Mississippi Railroad Commission v. Yazoo & Miss. Valley Railroad

1. Appeal and Error. Advancement of causes. Bearing. Orders of railroad commission. Validity. Due process of law. Code 1906, section 4907. The state railroad commission is not entitled to have the hearing of its appeal advanced in the supreme court from a decree enjoining enforcement of an order against railroad companies, as such a case is not a preference case under the provisions of Code of 1906, section 4907, providing for the advancement of certain causes on appeal. 2. Railroads. Regulation. Railroad commission. Orders. Validity. The state has the right to regulate railroads with in reasonable limits. For an order of a railroad commission, directing any railroad company to do a certain thing, to be reasonable, the thing ordered to be done must, among other things be within the purposes for which such railroad was chartered, or within the scope of the business in which it is engaged. 3. Due Process oe Law. Orders of railroad commission. Validity. An order of a railrpad commission requiring the railroads to make physical connection at a point where it is not necessary in order that cars in transit may be transferred from one road to another, is unreasonable and unenforceable, as constituting a deprivation of property without due process of law, where its enforcement would merely result in the furnishing by each railroad to the other terminal facilities, the roads being engaged in transporting freight, and passengers, and not in switching or transfer service or furnishing terminal facilities to other roads.

Appeal from the chancery court of Hinds county. Hon. Gr. Gr. Lyell, Chancellor. Snit by the Yazoo & Mississippi Valley Railroad Company against the Mississippi Raliroad Commission. Prom a decree for plaintiffs, defendant appeals. The Yazoo & Mississippi Yalley Railroad Company sued out an injunction to restrain the enforcement of an order of the Railroad Commission requiring it and the Southern Railway Company to connect their tracks at Hollandale, a station situated on the line of both railways, where' the two ran parallel. The chancellor g’ranted a perpetual injunction, and the Railroad Commission appeals. At the March, 1911, term of the supreme court the appellant filed a motion to advance the cause on the docket as a preference case, which motion was overruled on May 22, 1911. Thereafter, at the October, 1911, term of said court, the case was argued and submitted. Based on the right of the public to use switch. We apprehend that this is one of, if not the determining question in this case, and will, therefore, go into the authorities on it to some extent. It seems that the weight of authority and the best reasoned cases hold that the test as to whether the use to which the projected railroad, spur, feeder or connecting switch, is public or private, is determined by the question as to whether all of the public dealing with the public service corporation have the right to use the projected railroad, spur, feeder or connecting switch, and not by the fact that the number who have business requiring its use may be very small. The cases defining when the use of public and private have most often arisen in the exercise of the right of eminent domain. However the principle involved in the determination of what is a public use apply in the ca,se at bar. Some of the leading cases on this subject are here cited. Ulmer v. Lime Rock Co., 57 Atl. (Me.) 1001; Decamp v. Hibernia R. R. Co., 47 N. .J. Law 43; National Dock. R. R. v. Central R. R.,.32 N. H. Eo. 755; Kettle River R. R. Co. v. Eastern Ry. Co., 43 N. W. (Minn.) 4691; Chicago V. & N. B. v. Carter, 46 N. W. (Minn.) 75; Phillips v. Watson, 18 N. W. (Iowa) 659; Chicago Dock & Sea Co. v. Gcvrity, 3 N. E. (111.) 448; Copland v. Chicago, 68 N. E. (111.) 522. . This question is fully discussed, in the first .ease above cited and the authorities are there cited, classified and ■distinguished, and which case is so well reasoned that we content ourselves with the exposition of the question therein made. 2. Due process of law. — We do not believe the contention of appellee to the effect that the order of the railroad commission, directing the two railroads in question to put in the connecting switch over an intervening strip of land belonging to third persons, falls within the constitutional provision against the taking of property without due process of law. We fully understand that it would be necessary for one or the other of the railroads or both acting jointly to have condemned the right of way for the connecting switch under the right of eminent domain and pay therefor. This could have been done under their charters without question, and the owner of the strip of land would not have been heard to question their right on the ground that the exercise of eminent domain in the instant case amounted to the taking of his property