*1 Pugh Hugh v. Public et al. O. and to Use State at Relation Members, Ap al., et J. Brown Thomas Service Commission (2d) pellants. S. W. 946. One, 1928. November
Division *2 appellants. D. J. P. D. McDonald and Painter *3 Cassidy respondents. Kali A. and John Lee K.
LINDSAY, appeal of Service Commission is C. The the Public judgment which setting aside an order of the commission approved rates, passenger upon schedule increased Railway Company St. line Louis-San Francisco between railway St. company, Louis and suburban certain towns. February 11, 1926, passenger local tariff filed its number 238 with providing increased fares on fifty- ten-ride and Grove, tickets, ride commutation St. Louis and between Tower Highlands points. Tower Grove and Meramec and intermediate Pro- filed, hearing had, tests were and an order approving Upon the new rates. the evidence exhibits before the commis- sion, court, proceeding upon circuit the review instituted protestants, following findings made the of facts:
“1. That St. Louis-San Railway wholly Company Francisco proof imposed failed to *4 sustain burden of by express it statutory provisions (Section 10457, 1919) S. justifying Mo. the R. sought charged increased rates to be its under schedule 238. “2. specified The in said schedule are discriminatory in they provide substantially greater for that a rate mile for cer- station, tain Groves, g., e. Webster than for other similarly stations situated, g., e. Gratiot on the east and Park on the west. “3. The in tariff said is discriminatory schedule in that it fails provide fifty-ride, sixty-day to a limit individual ticket for Keyes points of a comparable east Summit at rate other to localities similarly situated. ‘‘4. The reduction of the time limit made said schedule ten- ninety days thirty ride days bearer tickets from to is arbitrary and wholly unsupported by any justifying evidence change, such change such against discriminates the members of the families of who uot regularly employed in business,” suburbanites are reversed, oü aside, or set the order Thereupon, circuit court the proceedings not the the cause further commission, and remanded appears from state- the court. the inconsistent with the order of It that, proceedings mentioned, rail- in the the ment the briefs after ten-day tickets, way company changed the limit on ride bearer time schedule, ninety days, thirty days provided in from as was said to finding thereby eliminating question involved in the fourth the assignment questions the of error and dis- circuit court. the upon in cussed the arise the first three of the above men- briefs findings. tioned railway company appeal judgment, took no the from respondents suggest contemplate
counsel statutes do not case that under the circumstances this the commission should appeal. call They take an attention to Section Stat- Revised (Laws 330), 1923, page utes as amended wherein duties the general They suggest counsel are set forth. general that since the section last mentioned the counsel is re- quired public hearings to in represent all rate before com- mission, place should the statute not be so construed as him to in position conflicting representing public interests —the be- commission, utility company fore the before the courts. However, requires general the section to referred also counsel represent to the commission in all in any actions reference to act commission; order done made and the commission, by given right appeal Section any judgment any proceedings: right rendered review so that com- herein, to appeal duty mission and the general rep- counsel to commission, resent the cannot be doubted. prior record filing shows that the schedule for rates, railway company
increased had application made permission ground discontinue this on the that it was be- ing a loss, and application rendered at the commission denied the part. Having, finding proceeding the service having loss, permitted entailed ordered continuance and rates, thought increase the commission doubtless action its should sustained, appeal. took be court, upon and the circuit
The commission the same evidence opposite question upon reached conclusions whether an increase upon justified, question and also rates was whether the rates unjustly discriminatory. The ease is here were for determination evidence; and, rulings under the uniform this court novo; and, ele be considered while on the evidence hand *5 provisions urged statute, of the that under the the findings it is and reach the circuit court with presump- the commission the order of right other, action, findings on and the and order tion of of right ac- presumption
the circuit of court reach this court with the tion, nevertheless, in a suit for as the cause here determination com- equity, by findings in and this court is not the bound mission, by findings contrary of circuit court. nor the the [State Commission, ex rel. & Mo. Light Power v. Public Service Co. 333, and eases there cited.] inquiry question
