Public Service Commission v. St. Louis-San Francisco Railway Co.

*163 RAGLAND. J. On the 14th day of. April, 1921, the Public Service Commission, hereinafter referred to as *164 the Commission, after notice and hearing, promulgated an order, to become effective July 5, 1921,' £ ‘ that no common carrier operating in the State of Missouri shall discontinue the operation of any passenger train . . . where such operation or service is performed in the State of Missouri, without securing the permission of tins Commission for such change.” Thereafter on December 13, 1921, the respondent, St. Louis-San Francisco Railway Company, without first having obtained the consent of the Commission and without having made any application therefor, notified the Commission that on December 18, 1921, it would discontinue certain local passenger trains, which for a number of years it had been operating between the city of St. Louis and the town of Newberg and between Springfield and Monett, all within the State of Missouri. Thereupon the Commission commenced this action in the Circuit Court of the City of St. Louis, wherein it seeks by mandamus to compel respondent “to continue to operate as now and heretofore lately operated its said local passenger trains . . . until and unless permission for the discontinuance of said trains be duly obtained by order of the Commission.” The gravamen of the action, as disclosed by the petition, is the threatened violation by respondent of the Commission’s order with respect to the discontinuance of passenger trains. The cause comes here on the Commission’s appeal from the judgment of the circuit court, denying it relief on the ground that the order just referred to is invalid. In its return to the alternative writ respondent asserts the invalidity of the Commission’s order on a number of grounds; among others, that the “order is a general order which if valid would have the force and effect of law, the making of which is not within relator’s jurisdiction.” With respect to this the position of the Commission is tersely set forth by its.general counsel in his brief as follows: “ The order here involved is a regulation as to future conduct, and legislative in its nature. It is a public policy *165 formulated and announced, authorized by virtue of the general and special powers granted to the Commission. It is practical, and is necessary in the orderly performance by the Commission of its duty to supervise the performance of this essential duty of the carriers. “It is an aid in procuring a speedy and authoritative determination of a question important alike to {he carrier and its patrons. “It is designed to prevent the carrier from unauthorized action in disregard of the convenience of the public, and equally so, to relieve, in an orderly way, the carrier from a service which may be, by change of conditions, burdensome out of proportion to its benefits. “The carrier cannot conclusively determine these questions for itself, without a hearing of the interests of the public. “The sudden, unexplained discontinuance of a passenger train, long in voluntary operation, upon regular schedule for the service and convenience of the public, is a decision by one of the parties in interest without a hearing of the other party.” It thus appears that the principal question presented for determination is whether the Commission is empowered to make general orders of the character of the one involved here, operative in the future, and applicable alike to all common carriers by rail. There is little doubt but that the Legislature could have delegated authority to the Commission to make such a rule and regulation had it seen fit to do so. [State v. Atlantic Coast Line R. R. Co., 56 Fla. 617; 6 R C. L. 177.] The question is, did it? The Commission is vested with such powers, and only such, as are conferred upon it by the Public Service Commission Law. [Chap. 95, R. S. 1919.] By that law it is vested with the powers therein expressly conferred and all others necessary and proper to enable it to carry out fully and effectually all the purposes of the act. [Sec. 10412, R. S. 1919.] Looking to those provisions of the *166 statute dealing solely with the subject of the investiture of jurisdiction with respect to railroads, we find: ‘ ‘ The jurisdiction, supervision, powers and duties of the Public Service Commission herein created and established shall extend under this chapter . . . to all railroads within this State, . . . and to the person or corporation owning, leasing, operating or controlling the same.” [Sec. 10425, R. S. 1919.] . “The Commission shall have the general supervision of all common carriers, railroads, . . . railroad corporations, . . .. and shall have power to and shall examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines and property, owned, leased, controlled or operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all the provisions of law, orders and decisions of the commission and charter requirements.” [Sec. 10452, R. S. 1919.] These general provisions are followed by more specific ones prescribing the methods and procedure to be followed in the exercise of the power of supervision so conferred. From these it appears that the power may be exercised, broadly speaking, in two ways: first, through general orders applicable to all railroad carriers alike, and, second, through orders made in specific cases, based on findings of fact therein, after notice and hearing. With reference to the first, the statute expressly authorizes the Commission by general rules and regulations: (1) to prescribe the form of schedules showing the rates, fares and charges for the transportation of passengers and property within this State, and to modify the requirements of Section 10439 in respect to the publishing, posting and filing of such schedules, applicable to special or peculiar circumstances or conditions (Sec. 10438); (2) to prescribe the form of annual and periodic reports to be made by common carriers and the character of information to be contained therein (Sec. 10453); (3) to pre *167 scribe the forms of account, records and memoranda to be kept by railroad corporations (Sec. 10461); (4) to regulate the furnishing and distribution of freight cars to shippers, the switching of the same for the loading and unloading thereof, the demurrage charges in respect thereto, and the weighing of cars and property offered for shipment or transported by any common carrier (Sec. 10447, subdiv. 