Opinion
March 14, 1934.
1. CONSTITUTIONAL LAW: Highways: Railroad Crossings. An order of the Public Service Commission requiring a railroad company to pay one-fourth of the costs of building a bridge at a highway crossing to replace a weaker bridge and not to replace a grade crossing does not violate the due process and equal protection clauses of the State or Federal Constitution.
2. HIGHWAYS: Railroad Crossings: Apportionment of Costs: Burden of Proof. In determining whether the apportionment of costs for a bridge highway crossing over railroad tracks between the railroad company and the State Highway Commission, the only question for the court is whether the order of the commission was unreasonable and unlawful.
The burden of proof is upon the railroad company to show that the order is unreasonable and unlawful.
3. HIGHWAYS: Railroad Crossings: Apportionment of Costs. Under the facts shown the apportionment to a railroad company of one-fourth the costs of constructing a new bridge over the highway to replace an old bridge was not unreasonable or unlawful.
4. POPULATION: Judicial Notice. The courts take judicial notice of the United States census as to the increase of population in a city.
Appeal from Cole Circuit Court. — Hon. W.S. Stillwell, Judge.
AFFIRMED.
Charles M. Miller for appellant.
The report and order of the commission was unreasonable and unlawful, and the Circuit Court of Cole County erred in not setting the same aside, for the following reasons, to-wit: (1) Because the commission was without jurisdiction, power and authority to authorize and order the projects in each case, or assess any portion against the Alton Railroad Company, because their jurisdiction, power and authority was limited under the statute, to the elimination of existing grade crossings, and the apportionment to the railroad in any event, must be limited to the benefit the railroad would receive from the elimination of an existing grade crossing. Jackson Co. v. Railroad, 1 Mo. P.S.C. 699; White Co. v. Railroad, 320 Ill. 49, 172 N.E. 22; Jackson Co. v. Mo. Pac., 17 Mo. P.S.C. 630; Sec. 5171, R.S. 1929. (2) Because no reasonable necessity was shown by the county for the projects, and if the commission had the jurisdiction, power and authority, under the statute, the apportionment to the Alton Railroad Company was unfair, unjust and unreasonable. In re Palo Alto, P.U.R. 1931, 580. (3) Because the commission erred in not considering and giving heed to the evidence of appellant, relating and bearing upon its financial condition, and inability to contribute to the cost of the proposed projects and holding it was without jurisdiction to do so, or to defer the projects until conditions were better and at least substantial recovery had been had from the "depression." Lake Shore Elec. Ry. Co. v. Pub. Utilities Comm., 180 N.E. 554.
D.D. McDonald, G.C. Murrell, Fred A. Boxley and Rufus Burrus for respondent.
(1) The burden of proof is on appellant to show by satisfactory evidence that the orders of the commission complained about are unreasonable and unlawful. Sec. 5247, R.S. 1929; State ex rel. Railroad Co. v. Pub. Serv. Comm., 196 S.W. 369, 271 Mo. 155; State ex rel. St. Joseph v. Busby, 274 S.W. 1070; State ex rel. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 76. (2) Questions relating to necessity, expediency or propriety of establishing and extending streets and highways, even when they cross railroads, are not matters for its (the Public Service Commission) consideration. These questions were settled by Jackson County, by its county court and the people in the bond election. Sec. 5171, R.S. 1929; State ex rel. Railway Co. v. Pub. Serv. Comm., 272 S.W. 960; State ex rel. Railroad Co. v. Pub. Serv. Comm., 51 S.W.2d 75. (3) The Public Service Commission has authority under Section 5171, Revised Statutes 1929 (Mo. St. Ann., p. 6585), to require an alteration of a subway or overhead viaduct and to apportion the cost of the alteration between the railroad and the county. Sec. 5171, R.S. 1929; State ex rel. Railroad Co. v. Pub. Serv. Comm., 197 S.W. 56, 271 Mo. 270; Ry. Co. v. State Highway Comm., 17 S.W.2d 538. (4) The safety of passing trains is only one of the elements to be considered in matters of highway and railroad crossings. It is not the sole or controlling element. Railroad Co. v. Pub. Serv. Comm., 271 Mo. 286, 197 S.W. 59; Ry. Co. v. Pub. Serv. Comm., 287 S.W. 619, 315 Mo. 1108; Ry. Co. v. State Highway Comm., 17 S.W.2d 