*1 by years, five or than by imprisonment penitentiary the- not more dol- thousand more than five a fine not less than one hundred nor nor jail less than lars, not imprisonment or ’’ months, imprisonment. twelve both such fine more than or what article under Count five-of the information does not disclose fail organized. special district was of the statute the road prohibits law a member of the special find where the road district upon the roads performing road commission from labor for hire 8076, 10, provisions Article his district other than the of Section Chapter 42. Chapter provision in Article No such is found organized. The special under which article road districts only alleged in claim fact to taint information tends illegality performed is the fact claim was services that the respondent. law, Article Since' the road district under Chapter prohibit a member does not of the board of commissioners receiving pay performed' for labor duties outside of his official question certainly as a commissioner the section in cannot be con felony. allega strued to make: the allowance' such a claim a tion information that the services “had not been authorized provided required by or done law” is a mere conclusion and charge itself respondent sufficient to with a crime under question. section The- information should set forth the facts ren dering illegal the claim and should in what manner respond state corruptly ent illegal Taking voted for the allowancé .anof claim. all alleged in- true, the facts the information as exclusive of the con pleaded, charge it clusion does not a violation of Section 4090. The was, therefore, court sustaining trial correct in the demurrer to the latter three counts of the information. Cooley Fitzsimmons, CC., affirmed. concur. PER foregoing opinion CURIAM:—The C., "Westhues,

adopted Leedy Tipton, of the court. JJ., concur; Ellison, J.,F. absent. at the Relation to the Use

State of Missouri Rock Railway Appellant, Island Company, & Pacific Serv ice Commission, Stahl, Milton R. Almon Ing, Porter, H. J. H. George English, individual J. members Fred Hull H. the Public Commission.—72 W. Service 101. May Two,

Division 1934.* Opinion September Term, .1933, *NOTE: -filed at February 23, 1934; filed; rehearing May Term,’ motion for May 17, motion overruled at *2 Luther Burns, Henry C.onrad, Durham, Houts, Sr llus L. IS. Hale Wright Lee and M. .appellant. Conrad for

T>. respondents. McDonald D. *3 FITZSIMMONS, Missouri, C.—The Public Service Commission of application County, of St. Louis ordered the Railway Company Rock Island and Pacific to recon- subway struct the at the intersection of Woodson Road and the com- County. pany’s track in Louis expense The net St. to the railroad according company of the ordered work directed to be equal followed, company’s estimates, division of costs and the Upon certiorari, petition $6947.50. amounts to at the County gave judgment affirming the Circuit Court of Cole the From this company commission. appealed to this court. company

The contended before the Public Service Commission and urges in the and it circuit court this court that it pay should not

18B any part constructing cost first is tbe tbe conduit. Its reason inadequate expenses that its operating are to meet its current revenues charges, comply and fixed and therefore it cannot with tbe order requiring the commission a net Its second reason dangerous brought is that tbe condition of the intersection was about ex-, by.St. County Road inclusion Woodson Louis its program highway improvements. tensive And in the execution program county, relator, of this in- consultation without perils creased by changing course intersection of Wood- point passage son Road near the beneath the railroad. major following record shows the facts: Woodson Road

highway County. of St. Louis It runs from St. Charles Rock Road on the north to Olive Street Road on Road the south. Charles St.

is the route S. Highways of U. and 61. Both St. Road Charles’ Olive Street Road main are arteries of into' and travel out city Louis. population St. of the communities served 15,000. the Woodson parallel Road The nearest roads three are miles east and respectively. point west At feet south of Page Avenue, single Woodson Road intersects the main line of track the Rock Island passes Railroad. The track what above the road on heavy 12-panel, deck, described as a loading, proof pile fire trestle. supports bents, The trestle pile are made of timbers. These 1‘ about apart. during are fifteen feet trestle built in what was age” known horse-drawn vehicle as the answer puts formerly highway, it. a dirt the railroad Woodson Road traveled, lightly especially but But St. Louis winter.

