134 P.2d 1073 | Idaho | 1943
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *600 The following statement of facts appears in appellant's brief, over which there seems to be no dispute, to-wit:
"The latter part of August, 1941, the Union Pacific Railroad Company filed with the Public Service Commission of Utah an application for authority to discontinue its trains 553 and 554 between Cache Junction, Utah, and Preston, Idaho, and trains 559 and 560 between Ogden, Utah, and Malad, Idaho. *603
"Following the filing of this application with the Utah Commission the Idaho Public Utilities Commission having been informed of the application filed in Utah issued its Order No. 1755 on September 13, 1941, directed to the Union Pacific Railroad Company to show cause why such trains should not be continued under their present schedules in order to provide 'proper service for both persons and property within the State of Idaho.' Joint hearings were held by the Public Service Commission of Utah and the Public Utilities Commission of Idaho at Ogden, Utah, on October 13, 1941, and at Preston, Idaho, on October 14, 1941. On December 30, 1941, the Idaho Public Utilities Commission made and entered its Order No. 1765 requiring the Union Pacific Railroad Company to maintain the service between the Utah-Idaho state line and Preston, Idaho, and between the Utah-Idaho state line and Malad, Idaho, and that the operation of the trains in question be continued, which order was received by the Railroad Company on January 24, 1942. Following the receipt of the order of the Commission and within the time required by law appellant served and filed its petition for rehearing, which was on the 17th day of March, 1942, by the Commission denied. From the order requiring the Railroad Company to continue the service of the trains in question and from the order denying the petition for rehearing the Railroad Company has appealed to this court for a review of the Commission's order.
"Trains 553 and 554 are motor passenger trains and operate between Cache Junction, Utah, and Preston, Idaho, a distance of 51 miles. * * * and only two stations are located in Idaho on this branch where any passenger business is handled, to-wit: Franklin and Preston. Trains 559 and 560 operate between Ogden, Utah, and Malad, Idaho, a distance of 73 miles. * * * and only two stations are located in Idaho on this branch which handle any passenger business, to-wit: Cherry Creek and Malad. The Railroad Company proposed to take off these passenger motor cars and to substitute in lieu thereof mixed trains, which means that the Company would place a passenger and baggage car on its existing freight trains, to handle any passengers, baggage and express that may require transportation."
We shall hereafter refer to the Public Utilities Commission as the "Commission" and the Union Pacific Railroad Company as the "Railroad Company" for brevity. *604
At the conclusion of the hearing and consideration by the Commission of testimony introduced by all parties, the Commission made its findings of fact and order, to-wit:
"1. We find that the Union Pacific Railroad Company is a public service corporation organized under and by virtue of the laws of the State of Utah and has been authorized under the laws of the State of Idaho to engage in the railroad transportation business in Idaho.
"2. We further find that the trains in question, Nos. 553 and 554 operating between Cache Junction, Utah, and Preston, Idaho, and Nos. 559 and 560 operating between Ogden, Utah, and Malad, Idaho, are branch lines of the Union Pacific system and this Commission has jurisdiction over an abandonment of such service.
"3. We find that these trains, if considered apart from the other operations of these branch lines, are not operated at a profit, but from the record we are unable to determine the amount of the deficit.
"4. We find that the service performed by these trains has been allowed, either deliberately or otherwise, to deteriorate with a consequent loss of patronage.
"5. We find that the operation of these trains is an integral portion of the entire service rendered by the Union Pacific Railroad Company over these branch lines and by its system generally, and that the loss sustained by the operation of these trains does not materially affect and is not an unreasonable burden on the entire system.
"6. We find that the service, even as at present rendered, is both convenient and necessary to the public, and that the operation of these trains should be continued.
* * *
DONE AT BOISE, IDAHO, this 30th day of December, 1941, by the Commission." *605
Briefly stated, appellant attacks the sufficiency of evidence to support the findings of the Commission, Nos. 3 to 6, inclusive. To bring about the substitution, appellant contends throughout that there was, and is, no public necessity for passenger service rendered by these exclusive passenger trains on said branch lines. And secondly, the service performed by said trains does not yield an adequate return. Incidentally, and as an additional ground for discontinuance of passenger train service, appellant urges the need in the present emergency for skilled laborers who are handling these trains. For the purpose of determining whether or not the Railroad Company has established its contention, the burden rested upon it to show that the proposed passenger service would be adequate, efficient, just and reasonable. Sec.
"Every public utility shall furnish, provide and maintain such service, instrumentalities, equipment and facilities, as shall promote the safety, health, comfort and convenience of its patrons, employees and the public, and as shall be in allrespects adequate, efficient, just and reasonable." [Italics ours.]
