This dissent is founded upon the view that the majority opinion makes no ruling which warrants the judgment it orders. In that opinion it is held that Section 9850, Revised Statutes 1919, is not repealed by Section 10458 and 10459, Revised Statutes 1919. This is the basis of the conclusion it reaches. Section 9850 is treated as if it granted cities the power effectually to deny railroads the right to cross their streets. In fact, it merely provides that its provisions shall not destroy that power. It does not confer the power. It does not destroy it. Appellant's power to prevent a crossing is found elsewhere. The competency of the Legislature to abolish that power is not questioned (Sec. 16, Art. IX, Constitution of Missouri; State ex rel. v. Jost, 265 Mo. l.c. 71, and cases cited,) but the ruling is simply that the Public Service Commission Act does not repeal Section 9850, "and therefore" the judgment is reversed. Other things are said in the opinion. Certain assumptions are made in it; but that is the single ruling. The decision is that *Page 197 the judgment must be reversed. This contains the necessary implication that the order of the Commission is either unreasonable or unlawful (Secs. 10522, 10534 and 10535), since these are the only issues which can be tried on certiorari to the Commission in the circuit court, as the cited sections show. It is not intimated in the opinion that the order, if lawful, if within the Commission's power, is unreasonable. In fact, that question is expressly laid to one side. It is, therefore, necessarily implied in the order of reversal that the order is unlawful, is beyond the power of the Commission. Now, this is an appeal from a judgment of the circuit court affirming an order of the Commission. That order reads as follows:
"This case being at issue upon complaint and answer on file, and having been duly heard and submitted by the parties and full investigation of matters and things involved having been had, and the Commission having on the date hereof made and filed its report containing its finding of fact and conclusions thereon, which said report is hereby referred to and made a part hereof.
"Now, upon the evidence in these cases, and after due deliberation, it is
"Ordered. 1. That the Missouri, Kansas Texas Railway Company and Charles E. Schaff, receiver, be and they are hereby authorized to construct standard-gauge railroad tracks, at grade, across Liberty Street, Seventeenth Street and Sixteenth Street, Kansas City, Missouri, at the points designated and shown on complainant's Exhibit `N,' filed herein.
"Ordered. 2. That these crossings be constructed and maintained by complaints, at their own expense.
"Ordered. 3. That this order take effect on June 4, 1921; and that the secretary of the Commission forthwith serve a certified copy of the report and order herein on the interested parties; and that the Missouri, Kansas Texas Railway Company and Charles E. Schaff, receiver, notify the Commission on or before the effective date of this order as required by Section 25 of the Public *Page 198 Service Commission Law, whether the terms of such order are accepted and will be obeyed."
In the "report" to which the order refers and which is made a part of the order by reference (11 Mo. P.S.C. Rep. l.c. 262, 263) is found the following:
"Looking to the spirit and intent of the whole act creating this Commission, and to Section 50 in particular, we entertain no doubt as to the Commission having jurisdiction of the subject-matter involved in the instant case.
"As to whether or not our jurisdiction is exclusive, or of a concurrent nature with Kansas City, we express no opinion believing, as heretofore indicated, that decision thereof falls wholly within the functions of the courts."
The order of the Commission is not based upon any idea that it has power which excludes a city's right to prevent a railroad from crossing a city street. The order of the Commission and the report incorporated therein put that beyond doubt. It is not denied in the majority opinion that the Legislature has power to require that a railroad must secure permission from the Commission before it may cross a city street, and it is not and cannot be denied that Section 10459 requires that very thing. If this provision is valid, and its validity is not questioned by the majority, and if, in addition, other provisions abolish the city's power to deny the right to cross a street, the judgment ought to be affirmed; not because the Commission has exclusive authority, but simply because it has authority — because its permission is essential. The question in this case is whether the law makes the Commission's consent necessary, and not whether the consent of some other authority also must be secured. If the city's power to prevent a railroad from crossing one of its streets remains, it is in no way weakened or impaired by reason of the provision in Section 10459 that permission to cross must also be obtained from the Public Service Commission. It does not follow from a hoding that the Legislature did not abolish the city's power, that it did not succeed in making the Commission's *Page 199 permission a prerequisite to crossing a city street. In express language the statute requires the road to have the Commission's permission, no matter what other authority is required to consent. The most that can be said of the ruling is that it would require the road to have permission from both the city and the Commission; either may deny the road the right to cross; both must concur in granting the right to cross. If this is true, and true it must be if the principle announced in the majority opinion is sound, and if the Legislature may invest the Commission with the power with which it clearly has attempted to invest it, then there is no reason for reversing this judgment on the ground given in the majority opinion. If the power is concurrent, it cannot be successfully argued that permission must first be secured from the city rather than from the Commission, nor from the Commission rather than from the city. The order of business is not important. If permission from both is secured, that will authorize the road to cross the street even though one grants permission a little earlier than the other. If could not be required that permission be secured from both at the same instant. The present situation is that the court is holding, without saying so in so many words, that the fact that the Legislature did not abolish the city's power, prevented it, in some way, from conferring a concurrent power upon the Commission; or, that the fact that the consent of both is required and that one has consented in advance of the other renders that consent void and justifies the reversal of the judgment affirming the permissive order. It cannot be that the failure to repeal Section 9850 and the like invalidated Section 10459. Nor does the failure of the city to consent devest the Commission of its power to give consent, for whatever it is worth, as the statute authorizes it to do or refuse to do, as it may be advised.
The question of the city's power in the premises is not in the case, and cannot be injected by arguments of counsel. It does not arise on the record. No decision of the question of the city's power can support a judgment of reversal in this case. If the city does not consent and *Page 200 its consent is necessary to authorize the road to build across the street, then a way can be found to prevent the construction not consented to by the city, when that construction is begun. Whether the consent of the city is essential may be litigated then. It ought not to be determined in a case which involves a merely permissive order which, if the statute is valid, the Commission has the power to make and must make before the road can build across the street, whether or not the city can refuse to permit the crossing.
It is argued by respondent that a designated constitutional provision authorizes the road to build across city streets without the consent of either the city or the Commission. This is denied by appellant. Respondent seeks to uphold the judgment which affirms the order of the Commission. The constitutional provision mentioned cannot aid respondent in its effort to sustain the order. The order is based upon a statute which is invalid if this contention of respondent is sound. Unless the statute is invalid the order is good. If it is invalid the order is without authority, and this judgment should be reversed. The respondent cannot set up the constitutional provision except as against the statutes which requires it to secure permission from certain authorities and these will include the Commission whose order it sought, secured and seeks in this proceeding to sustain. That is the issue here. The city cannot set up the constitutional provision to invalidate the statute upon which the order is based, without arguing for a principle which destroys the statute upon which it founds its claim that it may deny the road the right to cross the street. This question, it is not surprising to discover, was not raised before the Commission or in the circuit court. It is not for determination here.
The judgment should be affirmed without attempting to decide the question whether the city may deny the company the right to cross the street despite the permission already secured from the Commission. That question can be decided when some record in this court presents it. *Page 201