| Ark. | Jun 15, 1914
(after stating the facts). Appellant contends :
First. That the statutes did not empower the railroad commission to relocate stations.
The statute provides: ‘ ‘ Section 1. That the Railroad Commission of Arkansas be and the same is hereby authorized, empowered and required to hear and consider all petitions for train service, depots, stations, spurs, sidetracks, platforms and the establishment, enlargement, equipment and discontinuance of the same along and upon the right-of-way of any railroad in this State; provided, said' petition shall be signed by at least fifteen bona fide citizens residing in the territory sought to be affected by said petitioners.
‘ ‘ Sec. 2. The said Board of Railroad Commissioners shall, within thirty days after the filing of said petition, proceed to make a personal inspection of the conditions complained of and investigate the object sought to be accomplished by said petitioners, and shall have the right to summon and swear witnesses, which' summons shall be served by any sheriff, constable or deputy having legal jurisdiction; whereupon, the said Board of Railroad Commissioners shall determine the amount, degree and character of construction, equipment, changes, enlargements •of stations and depots which should be supplied by such railroad company, its lessee, or operator, and shall have the power and authority to require a reasonable train service for each and every such railroad station and depot within the State of Arkansas, and their finding shall be binding upon all such railroads within the State of Arkansas.” Act 149, p. 356, Acts 1907.
The power conferred upon the commission by the above statute to hear and consider petitions for “depots, stations, spurs, sidetracks,” etc., and “to determine the amount, degree and character of construction, equipment, changes, enlargement of stations and depots,” is sufficiently comprehensive to enable the commission to establish a depot or station in the first place, or to change the location of depots that have been formerly established. The act, in express terms, gives the commission power to hear and consider petitions for the “discontinuance” of depots, stations, spurs, etc., “as well as for their establishment. ’ ’
While the word “relocate” is hot used, yet the terms •employed in the act are broad enough to include the relocation of a depot or station. A discontinuance of a depot or station at one location and the establishment of it at another'is but a relocation. Therefore, the power to “discontinue” and to make “changes” of stations and depots necessarily includes the power to relocate.
Second. Under the statute, a petition for the establishment of depots, stations, etc., or the discontinuance of the same at one point and a relocation and establishment thereof at another, is necessary to give the commission jurisdiction of the subject-matter. But, while a petition “signed by at least fifteen bona fide citizens residing in the territory sought to be affected by said petition” is essential to give the commission jurisdiction, the commission, in the matter of locating or establishing a depot or station, is not required to order the same built or established upon the exact spot designated in the petition. The statute does not require that the petition shall designate the precise point where the depot shall be established, and if the petitioners do define the place for the location of the depot, the commission is not bound to establish the same upon the exact spot and according to the limits set forth in the. petition. The commission is only required to consider “the territory sought to be affected,” and, of course, would be precluded from establishing a depot beyond the territory sought to be affected. But, as we have stated, there is nothing in the act requiring the exact location to be defined, nor circumscribing the authority of the commission to those precise limits where they have been set forth in the petition. A petition emanating from at least fifteen bona fide citizens residing in the territory sought to be affected, setting forth that they desire the establishment of a depot or station, or a discontinuance thereof at one point and a relocation of same along and upon the right-of-way of any railway in this State is sufficient to give the commission jurisdiction-to act in the premises, whether the exact point for the location or establishment, or relocation, of the depot or station is precisely designated and defined or not. Here “the territory sought to be affected” was the city of Benton, 'and the petition was signed by more than the requisite number of bona fide citizens of that territory. This was such a petition as the statute contemplates, and it gives the commission jurisdiction of the subject-matter, and it was then within the power of the commission to discontinue the old station and establish the new depot along the line of appellant’s railroad at any point “within the territory to be affected,” which was found to be most conducive to the public welfare, taking into consideration, of course, the interests of the .railway company, and also the convenience of the general public that was to be subserved by the granting of the petition.
It can not be said that because the commission did not direct the establishment of the new depot at the exact point described in the petition, that it acted without a petition, and therefore had no authority to make the order. There was a petition signed by more than the prescribed number of bona fide citizens, and it was requested at the hearing that if the commission did not see fit to locate the new depot at the site designated in the petition, that it be placed as near that site as practical.
Every requirement of the law was met in the matter of the petition.
Third. Appellant contends that the order under review is unreasonable and invalid because taking its property without due process of law. Appellant, in this connection, says: “The effect of the order is to destroy the value of the property owned by it and to compel it to acquire and improve other property at great and unnecessary expense without any proportionately compensative advantage to the public.”
Appellant was given an opportunity to be'heard before the commission, and was heard. The commission had before it the testimony adduced by the appellant showing the difference between the cost of rebuilding the new depot and the necessary houses and the arrangement of the tracks at the place designated by the commission, and the cost of rebuilding and rearranging the tracks, freight houses, etc, at the place of the old station. These were questions of fact addressed to the commission, and it could serve no useful purpose to set out in detail and discuss the evidence bearing upon these issues. The difference in the expense of establishing and maintaining a station at the point designated by the commission is greater, as shown by the testimony of witnesses for appellant, than the expense of building a new depot and maintaining the station at its present location, but it can not be said that this difference is so great as to amount to a confiscation of appellant’s property. The difference in the cost of the establishment and maintenance between the two locations is not so great as to make the order of the commission unreasonable and arbitrary. This was a matter addressed primarily to the commission* and after a careful consideration of the evidence bearing upon this issue, we are of the opinion that the order of the commission was not arbitrary and unreasonable.
