State v. Yazoo & Mississippi Valley Railroad

40 So. 263, 87 Miss. 679

Opinions

Oalhoon, J.,

delivered the opinion of the court.

This is a petition for mandamus to require the railroad company to erect a passenger depot within four hundred feet of Wilson’s crossing, in the town of Lexington, Miss., on its right of way. The averments are that the appellee operates a railroad from Tchula, Miss., to Durant, Miss., through Lexington; that its operation of so much of said railroad as extends eastwardly from Lexington to Durant has been from 1886 under a lease from another railroad company, the West & East Railroad Company, which had before then built it and erected a passenger and freight depot in'the town, which has ever since been used by appellee; that in March, 1904, the state railroad commission, on proper petition, with appellee notified and represented, ordered appellee to establish a passenger depot within four hundred feet of Wilson’s crossing in the town, north of its track; that no attention has been paid to the order, but the original depot is used, which is, and always was, inconvenient and inaccessible to the people and business, and never such as was reasonably necessary for public convenience, whereas one built and used at Wilson’s crossing, or near it, would be; that the old depot is about three-quarters of a mile distant from the business and residence part of Lexington, separated from it by two high hills and a creek, and in an almost uninhabited part of the town; and that appellee has been fined five hundred dollars by the state railroad commission for refusing to obey its order. There is a demurrer to the. petition, on the grounds, first, that it is insufficient in law; second, that it does not show facts conferring authority on the commission to make the order; third, that it shows that there was an established depot, and does not show its insufficiency for the wants of the town; fourth, that the order requires a new depot without warrant of law; fifth, because the law does not authorize an order for the establishment and maintenance of two distinct depots in the town; sixth, because the findings of the commission do not warrant the order for a new depot; and, seventh, because the railroad company had not proposed to build a new depot nor selected a site for it. The order is made an exhibit to the petition. The court below sustained the demurrer and dismissed the petition, and the state appeals. The questions involved require construction of Code 1892, § § 4302, 430.9.

Section 4302 is as follows: “Every railroad shall establish and maintain such depots as shall be reasonably necessary for the public ’convenience, and shall stop such of its passenger and freight trains at any depot as the business and public convenience shall require; and the commission may cause all passenger trains to permit passengers to get on and off in 'a city at any place other than at the depot where it is for the convenience of the traveling public. And it shall be unlawful for any railroad to abolish or disuse any depot when once established, or to fail to keep up the same and to regularly stop the trains thereat, without the consent of the commission.”

Section 4309 is as follows: “The commission may designate the site or location of any new building or station house which may-be ordered erected in cases where the site selected by the railroad officials is inconvenient or inaccessible; but every depot must be located with due regard to the interest of the railroad and the public convenience.”

In order to throw what light there may he derived from other legislative enactments on the. grave question here presented, we reproduce Code 1892, §4311, as follows: “The commission may require every railroad to provide sufficient depot, storage, and platform facilities, and shall hear all complaints that may be presented, in writing, as to insufficient depot, storage, or platform facilities for freight, and shall make such order thereon to secure the same as the facts and the public convenience may warrant.”

We also reproduce Laws 1890, ch. 88, sec. 4, p. 107, as follows: “Every railroad company shall establish and maintain such depots as shall be reasonably necessary for the public convenience, and shall stop such of the passenger and freight trains at any depot as the business and public convenience shall require; and it shall be unlawful for any such company to abolish or disuse any depot when once established, or to fail to keep up the same and to regularly stop trains thereat, without the consent of the railroad commission. The railroad commission shall have authority to cause to be instituted and prosecuted all proper legal proceedings by mandamus or otherwise to enforce the provisions of this act.”

