regulatory. In fact, the entire power of the Commission may be thus characterized. The dominating purpose in the creation of the Public Service *192
Commission was the promotion of the public welfare. This is sought to be effected by regulation which seeks toPowers Purely correct the abuse of any property right of aRegulatory. public utility and not its use. The exercise of the latter would involve a property right in the utility which the Commission does not possess. This distinction while usually made in the adjudicated cases in considering the property rights of public utilities is nevertheless applicable in defining the limits of the power of the Commission as affecting the general public as in the case at bar. "`It must be remembered", as Mr. Justice BREWER said in effect in Interstate Commerce Commission v. Chicago Great Western Railway Co.,
These general observations as to the character of the power with which the Commission is invested finds its confirmation in the sections under review. Section 10458 has to do with the manner in which the entire superstructure of railroad companies is to be used; and the power of the Commission in regard thereto is limited to the regulation of repairs, improvements, changes and additions. Each of these terms is clearly indicative of a legislative purpose to confer power upon the Commission to improve conditions then existing, but not to create new ones. The power thus conferred is mandatory (State ex rel. U. Rys. v. Public Service Comm.,
However, it is provided in Section 10459 that application by a railroad company for permission to construct its track across a road, highway or street at grade shall be made to the Commission whose permission shall be a condition precedent to the exercise of the right. The permission thus required by the terms of the section is limited to grade crossings. That limitation not being necessary to the determination of the question here requiring solution, is not ruled upon, especially in view of the fact that the Commission has ruled (Macon v. C.B. Q. Rd. Co., 1 P.S.C. Rep. l.c. 647) that its authority over crossings is general and is not limited to grade whether existing before or constructed after the law went into effect. It will be time enough for a consideration of that ruling when the limit of the Commission's power in that regard is at issue.
To anyone familiar with current history concerning the operation of railroads and the increased dangers occasioned by the manner of constructing and maintaining crossings, the reason for their special designation in a regulatory statute and the emphasizing of the power of the Commission in reference thereto, was primarily in the interest of public safety, although incidentally it may add facilities to the railroad company in the transaction of its business. In short, it was the public welfare and not merely commercial convenience that the Legislature had in view. It will be noted that the exclusive power conferred by the second subdivision of Section 10459 on the Commission, is not in reference to the granting of the permission to install crossings, but to the place and manner where they are to be installed, operated and maintained. Whether this power therefore is general or limited there is nothing in the section or the entire act, when construed with reference to its evident meaning and purpose, which will lend substantial aid to the conclusion that the power of the Commission in regard thereto was intended to be exclusive.
However, we are particularly concerned here with the effect of the enactment of Section 10459 upon Section *194 9850. Generally the entire Public Service Act construedRepeal. in harmony with its letter and subject-matter offers no substantial support to the conclusion that it was intended to repeal any existing statute which under a reasonable interpretation of same could be held not to be in conflict therewith. The purpose of the Public Service Act and more especially of Section 10459, as we have stated with perhaps prolix iteration, was to so regulate the powers of railroad companies as to require that they comply with the rights granted to them and in complying that they do not abuse them.
The purpose of Section 9850 was to grant the charter powers therein enumerated to railroad companies. The powers thus granted with the limitations therein prescribed are in no wise in conflict with the Public Service Act. There is no rule of construction that we are aware of that will authorize the holding that a grant of power is in conflict with a subsequent statute regulating the exercise of such power. The Public Service Act itself clearly defines its own limits as to other statutes. After providing in stereotype terms as to the repeal of all laws, etc., in conflict with same, this repealing clause (Section 10550) is modified by the following: "The provisions of this law are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws." Section 9850 is neither in direct or implied conflict with the Public Service Act. On the contrary the latter may be held to be supplemental to the former. The lending of the police power of the State by the Legislature to the Commission suffers no curtailment by this ruling. The Commission therefore may act to the full limit of its defined powers when upon its own motion or the complaint of another, or the application of a railroad company, its permission is sought to construct a railroad upon or across any city street or county road. A prerequisite to the exercise of that right is the assent of the corporate authorities of the city or the county court of the county. A railroad company derives its charter powers from the State with the express limitation in *195 regard to the crossing of roads and streets prescribed in Section 9850. An attempt to ignore this limitation under the plea that the Legislature in enacting the Public Service Act stripped the municipalities named by remote implication of the power to control their thoroughfares does not accord with reason and is a violation by the company of its charter rights.
