280 Mo. 456 | Mo. | 1920
Lead Opinion
This is a proceeding by mandamus to compel appellant railways to comply with relator’s order that an interlocking plant be installed at the intersection of their lines at Aurora, Missouri.
The order referred to, in so far as material to the issues, reads as follows:
“Ordered: 1. That the St. Louis, Iron Mountain & Southern Railway Company and B. F. Bush, its receiver, and the St. Louis & San Francisco Railroad Company and James W. Lusk, Wm. C. Nixon and Wm. B. Biddle, its receivers, be and they are hereby ordered to construct, maintain and operate an interlocking plant at Aurora, Missouri, in accordance with the plans filed with the Commission within six months after the effective date of this order.
“Ordered: 2. That the actual work of construction, operation and maintenance be carried out by the St. Louis, Iron Mountain & Southern Railway and B. F. Bush, its receiver. '
*462 “Ordered: 3. That the cost of construction, maintenance and*operation he divided as follows: St. Louis & San Francisco Railroad Company and its receivers, 75 per cent, and the St. Louis, Iron Mountain & Southern Railway Company and its receivers, 25 per cent.
“Ordered: 4. That the St. Louis & San Francisco Railroad’s portion of the cost of construction, maintenance and operation of said interlocking plant be paid in monthly installments to the St. Louis, Iron Mountain & Southern Railroad Company.
“Ordered: 5. That this order shall be in full force and effect on and after the 20th day of June, 1916, and that the Secretary of the Commission shall forthwith serve a duly certified copy of this order .and report on each of the parties hereto, and that the parties hereto notify the Commission within ten days after receipt of a copy of said order and report, whether the terms of the order are accepted and will be obeyed.”
Appellants are, respectively, the successors of • the defendants named in the order. For brevity, relator is hereinafter referred to as the Commission, and appellants as the Missouri Pacific and the “Frisco.” The predecessor of the Missouri Pacific accepted the order. The Frisco sued out a writ of certiorari in the Cole Circuit Court, which proceeding it subsequently dismissed. Thereafter, appellants took no steps looking to the carrying out of the Commission’s order, and that tribunal directed its counsel to institute this proceeding, which was done in April, 1918. Upon a hearing, the circuit court made the alternative writ mandatory, and both companies appealed.
On the hearings before the Commission and in this case in the circuit court the Frisco offered in evidence a contract, dated June 2, 1904, wherein the Iron Mountain, in consideration of a grant of “the right to construct, maintain and operate a single-track main-line railroad over and across” the Frisco right-of-way and railroad at Aurora, agreed, among other things, that whenever an interlocking plant ■ should be required at this crossing, either by tli'e Frisco or by law, the Iron
Appellant Frisco Company contends there is no basis in the evidence for a writ of mandamus against it; that the order of the Commission is invalid in that it unreasonably, arbitrarily and unlawfully ignores and violates the contract between appellants; that it impairs the 'obligation of that contract, takes and damages its property for public use without just compensation, takes its property without due process of law, abridges its privileges and immunities, and denies it the equal protection of the laws.
The Missouri Pacific, though appealing, aligns itself in support of the order of. the Commission and the judgment of the tidal court.
Respondent cites cases supporting the doctrine that: “All persons concerned in the separate but cooperative steps in the attainment of the result sought may be joined in one writ of mandamus. One writ of mandamus may issue against all the officers concerned in the separate but co-operative steps in the attainment of one result in the performance of a general duty.” The cases cited relate to the use of the writ against several public officials whose co-operative, though successive, action is essential to the end sought. This is not such a'case. The public is chiefly interested in the crossing protection. The division of expenses more particularly concerns appellants. When the plant is constructed and operated the purpose which constitutes the foundation of the right of the State to interfere is accomplished. This object is covered by the writ against the Missouri Pacific. It does not depend at all upon the payment of the sums which may become due from the Frisco to the Missouri Pacific.
The judgment as to the Frisco is reversed; that as to the Missouri Pacific is affirmed.
Concurrence Opinion
(concurring). — I agree to this opinion in so far as it holds that, under the order of the Public Service Commission, the Frisco is not now, nor was it at the institution of this suit, in default. If the opinion means that at the end of the month (admitting that the Missouri Pacific proceeds with the work under the Commissions’ order, and that the Frisco then refused to pay the monthly installments) the Frisco would not be in' default, under the order,