The the first the whether under directed to evidence, in justified granting the increase the commission was is, question was, rates. and no In the of this there determination rendering inquiry property service, into the of used the value the of a property nor of so used. net return a valuation the question merely from the one hand of revenue derived is one the service, testimony of and on the other of the cost the service. railway company the were and exhibits introduced on behalf the year was the that for the the revenue from service effect year 1924, $125,887.26, year for $150,099.46, and the the for testimony, 1925, $87,841.95. revenues, accepted by This as to the commission, countervailing testimony. being there no the protestants in- question of cost On the accountant, McSpadden, public who testified James D. troduced analyzed reports the annual of the rail- he had examined and Commission, way company and from made to the Public Service reports information, had made tabulations of the and other those headings; expenses were introduced evi- under various these railway company also its ex- introduced dence as exhibits. expenses, grouped under the head- or like hibits tabulations protestants making testified that ings. The accountant charges passenger line service he used the to the his tabulations accounts, report railway in the annual com- shown various commission, by pas- these amounts divided line pany, miles, multiplied or line train the result senger locomotive suburban service. The witness miles train lines locomotive company railway that he arrived at the results in testified taking year cost actual in this service for the tabulations his miles, miles, train multiplying locomotive figures instances, and used actual year 1925, in some respective items tabulations The totals these year, in others. grouped 1925, are expenses year shown under their re- as follows: spective heads
303 Railways Protestants n — n (cid:127) — n $23,450.83 -$14,269.28 Repairs Acct. 308 Steam Locomotives — 2,319.40 2,319.40 Depreciation- 309 317 Steam Locomotives — ” ” — 10,265.13 - 10,642.87 Repairs Passenger Train Cars — — 4,029.97 4,029.97 Passenger Depreciation- 318 Train Cars — ” ” — — 2,796.05 2,799.59 - Employees 373 Station 15,749.48 17,869.48 7,831.46 - Enginemen 392 Train ” — 11,056.53 - 394 Fuel for Train Locomotives ” ” — - 922.59 327.16 397 869.48 Water Train for Locomotives ” -— - 398 314.49 Lubricant for Train Locomotives — — 163.58 Supplies 399 Other 154.16 ” for Locomotives Train ” ” — 2,207.61 3,126.60 Enginehouse 400 Expenses — Train- - 7,609.46 21,370.09 401 —Trainmen ” — 3,793.64 - 4,390.54 402 Expenses Supplies Train & Proportion Suburban Service Railroad of Terminal Charges Opera- Association for Maintenance and - 24,308.34 24,769.75 tion of Union Station at St. Louis $130,953.75 $92,803.18 Expenses Total By foregoing respective accounts, reference to the it seen that the widest differences exist in Loco- them, three of account Steam Repairs, 392, Enginemen, Train Train- and account motives— men. arriving charged In of of many at the cost service under these accounts, heads, protestants or a cal- the accountant for the per charge culation of the cost mile of that service or on the whole (cid:127) system company. Thus, arriving at of train en- the cost ginemen in passenger service, entire cost the suburban he took the passenger enginemen system, of train and divided on the whole by passenger mileage the on whole sum total locomotive system. quotient represents per cost of character mile per multiplied by That of service. cost mile the total locomotive passenger represented of the suburban service made the sum charge enginemen pas- as the total or cost for train the suburban evidence, however, senger service. shows that under the con- railway company brotherhoods, and the railroad tract between the employments upon paid basis the men those were trip 100 men in minimum miles. As result the this suburban paid upon mileage, passenger service were not the basis actual but trip 100 In basis of a minimum miles. view of that protestants accountant for conceded that his calculations fact, the charge engine represent actual trainmen and train- did not engaged service, a calculation apportionment men but was upon average which for such out based cost mile left consideration, paid these men were basis of a the fact that mileage repre- trip miles, 100 not on the actual minimum year. by passenger during the com- service the suburban sented accepted thereforé, charges, as to those the amounts mission so, railway company. being That it would add presented expense, as shown in the exhibit $21,678.65 total the sum protestants. accounts, If these two amounts as shown railway company, corresponding be substituted for the amounts year 1925, shown protestants in the exhibit for the it would expense by $21,678.65, is, total of increase the sum of —that $21,687.65, $114,481.83. of $92,803.18 plus sum Counsel a total protestants, respondents urge figures here, furnished railway company year largely statistical, were *7 is, they measure, 401; 392 and this in a true as to accounts and argue proof lay peculiarly fact knowl- that since the within the figures