538. (5) It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings, but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways. Ry. Co. v. Pub. Serv. Comm., 287 S.W. 619; State v. Pub. Serv. Comm., 308 Mo. 374, 272 S.W. 961; Kansas City v. Kansas City Terminal, 25 S.W.2d 1064; Ry. Co. v. Omaha, 235 U.S. 121; Ry. Co. v. Puget Sound Willapa Harbor Ry. Co., 250 U.S. 332; Railroad Co. v. Pub. Util. Commrs., 254 U.S. 394. (6) The financial ability of the appellant to contribute to the four projects which were proposed by the county has no bearing upon this cause and the commission did not err even if it had failed to give consideration to the financial condition of the appellant railroad. Ry. Co. v. Pub. Serv. Comm., 287 S.W. 619; Kansas City v. Kansas City Term., 25 S.W.2d 1069; Railroad Co. v. Pub. Util. Commrs., 254 U.S. 394. (7) State ex rel. Railroad Co. v. Pub. Serv. Comm., 297 S.W. 47; Chicago, R.I. P. Ry. Co. v. Pub. Serv. Comm., 287 S.W. 620; State ex rel. Ry. Co. v. Pub. Serv. Comm., 30 S.W.2d 116.
This case, coming to the writer by reassignment, is an appeal by the Alton Railroad Company from the judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission requiring the railroad to contribute to the cost of a bridge. In 1931, Jackson County made application to the commission for an order authorizing the construction of a concrete bridge, over the track of the railroad on Noland Street road about a mile south of Independence, and apportioning the cost thereof. The estimated cost of the bridge was $5,536.30. The answer of the railroad stated that the present bridge was reasonably adequate; that if a new viaduct was to be constructed the county should pay the entire cost; that assessing any of the cost against the railroad would constitute an arbitrary appropriation of its property without due process of law and a denial of the equal protection of the laws, in violation of both the Missouri and Federal Constitutions; that defendant, because of the financial depression, did not have sufficient earnings to be able to pay any of the cost; and that, if defendant should be required to contribute to the cost, the matter should be postponed until the present financial depression is over and the revenue of the railroad increased so as to make it reasonably able to contribute thereto.
The county was building a new system of roads, financed by bond issues, aggregating $10,000,000. As a part of this program, an 18-foot concrete highway was being constructed, from Independence south almost nine miles, crossing U.S. Highway 40 and connecting with U.S. Highway 50 northwest of Lee's Summit, parallel to and four to five miles east of the eastern limits of Kansas City. It connected at Independence with a paved road running northeast to Courtney, where there was a bridge across the Missouri River. Near Independence this concrete road was to replace macadam pavement but over most of the distance the old road was an oiled earth road. The macadamized part of the old road crossed the single track main line of the railroad on a bridge, constructed of treated timber by the railroad in 1928, to replace an older structure. It was estimated that the probable life of the new treated timber bridge was from twenty-five to thirty years. The plans for the new concrete road, contemplating a higher grade with greater clearance above the railroad track and also eliminating certain curves, required a bridge on a different level and alignment than the wooden structure. The upper of the two layers, of the bridge flooring, was in bad repair and had been ordered replaced by the railroad. Both the present and the proposed bridge were approximately twenty feet in width. There was evidence that the present bridge could only safely carry a load of 100 pounds per square foot uniformly distributed, which about equaled the load of a 7-ton truck. The proposed bridge was designed to carry the load of a 20-ton truck. The county's engineers were of the opinion that the new road would become one of its most important north and south traffic arteries; that the present bridge did not have the strength to be an adequate bridge for such a trafficway; that it would be much more expensive to build a new bridge after the construction of the highway; and that to construct the highway without a new bridge would create a dangerous condition because the present bridge would be out of alignment with and on a lower level than the new pavement. The evidence of the railroad disputed these propositions.
