279 Mo. 455 | Mo. | 1919
Upon entry of the order considered in Missouri Southern Railroad v. Public Service Commission, a companion case, appellant attempted to abandon the operation of the spur tracks to which the Commission’s order applied. Complaint was made, and the Commission ordered its counsel to institute such legal proceedings as might be effective to compel a continuance of the carriage of freight over the spurs. Counsel thereupon instituted this proceeding by mandamus, and, upon the filing of the return, relator filed its motion for judgment, which was sustained and a peremptory writ awarded. This appeal followed.
The return makes numerous formal admissions and then admits appellant’s ownership and operation of its main line, and “that for several years prior to July 23, 1917, respondent [appellant here] main
It is then averred that in November, 1915, relator made an order prescribing rates for appellant’s railroad and that an appeal from that order is pending-; that under the rates in force appellant was not receiving adequate compensation; that the order of July 23, 1917, denying the right to enforce the $7.50 switching charge, further reduced appellant’s revenue $2000 per year, “and the commission in that case refused to grant to it higher rates or any other revenue from any other source, and the continued operation of Industrial Tracks 1 and 2 under said order would constitute a confiscation of respondent’s property to the extent of $2000 per year; wherefore, it says the Public Service Commission is estopped to complain that it ceased the operation of said trams, and the respondent [appellant] on that account had a right to abandon the operation of said industrial tracks;” that in its answer to Mooney’s complaint, appellant pleaded “that any reduction of its revenue, not compensated in some way by an increase elsewhere, would operate as a confiscation of the property” of appellant, in v-iolation of Section one of the Fourteenth Amendment to the Federal Constitution and of Section 30 of Article 22, of the State Constitution, and appellant “now pleads the provision aforesaid” of the Constitutions “in bar of the right of relator to the writ of mandamus prayed for in this action.” The return then avers relator’s authority to require appellant to operate the spurs is given solely by Section 110 of the Act of 1913, which requires a hearing, and no hearing has been had; that if Section 64 of the same act authorizes this proceeding,' which relator denies, still the writ should be denied because the spurs were built without a grant from the State, the operation thereof was voluntary, and appellant had the right to abandon them for good reason or no reason; that appellant
The contentions in the brief are that (1) the spurs are neither railroads nor parts of appellant’s railroad within the meaning of the law; (2) neither the Public Service Commission nor the courts have power to compel appellant to furnish transportation -not included in the exercise of its franchise;” (3) mandamus is a discretionary writ” . . . and the granting of this writ in this case was a gross abuse of the discretion of the court; and (4) the judgment rendered confiscates appellant’s property and thereby violates both the State and Federal constitutions.
I. The question whether the spur tracks fall within the regulatory power of the Commission is decided in Missouri Southern Railroad. Company v. Public Service Commission, page 484, a companion case.
II. ££It is settled that a railroad company in possession of its road may be compelled by mandamus to operate its road in accordance with the positive re-requirements of its charter.” [Elliott on Railroads (2 Ed.), sec. 458.] It is also the law that mandamus is the proper remedy to compel a railroad to perform a definite duty to the public. [Northern Pacific R. R. Co. v. Dustin, 142 U. S. 492; Railroad Co. v. Hall, 91 U. S. 343.]
Section. 64 of the Act of 1913 (Laws 1913, p. 600) makes it the duty of the Commission, whenever a carrier is doing or about to do anything in violation of law or an order of the Commission, or is omitting or about to omit to do anything required by law or order of the Commission, to direct its counsel to proceed in the courts by injunction or mandamus to correct or prevent the evil. Section 2 (Laws 1913, pp. 557, 558) defines a railroad as every railroad (except street railroads) “by whatever power operated for public use in the conveyance of persons or property for compensation, with all bridges, ferries, tunnels,. equipment, switches, spurs, tracks, stations, real estate and terminal facilities of every kind used, operated, controlled or owned by or in connection with any' such railroad. (Italics ours.) The term “rate” is defined as including, among other things, “switching charge.” [Laws 1913, p. 560.] The jurisdiction of the Commission extends to all “railroads” within the State and “to the person or corporation owning, leasing, operating or- controlling” them. [Laws 1913, p. 565.] The term service “is used in its broadest and most inclusive sense and includes . . . the plant, equipment, apparatus, appliances, property and facilities employed ... in performing any service.” [Laws 1913, p. 560.] The Commission is expressly vested with “the powers and duties in this act specified, and also all powers necessary or proper to enable it to carry out fully and effectually all the purposes of this act.” [Sec. 3, p 561.]
In State ex rel. v. Postal Telegraph Co., 96 Kan. 298, the Supreme Court of Kansas had before it a case involving the principle determinative of this case. That was a proceeding by mandamus to compel respondent to re-establish its telegraph office at Syracuse, abandoned because it proved unprofitable. Under a Public Utilities Commission Act substantially like our act so far as concerns relevant provisions, the Kansas Supreme Court held the company could not abandon the Syracuse office without applying to the Public Unitilities Commission for authority to do so.
In this State, as in that, the act provides a complete system for the regulation and control of public service corporations. [State ex inf. v. Gas Co., 254 Mo. l. c. 534.] The act adds to the powers expressly given to the Commission all others necessary to the full and
III. There is no valid constitutional objection to the judgment. The general scheme of rates and compensation was not involved. That an order of a Commission or a court concerning a particular facility may result m some financial loss does not necessarily bring it into conflict with the Constitution. [Atlantic Coast Line v. Commission, 206 U. S. 1.] Further, this question is not in this case. It might better be presented in a proper proceeding for leave to abandon the spurs.
Other questions raised are decided in Missouri Southern Railroad v. Pub. Serv. Commission, page 484, a companion case.