Chicago, B. & QR Co. v. BOARD OF RAILROAD COM'RS

• Decision Date: 19 November 1947
• Docket Number: No. 845.,845.
• Citation: 78 F. Supp. 1010
• Court: U.S. District Court — District of Montana
• Parties: CHICAGO, B. & Q. R. CO. v. BOARD OF RAILROAD COM'RS OF MONTANA et al.

78 F. Supp. 1010

CHICAGO, B. & Q. R. CO. v. BOARD OF RAILROAD COM'RS OF MONTANA et al.

No. 845.

District Court, D. Montana, Billings Division.

November 19, 1947.

T. B. Weir, W. L. Clift, E. K. Matson and Newel Gough, all of Helena, Mont., and J. L. Rice, of Denver, Colo., for plaintiff.

R. V. Bottomley, Atty. Gen., Alfred F. Dougherty, Asst. Atty. Gen., and Edwin S. Booth, of Helena, Mont., for Board of Railroad Com'rs.

Melvin N. Hoiness, County Atty., of Billings, Mont., Bert W. Kronmiller, County Atty., of Hardin, Mont., and Phil Greenan, of Great Falls, Mont., for defendants.

Before BONE, Circuit Judge, and PRAY and BROWN, District Judges.

PRAY, District Judge.

This is an action by plaintiff to restrain the defendant, Board of Railroad Commissioners of Montana (hereinafter referred to as the Board), from enforcing an order which would require the plaintiff to restore to service, between Wyola and Billings, Montana, two passenger trains, No. 41 and No. 44, which were ordered discontinued by the Office of Defense Transportation in 1942, and which order was withdrawn in 1945. After a hearing and rehearing, the said Board on June 24, 1946, ordered the plaintiff to restore the two passenger trains to service between the two places above named.

Plaintiff alleges that the order of the Board is without fact basis to support it, is unjust, is confiscatory, and is in effect a taking of plaintiff's property for public purposes, without just compensation and without due process of law, and is therefore a matter for judicial review, and comes within the jurisdiction of a Three Judge Court. The defendant Board denies these allegations and alleges that the order directing the plaintiff to restore service of trains Nos. 41 and 44 between Billings and Wyola is reasonable and just and is issued pursuant to the duty and authority vested in the said Board by the laws of Montana.

Under the evidence submitted it becomes the duty of the Court to determine therefrom whether public convenience and necessity would require the restoration of the train service in question in compliance with the order of the Board. In this case we have the same problems to consider that have heretofore been presented to Three Judge Courts in Montana, as indicated by the citations of counsel in the briefs. The buses and automobiles are again in evidence as important factors in disuse by the public of passenger train service — especially local service. Outside of Billings, the terminal point, the towns are for the most part small in size and some distance apart on the one hundred and four miles of railroad now used by passenger trains Nos. 42 and 43, and heretofore used by trains Nos. 41 and 44; according to the evidence there are fifteen places in all and five of these are railroad sidetracks; the only towns of any size are Wyola, 129; Lodge Grass, 839; Crow Agency, 800; Hardin, 2300; Ballantine, 176; and Huntley, 193; of the 32 residents of Toluca and Ionia nearly all are railroad employees; of the two places remaining out of the fifteen, Garryowen has 18, and Corinth, 13; the latter is said to be the only place on the railroad containing any population at all which does not have direct highway and bus service.

The evidence discloses that the Northland Greyhound Bus Line operates four buses daily in each direction between Billings, Huntley and Worden, and that the Burlington Transportation Company operates three buses daily each way between Billings, Hardin, Crow Agency, Garryowen, Lodge Grass and Wyola.

It also appears from the evidence that two first-class all-weather, all-year highways serve the territory involved; one is U. S. Highway 87, passing through Wyola, Lodge Grass, Garryowen, Crow Agency, Hardin and Billings. The second is U. S. Highway 10-12 which passes through Billings, Huntley and Worden (1.8 miles from Ballantine by graveled highway).

Statistics are in evidence disclosing the extent of patronage on the two passenger trains now in operation, Nos. 42 and 43, between Billings and Wyola, from April 1, 1946 to March 31, 1947, and showing on and off passengers daily eastbound as 8.95, and the same westbound as 5.78; a further analysis of these figures is given presenting even more plainly that few people take advantage of the train service now in operation.