edge railway of and it to submit statistical company, the chose subject only, presumption rule it was that the is that the 242 figures against it, citing Maney, actual would Schneider be v. given question Mo. 36. this Both We have some consideration also. parties showing corresponding the submitted exhibits accounts for year illustration, 401, the As an take account 1924. we Trainmen. protestants in year That as shown the exhibit of account for the $7,609.46 1924, $10,834.05, compared with for year as 1925. was the railway the company shown in exhibit for the The same account 1924, year $28,265.59, compared $21,370.09 for the as with showed year for 1925. testimony in account the The was shown the same given in for as the exhibit 1924 was that the account trainmen for up the actual official cards of service. made The same account year made, by was was 1925 not so but made for the calculation 1924 for and the year the actual cost for based service the respectively amounts given 1925. A the consideration for respective the ratio of decrease in years, shows that the account railway practically company is the same by made as the of the ratio protestants. for the accountant the In view decrease that justified commission matter, of we must conclude the was in given substantially figures railwaj'' correct accepting as 401, Trainmen, year for company account 1925. under 392, Enginemen. of account Train might said revenue same be year $87,846.95, 1925 of was and the increase from the service to derived from the be increase of was in annual revenue resulting $12,422.93, $100,264.88. in a total of Upon to estimated be of held that commission the cost basis, the service exceeded the proceeded upon the basis nothing that if revenue. under 309 depreciation, accounts 318, and and if was allowed railway company, 401 shown 392 and sus- were accounts $108,132.46 year was shown for cost of 1925. tained, a total 308, account considerable difference Locomotive There is also respective year but, exhibits for the 1925; Repairs, as shown finding $108,132.46, a total cost of of at its the com- arriving given by protestants, that account as and of the amount took mission depreciation 309 and 318 for entirely of accounts locomo- eliminated
305 bearing urged commis- before the tives and of ears. It was engines in in this sion, cars and use also, and here that the also depreciation ought old; to allowed on the that no be service were charge repairs locomotives was exces- and of ears also that the railway figures company in ac- But, allowing sive. commission, purpose stating a 392 for the counts and expense $108,132.46 ground was shown for its conclusion that entirely accounts year 1925, eliminated for the ground accepted figures pro- depreciation, and on the same Locomotives, Repairs testants under account account testimony Train Fuel for Locomotives. There state- put expenses grouped under the various accounts evi- ments out, dence, expenses set did not include numerous and heretofore service; might apportioned apportionment be which any expenses allocation of did not include maintenance shown structures, way, superintendence, machine-working equip- tracks stationery, supplies, yard trains, equipment, ment, dispatching of damage baggage injury persons, protection, crossing expense. That the general year revenue for the items other $87,841.95 seriously the sum of is not to no more than amounted *8 dispute any as to the challenged, nor is there correctness of the yield in rates allowed would increase an increase estimate Jhat $12,422.93. These two added make the sum of in revenue all, in the $100,264.88. All in the evidence record sustains the com- passenger finding this suburban service was be- mission loss, estimated and also increase would at ing furnished yielding any appreciable profit. it make a service to not suffice railway finding company in its this re- court erred trial proof imposed upon the burden it. to sustain spect failed railway company the effect that was was evidence There profit upon as a A its business whole. carrier earning a reasonable right percentage same rate or of return no constitutional has Railway Company, 268 v. Belt Line U. business. all its [Banton But, fact that business as a whole the rail 413, its S. 421.] profit earning is not of company a reasonable itself reason way particular in rates for a class of denying an increase increase will not suffice to make appears that service it when than return, or, the utmost no more any at nominal return yield principle is within the service. This stated of the the cost over Railway Dakota, v. North 236 Company Pacific U. S. Northern Railway Company Conley, v. 236 & Western U. S. 595, 596; Norfolk Commission, Railroad 251 Co. v. U. S. 605, 609; Brooks-Scanlon Works, Department Railway v. Public Co. 399; Northern Pacific Railway, 421; U. S. 39, 43; Banton v. Belt Line U. S. Commission, Public Chicago, Railway & P. Utilities Milwaukee St. v. 244, 250, 251. 