State v. Alabama & Vicksburg Railway Co.

| Miss. | Apr 15, 1891

Woods, J.,

delivered the opinion of the court.

The evidence in the record before us does not bring this case within the terms of section 4, chapter 88, Laws of 1890. That section forbids the abolishment or disuse of any depot when once established, without’the consent of the railroad commission. The Vicksburg depot is not shown to have been either abolished or disused. The mere site of the station-house for passengers has been changed, or is threatened to be changed; but the change of the site of the station-house for passengers from one spot to another in the same town, for reasons of convenience, or business necessity, or public good, is not the abolishment or disuse of the depot in such town. The legislative purpose was to prevent towns and communities being deprived of the uses and benefits of depots in their midst, after the same had been once established, at the pleasure or caprice of railroad companies. It needs no argument to demonstrate the distinction between abolishing a depot — wiping it out of existence— and merely changing its site in the same town, in order to render its existence more beneficial. We must not suppose the legislature intended to clothe the railroad commission with the power to fix unalterably the sites of station-houses in particular spots, in the absence of an express declaration to that effect; nor are we warranted, by any known rules of construction, in holding that railroads are forbidden to make convenient changes of sites for station-houses in a particular community, because they are forbidden to abolish — wipe out of existence — or discontinue the use of a depot at all in such community. The proposed change of site only may be made, we think, when the public interest and the interests of the railroad company concur in demanding it — provided, the new site selected be not inconvenient or inaccessible.

This brings us, now, to the chief ground of contention. Was the proposed change of site of the passenger depot to Cherry street one involving inconvenience and inaccessibility of location, regard being had to the interests of the public and the railroad company ?. The question is one of fact purely, but before proceeding to answer it, let us recall certain undisputed preliminary facts of great value in fairly determining the issue, viz : The railroad commission, on Feb. 9, 1888, made an order condemning the passenger depot of appellee at Vicksburg; on the 18th of March, 1889, the railroad commission ordered the construction of a new passenger depot at Vicksburg, and directed plans of such depot to be submitted to the commission for approval on or before the 15th of April, 1889; on the 7th day of May, 1889, the railroad commission ordered the ■erection of a new passenger depot at Vicksburg, in accordance with plans theretofore submitted to and approved by the commission, and the building was required to be completed within ninety days from the date of the order; this order for the erection of a new passenger depot was rescinded, on Sept. 16, 1889, by the railroad commission, because of the refusal of the municipal authorities of Vicksburg to permit the erection of the building; after the rescission, on Sept. 16, 1889, of the order of May 7, the old depot having been condemned, and the interests of the railway company and of the public alike requiring a new depot on a new and better site, as the management of the railroad saw the matter, work was begun and material gathered at Cherry street to erect a new depot at that point; the plans for the Cherry street depot were submitted to the railroad commission, either officially or unofficially, and approved by it with full knowledge of the fact that these plans were for a new depot at a new site; and no disapproval of the change was announced by the railroad commission; in this state of affairs the railroad company spent much money and made much preparation for building at Cherry street, and actually began the erection of the new depot at that point; on the 8th day of July, 1890 [about nine months after the railroad commission had rescinded its order directing a new depot at the old site], the railroad commission cited the railway company to appear before it on July 18, and show cause why it should not cease work upon its new depot, and why it should not be required to erect a new station-house on the old site, as prayed in a petition then filed with the commission by R. F. Beck, mayor of Vicksburg; on the 15th day of July, 1890, the railroad commission, by its order, declared the Cherry street site inconvenient, and ordered the new depot erected, in effect, on the old site, in accordance with the plans and specifications prepared for the Cherry street site, and with no sort of reference to the old one.

It must be borne in mind, furthermore, that when this last order of the railroad commission was made, the city authorities of Vicksburg had not consented to the closing of South Madison street— a step indispensably pre-requisite to the erection of the new depot on the old site — and that this consent was given afterwards; and it is not to be forgotten that, so far as disclosed by the record before us, the property-holders on South Madison street have never given their assent to the closing of that street.

In this attitude of the matter, the chancery court of Warren heard much testimony on both sides of the question, and found, as matter of fact, that the Cherry street site was not inconvenient and inaccessible, due regard being had to the interests of the railway company and of the public, and this finding we do not feel authorized to disturb. While much evidence was offered for appellant, the preponderance of the proofs on this controlling point in the case, as it appears to us, is with the appellee. The reasons for making the proposed change of site, and for a separation of the freight and passenger business, are great and apparent. That the interests of the railway company, and the interests of the business world having relations with the freight department of the railway will be promoted by the change of site seems clear also. Possible hurt may accrue to traders and others on Washington street, near the old depot, and inconvenience to the local travelling public going into Vicksburg, but not beyond, may result from the change, but to the extent only that Cherry street is farther from the business centre of the city, by a few blocks, than the old site.

The record fails to show, in a large and general and correct sense, that Cherry street crossing is inconvenient or inaccessible, regard being had to the interests of the railway company and the public, and the demonstration of this great fact was the burden assumed by appellant in this controversy.

In this view of the case, it becomes wholly unnecessary to consider the many other questions sought to be pressed upon us for determination. Affirmed.