We will first undertake to analyze the situation as it affects the branch line from Preston to Cache Junction, for the purpose of determining whether or not substitution of a mixed train between Preston and Cache Junction would be adequate, efficient, just and reasonable in lieu of the present passenger trains which are now operated between the two above-mentioned points. From the record it appears there are three Union Pacific Stages scheduled through Preston each way per day; in addition to this bus service, the Utah-Idaho Central Railroad Company operates an electric railroad with five schedules each way per day between Ogden, Utah, and Preston, directly connecting with the Bamberger Electric Line at Ogden. We will take judicial notice of the existence of paved highways practically paralleling the railroad lines, which materially add to necessity and convenience of the traveling public.
On the Cache Valley branch during a 28 day period, one passenger got on at Franklin, and undoubtedly got off at Preston, four passengers got on at Preston, and none got off at Franklin. For 28 days of September, 1941, 46 passengers were handled on train 553 [Cache Junction to Preston], or an average of 1.64 passengers per day, and 38 passengers on train 554 [Preston to Cache Junction], *606
or an average of 1.36 passengers per day. Total revenue over a period of 18 months for these two trains was $11,473.80, as against an expense of $23,063.46, showing a net loss to the Railroad Company of $11,589.66. It appears there is a negligible use of passenger train service by the public, and there are adequate and efficient means of transportation to and from Preston to Logan, and Preston to Ogden, with direct connections to Salt Lake, as to reasonably accommodate the public which might have occasion to use either rail or bus service between these points. In reviewing the order of the Commission requiring appellant to continue operation of its train service as of the date of hearing, it is necessary to consider, as one of the elements, whether or not operation of passenger service only at a loss justifies discontinuance thereof when earnings of the entire system reflect no deficit. The following authorities adhere to the view loss sustained only in providing passenger service is not justification for discontinuance: Pond on Public Utilities, Vol. 3, par. 911, p. 1832; Ft. Smith L. T. C. v. Ward,
Coming now to the question of whether or not the order of the Commission should be sustained so far as it relates to the Ogden-Malad Branch, the record shows during a 28 day period of September, 1941, only 4 passengers got on at Cherry Creek going to Malad, 23 passengers got on at Malad, and none got off at Cherry Creek. For said 28 day period, 51 passengers were handled north-bound between Ogden and Malad, or an average of 1.82 passengers per day, and on the south-bound movement there were 68 passengers handled, or an average of 2.43 passengers per day. The record discloses for an 18 month period total revenue of $13,995.81, as against a deficit expense of $34,466.88, making a net loss of $20,471.07. We have in the record no estimate of net earnings of the system; that is to say, no estimate of earnings for handling freight. Appellant has simply set up a net loss in operating passenger service. It is conceded by appellant the operation of passenger service over all railroads within the United States reflects a loss; there is not a branch line in Idaho which shows a profit in operating passenger service. As heretofore stated, it is proper to take into consideration expense of furnishing service in determining whether or not the patronage justifies the expense, however, it is not the most important question to be considered by the Commission; the controlling question being the necessity and reasonableness of the service to the public. (Village ofMillersburg v. P. U. C.,
In People ex rel Cantrell v. St. Louis A. T. H. R. Co.,
"Inasmuch as a railroad company is bound to carry both passengers and freight, and the duties and liabilities of a railroad company to passengers riding on freight and passenger trains are very different, a railroad company is obliged to furnish and operate passenger trains separate from its freight trains for the accommodation of its passengers.
"By the running of a mixed train consisting of freight, coal, stock and passenger cars, a railroad company does not discharge its duties to the public of furnishing transportation to passengers.
"Where the system of railroads under one management is paying, and the company is solvent and prosperous, it cannot escape performance of its charter duty of furnishing transportation over one portion of its road by showing that that particular portion does not pay, when all parts of the system are so interwoven that an accurate ascertainment of the profits of any one portion of the road is impracticable."
In the instant case appellant contends that it should not be required to furnish passenger transportation between Ogden and Malad for the reason that it is not profitable, and, at the same time, at least impliedly admitting its system, as a whole, as well as its branch line operations, as a whole, are profitable, and without taking into consideration its earnings in the transportation of passengers from Ogden to Brigham City on the Malad Branch. From the record it appears approximately two million bushels of wheat alone were shipped out of Malad over the branch line yearly; what was received from the shipment of all farm products, livestock, machinery, etc., over the system is not disclosed, loss being predicated on passenger service only. In 123 A.L.R. 922, the question is exhaustively discussed. From that annotation the following paragraph is quoted:
"The rule supported by the majority of the decisions is that in considering the question of whether or not a railroad company should be compelled to continue the operation of a branch line, the entire revenues of the system are to be taken into account, and not merely the direct return from the branch line itself." *609
In State v. Geo. So. Flor. Ry. Co.,
"In determining whether local train service may be reduced all revenue receipts of every nature and kind on and from the particular line and the entire system should be considered as well as the total proper expenses."