274 U. S. dis- as fixed the new schedule are urged that the rates It is protestants in- found. The criminatory; and, trial court so setting analysis forth an exhibit in evidence troduced force, and as fixed accountant, rates as theretofore their showing fifty- effect of schedule; and also by the new basis, of one two-tenths cents on the tickets ride bearer per mile, and ten- three-tenths cents one and mile and of per analysis mile. cents This ticket, at and five-tenths bearer ride as follows: Exhibit F. Protestants’ Louis, Analysis Missouri Service at St. Frisco Suburban Rate Sch. 238 Seh. 238 Seh.238 Present Rate Rate 10-Ride 50-Ride 10-Ride St. Louis Mileage Bearer Bearer Per Mile Bearer Per Mile - 3.3 Tower Grove Gratiot Lindenwood - 1.49 1.00 1.00 1.20 1.40 5.00 5.00 6.00 .66 .66 .99 6.7 7.1 - 1.41 .93 Shrewsbury- 1.52 1.61 1.18 7.9 .93 - 1.37 7.00 8.7 1.19 Old Orchard 1.70 1.55 1.60 8.00 1.46 9.4 South Webster- 1.45 1.75 8.75 1.73 1.59 10.1 1.46 Groves- Webster 1.46 1.75 11.0 1.33 8.75 Glendale- Oakland - 11.5 1.46 1.27 1.75 8.75 1.52 1.46 1.24 1.75 1.48 11.8 8.75 Lawn- Fair - 1.46 1.15 1.75 1.75 8.75 8.75 1.38 Kirkwood 12.7' -- Springs 1.11 13.2 1.46 1.33 Windsor Highlands 14.8 .99 1.46 1.75 8.75 Meramae 1.18 - Keyes-Summit 1.23 1.98 2.45 -16.1 1.98 9.90 1.23 - 1.42 2.45 12.22 13.20 1.42 1.47 17.2 Hill Lake - 1.47 2.64 2.64 17.9 Park Present 10-Ride Rate 50-Ride Rate 50-Ride Rate Louis St. Mileage Per 1.3 1.5 Individual Mile 1.2 - 3.3 Grove Tower - 4.02 4.36 4.61 6.7 1.00 Gratiot - - 4.26 1.06 1.19 Lindenwood 7.1 Shrewsbury 4.74 7.9 5.13 *9 5.22 1.31 8.7 5.66 Old Orchard- 9.4 5.64 6.11 1.41 South Webster- — 6.06 Groves 10.1 6.57 1.52 Webster - 6.60 11.0 11.5 7.15 1.65 1.73 Glendale - 6.90 7.47 Oakland - -11.8 7.08 Fair Lawn 7.67 1.77 1.91 - 7.62 7.92 12.7 8.26 8.58 Kirkwood — Springs 13.2 Windsor Meramae 1.98 2.22 Highlands 14.8 8.88 9.66 9.62 Keyes-Summit- Lake Hill 8.26 1.02 16.1 17.2 10.46 11.18 2.42 - 8.26 .96 10.32 2.58 Park- 17.9 8.26 .92 10.74 11.64 2.68 upper subdivision respectively, The table or shows same totals ticket, fifty- a bearer or under the new schedule for ten-ride for a ticket, Groves, ride from a distance bearer Webster of ten and one- tenth and miles, Highlands, a fourteen for Meramac distance of eight-tenths miles, greater a resulting per in mile for some rate greater per group others, stations in the a rate mile than and also instances, in instances, some and in some a less rate mile some of the side group, stations in that than for other stations either group. analysis fifty-ride the rate bearer shows ticket, ticket all as five times the from rate the ten-ride bearer stations. In the is a statement second subdivision there contained fifty-ride Keyes- for a ticket rate individual from stations Valley Park; Hill and Summit, Lake and this is contrasted with fifty-ride rate or amount bearer ticket from Webster Groves group Related this dif- other stations within the mentioned. to amount, ference in rate is that one an individual the distinction is commutation ticket other a bearer commutation ticket. and the protestants appears theory throughout to be that the. rates or, mileage strictly, should have been fixed the basis of the closely approximate theory Apparently also their thereto. fifty-ride a slightly at less rate bearer ticket should be sold may in
than bearer ticket. As to this we state now that the ten-ride transactions, opinion printing, in the sale our difference other, great enough is one not to be the basis use of the unjust value to establishing an discrimination. The of the service al- are of the service to the carrier not the commuter and cost is a bearer ticket and other the fact ten-ride tered fifty-ride ticket. bearer by the decisions of both State and Federal courts that It is settled discriminatory, not fact a rate fixed is is conclusive the mere unjust, is and therefore unlawful and invalid. discrimination such 524; Pennsylvania Ry., 262 507, K. & Mo. Railroad v. T. M. [State S; sec. case, 245 U. C. J. Towers, Md. and same S. v. Mellon, 315 Co. v. Mo. 798. In State McGrew Coal See also 1083.] said, 525: “Arbitrary l. supra, T. this court c. dis- Ry., M. K. & v. unjust; if the difference based are rates be criminations alone equitably fair difference in conditions which upon a reasonable unjust rate, justify a is not an logically different it discrimina foregoing principle gov stated authorities would tion.” applicable to localities or stations involved to rates reference ern are and relative The circumstances conditions service. is suburban Mileage J. sec. C. into consideration. 753.] be taken [10 considered, is not the sole test. The suburban or it to be but special roads is a service rendered ticket service commutation many respects pas large differs other entering cities and primarily devoted those have It a service who senger traffic. large cities, adjacent but work or homes communities their carry city, regularly daily and who use in the on their business purchasers transportation. It wholesale and are that service *10 308 up