Interpreting this clause, this court, in State v. A. & V. Ry. Co., 68 Miss., 653 (9 South. Rep., 469), lays stress on the importance of having regard to the interest of the railroad companies as well as of the public, carefully guarding against a construction violative of the rights of such corporations. These rights must, of course, have due consideration in determining the object and effect of the order of the railroad commission in the case now before us. The courts must, by express legislative provision in the concluding clause of Code 1892, § 4309, above, give consideration to the rights of railroad companies. That clause of the section which relates to the construction of new statión houses is: “But every depot must be located with due regard to the interest of the railroad and the public convenience.” The order of the railroad commission in the case in hand, after directing the building of a “passenger depot,” which is required to be “within four hundred feet of Wilson’s crossing” and on the north side of the track, proceeds to say: “That said railroad be authorized to cease stopping its trains at the present depot, except so far as may be required for freight.” So very plainly the appellee is ordered to maintain in the town of Lexington two depots, for which order we find no warrant in any part or section of the law — which, being in derogation of right, must receive a strict construction. It is to be observed that the order of the commission requires the new depot to be, not only “within four hundred feet of Wilson’s crossing,” but also “on the north side of its main line.” It is not shown that the company has property there, nor even that it could procure it' on condemnation at reasonable rates, especially as the precise point, practically, is determined on. We can well suppose, also, that condemnation proceedings would be resisted on the very ground that the company had a depot which the laiv itself makes it •unlawful to disuse without the consent of the commission. Sec. 4302, sufra. Thus, if the consent be withheld, the old depot must be maintained, and with the clear implication that any number of depots might be ordered in any little town to suit the changing convenience of a shifting population, giving a right not dreamed of in large cities. We are referred to no case warranting such contention, though many may be found — and on common-law principles — requiring depots for towns where no such structures had ever been erected. Once erected and in operation, especially, as in this case, for so many years, we do not think the law designed to give the power to order new depots to suit varying convenience. There is now a stop station by former enactment for passengers to get on and off the trains at Wilson’s crossing. We cannot see that the order has “due regard to the interest of the railroad and the public convenience,” which might require an enormous outlay of money tO‘ substitute a regular depot for the stop station.

It seems that a railroad must provide depots for towns.' A depot was provided for Lexington many years ago. The precise question here is, Conceding, but not deciding, that the legislature had the power, did it confer it on the commission, under sec. 4309 — -when there was already a freight and passenger depot provided and built, though not convenient, and when the company had not determined to construct a new one, and had not selected a site for one — to order a new depot built for passengers at a point fixed by the commission within a half radius of four hundred feet, on a specific side of its track, regardless of the ownership of property for it or the expense attached ? We think not, and can- find no case so intimating. We refer to the reasoning of the court in both the majority and dissenting opinions in Northern Pac. R. R. Co. v. Territory of Washington, 142 N. S., 492 (12 Sup. Ct., 283; 35 L. ed., 1092). If the purpose was to confer this power, may not a new freight depot be ordered next year, and a change of the location of both depots the year after? Such tyranny was never contemplated. A passenger station was already in operation at Wilson’s crossing, put there without objection, though the law very properly requires such stops only in cities. Every depot in every city is inconvenient to residents remote from it, but it does not follow that railroad companies are required to have depots to suit sectional convenience. Section 4309 in its terms involves the idea of a previous designation by the company of a site for a new building, which the commission may not approve, in which event it may, itself, “with due regard to the interest of the railroad and the public convenience,” designate the site. In any view, it does not appear that the commission should take charge of the purse of the company and shift depots from place to place. The statT utes, as we think, have reference to the original establishment of depots, to the location of new ones desired"by the company, and to making those already established sufficient in accommodation and necessary facilities. The other view would make new structures demandable at the caprice of municipal populations and open a wide door to the suggestions of speculation. If it be the right view, it is curious to surmise what number of depots, ■ freight and passenger, will be clamored for when we have a city as large as Chicago.

Judge Trult concurs in the conclusion of affirmance, but on the specific ground that the order of the railroad commission requires the maintenance of two separate, detached depots — one for freight and the other for passengers. This he thinks ultra vires. On the power to order a new depot in a town, when one is already built and in operation, and to designate its location, he thinks it unnecessary now, to give a decision, and intimates no opinion either way. Personally, I have seen fit as a judge to express my views. Corporations are entitled to some protection under the laws, if our laws are to be just and equitable. If any number of depots may be ordered by the commission to suit populations as they may be centered in cities and towns, how many should be in New York or Chicago, with two or three millions of people and with miles of business centers ? It is no answer to say these matters will be under the revisal and care of the courts. They are under this now. I have yet to hear of the courts abolishing a power clearly given by the people. If the claim of Lexington in this case be allowed under the supervision of the courts, any claim must be, and railroad companies might be bankrupted. In my judgment, the opinion of Chief Justice Whitfield in dissent does not show a correct conception of the order of the railroad commission or of the authorities it cites. To avoid elaboration, I merely call attention to the order as promulgated, and to the authorities produced, and to the current history of the whole United States, and to the suggestions .of practical common sense. Affirmed.