State ex rel. Missouri Pacific Railroad v. Garesche

The Public Service Commission directed its counsel to institute su4$ against relator to compel it “to cease to omit and refuse, in violation of law, to furnish, upon application, ears for shipment of railroad ties” between designated points, “and to compel it to furnish cars” for like shipments. Suit was begun in the circuit court, of the city of St. Louis and assigned to the division thereof over which respond*78ent presides. Respondent issued a restraining order and ordered defendant, relator herein, to appear ten days later and show canse “why a temporary injunction or writ of mandamus should not issue as prayed for.” Three days later service was had upon relator, and the day following it applied here for a writ of prohibition, and a preliminary rule was. issued.

Notice

I. Under Section 64 (Laws 1913, p. 600) of the Public Service Commission Act, the Commission is empowered, whenever it is of the opinion that a railroad corPora^orL is violating or about to violate, its ' legal duty, to direct its counsel to' institute a suit to restrain such violation or compel compliance with the law or valid order. Relator’s contention that it was entitled to notice and a hearing upon the question whether the Commission should direct a suit to be brought under Section 64 is untenable. The order or direction to counsel to bring suit decides nothing against a defendant in such proceeding. It is a direction to counsel to appeal to the courts for correction of abuses the Commission thinks exist. Notice and hearing are had in the court in which the suit is brought. The cases cited chiefly are such as involve orders imposing Some burden of themselves. They are inapplicable.

II. With regard to the proceedings in the circuit court in a suit begun at the direction of the Commission under Section 64, that section provides:

‘ ‘ The general counsel to the commission shall thereupon begin such action or proceeding by a petition to such court alleging the violation complained of and praying for appropriate relief by way of mandamus or injunction. It shall thereupon be the duty of the court to specify the time, not exceeding thirty days after service of a copy; of the petition, within which the common carrier, railroad corporation or street railroad corporation complained of must answer the petition. In case of default in answer or after answer, the court *79stall immediately inquire into the 'facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirement. Such other persons or corporations as the court shall deem necessary or proper to join as parties in order to make its order, judgment or writs effective, may he joined as parties upon application of the general counsel to the commission. The final judgment in any such action or proceeding shall' either dismiss the action or proceeding, or direct that a writ of mandamus or an injunction, or both, issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief.”

We think these provisions furnish a system excluding the issuance of restraining orders and temporary injunction. They prescribe procedure with considerable detail, defining the steps the court is to take in suits begun under the section. The design is to secure a decision on the merits as- promptly as may be. Any other meaning often would permit the entire relief sought to be granted in such cases under the guise of restraining orders and temporary injunctions. In so far as the trial court exceeded or is about to exceed its jurisdiction in this respect, the preliminary rule is made absolute.

(concurring) — The Public Service Commission, at a session of that body on July 9, 1917, made the following order:

“It appearing to the Commission that the Missouri Pacific Railway Company, a common carrier owning and operating lines of railway within the State of Missouri, is omitting and refusing and threatening to omit and refuse in violation o'f law-to furnish cars upon application of shippers for the shipment of railroad ties from stations on its lines in this State to other points on its lines within this State, and particularly from points upon the St. Louis, Iron Mountain & Southern branch or *80portion of tire railway system of said Missouri Pacific Railway Company in Missouri to tire city of St. Louis in the State of Missouri:

It is accordingly,

‘ ‘ ORDERED : 1. That tíre General Counsel and Assistant Counsel to the Commission be and they are hereby directed to forthwith institute on behalf of the Public Service Commission of Missouri in the name of the State of Missouri, such legal proceeding or proceedings as they shall deem expedient and necessary to compel the said Missouri Pacific Railway Company to cease to omit and refuse, in violation of the law, to furnish upon application, cars for the shipment of railroad ties from stations and points upon its lines in the State of Missouri, to other points and stations on its lines in the State of Missouri, and to compel the said Missouri Pacific Railway Company to furnish upon application, as required by law, cars for the shipment of railroad ties from stations and points on its lines within the'State of Missouri, to other points and stations upon its lines in this State, as required by law.