The construction we have given the foregoing sections is in harmony with the Constitution and the statutes authorizing the creation of municipalities. Section 9850 in this regard does no more than to recognize a well defined power of municipalities; and it deprives the Public Service Commission of no power necessary to effect the purpose of its creation. Not only in Section 9850, but in the legislative grant of powers to municipalities, whether in the form of a general law or a particular one incorporated in a charter, is this power expressly given to them. This power in its fullness is given to the Common Council of Kansas City. [Charter 1908, p. 133, sec. 11.]
Let it be granted, therefore, that the manner in which a street or road crossing is to be installed, used and maintained has been delegated to the Public Service Commission, the right in the first instance to grant or refuse this privilege has been reserved to the municipal authorities. That this division of the police power has been wisely determined no one familiar with the organization of cities and counties and the consequent importance, if not the necessity, of investing them with the right to control their highways, will deny.
In Holland Realty Power Co. v. St. Louis, 282 Mo. l.c. 190, this court held that: "Had the Legislature thought the wiser course would be to reserve the power to grant directly to such corporations the franchise to use streets, and restrict municipal control over the companies to an exercise of the police power, it could have done so — can yet at any time. But, instead, the power to grant or refuse, as well as to regulate the use of the streets, was delegated to the municipal authorities." *196
Other reasons than those adduced in construing the sections under review sustain the conclusion we have reached. Their discussion therefore is not deemed necessary. Municipalities have always possessed and under our system of laws still retain power to control their streets and roads. The primary right to exercise this power was not abrogated by the enactment of the Public Service Act.
We hold therefore that the assent of Kansas City is a legal prerequisite to the construction upon the streets named, of the tracks of the railway company; and whatever power, clearly defined by law, exists in the Public Service Commission in regard thereto is subordinate to that right.
The judgment of the circuit court is therefore reversed.Woodson, C.J., and Graves and White, JJ., concur; James T.Blair and David E. Blair, JJ., dissent in separate opinions filed; Ragland, J., dissents.
Dissenting Opinion
This dissent is founded upon the view that the majority opinion makes no ruling which warrants the judgment it orders. In that opinion it is held that Section 9850, Revised Statutes 1919, is not repealed by Section 10458 and 10459, Revised Statutes 1919. This is the basis of the conclusion it reaches. Section 9850 is treated as if it granted cities the power effectually to deny railroads the right to cross their streets. In fact, it merely provides that its provisions shall not destroy that power. It does not confer the power. It does not destroy it. Appellant's power to prevent a crossing is found elsewhere. The competency of the Legislature to abolish that power is not questioned (Sec. 16, Art. IX, Constitution of Missouri; State ex rel. v. Jost, 265 Mo. l.c. 71, and cases cited,) but the ruling is simply that the Public Service Commission Act does not repeal Section 9850, "and therefore" the judgment is reversed. Other things are said in the opinion. Certain assumptions are made in it; but that is the single ruling. The decision is that *197 the judgment must be reversed. This contains the necessary implication that the order of the Commission is either unreasonable or unlawful (Secs. 10522, 10534 and 10535), since these are the only issues which can be tried on certiorari to the Commission in the circuit court, as the cited sections show. It is not intimated in the opinion that the order, if lawful, if within the Commission's power, is unreasonable. In fact, that question is expressly laid to one side. It is, therefore, necessarily implied in the order of reversal that the order is unlawful, is beyond the power of the Commission. Now, this is an appeal from a judgment of the circuit court affirming an order of the Commission. That order reads as follows:
"This case being at issue upon complaint and answer on file, and having been duly heard and submitted by the parties and full investigation of matters and things involved having been had, and the Commission having on the date hereof made and filed its report containing its finding of fact and conclusions thereon, which said report is hereby referred to and made a part hereof.
