State ex rel. C. & A. Ry. Co. v. Public Service Com.

which appellant relies, is one of a public nature and of public service. By the Public Service Commission Act, it has been withdrawn from the possession and power of the railroad companies as a subject they may control by a contract between themselves. The contract, not having been executed by the parties before the State chose to act in the premises, has no longer a legal existence. The subject-matter of it has been destroyed by the Public Service Act. Therefore, it is unenforcible. L. & N. Railway Company v. Mottley, 219 U. S. 467. (4) The Legislature gave to the Public Service Commission exclusive jurisdiction over the entire subject of railroad crossings, and construction of interlockers, but gave it no jurisdiction whatever to consider, to construe or to enforce contracts in respect of that subject, and a legislative attempt to grant the last named power would have been unconstitutional and futile. Lusk v. Atkinson, 268 Mo. 109; State ex rel. Mo. South R. R. Co. v. Public Service Com., 259 Mo. 704. (5) The order does not impair the obligation of the contract between the two companies, nor take appellant's property without due process of law in violation of any provision of State or Federal Constitution, because: (a) The order concerns the public safety, and the power of the State over that subject cannot be limited by the contracts of private interests on the same subject. (b) The obligation has failed by reason of this infirmity of subject-matter and of parties. (c) The contract was entered into subject to the unabridged police power of the State, peculiarly applicable to the subject in hand-the crossing of two public highways. (d) The obligation of such contract was conditional and could not extend to the defeat of or inference with, action by the State, on that subject. State ex rel. M. K. & T. Ry. v. Public Service Commission, 271 Mo. 270; Grand Trunk Ry. Co. v. Indiana Commission, 221 U. S. 400; Louis. & Nash. R. R. Co. v. Mottley, 219 U. S. 467; Milwaukee Elec. Ry. & L. Co. v. Commission, 238 U. S. 174; Mo. Pac. Ry. Co. v. Omaha, 235 U. S. 121; North. Pac. Ry. v. Duluth, 208 U. S. 583;

State ex rel. C. & A. Ry. Co. v. Public Service Com.

Addyston Pipe & Steel Co. v. United States, 175 U. S. 229; Scranton v. Wheeler, 179 U. S. 162; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 202; Atlantic Coast Line R. R. Co. v. City of Goldsboro, 232 U. S. 558.

WILLIAMS, J.-The proceeding which forms the basis of this review was originally instituted before the Public Service Commission by the Missouri, Kansas & Texas Railway Company, wherein the Public Service Commission was asked to make an order requiring the construction of an interlocking plant at the crossing at North Jefferson, Missouri, of the tracks of the Missouri, Kansas and Texas Railway Company and of the Chicago & Alton Railway Company, and further that the Commission apportion the cost of construction, maintenance and operation of said interlocking plant between the two railway companies. After a hearing, the Public Service Commission ordered an installation of the interlocking plant, the estimated cost of which was $9624, and ordered that the cost of construction, together with the cost of maintenance and unkeep, be appropriated as follows:

To the Missouri, Kansas & Texas Railway Company, 71.4% thereof; to the Chicago & Alton Railway Company 28.6% thereof.

Upon certiorari, at the instance of the Chicago & Alton Railway Company, the order of the Public Service Commission was reviewed and affirmed by the circuit court of Cole County. Thereupon the Chicago & Alton Railway Company appealed to this court.

In its answer before the Commission the Chicago & Alton Railway Company, hereinafter referred to as the appellant, alleged that by virtue of a certain written contract entered into by and between itself and the predecessor of the Missouri, Kansas & Texas Railway Company, the sole cost of construction, maintenance and operation of the interlocking plant should be assessed against the Missouri, Kansas & Texas Railway Company; that to do otherwise would be to im

State ex rel. C. & A. Ry. Co. v. Public Service Com.

pair the obligation of said contract and to take appellant's property without due process of law, all contrary to certain specified sections of both the State and Federal Constitutions.

