40 So. 263 | Miss. | 1905
Lead Opinion
delivered the opinion of the court.
This is a petition for mandamus to require the railroad company to erect a passenger depot within four hundred feet of Wilson’s crossing, in the town of Lexington, Miss., on its right of way. The averments are that the appellee operates a railroad from Tchula, Miss., to Durant, Miss., through Lexington; that its operation of so much of said railroad as extends eastwardly from Lexington to Durant has been from 1886 under a lease from another railroad company, the West & East Railroad Company, which had before then built it and erected a passenger and freight depot in'the town, which has ever since been used by appellee; that in March, 1904, the state railroad commission, on proper petition, with appellee notified and represented, ordered appellee to establish a passenger depot within four hundred feet of Wilson’s crossing in the town, north of its track; that no attention has been paid to the order, but the original depot is used, which is, and always was, inconvenient and inaccessible to the people and business, and never such as was reasonably necessary for public convenience, whereas one built and used at Wilson’s crossing, or near it, would be; that the old depot is about three-quarters of a mile distant from the business and residence part of Lexington, separated from it by two high hills and a creek, and in an almost uninhabited part of the town; and that appellee has been fined five hundred dollars by the state railroad commission for refusing to obey its order. There is a
Section 4302 is as follows: “Every railroad shall establish and maintain such depots as shall be reasonably necessary for the public ’convenience, and shall stop such of its passenger and freight trains at any depot as the business and public convenience shall require; and the commission may cause all passenger trains to permit passengers to get on and off in 'a city at any place other than at the depot where it is for the convenience of the traveling public. And it shall be unlawful for any railroad to abolish or disuse any depot when once established, or to fail to keep up the same and to regularly stop the trains thereat, without the consent of the commission.”
Section 4309 is as follows: “The commission may designate the site or location of any new building or station house which may-be ordered erected in cases where the site selected by the railroad officials is inconvenient or inaccessible; but every depot must be located with due regard to the interest of the railroad and the public convenience.”
In order to throw what light there may he derived from other legislative enactments on the. grave question here presented, we
We also reproduce Laws 1890, ch. 88, sec. 4, p. 107, as follows: “Every railroad company shall establish and maintain such depots as shall be reasonably necessary for the public convenience, and shall stop such of the passenger and freight trains at any depot as the business and public convenience shall require; and it shall be unlawful for any such company to abolish or disuse any depot when once established, or to fail to keep up the same and to regularly stop trains thereat, without the consent of the railroad commission. The railroad commission shall have authority to cause to be instituted and prosecuted all proper legal proceedings by mandamus or otherwise to enforce the provisions of this act.”
Interpreting this clause, this court, in State v. A. & V. Ry. Co., 68 Miss., 653 (9 South. Rep., 469), lays stress on the importance of having regard to the interest of the railroad companies as well as of the public, carefully guarding against a construction violative of the rights of such corporations. These rights must, of course, have due consideration in determining the object and effect of the order of the railroad commission in the case now before us. The courts must, by express legislative provision in the concluding clause of Code 1892, § 4309, above, give consideration to the rights of railroad companies. That clause of the section which relates to the construction of new statión houses is: “But every depot must be located with due regard to the interest of the railroad and the public convenience.” The order of the railroad commission in the case in hand, after directing the building of a “passenger depot,” which
It seems that a railroad must provide depots for towns.' A
Judge Trult concurs in the conclusion of affirmance, but on the specific ground that the order of the railroad commission requires the maintenance of two separate, detached depots — one for freight and the other for passengers. This he thinks ultra vires. On the power to order a new depot in a town, when one is already built and in operation, and to designate its location, he thinks it unnecessary now, to give a decision, and intimates no opinion either way. Personally, I have seen fit as a judge to express my views. Corporations are entitled to some protection under the laws, if our laws are to be just and equitable. If any number of depots may be ordered by the commission to suit populations as they may be centered in cities and towns, how many should be in New York or Chicago, with two or three millions of people and with miles of business centers ? It is no answer to say these matters will be under the revisal and care of the courts. They are under this now. I have yet to hear of the courts abolishing a power clearly given by the people. If the claim of Lexington in this case be allowed under the supervision of the courts, any claim must be, and railroad companies might be bankrupted. In my judgment, the opinion of Chief Justice Whitfield in dissent does not show a correct conception of the order of the railroad commission or of the authorities it cites. To avoid elaboration, I merely call attention to the order as promulgated, and to the authorities produced, and to the current history of the whole United States, and to the suggestions .of practical common sense. Affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