County improved the road with 20-foot concrete The traffic slab. every then increased to vehicles intersection. minutes *4 county also passes the course of the road so it now that angle 50 degrees beneath the at 70 trestle an instead of formerly. degrees right angle as Since a intersection would be along degrees, sight limitation highway the view the the toward 50-degree angle at a trestle be evident tes without further timony. witness, county engineer, person But one a stated that a driving northwardly along an automobile Road Woodson could beyond county changed see over feet the trestle. The the- course right angle of the road at the intersection to take out several turns. Road,

Beneath the trestle Woodson a 20-foot concrete slab else- where, space narrows to the between space two This bents. is fifteen end wide at one and eleven feet wide feet at the other. The result angle the acute and of intersection narrowed roadway is, stated, driving persons along one that witness automobiles Woodson opposite cannot each upon ap- Road directions see other their intersection, proach they pass cannot to each other at it. It de- trestle. The one-way highway beneath the change owing to the route longer to' its parallel áre ho limit the road traffic. vehicle motor peril This condition adds to

of course. witnesses All marks of collisions. bents bear of these timbers com- hearing before the at the county the railroad for' the and for n motor collisions was a hazard of that there mission admitted engineer of 'Korsell, assistant vehicles at the intersection. Mr. present structure. hazard to the is some- testified there lines, Mr, stated Island Ford, engineer of the Rock assistant chief "highway ob- stands, do bents in “as the matter now that, n " public traffic.” struct hearings At- first there before the commission. There were two' county on railroad were wide differences between the At the second change if should be ordered.- of alteration á 30-foot agreement plan' for a hearing they partial were girders to roadway, piers at each side and- steel clear with concrete county deemed tons of carry span.' the railroad' bver the sixty girders, insisted steel for1 -but' railroad sufficient commis tons standard construction. The would be accord with according to rebuilt underpass be sion ordered that conduit sixty-ton girders used, cotmty railroad plan,' "be and- the this to (cid:127) equally, county pay railroad to share the costs and-the to An $1408, agrééd present cost the' structure. retirement engineer, company, in the railroad the cost service 'of the estimated construction, according plan, this at Saif of to' this If retirement amount there subtracted the cost $8355.50, namely $1408 from the estimated present trestle,; one-half cost, first mentioned constructing $6947.50, there remains amount n ’ Ex company thé as the net to 'be made under order. perts placed $1753 called the" cost construction company sixty-ton stated on a basis. léss than 'the amount steel Concerning inability company pay to the' financial n any reconstruction, Ford, Mr. part the cost assistant chief statement, engineer, a financial -about which he offered income, testifies: “It shows that whereas thé Rock Island "had net provision no dividends, of some seven operating million expenses, twelve dollars over above they $903,778, far, ran behind so for the first three months year (1932) are-$2,546,794” they operating expenses. of this short of He employees also testified that the had reduced its force of company forty per cent on account of its financial condition. *5 any

I: We assignments do not see merit the of in relator’s .5171, provides error. Section Revised that the Pub Statutes have,the power “shall exclusive to determine lic Service.Commission prescribe crossing and the manner of each a public of road

QO a rail and of. highway by a railroad or street street or .railroad any versa, far as to alter or abolish practicable, and vice so road . proportion . . the crossing, prescribe such .and n - crossing or or abolition of expense of alteration such separation grades such be divided between shall corporations corporations between or street railroad or such affected in in county, public authority state, municipality and the or other affecting highways crossing A proviso terest.” that in cases the State appor construction more than one-half of the cost of- shall - This Highway is not this case. . tioned Commission to the State . by many deci statutory, been sustained power of the has commission Serv sions v. Public ex Town of this court. rel. Carrollton [State cited; ex rel. Comm., (2d) 26, ice 63 W. cases there State S. also W. 68 S. (Mo.), Public Alton Service Commission Co. Railroad (2d) Commission, 316 691; Rutledge State rel. v. Public Service ex W, affecting Mo. 289 S. The orders of commission 785.] that, subject crossings, body, like all other and decisions of are orders having reason purpose to review circuit -court for inquired determined. ableness lawfulness of such into or orders com In 5234, R..S. the instant [Sec. 19.29.] mission unlawful. evidence. -It or is-not sustained unreasonable court, circuit upon Therefore it conclusive on as it was this court which affirmed the ex. and to the use order. rel. [State Comm., 330 Great Western Co. v. Service Railroad ] Mo. 51 W. 73. Of whole cost reconstruction the contention County grade because separation should St. Louis be borne court, may say in the relator will derive no benefit we words of this Ry. Service City used rel. Kansas Southern v. Public State ex Co. Commission, (2d) 112, Mo. l. c.115: “There S. W. question the case. It

no assessment of benefits in is .a providing public safety by for the reasonable methods.’’ built, answer, relator in its commis trestle was stated before the age.” “in vehicle The nar sion what known as the horse-drawn reasonably supporting one-way passage row between' the bents was day. day vehicles, safe of motor it is full of But this perils of with -each other with the collisions of automobiles bents.