"Now, upon the evidence in these cases, and after due deliberation, it is
"Ordered. 1. That the Missouri, Kansas Texas Railway Company and Charles E. Schaff, receiver, be and they are hereby authorized to construct standard-gauge railroad tracks, at grade, across Liberty Street, Seventeenth Street and Sixteenth Street, Kansas City, Missouri, at the points designated and shown on complainant's Exhibit `N,' filed herein.
"Ordered. 2. That these crossings be constructed and maintained by complaints, at their own expense.
"Ordered. 3. That this order take effect on June 4, 1921; and that the secretary of the Commission forthwith serve a certified copy of the report and order herein on the interested parties; and that the Missouri, Kansas Texas Railway Company and Charles E. Schaff, receiver, notify the Commission on or before the effective date of this order as required by Section 25 of the Public *198 Service Commission Law, whether the terms of such order are accepted and will be obeyed."
In the "report" to which the order refers and which is made a part of the order by reference (11 Mo. P.S.C. Rep. l.c. 262, 263) is found the following:
"Looking to the spirit and intent of the whole act creating this Commission, and to Section 50 in particular, we entertain no doubt as to the Commission having jurisdiction of the subject-matter involved in the instant case.
"As to whether or not our jurisdiction is exclusive, or of a concurrent nature with Kansas City, we express no opinion believing, as heretofore indicated, that decision thereof falls wholly within the functions of the courts."
The order of the Commission is not based upon any idea that it has power which excludes a city's right to prevent a railroad from crossing a city street. The order of the Commission and the report incorporated therein put that beyond doubt. It is not denied in the majority opinion that the Legislature has power to require that a railroad must secure permission from the Commission before it may cross a city street, and it is not and cannot be denied that Section 10459 requires that very thing. If this provision is valid, and its validity is not questioned by the majority, and if, in addition, other provisions abolish the city's power to deny the right to cross a street, the judgment ought to be affirmed; not because the Commission has exclusive authority, but simply because it has authority — because its permission is essential. The question in this case is whether the law makes the Commission's consent necessary, and not whether the consent of some other authority also must be secured. If the city's power to prevent a railroad from crossing one of its streets remains, it is in no way weakened or impaired by reason of the provision in Section 10459 that permission to cross must also be obtained from the Public Service Commission. It does not follow from a hoding that the Legislature did not abolish the city's power, that it did not succeed in making the Commission's *199 permission a prerequisite to crossing a city street. In express language the statute requires the road to have the Commission's permission, no matter what other authority is required to consent. The most that can be said of the ruling is that it would require the road to have permission from both the city and the Commission; either may deny the road the right to cross; both must concur in granting the right to cross. If this is true, and true it must be if the principle announced in the majority opinion is sound, and if the Legislature may invest the Commission with the power with which it clearly has attempted to invest it, then there is no reason for reversing this judgment on the ground given in the majority opinion. If the power is concurrent, it cannot be successfully argued that permission must first be secured from the city rather than from the Commission, nor from the Commission rather than from the city. The order of business is not important. If permission from both is secured, that will authorize the road to cross the street even though one grants permission a little earlier than the other. If could not be required that permission be secured from both at the same instant. The present situation is that the court is holding, without saying so in so many words, that the fact that the Legislature did not abolish the city's power, prevented it, in some way, from conferring a concurrent power upon the Commission; or, that the fact that the consent of both is required and that one has consented in advance of the other renders that consent void and justifies the reversal of the judgment affirming the permissive order. It cannot be that the failure to repeal Section 9850 and the like invalidated Section 10459. Nor does the failure of the city to consent devest the Commission of its power to give consent, for whatever it is worth, as the statute authorizes it to do or refuse to do, as it may be advised.
The question of the city's power in the premises is not in the case, and cannot be injected by arguments of counsel. It does not arise on the record. No decision of the question of the city's power can support a judgment of reversal in this case. If the city does not consent and *200 its consent is necessary to authorize the road to build across the street, then a way can be found to prevent the construction not consented to by the city, when that construction is begun. Whether the consent of the city is essential may be litigated then. It ought not to be determined in a case which involves a merely permissive order which, if the statute is valid, the Commission has the power to make and must make before the road can build across the street, whether or not the city can refuse to permit the crossing.
