This suit was instituted in the Circuit Court of the City of St. Louis by the Public Service Commission (which will hereafter be designated as the Commission) against the respondent to enforce the observance of an order made by the Commission regarding the regulation of railroad common carriers within the State of Missouri.
The trial court decided against the Commission, and after unsuccessfully moving for a new trial, the Commission duly appealed the cause to this court. The facts of the case are as follows:
The order made by the Commission provided, among other things, that no railroad corporation should discontinue the service of any passenger train operated by it in this State, without first submitting to the Commission an application for the withdrawal or discontinuance of such train and receiving the approval of the Commission.
On the 7th day of January, 1921, the Commission made an order, upon its own motion, wherein it was recited that if appearing to the Commission that it was the practice of the railroad common carriers "to change the schedule times of running passenger trains, to withdraw passenger trains from service, to change the hours during which freight and passenger stations are kept open for the transaction of business with the public, to withdraw telegraphic facilities from stations, and change regular open stations to pre-pay stations, without regard to the interests of the public, and without submitting such changes to the Commission before putting the same into *Page 171 effect," it was ordered that each and every common carrier operating within the State of Missouri be required to "show cause why an order should not be issued prohibiting said common carriers from making any changes in its practices and regulations relative to the scheduled time of the operation of its passenger trains at any station, the change in hours of service for serving the public at its freight and passenger stations, the withdrawal of telegraphic facilities from its stations and the closing or abandoning of any station without first securing the permission of this Commission for such change."
A time and place of hearing was set, and notice thereof given to the various carriers, including respondent. A hearing was had on the 7th day of February, 1921, at which the respondent and other carriers appeared and were heard, and all the testimony and proceedings had at said hearing taken and reduced to writing.
The hearing was informal in character, and consisted of questions and answers, oral statements, admissions, arguments and suggestions pro and con between witnesses, attorneys and other representatives of the carriers, and the members of the Commission.
Afterward, on the 14th day of April, 1921, the Commission made report of its findings and conclusions, and entered an order thereon.
The Commission in its report stated the various matters before it for determination, in the following subdivisions:
"1. The changing of the schedule time of passenger trains.
"2. The discontinuance of passenger trains.
"3. The discontinuance of stops by passenger trains at particular stations.
"4. The closing or abandoning of a station (the withdrawal of an agent).
"5. The withdrawal of telegraph facilities from any station. *Page 172
"6. A change in the hours of employees serving the public."
At the hearing the greater portion of the time was given to consideration of the question: "The changing of the scheduled time of passenger trains," and the fact that such changes must often be made upon short notice to conform to changes by other carriers at terminal points.
The Commission so stated in its report; and, in connection with that subject, and the relation between the subjects under subdivisions 1 and 3, stated:
"Subdivision 3, discontinuance of a passenger train, is shown to be purely a matter of economical operation. The schedule may be put forward or backward, in order to meet connecting trains at terminals or to provide meeting places for other trains, but the complete withdrawal of the operation of such train is not, at any time, mandatory in order to provide connecting schedules or expedite business."
The Commission found that "the carriers should not be required to submit, for approval, changes in passenger train schedules nor change or withdrawal of telegraphic facilities from stations, but that the approval of the Commission should be secured before any of the following changes are made: Discontinuance of stops by passenger trains at particular stations, discontinuance of passenger trains, closing or abandoning of a station, or the change in the hours of employees, at stations, serving the public."
Thereupon, the Commission made its order, as follows:
"That no common carrier operating within the State of Missouri shall discontinue the operation of any passenger train, discontinue the stopping of any passenger train at any station, change any station from an open to a pre-pay station, close or abandon any station, nor change the hours of any employee serving the public, *Page 173 where such operation or service is performed in the State of Missouri, without first securing the permission of this Commission for such change."
The order was declared to be effective on and after May 1, 1921.
On the 28th day of April, 1921, the carriers, including respondent, filed their application for a change of the effective date of the order.
On said 28th day of April, 1921, the Commission by its order, Supplemental Order No. 1, for the purpose of giving the carriers additional time to determine their course in respect of acceptance of the order, extended the time when the order should be in effect to May 11, 1921.
On May 10, 1921, the carriers, including respondent, filed their application for a rehearing. Afterward the Commission heard oral arguments of counsel for the carriers, and thereafter, on May 31, 1921, the Commission made its Supplemental Order No. 2, whereby it made July 5, 1921, the effective date of its Order No. 2, and made the final order involved, in the form following:
"That no common carrier operating in the State of Missouri shall discontinue the operation of any passenger train, discontinue the stopping of any passenger train at any station, change any station from an open to a pre-pay station, close or abandon any station nor change the hours during which the public is served at any freight or passenger station (including ticket offices apart from the depot), where such operation or service is performed in the State of Missouri, without first securing the permission of this Commission for such change."
