State Ex Rel. Kansas City v. Public Service Commission

*189 WALKER, J. This is an appeal from a judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission in the case of Kansas City, appellant, and Ellen Cunningham et al., interveners, against the Public Service Commission et al., respondents. The order of the Public Service Commission granted permission to the railway company to construct its tracks along and across certain streets in said city without having obtained authority from the latter so to do. The interest of the interveners arises from their ownership of *190 lots adjacent to the streets sought to be appropriated as rights-of-way by the Missouri, Kansas & Texas Railway company, one of the respondents. I. Neither convenience, expediency nor necessity are proper matters for consideration in the determination of the issue here submitted. Either or all of these can only be urged in support of an act of the Commission clearly authorized by the statute. We say dearly authorized because the statutory origin and administrative character of the Commission render it necessary that its power be warranted by the letter of the law or such a clear implication flowing therefrom as is necessary to render the power conferred- effective. It. is conceded that express power to make the order in question is only to be found, if it there exists, in Sections 49 and 50 of the Public Service Statute (now Secs. 10458 and 10459, R. S. 1919). It appears, however, that there is an earlier general statute (Sec. 9850, R. S. 1919) limiting the power of railroad companies to use or occupy the streets of a city which is contended by the respondent to be in conflict with the sections of the Commission Act above cited. As a prerequisite, therefore, to the exercise of the power claimed to be conferred on the Commission by these sections it must be held that they repeal Section 9850. An analysis of these statutes is necessary to the determination of this question. Section 10458 is as follows: “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 with the transportation of passengers or property ought reasonably to be provided, . . . 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 *191 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 to make all repairs, improvements, changes and additions required of it by any order of the commission served upon it. . . .” Section 10459 is as follows: “1. . . . Nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade . . . without having first secured the permission of the commission. . . . The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe. “2. The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of ... a public road or highway by a railroad or street railroad, and of a street by a road or vice versa, so far as applicable, and to alter or abolish any such crossing. . . .” And Section 9850 is as follows: “Every corporation formed under this article shall, in addition to the powers hereinbefore conferred, have power: . . . third, to lay out its road, . . . and to construct the same . . . fourth, to construct its road across . . . any street. . . . Nothing herein contained shall be construed to authorize . . . the construction of any railroad not already located . . . across any street in a city . . . without the assent of the corporate authorities of said city. . . .” *192 *191 II. The power conferred on the Commission by these sections' is purely regulatory. In fact, the entire power of the Commission may be thus characterized. The dominating purpose in the creation of the Public Service *192 Commission was the promotion of the public welfare. This is sought to be effected by regulation which seeks to correct the abuse of any property right of a public utility and not its use. The exercise of the latter would involve a property right in the utility which the Commission does not possess. This distinction while usually made in the adjudicated cases-in considering the property rights of public utilities is nevertheless applicable in defining the limits of the power of the Commission as affecting the general public as in the case at bar. “‘It must be remembered”, as Mr. Justice Brewer said in effect in Interstate Commerce Commission v. Chicago Great Western Railway Co., 209 U. S. 108, “that while from the public character of the work in which railroad companies are engaged, the public has the power to prescribe rules for securing faithful and efficient service, . . . yet in no proper sense is the public a general manager.” To a like effect is Chicago, Minneapolis & St. Paul v. Wisconsin, 238 U. S. 491. These general observations as to the character of the power with which the Commission is invested finds its confirmation in the sections under review. Section 10458 has to do with the manner in which the entire superstructure of railroad companies is to be used; and the power of the Commission in regard thereto is limited to the regulation of repairs, improvements, changes and additions. Each of these terms is clearly indicative of a legislative purpose to confer power upon the Commission to improve conditions then existing, but not to create new ones. The power thus conferred is mandatory (State ex rel. U. Rys. v. Public Service Comm., 270 Mo. 429), and whatever mandates are issued thereunder must emanate from the Commission “whether they be on its own motion or on complaint.” 'Under the authority of neither was the proceeding at bar commenced, and if authority therefore be based upon this section alone its application in either influencing or determining the matter at issue may be subject to serious question. *193 However, it is provided in Section 10459 that application by a railroad company for permission to construct its track across a road, highway or street at grade shall be made to the Commission whose permission shall be a condition precedent to the exercise of the right. The permission thus required by the terms of the section is limited to grade crossings. That limitation not being necessary to the determination of the question here requiring solution, is not ruled upon, especially in view of the fact that the-Commission has ruled (Macon v. C. B. & Q. Rd. Co., 1 P. S. C. Rep. l. c. 647) that its authority over crossings is general and is not limited to grade whether existing before or constructed after the law went into effect. It will be time enough for a