The commission found that the location of the new road was changed to eliminate curves so as to promote the safety of the traveling public; that this change required a relocation of the bridge; that to relieve the railroad of keeping up the present structure, which required constant maintenance, would result in considerable saving; and that to build the new road at one time and replace the bridge at another would cost a considerable amount which could be saved by doing both at the same time. The commission ordered the new bridge built, apportioned twenty-five per cent of the cost to the railroad and required the county to pay seventy-five per cent thereof and to maintain the new bridge. The commission stated that it took into consideration the fact that the railroad had rebuilt the bridge so recently and reduced its apportionment because it had done so.
The basis of the railroad's first contention, that the commission's order requiring it to contribute to the cost of building a new bridge was beyond its power and authority and so arbitrary as to be in violation of due process and equal protection clauses of the State and Federal Constitutions, is that the commission had no authority in the matter at all because a grade crossing was not involved; because its bridge was there before the creation of the Public Service Commission; because, since there was no grade crossing to be eliminated, no element of safety was involved: and because, for the same reason, there could be no possible benefit derived by the company. The authorities do not sustain the proposition that the order violates the constitutional provisions suggested. [Erie Railroad Company v. Public Utility Commissioners. 254 U.S. 394, 41 Sup. Ct. 169, 65 L.Ed. 322: Missouri Pacific Ry. Co. v. Omaha, 235 U.S. 121, 35 Sup. Ct. 82, 59 L.Ed. 157: Northern Pacific Ry. Co. v. Puget Sound Willapa Harbor Ry. Co., 250 U.S. 332, 39 Sup. Ct. 474, 63 L.Ed. 1013: State ex rel. St. Louis-San Francisco Ry. Co. v. Public Service Comm. (Mo.), 62 S.W.2d 1090; State ex rel. St. Louis-San Francisco Ry. Co. v. Public Service Comm., 331 Mo. 438, 53 S.W.2d 868; State ex rel. Kansas City Term. Ry. Co. v. Public Service Comm., 308 Mo. 359. 272 S.W. 957; Chicago, Rock Island Pacific Railroad Co. v. Public Service Comm., 315 Mo. 1108, 287 S.W. 617.] Very similar contentions concerning the Commission's authority were passed upon by this court in State ex rel. Mo.-Kan. Tex. Ry. Co. v. Public Service Comm., 271 Mo. 270, 197 S.W. 56, where a railroad was ordered to contribute to the cost of widening a subway in the city of Moberly which had existed since 1887. This court, in its opinion, en banc, set out subsection 2 of Section 50 of the Public Service Act of 1913, now Section 5171, Revised Statutes 1929, with certain parts italicized, as follows:
"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 one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public road or highway by a railroad or street railroad and of a street by a railroad or vice versa, so far as applicable, and to alter or abolish any such crossing, and to require, where, in its judgment, it would be practicable, a separation of grades at any such crossing heretofore or hereafter established, and to prescribe the terms upon which such separation shall be made and the proportion in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the State, county, municipality or other public authority in interest."
The ruling of this court there, which disposes of this matter here, was as follows:
"By reading in a connected way the above italicized portions of said statute, and considering the same in connection with the context, we think it becomes quite apparent that the commission is given the power to regulate and provide for the alteration and maintenance of all such crossings whether they be by subway, on grade, or overhead. The word `crossing' as used in the act is sufficient in scope to include all such crossings and we are of the opinion that the Legislature so intended."