Upon the trial it was admitted by respondent that it had received copies of Supplemental Order No. 1, and of Supplemental Order No. 2, above mentioned.
On the 13th day of December, 1921, the respondent advised appellant Commission that on and after December 18, 1921, it would discontinue the operation of its local passenger trains, Nos. 11 and 12, between St. Louis and *Page 174 Newburg, and Nos. 16 and 17, between Springfield and Monett, and do so without applying for or obtaining the consent of the Commission.
On the 16th day of December, 1921, the Commission made an order, which directed its general counsel to institute the suit herein on behalf of the Commission; and on the 17th day of December, 1921, this suit was filed.
Upon the trial it was admitted that the trains involved, and above mentioned, were operated wholly within this State.
The question of fact whether it might be reasonable and proper to permit the discontinuance of these particular trains was not made an issue. The essential question was the validity of the order as a general order, requiring application, investigation and consent, in any given instance, as a prerequisite to lawful discontinuance of service of a passenger train.
The court held that the Commission was without power to make such an order, and dismissed the petition. Hence this appeal.
We are required to go a little more into detail as to the facts of the case in order to clearly present the proposition presented by counsel for respondent for determination, which appear to be:
On October 11, 1920, the Commission issued an order prohibiting a common carrier, operating within this State, without first securing permission of the Commission: 1, from making any change in its passenger train schedules; 2, from making any change in the hours when its agents and other employees serving the public were on duty; 3, from withdrawing stops of any passenger train; 4, from changing the status of an agency station.
The foregoing order was set aside by the Commission, and on January 7, 1921, a new order was issued ordering and directing each and every common carrier operating within the State of Missouri to show cause, on a date fixed, why an order should not be issued prohibiting *Page 175 said common carrier, without first securing the permission of the Commission, from making any changes in its practices and regulations relative to: 1, The scheduled time of the operation of its passenger trains; 2, the stopping of its passenger trains at any station; 3, the change in hours of service for serving the public at its freight stations; 4, the withdrawal of telegraphic facilities from its stations; 5, the closing or abandoning of any station.
Obedient to the order last aforesaid the carriers appeared, a hearing was had and an order resulted, subsequently changed by Supplemental Order No. 2, prohibiting each common carrier operating in the State of Missouri from (without first securing the permission of the Commission): 1, discontinuing the operation of any passenger train; 2, discontinuing the stopping of any passenger train at any station; 3, changing any station from an open to a pre-pay station; 4, closing or abandoning any station; 5, changing the hours during which the public is served at any freight or passenger station (including ticket offices apart from the depot) where such operation or service is performed in the State of Missouri.
A motion for rehearing by the carriers, including respondent, attacked the order of the Commission on the grounds, among others, that the order was unauthorized by the Public Service Law of Missouri, that its enforcement would impose an unreasonable burden upon the carriers, that the Commission is not vested with jurisdiction or power to make such an order, that the order is in violation of the Commerce Clause of the Federal Constitution, and that the order is in violation of Section 1, of Article XIV of the Amendments to the Constitution of the United States.
On December 18, 1921, respondent discontinued the operation of its passenger trains Nos. 11 and 12 between St. Louis, Missouri, and Newburg, Missouri, and its passenger *Page 176 trains Nos. 16 and 17 between Springfield, Missouri, and Monett, Missouri. This action resulted in an order of the Commission directing its general counsel to institute suit in the Circuit Court of the City of St. Louis to enforce the provisions of the Commission's order hereinabove set forth. A petition was filed, to which answer was made, and the cause was heard in the Circuit Court of the City of St. Louis January 5, 1922. At the trial the various orders of the Commission and the testimony before the Commission were introduced in evidence, and certain evidentiary admissions were made concerning matters not appearing in the records of the Commission.
The evidence taken before the Commission consisted of the testimony of C.B. Bee, an employee of the Commission in charge of its department of transportation, testifying for the Commission, and J.E. Hutchison, general manager of respondent, and J.F. Murphy, general manager of the Missouri Pacific Railway Company, testifying for the carriers.
Mr. Bee stated to the Commission the purpose of the proceedings and made no reference to the subject of discontinuing theoperation of passenger trains. On cross-examination he stated that four propositions were involved, namely, the scheduled time of the operation of passenger trains, the stopping of passenger trains, the change in hours of service for serving the public at freight and passenger stations, and the withdrawal of telegraphic facilities or closing or abandoning a station. The testimony was confined to these issues, and as shown by Mr. Bee's testimony and the testimony of Mr. Murphy the question of discontinuing a train altogether did not appear to be a matter for the consideration of the Commission.