Defendants seem to attribute the lack of patronage to some extent to an inconvenient time table. Counsel for plaintiff claim it is demonstrated that even when four passenger trains were running between Wyola and Billings in 1940 and 1941, there was not much difference in the total number of local Montana passengers carried, and offer the following calculation taken from the figures of Mr. Lavidge, General Auditor of plaintiff; in 1940, Nos. 42 and 44 combined, eastbound, 6.08, and westbound Nos. 41 and 43 combined, 7.14; and in 1941, Nos. 42 and 44 combined, eastbound, 5.47, and westbound, Nos. 41 and 43 combined, 5.57. These are said to be the total number of local passengers traveling daily, on the average, on the four trains numbered 41, 42, 43, and 44. Counsel, therefore, contend that the restoration of the train service ordered by the Board will not increase local train travel to any material extent.

The Court's attention is next directed to the amount of revenue produced by trains Nos. 42 and 43, and likewise to the cost of operation, the figures being taken from the calculations of Messrs. Lavidge and Whitehead, the latter being Manager of mail, baggage and express traffic, from which it appears that the total earnings for local Montana traffic for these two trains from April 1, 1946 to March 31, 1947 were $6,254.12. Thus, plaintiff contends that if the restored trains took care of all the present local service, passengers, express, cream and milk, their approximate earnings would be $6,254.12 annually; but according to Mr. Whitehead, if the federal government should decide to use the trains to carry local mail seven days a week, which he considered doubtful, then the earnings would be increased by $3,416.40 per annum, which added to the above sum would make the total annual earnings $9,670.52.

The expense account for the operation of these trains is figured as follows: For a small steam train about $7,074 a month, or $84,888 a year; for a gasoline motor car the expense would be $3,513 a month, or $42,156 a year; therefore plaintiff claims a loss of approximately $32,485.48 per year, even though operations were carried on under the most favorable conditions. It is further asserted that Montana earnings on interstate trains, Nos. 42 and 43, would be cut down accordingly; that these trains are now being run at an expense to plaintiff of $119,413 per year, chargeable to the Montana operation alone; these items of expense were also prepared by Mr. Lavidge on April 15th, 1947. He further stated that such operating costs take no account of overhead for maintenance of roadbed, track and structures, or station operation, train dispatching, supervision, claims, insurance, yard switching, depreciation or interest. The revenues received and costs set forth were compiled by officials or employees charged with the duty of keeping accurate account of income and outlay, and have not been shown to be either inaccurate or overdrawn; in fact it might be difficult for the Board successfully to challenge the accuracy of statements made by experienced railway officials or employees in respect to income and outlay in the operation of their passenger trains. If these statistics on expense are accepted as reliable and approximately correct, then, under the authorities, they may be considered as having some bearing on the reasonableness of the Board's order, taking into account the present facilities of train and bus service, and the increasing use of private conveyances, and further, considering the lack of passenger train patronage which has been shown to exist over considerable periods of time.

The Court has considered the controversy between counsel as to the relevancy of the Board's order of 1942, and the arguments of counsel on the subject, and concludes that the present cause is based upon the issues raised by the pleadings, which follow the order to show cause by the Board heard in 1945, and the subsequent action of the Board in June, 1946, ordering trains Nos. 41 and 44 restored to service; since the final order of the Board this case has been pending on application by plaintiff for preliminary injunction, counsel having agreed that the temporary restraining order might be continued in force until hearing and decision on the motion.

The principal question to be determined here, as in all the other Three Judge Court cases from Montana, cited by counsel, is, whether public convenience and necessity require the operation of trains Nos. 41 and 44 between Billings and Wyola, Montana. After a consideration of all the evidence, especially the meager patronage as disclosed by the statistics presented, the losses sustained by the company in the operation of these trains, the conveniences afforded the public in the operation of the buses, trucks, the present train service, the ever increasing use by the public of private automobiles, and the statements of inhabitants of the territory in question, it would seem in view of all the precedents heretofore established by Three Judge Courts in Montana, some of them cited and relied upon by counsel for the respective parties, that the Court should also have recourse to them as a useful aid in its endeavor to arrive at a just decision of the present controversy. In all these cases the lack of patronage of railroad passenger service, the expense of maintenance in some of them apparently unnecessarily imposed upon the railroad, the other conveniences available to the public in train, bus, truck, and other services, were found to be the principal issues involved, from a consideration of which the Court was required to determine whether public...