It appears from the evidence that the appellant is the senior company and was operating a railroad at this point at the time the crossing contract in question was executed in 1892. Those sections of the contract here involved are as follows:

"Third. The said party of the second part [the predecessor of the M. K. & T. Ry. Co.] agrees that it will furnish the materials for and construct and put in all crossing-frogs, crossing-signals, gates and targets and other fixtures necessary to make the crossing with the existing tracks of the party of the first part [appellant herein at the points aforesaid strictly in accordance with such plans and specifications as shall be prescribed by the chief engineer of the party of the first part, and and that the said party of the second part will, at its sole cost and charge, forever maintain and keep in good repair, and renew, from time to time when necessary, all the crossing-frogs, crossing-signals, gates and targets and other fixtures provided for in this indenture, whether of existing tracks or of such as may be hereafter laid by the party of the first part, all in such manner as shall be satisfactory to the said party of the first part. In the event that it does not make all such repairs or renewals when reasonably required so to do, the party of the first part may make the same, and the party of the second part agrees that it will promptly pay the party of the first part the full cost thereof.

"Fourth. If, at any time hereafter, the business of the party of the first part, or the laws of the State of Missouri or the ordinances of any municipal corporation of said State, shall make it necessary to station flagmen at the said crossings, or shall make it necessary or proper to erect crossing-signals or gates thereat, said party of the first part shall have the right to employ such flagmen and to establish such signals and

State ex rel. C. & A. Ry. Co. v. Public Service Com.

gates, and the said party of the second part will pay the wages of such flagman or flagmen promptly as the same become due from time to time and the cost of the construction, maintenance and operation of such signals or gates. Any such flagman or flagmen shall be appointed by said party of the first part, but subject to the approval of the general superintendent or other managing officer of the party of the second part, and the said party of the second part shall have the right to require the discharge of such flagman or flagmen if there be good and sufficient reasons therefor, to be determined by its general superintendent or other proper managing officer, who shall state such reason in writing to the party of the first part, if required.”

Upon the hearing, blue print maps and diagrams of the proposed interlocking plant, together with the engineer's estimate of the cost thereof, were introduced in evidence. No issue is raised as to the merits of the plant which was ordered installed. The evidence shows that this system, to-wit, the Saxby & Farmer Interlocking System, has been in use for about thirty years, how extensively is now shown. It also appears from the evidence that an interlocking system is a greater instrumentality of safety than the method of having gates at crossings or the law requiring trains to stop before passing over crossings; that methods other than the interlocking system depended more upon the human agency; that sometimes engineers in approaching crossings forget to bring their engines in under control, or the gateman sometimes forget to operate the gates, and that sometimes collisions occur at railway crossings; that the mechanism of the interlocking plant is such that when one track is made clear for traffic, derailing switches in the other crossing tracks are automatically operated, thereby making it impossible for trains to meet at such crossings; that the installation of an interlocking plant insures a safe operation of trains at the crossing point. The evidence further tends to show that the interlocking plant is justifiable as a matter of economy. That the cost of carrying the interlocking

State ex rel. C. & A. Ry. Co. v. Public Service Com.

investment is less than cost of the train stops required at such points where an interlocking plant is not installed.

Mr. Harrop, the chief engineer of the Public Service Commission, testified that the usual method of apportioning the cost of interlocking plants as promulgated by rule of the Railway Signal Association was upon what is known as the function or unit basis; "that is the number of signals, derails, etc., on different tracks are the units that are made the basis for the apportionment of the cost between the companies.

This witness further testified that the situation at the North Jefferson crossing was such as to require more derails in appellant's tracks than in the tracks of the Missouri, Kansas & Texas Railway. This witness in applying the function basis to the apportionment of the cost stated that it would place against the appellant 57.9% and against the M., K. & T. Ry. Co., 42.1%. This witness further stated that the usual practice in dividing the cost of operation was to divide it equally between the two companies. Mr. W. E. Williams, the general manager of the M., K. & T. Ry. Co., corroborated the testimony of Mr. Harrop as to the usual basis of apportioning the costs of construction and maintenance of an interlocking plant.

The evidence further shows that the M., K. & T. Railway Company averaged sixteen trains per day, and the appellant six trains per day over this crossing; that it was the main line of the M., K. & T. Railway Company, but the branch line of the appellant; that the trains operated over the crossing by the M., K. & T. Railway Company were much longer and heavier than the trains operated by the appellant; that all of the appellant's trains stopped at this crossing for the purpose of taking on or receiving passengers or freight from the connecting line; that the trains of both railroads usually stood on the crossing while unloading passengers and freight at this point; that many of the M., K. & T. trains were through trains and would not