Lusk v. Public Service Commission

WOODSON, J.

(dissenting.) — I dissent from the opinion written in this case by our learned special judge who was called in to sit with us in the case, because of an equally divided court, one of our number not sitting.

For the reasons stated in the opinion I wrote when this case was in Division, which I refile here as a dissent, I dissent from the majority opinion herein.

I also dissent for the further reason that the majority does not state the facts as I understand the record discloses them. The facts stated by me in the divisional opinion, which is refiled here, were taken almost literally from the statement of the case made by counsel for the respondent, and in my opinion the record sustains that statement.

The divisional opinion was as follows:

“This action originated before the Public Service Commission, by the mayor and board of aldermen of the City of Caruthersville, filing a petition requesting an order requiring the appellants to re-route their trains, Nos. 801 and 802, through said city.
“After hearing the evidence, the respondent ordered the appellants to route said trains through Caruth-ersville as prayed. From that order the appellants moved the case to the Circuit Court of Cole County by writ of certiorari. After hearing the case the circuit court affirmed the order of the Public Service Commission, and in due time appellants appealed the cause to this court.
*289“The principal facts of the case are stated by counsel for respondent in substantially the following language:
“That Caruthersville is the county seat of Pemis-cot County and has about five thousand inhabitants. The appellants, at the time of the filing of the original complaint herein, were erecting a new passenger depot at Caruthersville at a cost of $12,000. The railroad facilities furnished at that place before the construction of the line from St. Louis to Memphis by the St. Louis & San Francisco Railroad Company were afforded by a line of railroad extending through Caruthersville to a point in Arkansas. This -line was extended north to St. Louis and south to Memphis, Tennessee, and was acquired by the St. Louis & San Francisco Railroad Company. About the year 1904, the entire railroad from St. Louis to Memphis was completed and opened for use. The line of appellants’ railroad extending through Caruthersville makes - a large curve toward the east. The distance in a direct line between Grassy Bayou, which is on the railroad south of Caruthersville, is six miles, while the distance along the railroad from Grassy Bayou to Caruthers-ville is nine miles, and from there to Hayti is seven miles. In 1904 the appellant railroad company constructed a railroad track from Grassy Bayou to Hayti, almost due north and south, a distance of six miles, connecting the north and south line of appellants’ road, instead of detouring to the east nine miles from Hayti to Caruthersville, and then hack seven miles to Grassy Bayou, thus saving a run of about eleven miles in distance and from thirty-five to forty minutes in time.
“The purpose of constructing the road between the points last named was, as the respondent’s evidence tended to show, for the use of the freight trains, and upon this assurance the citizens of Caruthersville assisted in procuring the right of way for the railroad *290between Grassy Bayou and Hayti, and donated a large part of it to the railroad company.
“drains Nos. 891 and 802 were, until August, 1913, routed from St. Louis to Memphis and return through Caruthersville. At the time last named, said trains were routed over the short line from Grassy Bayou to Hayti and Caruthersville to carry passengers to and from said trains Nos. 801 and 802 at Hayti, and passenger trains Nos. 825 and 826 have been put into service between Blytheville, Arkansas, and Gape Girar-deau, Missouri, by way of Caruthersville, Hayti and Kennett.
“Caruthersville is the second city in importance on appellants’ line between St. Louis and Memphis, and the ticket sales at Caruthersville are only exceeded by the sales at Cape Girardeau. More than seven thousand tickets were sold to passengers traveling out of Caruthersville each month. The receipts from such sales averaged about $4000, and the receipts at said station from freight business amounted to $18,000 per month. Caruthersville is situated on the line of railroad as originally located. Trains Nos. -801 and 802 were operated through Caruthersville for nine years.
“There are, independent of these trains, Nos. 801 and 802, seven trains running daily, each way, from Hayti to Grassy Bayou via Caruthersville, fourteen in all, connecting with the trains on the main line running from St. Louis, Missouri, to Memphis, Tennessee.
“I. Counsel for respondent base their authority for making the order complained of by counsel for appellants, oh Sections 49 and 51 of the Act of 1913. (Laws 1913, pp. 588 and 589). They read as follows:
“ ‘Sec. 49. Power of Commision to- Order Repairs or Changes. If in the judgment of the Commission additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation in or in connection *291with, the transportation of passengers or property onght reasonably to be provided, or any repairs or improvements to or changes in any thereof in nse onght reasonably to be made, or any additions or changes in construction should reasonably be made thereto in order to promote the security or convenience of the public .or employees, or in order to secure adequate service or facilities for the transportation of passengers or property, the Commission shall, after a hearing, either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street railroad corporation is hereby required and directed to make all repairs, improvements, changes and additions required of it by any order of the Commission served upon it. If any repairs, improvements, changes or additions which the Commission has determined to order require joint action by two or more of said corporations, the Commission shall, before entry and service of order, notify the said corporations that such repairs, improvements,' changes or additions will be required, and that the same shall be made at their joint cost, and thereupon the said corporations shall have thirty days or such longer time as the Commission may grant within which to agree upon the part or division of cost of such repairs, improvements,- changes or additions which each shall bear. If at the expiration of such time such corporations shall fail to file with the Commission a statement that an agreement has been made for a division or apportionment of such repairs, improvements, changes or additions, the Commission shall have authority, after further hearing, to fix in its order the portion of such cost or expense to be borne, by each corporation and the manner in which the same shall be paid and secured.
“ ‘Sec. 51. Power of Commission to Order Changes in Time Schedules, Running of Additional Cars and *292Trains. If, in the judgment of the Commission, any railroad corporation or street railroad corporation does not run trains enough or cars enough or possess or operate motive power enough, reasonably to accommodate the traffic, passenger and freight, transported by or offered for transportation to it, or does not run its trains or cars with sufficient frequency or at reasonable or proper time having regard to safety, or does not run any train or trains, car or cars, upon a reasonable time schedule for the run, the Commission shall, after a hearing, either on its own motion, or after complant, have power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars or its motive power or to change the time for starting its trains or cars or to change the time schedule for the run of any train or car or make any other suitable order the Commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight, transported or offered for transportation.”
“ Counsel for appellants'.deny that either of the sections quoted empower the' Commission to make the order complained of.
“In our opinion counsel for appellants is correct.
“By reading Section 49, it will be seen that it relates only to repairs or changes in facilities, and empowers the Commission to require additional tracks, motive power, etc., to be provided, repaired or changed. And, as well said by counsel, ‘it does not authorize the Commission to direct where trains shall be run, but attempts to regulate only the facilities by which trains are run; ’ and especially may we add, that neither of said sections empowers the Commission to order what particular train or trains, shall or shall not run to or from particular places. Such orders would be unjust, unreasonable, oppressive and intolerable, *293and doubtless that is why the Legislature withheld that power from the Commission.
“All the Legislature had in mind was to empower the • Commission to require the railroads of this State to furnish ample and suitable trains to (accommodate) the public demand, where they were refusing or neglecting to so do. If the fourteen trains before mentioned are not sufficient and suitable for the transportation of freight and passengers to and from Caruthersville, at reasonable times, then clearly the Commission has the authority, under said statutes, to require appellants, to furnish them.
“Moreover, trains Nos. 801 and 802 are interstate trains, engaged in interstate commerce, and for that reason, the State has no power or authority to impose unjust, unreasonable or oppressive burdens upon them. The following cases so hold: Illinois Central Ry. v. Illinois, 163 U. S. 142; McNeil v. Southern Ry., 202 U. S. 543; Atlantic Coast Line v. Wharton, 207 U. S. 328; Herndon v. C., R. I. & P. Ry., 218 U. S. 135; Kansas City Southern Ry. v. Kaw Valley District, 233 U. S. 75; C. B. & Q. Ry. v. Wisconsin Railroad Com., 237 U. S. 220.
“There has been so much, and so well said, upon this subject, by the United States Supreme Court, that nothing of additional importance can be said by this court.
“The mere statement of the facts of this case conclusively show that the order in question requiring these interstate trains to detour seventeen miles out of their due course simply in order to furnish Caruthersville-with two additional trains, when she already has fourteen, is unjust, unreasonable and oppressive, within the meaning of the authorities cited.
“If the fourteen trains mentioned are not ample or suitable for the purposes mentioned, then the Commission has the authority, under the statutes mentioned, to remedy those deficiences, but not to impose this unjust burden on those through trains.
*294“There are other points presented and' discussed hy counsel, hut the view we have taken of the case renders it unnecessary for us to notice them.”

For the reason stated, I dissent.

Bond, C. J., concurs herein.