2); (5) to provide the time within which express packages will be received, gathered, transported and delivered at destination, and the limits within which express packages -shall be gathered and distributed without extra charge (Sec. 10447, subdiv. 3); and (6) to provide for the transporting and moving of the car, device or facility used for testing track scales (Sec. 10448). The Commission is also authorized to prescribe, within defined limits, rules and regulations with respect to the issuance of stocks and bonds, notes and other evidences of indebtedness by railroad corporations and common carriers (Sec. 10463). The statute is voluminous and many of its provisions are not entirely free from ambiguity, but on its face the subject-matters above enumerated appear to be the only ones with respect to which it expressly authorizes the Commission to make general rules and regulations with reference to common carriers. Such rules, if reasonable and conformable to the general purposes of the statute, lie within the discretion of the Commission. All other orders expressly authorized must be made in conformity with a definite course of procedure. The procedure above referred to consists of an investigation by the Commission, of its own motion'or upon complaint, in which, after due notice to the common carriers to be effected thereby, a hearing is had and a finding of facts is made on the evidence adduced thereat. Such finding constitutes the sole basis of any order that may be made as a result of the investigation. Under the statute these investigations, generally speaking, deal with the correlative subjects of service* and charges. *168 “The Commission may . . . make inquiry . . . as to any act or thing done or omitted to be done by any common carrier . . . [alleged to be] in violation of any provision of- law or in violation of any order or decision of the Commission” (Sec. 10455). If, after a hearing, it finds “that the regulations, practices, . . . or service of an}^ such common carrier . . . in respect to transportation of persons and property . . . are unjust, unreasonable, . . . improper or inadequate, it shall determine the just, reasonable, . . . adequate and proper regulations, practices . . . and service to be observed and used . . . and prescribe the same by order” (Sec. 10456, subdiv. 2). If it is of the opinion, after a hearing, “that the rates, fares or charges demanded, charged or collected by any common carrier, ... or that the regulations or practices of such common carrier . . . affecting-such rates, are unjust, unreasonable, unjustly discriminatory or unduly preferential, . . . the Commission shall . . . determine the just and reasonable rates, fares and charges to be thereafter observed . . . and shall fix the same by order” (Sec. 10456, subdiv. 1). In conducting the hearings the Commission does not sit as a legislative committee for the purpose of formulating a “public policy” and putting- it into effect by the issuance of general rules “legislative in . . . nature.” Viewed from this particular angle it is to be regarded as a quasi-judicial body; specific acts of omission Or commission on the part of common carriers alone are the subjects committed to it for investigation, and its order made pursuant thereto can have no greater applicability. It is' not necessary to hold, and we do not hold, that the Commission is .without power to make general rules or regulations other than those specified in the statute. It is entirely conceivable that the ^promulgation of others are “necessary or proper to enable it to carry out fully and effectually all the purposes” of the act. But a general rule requiring its permission before a passenger *169 train can be withdrawn from service cannot be so characterized. A consideration of the Public Service Commission Law as a whole, so far as applicable to common carriers, convinces us that it was the intention of the Legislature to leave with the carriers the initiative as to both service and rates. There are certain restraints imposed by other statutory provisions in regard to rates, fares and charges, but so far as service is concerned the carriers may in the first instance determine for themselves its character and extent, and may likewise make such changes therein from time to time as they deém proper. It is only when the service so inaugurated or furnished is, or becomes, “unreasonable, unsafe, improper or inadequate” that the Commission may interfere. [Secs. 10455, 10456, 10460.] These views are not in conflict with State ex rel. Pub. Serv. Comm. v. Missouri South. Ry. Co., 279 Mo. 455, in which it was held that a railroad company cannot wholly abandon the operation of a part of its road without first obtaining the consent of the Commission. As the general order in question was unauthorized by the statute it-is void. It follows that the judgment of the circuit court should be affirmed. It is so ordered. Graves,-Walker and White, JJ., concur; James T. Blair, J., concurs in a separate opinion, in which David E. Blair, J., concurs; Woodson, G. J., dissents in a separate opinion.