102 Neb. 279 | Neb. | 1918
Four errors are assigned: (1) That the evidence does not sustain the order of the commission as to inadequacy of service; (2) that the trains required cause an unreasonable burden to be placed upon the interstate business of defendant; (3) that the receipts from the operation of the trains would be so light compared with the expense of operation as to be confiscatory; (4) that the order is unreasonable, denies the equal protection of the law to the railroad company, and deprives it of its property without due process of law.
By the decisions of the United States supreme court in the cases of Chesapeake & O. R. Co. v. Public Service Commission, 242 U. S. 603. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, Atlantic C. L. R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, and Missouri P. R. Co. v. State of Kansas, 216 U. S. 262, the following principles seem to be definitely established: By the acceptance of a charter which confers upon it the power of eminent domain and other valuable privileges a railroad company assumes certain duties. It must exercise the functions for which it was organized and in consideration of which the privileges were conferred. Under the statute of 1866 in force until 1913, railroad corporations were required to “furnish sufficient accommodations for the transportation of passengers and freight,” and it was required also that every such corporation “shall take, transport, and discharge all passengers to and from such stations as the trains stop at, from or to all places
There is a distinction, however, between imposing the duty of service and the regulation of rates. It may become necessary, in order to furnish proper service as required under the charter, that a railroad company be required to operate a branch line at a loss, or to furnish certain other service for less than actual cost. It is also true that the nature and extent of the existing facilities furnished by a railroad company must be considered in determining whether a requirement that such facilities be increased is just and reasonable. If it were shown that the enforcement of the order would so affect the general scheme of the operation of the entire system that it would inevitably require its operation at a loss, then the order might be considered so unreasonable as to violate the Fourteenth Amendment,
Ordinarily the known discomforts, disadvantages, dangers and annoyances connected with the transportation of passengers upon, freight trains require separate trains for the carriage of freight and live stock and for the carriage of passengers. A full discussion of this point may be found in People v. St. Louis, A. & T. H. R. Co., 176 Ill. 512, 35 L. R. A. 656, and in Missouri P. R. Co. v. State of Kansas, 216 U. S. 262. We agree with the doctrine of these' cases. The legislature of Nebraska has evidently taken the same view, as it has provided in the act.specifying the necessary equipment to- -be placed upon gasoline motor cars or gasoline trains (Laws 1909, ch. 97) that the state railway commission shall have the power to release any ' railway company from such requirement “on new roads where steam passenger trains have not been regularly run, until such time as the business will warrant better service, also on parts of roads where at least one steam passenger train has run, which makes regular stops at least six days in the week; provided, mixed freight and passenger trains shall not be considered passenger trains.” Rev. St. 1913, sec. 5986.
Prima facie, therefore, an order requiring proper facilities to be furnished passengers is reasonable. It is shown that the expense of operating this train -will amount to more than $22,000 a year. It is very doubtful whether the operation of a passenger train will pay expenses for many years, unless defendant is allowed to increase its rates. It is clear it will not be presently remunerative. The more fact that the rendition of a certain class of service by a railroad company may be unremunerative is not sufficient to relieve it from the duty of furnishing the same. Cram v. Chicago, B. & Q. R. Co. 84 Neb. 607; Davison v. Chicago & N. W. R. Co., 100 Neb. 462. As pointed out in Atlantic C. I. R. Co. v. North Carolina Corporation Commission, 206 U.
Since the rendition of the order complained of, a condition has arisen of which the court is justified in taking .judicial notice. The country is now in a state of war, and the government of the United States has assumed control over the operation of the railroads. There is a deficiency in motive power and of cars, and a shortage of men. To take the necessary engines and rolling stock to operate this train may decrease to that extent the facilities of defendant for the patriotic duty
Order vacated.