is related also are built to the fact such communities often that upon mileage as a result of and in reliance such service at rates less ordinary passenger than service. those exacted complaint essentially upon is based to discrimination charge localities, stations, over preference of an undue or certain upper others. The in the table shows no increase was made Hill distant, Keyes-Summit, rates for the three most Lake stations larger mileage appear Park. in the increases city Louis, reaching highest point stations near the at St. Groves, group, Webster then second station the rate diminishing Highlands, to the at lowest rate of all Meramec group. arrange- forming most distant of stations a group, groups, necessarily ment rates so as or a to form series preference mileage rate, in a solely results invalid but it is not that account. at “The rule both common law and under the stat- unjust prohibiting utes discrimination is that common carriers must unjustly not discriminate in favor locality of the business or disadvantage of station to the other or localities stations. But statutes, federal, neither at common law nor under the state or prohibited preference giving the carrier from or advantage, discriminating localities, provided between preference, such ad- vantage, not or discrimination is unreasonable.” 475, C. J. sec. [10 The discrimination forbidden is a discrimination 753.] able, unreason- considered, unjust relative conditions therefore unlawful. 10456,
The first subdivision Section Revised Statutes committing power carriers, over rates of common specifies among things, tickets, other rates for commutation power question of determination of the whether such rates un- are unreasonable, just, unjustly unduly discriminatory preferential. gives power suspend
Section the commission its upon any rate, own complaint, fare, charge motion or new or classifica- tion, upon hearing question and to enter of the reasonable- increase; any of such hearing involving ness that in also a rate increase, sought aor increased, rate to be proof the burden of to show or proposed increased rate just increased rate is and rea- sonable, upon laid the carrier. provides Farther on in the act is Section which all growing powers
suits out of the granted exercise of the to the com mission, proof the burden of satisfactory show clear and evi dence order or direction of the commission is unreasonable party and unlawful shall seeking be to set aside such direc tion or Busby, order. ex rel. v. S. W. 1071; State [State ex rel. Commission, Necessarily S. W. v. such adverse 47.] party, review, in a proceeding is confined to the evidence in the commission, record made before and his point- function is that of *11 ing out the evidence which shows the order to be unreasonable and unlawful. fifty-ride evidence shows that on ten-ride and bearer tickets schedule,
under greatest the old mileage variance in was rate that between the stations Linden wood and South Webster, a difference of sixty-two per mile, of a greatest hundredths cent and the variation under the new schedule was that between the stations Webster Groves and Highlands, Meramac fifty-five a variation of hundredths aof cent mile. The new schedule shows mileage increase in rates stations, for most but the mileage relative difference in most of materially is not changed. them may It be mentioned that under new there stops schedule are seven stations or con- stituting group, zone, covering space and of only a 4.7 miles territory densely a populated. group This includes the more important range within towns of this suburban service, and in stop than some them more stating made. In its conclusion within group that the service unjustly this was not discriminatory, in measure, and indeed as all of the service, the commission likened this service with its short intervals between stations and frequent stops, to by railways the service rendered street cities, observation, and made the further that these grown communities had up carrying under schedule the old rate differential similar proposed by schedule; to that the new' such that differential had many years previous protest. maintained without been fifty-ride ground for the conclusion that individual commuta- $8.25 price Keyes-Summit, ticket uniform tion at the Lake Park, only, approved by Hill and was the commission as not unduly ground discriminatory, that this distinction between had many individual and the bearer been drawn years ticket previous protests, and also on the ground, without further unduly was as of traffic not such would burden volume that slight saving might the consumer that people and induce more district, outlying to move to its use trains, of those A great progressive suburban service. the whole falling benefit evidence, in the traffic was shown mainly off due, indicated, great growth transporta- as the evidence private public. vehicles, motor tion foregoing, we have reached view' of all
In conclusion that grounds appear finding do to warrant us not sufficient holding wrong excessive, the rates w'as are discriminatory, judgment unjustly circuit court Ellison, 00., Seddon and concur. reversed. is therefore opinion by Lindsay, C., adopted foregoing PER CURIAM: The opinion pf judges All of court. concur.