The petition in this case alleges, and the demurrer admits, that the old depot “for freight and passengers which had pre
“Be it remembered that this day there came on to be beard tbe application of tbe citizens and of tbe town council of Lexington, Miss., for tbe establishment of a depot at or near Wilson’s crossing, on tbe line of tbe Yazoo & Mississippi Valley Railroad Company, in said town; and it appearing that said application had been beard at a previous meeting of tbe Mississippi railroad commission, and that after bearing evidence and argument said application bad been sustained, and the passenger depot ordered to be erected by said railroad company on its line at Wilson’s crossing; and it further appearing that said order had„ been suspended by a subsequent order entered by this board, and after said suspension all of tbe members of this commission, on May 3, 1905, went to Lexington, Miss., and in tbe presence of tbe representatives of the said railroad company, and of tbe petitioners, .examined the present depot at Lexington and its surroundings, and tbe site of the proposed new depot and its surroundings, and all circumstances relating to tbe respective advantages and
As I understand this order, it establishes a new passenger, depot, because the old one is inconvenient and inaccessible and does not meet the requirements of the public, but merely permits or authorizes the railroad company to continue to use the old depot for freight if it chooses. Code 1892, § § 4302, 4309, 4311, provides as follows:
“Section 4302. Every railroad shall establish and maintain such depots as shall be reasonably necessary for the public convenience, and shall stop such of its passenger and freight trains at any depot as the business and public convenience shall require; and the commission may cause all passenger trains to
“Section 4309. The commission may designate the site or location of any new building- or station house which may be ordered erected in cases where the site selected by the railroad officials is inconvenient or inaccessible; but every depot must be located with due regard to the interest of the railroad and'the public convenience. . . .
“Section 4311. The commission may require every railroad to provide sufficient depot, storage, and platform facilities, and shall hear all complaints that may be presented, in writing,' as to insufficient depot, storage, or platform facilities for freight, and shall make such order thereon to secure the same as the facts and the public convenience may. warrant.”
(1) I do not think that any fair construction of these sections will result in holding that the commission cannot order a new passenger depot in a town, even, unless the old one has -first been destroyed or abandoned and the railroad company has itself selected a site for a new one. I believe that in cities the railroad commission has power to require just as many depots constructed as the interest of the public may require. (3) Whether the railroad commission has the power, in a town, to compel the construction of a second, new depot for passengers, the old one being abandoned for passenger traffic, and at the same time require the railroad company to maintain a freight depot apart from the new passengér depot, is not necessary, in my judgment, to be decided at this time on this case. I interpret this order as simply commanding the erection of a new passenger depot. I do not understand it to command the railroad company to keep up the freight depot apart from the new passenger depot, but as
I think the power of the commission ought not to be unduly abridged. 'Great pains seem to have been taken in this case to act with discretion. The railroad commission actually went to Lexington and carefully examined the local situation, besides hearing full evidence. Its judgment is presumptively correct, and the discretion lodged in it is necessarily very large, from the very nature of the duties it has to perform. Regard must be had, in the matter of establishing freight depots and passenger depots, to both the public interest and the interest of the railroad company; but usually the number of depots, whether freight or passenger, and the separation of passenger depots from freight depots, are matters which must be left to the sound discretion of the railroad commission, acting upon full evidence and having in view the needs and demands of the rapidly-increasing population of towns and cities and the large development of the various business interests located therein. It is said that the provision that in cities there may be more stopping places than one indicates that there may not be more than one passenger depot in a town. Conceding, for the sake of the argument, the soundness of this view, I do not think it touches the present case, in my view of what the order of the commission means. I will refer, also, to authorities supporting my view generally. See the cases cited by the learned counsel for appellee—to wit, Hunt v. Chicago, etc., 130 Ill., 175 (22 N. E. Rep., 857); State v. Railroad Co. (Neb.), 24 N. W. Rep., 329 (52 Am. St. Rep., 424);