‘ ‘ ORDERED: 2. That this order shall take effect on this date.” '

In compliance therewith a suit was brought in St. Louis in the name of the State upon the relation of the Public Service Commission, which alleged in substance that the Missouri Pacific Railway Company was a common carrier, whose line traversed certain portions of the State of Missouri, and as such was required by law, upon proper notice, to furnish to shippers sufficient and suitable ears for the transportation of property in carload lots. The petition then alleged that on July 14th and theretofore, it had information, direct and specific, of the “facts and circumstances of various and sundry shipments of railroad ties being offered to said defendant railroad company for transportation” from other points on its line to the city of St. Louis. The petition alleged that these shipments were refused by the railroad company after notice requiring it to furnish suit*81able cars for tbeir transportation; that defendant railroad company refused to furnish said cars in violation of the laws of Missouri; that the shipments in question were carload lots; that the relator, the Public Service Commission, “had knowledge of these facts in reference to carload shipments,” specifying’ the stations by name where the same were offered to defendant railroad company and of the rule of said company refusing to accept such shipments to St. Louis when consigned to consignors. The petition thereupon alleged, to-wit: “that in pursuance of the above information and facts presented to the Public Service Commission of the State of Missouri” (italics ours), it issued an order directing the institution of a suit “against said defendant railroad company in the nature of a mandamus or injunction proceeding, praying the court to compel said Missouri Pacific Eailway Company to cease to omit and refuse, in violation of the law, to furnish, upon application, cars for the shipment of railroad ties” from and. to St. Louis and points on its lines in Missouri. The petition exhibited therewith the order for the institution of the suit; alleged that the Public Service Commission was without remedy, except by> suit, and prayed for an alternative writ of mandamus or restraining order against the defendant railroad and for general relief. Upon the filing of this verified petition an order was made by the respondent circuit judge, on July 21, 1917, requiring the defendant railroad to appear on July 30, 1917, in the division of the court presided over by him, and show cause why a temporary injunction or writ of mandamus should not be issued as prayed, and in the meantime enjoining the railroad company from refusing to accept shipments of ties consigned to consignors in St. Louis, to which ad interim order the following command was added: “And the said defendant, its agents and servants be and are hereby commanded to receive ties for shipment and to furnish cars therefor at any and all of the shipping points and regular stop*82ping places along its line or lines in the State of Missouri, until the further order of this court.”

Upon the making of this order of the circuit court an application for. prohibition was filed in this court alleging, as a ground therefor, the foregoing facts, coupled with further allegations to the effect that it was not shown in the petition filed by the Public Service Commission in the circuit ‘court of St. Louis, nor was it the fact, that the defendant had any notice or opportunity to be heard when the Public Service Commission made its order above quoted and directed a suit to enforce the same; that neither did the relator railroad company have any information of the orders made in the circuit court on the petition filed therein on behalf of the Public Service Commission, for which, and other reasons, the defendant was' without jurisdiction to make such order.

I agree with the result reached in the learned majority opinion that our preliminary writ of prohibition should be made absolute, but I do- not agree to “the grounds given for that conclusion. I do not think that Section 64 (Laws 1913, p. 6000 of the Public Service Commission Act was intended to abrogate the rules of procedure prescribed by the civil code for the conduct Of suits. The only purpose of that section was to authorize the Commission to invoke the remedies of “injunction” and “mandamus” as they were well-known and applied under our code of civil procedure. Nor is there anything in the language of Section 64 of the Public Service Commission Act which, in suits thereunder, deprives the circuit courts of their lawful powers and jurisdiction in suits seeking relief by “injunction” or “mandamus.” Thaf section of the statutes and also Section 113 of the same act, do make provision for a speedy hearing of suits to which the State and Cpmmission may be parties; but those provisions for summary disposition do not go beyond their terms, and were not intended to alter or annul the general statutes of this State regulating the procedure and trial of civil cases. Their object is to accelerate, not to alter, the *83administration of the law. And it is to record my dissent from the seemingly contrary view taken in the learned majority opinion that makes it necessary for me to file this concurring opinion, setting forth the true grounds on which I think our writ should he made absolute. These are: that it appears beyond dispute (nor is the contrary alleged in the petition filed in the circuit court) that the Commission did make an order wherein in terms and without any opportunity of the defendant to he heard thereat, it decided that said relator “was omitting and refusing . . . to furnish cars upon the application of shippers for the shipment of railroad ties,” etc. It is quite elemental that no valid order of the Commission, prejudicial to the rights of th'e defendant, could he made without a hearing, or opportunity to he heard, on its part. This is conceded, and is established in the cases cited from many jurisdictions in the brief of the learned counsel for relator. The presentation of a petition to the circuit judge in St. Louis, from which it appeared that the suit therein filed was to enforce an order made ex parte and without any opportunity on the part'of the defendant to be heard, showed on its face no powefi on the part of the Public Service Commission to make such order, and vested said circuit court with no jurisdiction to entertain such suit.

For that reason I think our writ should be made absolute.