As to the railroad's contentions that the apportionment was unfair, unjust and unreasonable because there was no element of safety involved; because there could be no possible benefit to the railroad; because there was no reasonable necessity shown for the project; and because the present bridge was new and adequate, we have frequently ruled that upon such contentions that the question is not whether this court or the trial court would have made the same order upon the facts, but that the sole question is whether the order which the commission made was reasonable and lawful and that the burden of proof is upon the appellant to show that it is unreasonable and unlawful. [Sec. 5247, R.S. 1929; State ex rel. Wabash Ry. Co. v. Public Service Comm., 271 Mo. 155, 196 S.W. 369; State ex rel. City of St. Joseph v. Busby (Mo.), 274 S.W. 1067; State ex rel. Alton Transportation Co. v. Public Service Comm., 330 Mo. 1, 49 S.W.2d 614; State ex rel. City of Kirkwood v. Public Service Comm., 330 Mo. 507, 50 S.W.2d 114; State ex rel. Chicago Great Western Ry. Co. v. Public Service Comm., 330 Mo. 729, 51 S.W.2d 73; State ex rel. Union Electric Light Power Co. v. Public Service Comm., 333 Mo. 426, 62 S.W.2d 742.] We think that under the evidence, there was no showing that the commission's order was unreasonable upon any of the grounds stated. Noland Street road had crossed the railroad at this point for many years. The former wooden bridge had, according to the county's evidence, been ready to fall down for some years and in 1928 the present wooden structure was built. The county's evidence was that even the new bridge was a temporary proposition. [3, 4] Be that as it may, thereafter the county decided that a new system of county roads should be built and embarked upon its $10,000,000 road program. Noland Street road was being converted from a country neighborhood earth road, over about seven miles of its distance, to a modern 18-foot concrete slab trafficway, which would connect three recently constructed Federal Highways (U.S. 24, U.S. 40 and U.S. 50) converging toward Kansas City, and which would parallel the east boundary of that city of almost 400,000 population at a distance of three to five miles. There is much in the record to disclose the growth of Jackson County in population and we may also take judicial notice of the United States census which shows the exact increase of population in Kansas City and the entire county for the last thirty years. [Carter County v. Huett, 303 Mo. 194, 259 S.W. 1057; State ex inf. Crow v. Evans, 166 Mo. 347, 66 S.W. 355; State ex rel. Martin v. Wofford, 121 Mo. 61, 25 S.W. 851; 23 C.J. 161, secs. 1987-88; 15 R.C.L. 1129, sec. 56.] These figures are as follows:
Jackson County (including Kansas City) Kansas City Only 1900 — 195,193 163,752 1910 — 283,522 248,381 1920 — 367,846 324,410 1930 — 470,454 399,746
The census also shows the increase, from 1910 to 1920, was 29.7 per cent, and was, from 1920 to 1930, 27.9 per cent, and it shows a 1930 population of 771.2 per square mile, as compared with 603 per square mile in 1920. Evidence in the record shows that the greater part of this increased population, outside of Kansas City itself, has settled between the east limits of Kansas City and the new Noland Street trafficway. The bridge across the Missouri River near Courtney, north of Independence, to which this new highway will lead, the other county roads under construction, and new State highways to be built, all point to the increasing travel, which this highway will likely carry. In view of these conditions, a new wider modern road, with better grades, and the elimination of curves near the railroad is no doubt necessary. To build such a road and then require motor traffic thereon to whip around curves, on a dangerous dip, to cross the railroad on the present wooden bridge would create an intolerable condition. The situation is indeed comparable to the building of a new road at a new location and certainly no one could justify making such a crossing in connection therewith. The element of safety to the public, traveling upon a highway crossing, may be involved, although the danger is not from being struck by trains. This matter and the question of benefit to the railroad as the sole basis of apportionment is further discussed in the Van Horn Viaduct case, 334 Mo. 995, 70 S.W.2d 57, decided concurrently herewith. Moreover, the increased cost of later making a proper structure, after the road is completed, is a matter to be given consideration as of some benefit to the railroad. The order only requires the railroad to pay twenty-five per cent, and also relieves it entirely of the maintenance of the present bridge, which defendant's engineer estimated was from $50 to $75 per year on wooden bridges. Requiring the railroad to pay only one-fourth certainly indicates a reasonable apportionment in view of the policy of the Legislature as disclosed by the amendment of Section 5171, Revised Statutes 1929, by which, in cases of new State highways, the power of the commission to require more than one-half to be paid by the State was taken away, necessarily imposing in such cases at least one-half of the cost upon railroads.
We overrule the contentions concerning defendant's financial condition for the reasons stated in the Sterling Avenue Subway case, 334 Mo. 1001, 70 S.W.2d 61, decided concurrently herewith.
The judgment is affirmed. Ferguson and Sturgis, CC., concur.
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur, except Hays, J., absent.