The first three points urged by counsel for appellants read as follows:
"First: The order required no more of respondent, and other like carriers, than that they should not discontinue a portion of the essential service to the public in *Page 177 this State, voluntarily undertaken by them, without a determination upon the facts in each instance, by the proper administrative body of the State, that public welfare and convenience — the conjoint interests of the carrier and of the public — justified the discontinuance.
"Second: The Public Service Commission has authority to make reasonable general regulations, or orders, applicable to railroad common carriers of passengers, adapted to promote public convenience and welfare, and conducive to crderly procedure by the carriers, in making important changes in the essential service undertaken by them in this State. R.S. 1919, sec. 10412, subdiv. 1, 3 and 9; Sec. 10425; Secs. 10436, 10450, 10456, 10457, 10460, 10534, 10538.
"Third: The order was made upon due notice given; after a hearing in which respondent and other carriers appeared and were fully heard; was subject to review in a direct proceeding, and it does not violate the due process clause of the Federal and State Constitutions, and cite: State ex rel. M.K. T. v. Pub. Serv. Comm., 277 Mo. 175; Vandalia Ry. Co. v. Pub. Serv. Comm.,242 U.S. 255; Chicago N.W. Ry. Co. v. Dougherty, 163 N.W. (S.D.) 715."
For the purposes of this case, it might be conceded, without deciding the points, that the three points made by counsel for the Commission are sound declarations of the law of this State, but such conclusions would not go to the real heart of the proposition presented by counsel for the respondent. Their contention is that "there was no evidence introduced tending to support the finding of fact as the basis of the order complained of, the lack of which makes the order void for want of jurisdiction in the commission."
That part of the complaint which counsel for the Commission contends the respondent was violating refers to "discontinuing the operation of local passenger trains Nos. 11 and 12 running between St. Louis and Newburg, and Nos. 16 and 17 running between Springfield *Page 178 and Monett," all of which are between points in the State of Missouri.
The only evidence that the record discloses that was introduced by the Commission in support of this particular part of the order made by it, was the testimony of Mr. C.B. Bee, an employee of the Commission and in charge of the transportation department thereof. He stated to the Commission the purpose of the proceedings and made no reference to the subject of discontinuing the operation of passenger trains. On cross-examination he stated that four propositions were involved, and this testimony has already been set forth in the statement of this case. Counsel for respondent contend that even though several issues may have been involved in any litigation, yet if the decision is based upon only one of them, parol evidence is admissible to show which one of them it was based upon, and which ones were not adjudicated. [Gardner v. Gas. Co., 154 Mo. App. 666, l.c. 685; Hickerson v. City of Mexico, 58 Mo. 61, l.c. 64.]
On page 65 of the case last above cited this court said: "If it appears prima-facie that a question has been adjudicated, it may be proved by parol testimony that such question was not in fact decided in the former suit. Where matters could have been proved in a former action, the presumption is that they were proved, but this presumption may be rebutted and overthrown. [Freeman, Judg., secs. 273, 274, and cases cited; Packet Co. v. Sickles, 24 How. 333, 5 Wall. 580; Bell v. Hoagland, 15 Mo. 360; Clemens v. Murphy, 40 Mo. 122; Wright v. Salisbury, 46 Mo. 26; Wells v. Moore, 49 Mo. 229; Spradling v. Conway, 51 Mo. 51.]"
In the case of Wichita Co. v. Pub. Utilities Com., 4 U.S. Supt. Ct. Rep. 51, l.c. 54, Mr. Chief Justice TAFT, in discussing the reasonableness of rates fixed by the Commission, said: "The majority opinion in the Circuit Court of Appeals in maintaining the validity of the order in this case relies on Section 18 of the act, which provides *Page 179 that all orders, rates, etc., fixed by the Commission shall be in force thirty days thereafter, and shall be prima-facie reasonable until changed by the Commission or by a court, and holds from this that it must presume that there was substantial evidence to warrant the findings. But, as we have seen, there is no finding of reasonableness or unreasonableness. Nor can we suppose that the presumption was to obtain until there was such a finding."
The same rule applies to the facts of this case. The record fails to show that there was any evidence heard, or evidence taken, to show the reasonableness of the order of the Commission in prohibiting the discontinuance of the trains in question: in fact, there was no hearing at all on that issue (No. 1) mentioned in the specifications it called upon the respondent to answer, which reads: "1. Discontinuing the operation of any passenger train."
And since there was no hearing upon this issue in this case, in our opinion the judgment of the circuit court was proper and should be affirmed.