It is argued by respondent that a designated constitutional provision authorizes the road to build across city streets without the consent of either the city or the Commission. This is denied by appellant. Respondent seeks to uphold the judgment which affirms the order of the Commission. The constitutional provision mentioned cannot aid respondent in its effort to sustain the order. The order is based upon a statute which is invalid if this contention of respondent is sound. Unless the statute is invalid the order is good. If it is invalid the order is without authority, and this judgment should be reversed. The respondent cannot set up the constitutional provision except as against the statutes which requires it to secure permission from certain authorities and these will include the Commission whose order it sought, secured and seeks in this proceeding to sustain. That is the issue here. The city cannot set up the constitutional provision to invalidate the statute upon which the order is based, without arguing for a principle which destroys the statute upon which it founds its claim that it may deny the road the right to cross the street. This question, it is not surprising to discover, was not raised before the Commission or in the circuit court. It is not for determination here.
The judgment should be affirmed without attempting to decide the question whether the city may deny the company the right to cross the street despite the permission already secured from the Commission. That question can be decided when some record in this court presents it. *201
Dissenting Opinion
I am unable to concur in the opinion of my learned brother WALKER, and feel that I should state the reasons compelling my dissent. Those reasons have already been stated in an opinion previously written by me, and I still adhere to the views therein expressed. I now use so much thereof as is necessary to understand my dissent.
The sole question for our consideration is whether the assent of the city is a prerequisite to the right of the railroad to build its tracks across public streets of said city. Appellants rely upon Section 9850, Revised Statutes 1919, being part of Chapter 90, Article II, in relation to railroad companies. So much of said section as is of interest here reads as follows:
"Every corporation formed under this article shall, in addition to the powers hereinbefore conferred, have power: . . . third, to lay out its road, . . . and to construct the same; . . . fourth, to construct its road across . . . any street, . . . Nothing herein contained shall be construed to authorize . . . the construction of any railroad not already located . . . across any street in a city . . . without the assent of the corporate authorities of said city . . ."
If this section is now in full force and effect, it is apparent that the railroad cannot construct its tracks across Sixteenth, Seventeenth and Liberty streets without the assent of the corporate authorities of Kansas City and the order of the Commission cannot be sustained. The cases of Lockwood v. Railroad Co.,
Section 10458 reads as follows:
"If, in the judgment of the commission, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation in or in connection with the transportation of passengers or property ought reasonably to be provided, . . . in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers or property, the commission shall, after a hearing, either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street railroad corporation is hereby required to make all repairs, improvements, changes and additions required of it by any order of the commission served upon it. . . ."
The applicable portion of Section 10459 reads as follows:
"1. . . . Nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade . . . without having first secured the permission of the commission. . . . The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.
"2. The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of . . . a public road or highway by a railroad or street railroad or of a street by a railroad or vice versa, so far applicable, and to alter or abolish any such crossing. . . ."
Said section then proceeds to provide for the separation of grades, etc. *203
Appellants contend that said Section 9850 is in full force and is unaffected by the enactment of said Sections 10458 and 10459, and that the assent of the municipal authorities before the railroad can extend its tracks across the streets of the city is still required. Section 10550, Revised Statutes 1919, expressly repeals Sections 9568, 9569 and 9570, Revised Statutes 1909, and all other laws and parts of laws in conflict with the Public Service Commission Act and concludes as follows:
"The provisions of this law are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws."
