Gulf & Ship Island Railroad v. Mississippi Railroad , 94 Miss. 124 ( 1908 )

"Watkins,^* Special Judge,

delivered the opinion of the court

Upon the 8th day of September, 1908,'the railroad commission of the state of Mississippi passed an order requiring the appellant, the Gulf & Ship Island Railroad Company, to stop its regular south-bound passenger train for not more than thirty minutes at the intersection of the Mississippi Central Railroad, the point of intersection being three-quarters of a mile north of the depot of the appellant road in the village of Silver Creek, and wait for tire east-bound passenger train on the Mississippi Central Railroad, and to receive and discharge passengers, and baggage at said intersection. It is shown from the record that the appellant maintained no depot or stopping place at this point; that it had a regular depot and stopping place in the village of Silver Creek, as above stated; but that the Mississippi Central Railroad had and maintained a depot very near the point of intersection. From this order, under section 4890 of the Code of 1906, the Gulf & Ship Island Railroad Company, the appellant has prosecuted this appeal, which presents for our determination the question of the power of the railroad commission to make the order complained of.

This appeal involves the concrete question of law' as to whether or not the railroad commission had the authority under the law to compel a railroad company to stop its passenger trains at the intersection of another railroad, not being within the limits of any city, at which point it had no regular depot or stopping place, and wait thirty minutes for the train of another railroad, and at said point receive and discharge baggage and passengers. The railroad commission of the state of Mississippi is a creature of the legislature. It exists only by virtue of chapter 139 (sections 4826-4899) of the Code of 1906, and all of its powers and duties are therein specifically enumerated. It may be stated, in this connection, that we have no general statute submitting to the railroad commission general supervision over railroad companies, as will be found in some states; and, while general power is given to the commission to do many things, however, in each instance it will be found that the power is specifically granted. It is universally held that a railroad commission is a mere administrative or advisory board created to carry out the will of the legislature, and that, before it can do any act, it must be able to point to its grant of power from the legislature, which power must affirmatively appear, and must be given in clear and express terms, and nothing will be had by inference. State v. Yazoo & Miss. Valley R. R. Co., 87 Miss 679, 40 South. 263; 23 Am. & Eng. Ency. of Law (2d ed.) p. 653; Railroad Commission v. Navigation Co., 17 Or. 65, 19 Pac. 702, 2 L. R. A. 195; Railroad Company v. R. R. Com., 73 Kan. 168, 84 Pac. 755; Blake v. R. R. Co., 73 N. H. 597, 64 Atl. 202; Jones Bros. v. Sou. Ry. Co., 76 S. C. 67, 56 S. E. 666; State v. R. R. Com., 47 Wash. 627, 92 Pac. 459; Railroad Commission v. W. U. T. Co., 113 N. C. 213, 18 S. E. 389, 22 L. R. A. 570. In the case of Railroad Commission v. Navigation Company, supra, the supreme court of the state of Oregon uses the following language: “It has for a very long time been considered the safer and better rule, in determining questions of jurisdiction of boards and officers exercising powers delegated to them by the legislature, to hold that their authority must affirmatively appear from the commission under which they claim to act. There is too strong a desire in the human heart to exercise authority, and too much of a disposition upon the part of those intrusted with it, to extend it beyond the design for which, and the scope within which, it was intended it should be exercised, to leave the question of its extent to inference.”

' It is perfectly clear, from the authorities we have cited, that, if the railroad commission had the power to make the order complained of in this case, it must have obtained the same by express legislative grant; and in order to determine this question it is only necessary to look at the source of authority under which the commission must act, and ascertain whether or not vthe power sought to be exercised in this instance actually existed. It is contended on behalf of the appellee that section 4849 of the Code conferred upon the railroad commission the authority to make the. order in question. This section gives the commission power, among other things, to hear and determine all complaints made of any time schedule. We do not think that the power to hear and to determine complaints of any time schedule is sufficiently broad to give the railroad commission the authority which it has assumed in this case. In our opinion the authority to determine complaints made of any time schedule, and to malee' any change deemed proper therein, as provided in said section, conferred upon the commission authority only to regulate the time at which any train should arrive and depart from any regular stopping place, and cannot be so construed as to confer upon the commission the right to compel a railroad company to stop a passenger train at a point other than a regular station.

Upon a reargument of this case it was contended that the commission obtained the authority to make the order in question from the first clause of section 185d of the Code, which provides that “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 ;” the contention being that the .words “any depot” might include the depot of any other railroad company. However, after a careful consideration of the entire section, we are of the opinion that the legislature had in mind the fact that frequently railroad companies, in disregard of the rights of the public, cause trains, both passenger and freight, to pass without stopping stations along their line, and that this statute conferred upon the railroad commission the authority to compel any railroad company to stop any of its trains, whether passenger or freight, at any depot along its own line; and the contention that the commission has any authority to compel a railroad company to stop its passenger trains at any place other than a regular depot outside of the limits of a city is clearly negatived in that clause of the above section which grants to the railroad commission power “to 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.” It ia practically conceded in this case that the commission had no authority to pass the order complained of unless the same was obtained from either one or the other of the two sections referred to. We are therefore of the opinion that neither section 4849 nor 4854 of the code conferred upon the railroad commission .authority to make the order appealed from in this case.

We have carefully considered the case of North Carolina Commission v. Coast Line R. R. Co., 137 N. C. 14, 49 S. E. 191, 115 Am. St. Rep. 636, cited by learned counsel for the appellee; but by the laws of the state of North Carolina the railroad commission was given general control and supervision of railroads, and in addition thereto a specific grant of power was given the commission to pass the order complained of in that case, the only question being the power of the legislature to grant the power; while in this case it is not a question of the power of the legislature to grant the power, but as to whether or not the power exereised has ever heen granted. We think that the railroad commission should have the authority to require railroad companies to stop their trains at the intersection of another railroad, without regard to whether a regular depot or stopping place is maintained or not, when the public convenience may require it; but this authority must come from the legislative branch of the state government, and not by judicial construction.

We are therefore of the opinion that the railroad commission was without authority to make the order appealed from in this case, and the judgment is accordingly reversed and the cause remanded. BeversecL

* Fletcher, J., having been of counsel in the case before his appointment to the bench, recused himself and Wm. H. Walkins, Esq., a member of the Supreme Court bar, was appointed and presided as special •judge in the case.