There is no parallel railroad operating from Ogden to Malad as there is from Preston to Cache Junction. There is but one bus service each day: One from Malad to Salt Lake, and one from Salt Lake to Malad, and on to Pocatello. We are also justified in taking judicial notice, due to the war, operation of motor propelled vehicles is limited to a minimum, passenger cars being practically eliminated. No doubt, the loss sustained by operation of passenger trains is reflected in the freight rates. The Commission was justified and it was their duty, to take into consideration the inconvenience the public would suffer by reason of such change in service by transmitting mail, express and baggage, as well as passenger service, all on one and the same train. As was said in People v. St. Louis,etc. R. Co., supra:
"and, when a passenger rides on a freight or mixed train, he takes upon himself the increased risk and lessened comfort which is incident thereto; nor has he the legal right to demand any other care in the management of such a train than is requisite for that kind of a train, or any other security than such a mode of conveyance affords."
(So. Ry. Co. v. S.C. Publ. Ser. Comm., supra; Village ofMillersburg v. P. U. C., supra.) Thus, in this instance, the public will be left practically without railroad passenger service, limited to the minimum in bus service, and seriously restricted in the operation of all motor vehicles. In such circumstances, the action of the Commission, in denying appellant's right to discontinue its present passenger service, and in lieu thereof substitute mixed train service, was neither arbitrary nor capricious. The Commission is vested with discretionary power, and, in the absence of abuse of such power, this court would not be justified in setting aside its order.
While there are numerous decisions on all phases of the questions here involved, no fixed or definite rule can be applied. Each case must be considered and determined *610 in the light of all facts and circumstances of the individual case.
We feel constrained to hold, upon the entire evidence, to substitute mixed train service in lieu of the present passenger service would not be adequate, efficient, just nor reasonable, but, on the contrary, would be inadequate, inefficient, unjust and unreasonable to the public. We have concluded to sustain the Commission's order requiring the Railroad Company to continue its passenger service on the Malad Branch.
Respondents complain by reason of appellant's failure to comply with Sec.
The order of the Commission is hereby reversed as to the Preston-Cashe Junction feature of the order, and sustained as to the Malad Branch. Costs awarded to respondents.
Ailshie, Givens, JJ., and Koelsch, D.J., concur.
Dissenting Opinion
As disclosed by the foregoing opinion, the Union Pacific Railroad Company very largely rests its right to discontinue passenger service between Preston, Idaho and Cache Junction, Utah, upon a showing of a net loss to the Railroad Company of $11,589.66, covering a period of eighteen months. The operation of passenger service on a branch line at a loss will not justify discontinuance of passenger service on such branch if the earnings of the system as a whole show a substantial profit, as in the case at bar. (Southern Ry. Co. v. S.C. PublicService Comm., 31 Fed. Supp. 707; Ches. Ohio Ry. Co. v. Pub. *611 Ser. Comm.,
In Southern Ry. Co. v. S.C. Public Service Comm., supra, premised upon repeated decisions of the Supreme Court of the United States, the court held:
"Since, therefore, plaintiff is charged with the duty under its franchise of maintaining passenger service on the entire line of the railroad, an order enforcing that duty may not be said to be unreasonable and arbitrary merely because its performance may result in loss to plaintiff. Atlantic CoastLine v. North Carolina Corp. Comm.,
"A case directly in point is Missouri Pac. Ry. Co. v. Kansas, supra,
" 'The fact that the performance of the duty commanded by the order which is here in question may, as we have conceded for the purpose of the argument, entail a pecuniary loss, is, of course, as declared in the Atlantic Coast Line case, as a general rule, a circumstance to be considered in determining its reasonableness, as are the other criteria indicated in the opinion in that case. But where a duty which a corporation is obliged to render is a necessary *612 consequence of the acceptance and continued enjoyment of its corporate rights, those rights not having been surrendered by the corporation, other considerations are, in the nature of things, paramount, since it cannot be said that an order compelling the performance of such duty at a pecuniary loss is unreasonable.' "
In the case at bar it is conceded passenger service on theentire system is operated at a loss, so that if loss in the operation of branch line passenger service justifies a discontinuance of branch line service, then loss in the operation of passenger service on the entire system would likewise justify discontinuance of all passenger service. Furthermore, it is urged with much reason by protestants that lack of patronage of the passenger service between Preston and Cache Junction is "due to too poor service." Therefore, upon grounds of both law and fact, I dissent from that part of the opinion of the majority reversing the order of the Public Utilities Commission which required the Union Pacific to continue its passenger service between the last above-mentioned points.
And the grounds which prompt me to dissent from the opinion of the majority reversing the order of the Commission which required the Union Pacific to continue its passenger service between Preston and Cache Junction, lead me to concur in the majority opinion affirming the order of the Commission which required the Union Pacific to continue its passenger service on the Malad, Idaho, branch line.