Appellants lay great stress on the language quoted from Section 10550. However, such language is but a statement of the general rule governing repeals by implication. [36 Cyc. 1073; State ex rel. v. Wells,
It is apparent that under Section 10458 the Commission has full power to require the railroad and its receiver to furnish better and more adequate facilities. Such being the case, the Commission must of necessity have implied power to require said railroad to do whatever is necessary to comply with such order, even to the crossing of streets and highways. [C.B. Q. Railroad v. Cavanaugh,
There is a finality in the language of subdivision 1 of Section 10459 when read as a whole, which admits of no divided authority. If the last sentence of said subdivision *204
had not been added and the provisions of subdivision 2 had been omitted altogether, there might be some room for the contention made by appellants that the giving of the permission of the Commission to the construction of grade crossings is only required for the purpose of protecting the public from dangers incident to the use of grade crossings and not intended to take the place of the city's assent; but when it is provided that such permission may be granted upon such terms and conditions as the Commission may prescribe or may be refused altogether, complete finality in the decision of the Commission is fully expressed. This is emphasized in subdivision 2 by the provisions that the Commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of a street by a railroad, and to alter and abolish any such crossing. These provisions refer to grade crossings only, and are followed by provisions applicable to separation of grades. The requirement of assent of the city under Section 9850 implies the right of the city to make its own terms for the giving of such assent. [St. Louis Ry. Co. v. Kirkwood,
Section 10459 gives the Commission the power to alter or altogether abolish grade crossings. The railroad might secure the assent of the city, followed by permission of the Commission, and then construct its crossing at grade, and immediately conditions might arise where the Commission might reasonably see fit to abolish *205 such crossing, and the fact that the city had given its assent and was willing for the crossing to remain, or even insisted upon it remaining, would present not the slightest legal objection to the action of the Commission in abolishing the crossing. The right to exercise the power to abolish such crossing is inconsistent with the necessity for the city's assent.
By subdivision 2 of Section 10459 the Commission has exclusive power to determine and prescribe not only the manner, but the particular point of crossing. The city might condition its assent upon the crossing being made at a particular point at which the Commission, in the exercise of its exclusive power, might not sanction the crossing to be made.
Under subdivision 2 of Section 10459 the Commission has the exclusive power to apportion the expense of installing and maintaining grade crossings. A portion of the expense may be taxed to the city. The city might condition its assent in such manner as to avoid payment of any portion of the expense where the Commission had ordered otherwise. Here again conflict appears.
To hold that the assent of the city and the permission of the Commission are both essential is to convict the Legislature of doing an unwise thing and creating conditions which lead to chaos. If the city's assent is necessary, it can be as arbitrary as it pleases in granting such assent. It can require that the railroad employ a watchman at the crossing as the condition of its assent, while the Commission might think gates necessary and condition its permission upon such requirement. The city might utterly refuse its assent to the crossing if the railroad was permitted to use an electric crossing bell, while the Commission might make the requirement that the crossing be authorized solely on condition that such electric crossing bell be installed. The railroad could not comply with both. The Legislature would thus be convicted of imposing upon the railroad a conflict of authority.
By Section 10459 the entire subject of railroad crossings is placed under the jurisdiction of the Commission. *206
The first subdivision deals with grade crossings; the second wth grade crossings and those not at grade. Appellants seem to contend that the permissive order of the Commission is required for grade crossings. The provisions that the Commission shall prescribe the terms upon which separation of grades shall be made and shall apportion the expense between the railroad or street railroad and the municipality, places complete control in the hands of the Commission over crossings not at grade. [State ex rel. Light Power Co. v. Public Service Comm.,
At least in the particulars above pointed out there is serious and irreconcilable conflict between the two sections, and Section 9850 should be held to be repealed by implication in so far as the assent of the city is concerned. A reason for repealing said section suggests itself — a legislative reason, and one not the business of the courts. The assent of the city provided for in Section 9850 is an assent which might be capriciously given or withheld, while the order made by the Commission is reviewable in the courts, and if its order granting or refusing permission is unreasonable such order can and will be set aside oncertiorari.
There is nothing in State ex rel. United Railways Co. v. Public Service Commission,
The police power exercised by the city over its streets is only a power delegated by the State. The police power is inherent in sovereignty, that is, in the State. The municipality can make no claim of inherent right to exercise police power over its streets as against a delegation of the exercise of that power to another agency of the State. [Peterson v. Railroad,
There is a further question raised in the brief and argument of counsel for the Missouri, Kansas Texas Railway Company which is not considered in the majority opinion. That question should be disposed of before the judgment of the trial court sustaining the order of the Public Service Commission may properly be reversed. Counsel for the railway company contend that the provisions of Section 13, Article XII, of our Constitution, *208 make unnecessary the assent of the city, and inferentially, for that matter, the assent of the Commission as well. I will not here undertake to consider that question because it is unnecessary under the views I hold as to the applicable statutes.
For the reasons stated the judgment of the trial court should be affirmed, and I respectfully dissent to the contrary conclusion reached by the majority.