However much we may differ from the finding of the commission, upon the evidence in this record, as to the wisdom and expediency of its order, on account of the increased cost to the appellant in making the necessary expenditures to comply with its order, nevertheless a fair consideration of all the testimony adduced on this issue does not convince us that the order was arbitrary and unreasonable. The order of the commission, under the act, and the facts adduced by this record, was not a taking of property without due process of law. St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1" date_filed="1911-04-10" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. State">99 Ark. 1.
Fourth. It is next contended that the order was unreasonable in requiring the appellant to locate its depot at a place where its main line will be upon a curve and its branch line upon a grade.
In Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12" date_filed="1907-12-23" court="Ark." case_name="Louisiana & Arkansas Railway Co. v. State">85 Ark. 12, we said: “When the Legislature passes a special act requiring the doing of a certain thing, such as the establishment and maintenance of a station at a given place by a railroad corporation, there may be a judicial question presented whether or not a real necessity exists for the doing of the thing in order to reasonably serve the public convenience. It is a question primarily for legislative determination, and that determination should not be disturbed by the court unless the power has been exercised arbitrarily and without reason. In other words, the legislative determination should be, and is conclusive, unless it is arbitrary and without any foundation in reason or justice. There may be cases where the power is exercised so arbitrarily' and unreasonably that the court should declare, as a matter of law, that the Legislature exceeded its power, and that the legislative determination should be disregarded. ’ ’
We further said: “The utmost force must be given to the legislative determination of the necessity for a station and the reasonableness of requiring the company to erect and ‘maintain one. ’ ’
And, in St. Louis S. W. Ry. Co. v. State, 97 Ark. 473" date_filed="1911-02-06" court="Ark." case_name="St. Louis Southwestern Railway Co. v. State">97 Ark. 473, we held (quoting syllabus) : “The Legislature has primarily the right to determine whether the public necessity and convenience require the establishment of a railway depot at a given point, and the courts will not disturb their determination unless it is clearly shown that such requirement is unreasonable and arbitrary.”
In St. Louis, I. M. & S. Ry. Co. v. State, supra, the court had under consideration the power of the railroad commission, under this statute, to order the construction of a. spur track, and we said: ‘ ‘ The Legislature had the right to require the construction of this spur track, and, having it, could delegate the power to the railroad commission, as it has done by said act of 1907. If it had made the requirement directly by statute instead of conferring the power upon the railroad commission to make it, its action would have been subject to judicial review only as being so arbitrary and unreasonable as to cause it to be void for want of power. The order of the railroad commission, made under the authority delegated to it, is subject to legal review for the same cause.”
These principles doubtless were in the mind of the chancery court when passing upon the facts on the issue as to whether or not the order of the commission was so arbitrary and unreasonable as to render the same void. The court was correct in its conclusion. It can not be said that the order of the commission was ‘‘ arbitrary and without any foundation in reason and justice.”
Appellant contends that the order was unreasonable because the testimony adduced by it showed that the location of the station under the order of the commission was on a curve on the main line; that being on a curve there was difficulty in starting trains, in coupling the cars and in seeing signals, all of which rendered the operation of trains far more difficult and dangerous than it would be on a straight track, like the one at the old statiun or place at which the appellant proposed to erect its new depot building.
The undisputed testimony showed that the. station ■under the order of the commission would be located on a curve on the track of appellant’s main line that was one and one-half degrees. There was much testimony on behalf of appellant tending to show that the difficulty, as well as the hazards, of operating the trains on this curve would be greatly increased; that if the station was located according to the order of the commission, on the branch line the engine would stand upon a one per cent grade, which would make it very difficult to handle long, heavy trains, whereas, at the old station there was a straight track on the main line and the grade of the branch line was of sufficient distance to permit the proper handling of trains. The testimony also tended to show that if the appellant undertook to straighten the curvature at the station under the order of the commission, and to reduce the grade on the branch line so as to enable it to properly handle the trains it would cost about $55,000. It was shown that a larger number of passenger trains passed through Benton than any other town in the State except Little Rock. This fact was because of the numerous passengers to Hot Springs.
It was shown that an effort was once before made before the railroad commission for the removal of the depot from its present location, which was unsuccessful, and likewise an unsuccessful effort was made to have the Legislature pass a special act requiring the removal of the depot from its present location. On the other hand, there was testimony tending to show that the .site where the station is now located, and the site where it would be located under the order of the commission were so nearly identical that either would make a good location; that the curve at the station of the Bock Island railroad at Benton was greater than would be the curve at the station under the commission’s order; that a curve is objectionable if sharp, that is, if over four degrees; that while it is preferable always to have the stations located on a straight track, nevertheless appellant had quite a number of stations located on curves of one and one-half degrees.
It was shown that the appellant owned sufficient land between the two tracks to make a straight track south for five or six hundred feet; that it had room to straighten its tracks without getting off its right-of-way; that from the old station it had 522 feet of straight track; that it had plenty of room to carry the straight track 522 feet south of the new location.
It was shown that the cost of erecting the depot building at the station ordered by the commission and at the old station where the depot building had been burned would be approximately the same; and there was evidence tending to show that the convenience to the people of Benton as a whole would be far greater at the station ordered by the commission than at the old station, and that the danger and difficulty in operating trains at the station as ordered by the commission would be no greater than at the old location.
Without going into further detail concerning the facts, it suffices to say that it was shown that a majority of the commission visited the location, heard the testimony pro and con, and, after making a thorough investigation and giving the parties full opportunity to be heard, made the order now challenged by the appellant.
Under the principles already announced by this court as to the power delegated by the Legislature to the commission, we are of the opinion that the court was correct in holding that the order of the commission, under the facts adduced, was not arbitrary and unreasonable.
The decree, therefore, dismissing the appellant’s complaint for want of equity, is in all things affirmed.