Expert county witnesses .railroad testified for the .and exist, degree, perils at these hazards. And these least some highway. if .the This had not the course of record, .that, made in order risks of realignment, other right damage injury -angle might turns removed.. .be point. support In .order.of commission violates the. clauses, of law Missouri process both- Constitutions due. States, Lehigh Valley United cites Railroad Co. relator *6 Utility Commissioners, v. Board of U. 49 Sup. Ct. Supreme Court, In that the United States in an by judgments Mr. Justice affirmed adverse to the railroad com- Taft, pany grade separation on a in which was a there difference $100,000 plan between the which the railroad advocated and the costly plan more which adopted. Supreme commissioners The Court, ruling against proposition railroad on the the ad- $100,000 ditional cost of reasonableness, was not within the limit of by said way (49 Sup. of caution Ct. 1. c. : “An from 72) increase crossing might $200,000 a railroad well, under dif- $300,000 ferent regarded circumstances from those here, be as so unreasonable as to make the order a company’s violation of the rights constitutional and to inbe the nature of confiscation. protection of the Four- teenth Amendment in such cases is real and is lightly not to be re- garded. If danger clear, reasonable care must be taken it, to eliminate police power and the may be exerted to that end. But it duty becomes the court, of the ques- where the cost is tioned, to determine whether it is within (Cases reasonable limits. cited.) emphasize this, We not because there it, is doubt about but because depreciate we the impression, ápparently entertained some, that in the safeguarding crossings railroad order of state authority local police exercise power escapes ordinary constitutional limitation of reasonableness cost.” not fit this case the evidence

These words of restraint do epitomized. answer which we add that relator’s before have county began time the commission reveals that for some before the action, negotiations county pro- parties. were between the there $40,634 while posed plan at an estimated cost of the railroad offered plans, for an Of these plan that called $31,135. relator answer: said respondent (railroad) expensive plan

“This feels the less adjusted adopted, get amicably should be but order to the matter agree upon plan proposed has offered heretofore to com- complainant (county) if plainant, would from deduct per proposed respondent pay, depreciated cent it that the should present value of the structure and the added cost incident changes alignment highway, solely which were benefit for the highway users, which proposal complain- declined ant.”

It is true that answer also discloses that the (at answer) its attitude so that it “now feels” time county should bear the figures, whole cost. But taken from answer, original parties reveal the touching views of the the reason- hearing ableness of the cost. At the commission, first before the county put plan for a 46-foot clearance and 40-foot roadway which have cost The railroad offered would kept have the timber bents. counter each of highway, with one plan provided first counter for two lanes $4,000. The bent between lanes. This involved a cost of second highway and plan all lane counter would remove the two *7 second, hearing were in parties would cost But at the agreement roadway. only objection plan for a was on 30-foot county’s proposal the railroad to tons overhead for its sixty steel. Relator contended tons the commission made accordingly. question In these of reason circumstances the regard the fact that ableness of cost has been eliminated without to $300,000, liability here the of the railroad amounts not a total to Lehigh Valley as in Railroad Co. but to supra, Concerning Ry. Util of Lake case Shore Electric Co. (Ohio Sup.), 552, 1932,

ities E. Commission N. decided authority proposition relator cites as of its for its that on account required financial any part condition it should not be to bear cost, we make rel. reference to our decision the case of State ex 832, Alton Railroad Co. v. Public Service Commission, Mo.

S. W. 20, December 1933. decided There we examined distinguished case. Ohio add that in the Ohio case proposed $100,000, bridge estimated cost of was in excess of order, required one-half of which the pay. to proves Relator’s own ability expend its- financial to safety. $6947.50 for a public betterment which is in the interest of we While do not upon income, concede that we turns 5, upon observe that plea relator’s Exhibit which it based inability financial pay any part of the cost of reconstruction is a years 1926, statement income 1927,-1928, account the calendar 1929, 1930, the first three months of The statement shows that years the total net income for the both in- clusive, operating expenses, accruals, over above equipment tax rents, roads, rents for deductions, $54,- leased interest and other 689,500. The same statement shows a net for 1931 and the loss $3,450,572, first three months or a net income of $51,238,- period for the whole covered There was no statement. capital evidence of the structure of wanting the relator. We are. knowledge general common condition of the railroad knowledge judgment business. But that should not overturn the this case. appearing,

No error circuit court is affirmed.

Cooley CC., WestJmes, concur.

PER foregoing opinion by C., CURIAM:—The FitzsimmoNS, adopted judges All the court. concur.