without due process of law. Therefore, if these railroads or either of them, could exercise their right of eminent domain of their own volition, in case they deemed it to their interest to so do, why could not the state from whom they received their charters acting through the state railroad commission, compel them to exercise the right of eminent domain on behalf of.the public? To put it otherwise we do not believe it comports with the better law on the subject under discussion to hold that the choice of the time and the necessity for the exercise of the right of eminent domain, belongs entirely to public service corporations. We believe that, upon public service corporatiohs, failing to exercise the right of eminent domain, given them under their charter, in cases where the public convenience demanded that, such be done, then the state may, acting through its legislature, or through its railroad commission, or such other supervisory body as it may vest with the power,, choose the time and pass upon the necessity for the exercise of the right of eminent domain and compel such exercise. The following language of the Supreme Court of the-United States, we think apply in point: “In this case the provision is manifestly a reasonable one tending directly to the accommodation of the public and in a manner not substantial or unreasonably detrimental to the ultimate interest of the corporation itself. ’ ’ “Although to carry out the judgment may require, by the plaintiff in error, of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnished an answer to-'the application of the defendant in error.” Railroad Co. v. Jacobson, 179 U. S. 288, 45 L. Ed. 195. The case above cited was one requiring the track connection and facilities for the exchange of cars and traffic at railroad intersections. The opinion of the court in this case is supported by a list of authorities there cited. Aside from the above authorities we believe that the question - of due process of law was entirely removed from the ease before the chancellor, by the tender of the right of way by the Areola Manufacturing Co., as set out in the answer of appellant and the evidence in the case. We rely on the case of Wisconsin, etc. R. R. Co. v. Jacobson, 179 U. S. 287, 54 L. Ed. P. 194, for a reversal of the decree in the court below, rendered by chancellor Lyell against the present appellants. The "Wisconsin-Jacobson suit involves the question of railroad intersection and of validity of statute requiring track connection and interchange of traffic. The Law Edition, volume 45, shows the Minnesota statute, concerned, whose similarity to the Mississippi statute will at once be apparent. The suit started in the Minnesota state court, and came by writ of error before the United States Supreme Court. That court, in a lengthy opinion by Mr. Justice Peck-ham laid down the law, and we submit that the decision is here in point. The present court will note that the question of constitutional rights of the railroad companies was clearly presented to the United States Supreme Court, and that great tribunal held that the companies, by such Minnesota statute, were not deprived of their constitutional rights, of their property without the process of law. "We accordingly submit that the decree of the chancery court below should be reversed and proper decree be rendered on the law and facts, in the present appellate court. First: That the order of the Railroad Commission was void for the reason that it was made to subserve a private interest and not the public welfare, citing Lewis on Eminent Domain, sec. 157 and 171;.Elliott on Railroads, sec. 961, page 1365, note; Kyle v. T. & N. O. By., 4 L. R. A. 275; St. Louis Raihvay v. Perry, 20' L. R.- A. 434; G. e# 8. I. R. R. v. Railroad Commission, 94 Miss. 134. Second: The meaning of section 4895.of the Code authorizing the commission to require physical connections, is that such connections shall be required for carrying on the business for which the carrier is incorporated, to-wit, for transportation, and not for the purpose of carrying on a business fo.r which carrier is not incorporated as switching or transfer service. Third: That the effect of the order is to require the Yazoo & Mississippi Valley Railroad to surrender the use of its terminals to the Southern Railway. This is not only expressly forbidden by the Interstate Commerce Act, but violative of the Fourteenth Amendment of the Federal Constitution, citing Atlantic Coast Line v. North Carolina, 206 U. S. 1; Wisconsin Railroad v. Jacobson, 179 U.' S. 287; Lake Shore S M. S. Railroad v. Smith, 173 IT. S. 684. Fourth: That the order of the Railroad Commission violates the Fourteenth Amendment of the Constitution ■of the United States, citing’ Pacific Coast Lumber Manufacturing Association v. Northern Pacific Railroad, 14 I. C. C. 57; Central Stock Yards Company v. L. & N. R. Pi. Co., 192 U. S. 568.