consideration of that ruling when the limit of the Commission’s'power in that regard is at issue. To anyone familiar with current history concerning the operation of railroads and the increased dangers occasioned by the manner of constructing and maintaining crossings, the reason for their special designation in a regulatory statute and the emphasizing of the power of the Commission in reference thereto, was primarily in the interest of public safety, although incidentally it may add facilities to the railroad company in the transaction of its business. In short, it was the public welfare and not merely commercial convenience that the Legislature had in view. It will be noted that the exclusive power conferred by the second subdivision - of Section 10459 on the Commission, is not-in reference to the granting of the permission to install crossings, but to the place and manner where they are to be installed, operated and maintained. Whether this power therefore is general or limited there is nothing in the section or the entire act, when construed with reference to its evident meaning and purpose, which will lend substantial aid to the conclusion that the power of the Commission in regard thereto was intended to be exclusive. *194 *193 However, we are particularly concerned here with the effect of the enactment of Section 10459 upon Section *194 9850. Generally the entire Public Service Act 00Iig.|.rue(j harmony with its letter and subject-matter offers no substantial support to the conclusion that it was intended to repeal any existing statute which under a reasonable interpretation of same could be held not to be in conflict therewith. The purpose of the Public Service Act and more especially of Section 10459, as we have stated with perhaps prolix iteration, was to so regulate the powers of railroad companies as to require that they comply with the rights granted to them and in complying that they do not abuse them. The purpose of Section 9850 was to grant the charter powers therein enumerated to railroad companies. The powers thus granted with the limitations therein prescribed are in no wise in conflict with the Public Service Act. There is no rule of construction that we are aware of that will authorize the holding that a grant of power is in conflict with a subsequent statute regulating the exercise of such power. The Public Service Act itself clearly defines its own limits as to other statutes. After providing in stereotype terms as to the repeal of all laws, etc., in conflict with same, this repealing clause (Section 10550) is modified by the following: “The provisions of this law are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws.” Section 9850 is neither in direct or implied conflict with the Public Service Act. On the contrary the latter may be held to be supplemental to the former. The lending of the police power of the State by the Legislature to the Commission suffers no curtailment by this ruling. The Commission therefore may act to the full limit of its defined powers when upon its own motion or the complaint of another, or the application of a railroad company, its permission is sought to construct a railroad upon or across any city street or county road. A prerequisite to the exercise of that right is the assent of the corporate authorities of the city or the county court of the county. A railroad company derives its charter powers from the State with the express limitation in *195 regard to the crossing of roads and streets prescribed in Section 9850. An attempt to ignore this limitation under th¿ plea that the Legislature in enacting the Public Service Act stripped the municipalities named by remote implication of the power to control their thoroughfares does not accord with reason and is a violation by the company of its charter rights. The construction we have given the foregoing sections is in harmony with the Constitution and the statutes authorizing the creation of municipalities. Section 9850 in this regard does no more than to recognize a well defined power of municipalities; and it deprives the Public Service Commission of no power necessary to effect the purpose of its creation. Not only in Section 9850, but in the legislative grant of powers to municipalities, whether in the form of a general law or a particular one incorporated in a charter, is this power expressly given to them. This power in its fullness is given to the Common Council of Kansas City. [Charter 1908, p. 133, sec. 11.]. Let it be granted, therefore, that the manner in which a street or road crossing is to bé installed, used and maintained has been delegated to the Public Service Commission, the right in the first instance to grant or refuse this privilege has been reserved to the municipal authorities. That this division of the police power has been wisely determined no one familiar with the organization of cities and counties and the consequent importance, if not the necessity, of investing them with the right to control their highways, will deny. In Holland Realty & Power Co. v. St. Louis, 282 Mo. l. c. 190, this court held that: “Had the Legislature thought the wiser course would be to reserve the power to grant directly to such corporations the franchise to use streets, and restrict municipal control over the companies to an exercise of the police power, it could have done so — can yet at any time. But, instead, the power to grant or refuse, as well as to regulate the use of the streets, was delegated to the municipal authorities,” *196 Other reasons than those adduced in construing the sections under review sustain the conclusion we have reached. Their discussion therefore is not deemed necessary. Municipalities have always possessed and under our system of. laws still retain power to control their streets and roads. The primary right to exercise this power was not abrogated by the enactment of the Public Service Act. We hold therefore that the assent of Kansas City is a legal prerequisite to the construction upon the streets named, of the tracks of the railway company; and whatever power, clearly defined by law, exists in the Public Service Commission in regard thereto is subordinate to that right. The judgment of the circuit court is therefore reversed. Woodson, G. J., and Graves and White, JJ., concur; James T. Blair and David E. Blair, JJ., dissent in-separate opinions filed; Ragland, J., dissents.