Atchison, T.&S.F. Ry. Co. v. Illinois Commerce Comm'n

• Decision Date: 18 September 1947
• Docket Number: No. 29864.,29864.
• Court: Illinois Supreme Court
• Parties: ATCHISON, T. & S. F. RY. CO. et al. v. ILLINOIS COMMERCE COMMISSION.

397 Ill. 406

74 N.E.2d 885

ATCHISON, T. & S. F. RY. CO. et al.

v.ILLINOIS COMMERCE COMMISSION.

No. 29864.

Supreme Court of Illinois.

Sept. 18, 1947.

Appeal from Circuit Court, Marshall County; J. E. Daily, judge.

Appeal by the Atchison, Topeka & Santa Fe Railway Company and the Railway Express Agency, Inc., to review an order of the Illinois Commerce Commission denying an application for authority to change an agency station to a prepay station. From an order of the Circuit Court confirming the order of the Commerce Commission, the railway and the express agency appeal.

Reversed and remanded with directions.

Jay H. Magoon, of Lacon, and T. J. Barnett and Francis J. Steinbrecher, both of Chicago (Jonathan C. Gibson, of Chicago, of counsel), for appellants.

George F. Barrett, Atty. Gen. (Arthur C. Fort, of Minonk, and William C. Wines and Raymond S. Sarnow, both of Chicago, of counsel), for appellee.

WILSON, Justice.

The Atchison, Topeka and Santa Fe Railway Company and the Railway Express Agency, Inc., filed with the Illinois Commerce Commission on June 15, 1943, a petition seeking authority to change the agency station at Wilbern, Marshall county, to a prepay station. A hearing was held and, on October 6, 1943, the commission entered an order denying the petition. A rehearing was granted on November 16, 1943. A second hearing was held, and, on April 4, 1945, the commission entered an order denying the authority sought by the railway company and the express agency. Upon appeal, the circuit court of Marshall county confirmed the order of the Commerce Commission. The railway company and express agency prosecute this direct appeal, conformably to section 69 of the Public Utilities Act. Ill.Rev.Stat.1945, chap. 111 2/3, par. 73.

By their petition, the Atchison, Topeka and Sante Fe Railway Company and the Railway Express Agency, Inc. alleged that the small volume of freight and passenger business at Wilbern, an unincorporated community of about fifty persons, can be properly and adequately handled by a prepay station; that public convenience and necessity no longer require the maintenance of the agency station at Wilbern; that, upon conversion of the agency station into a prepay station, the same stops will be made and passengers will pay the same rate of fare to conductors on the trains as is now paid to the agent; that the cost of conducting the business at the present station is grossly disproportionate to the amount of revenue derived therefrom and, also, to the benefit, if any, the public receives from the maintenance of the agency station; that substitution of a prepay station will effect a material saving in the net revenue of the two companies, without causing any real inconvenience to the public or interference with the duties and obligations the companies owe to the public, and that, to require them to continue such maintenance would be confiscatory and result in the taking of their property without due process of law and seriously affect their ability to discharge their duties as common carriers.

Wilbern contains a population of approximately fifty persons. Agency stations are maintained by the railway company 4.9 miles to the east, at LaRose, and 9 miles west, at Chillicothe, by rail. The distance by highways from Wilbern to LaRose is 6.7 miles and to Chillicothe, 18.8 miles. The only business establishments at Wilbern are one general store and a pipe line pumping station operated by the Sinclair Refining Company. There is a grade school but no church in the community. The inhabitants occupy thirteen houses within a half-mile radius of the station. The proposed plan to make Wilbern a prepay instead of an agency station will result in no reduction in the number of freight and passenger trains serving its residents. The station house will continue standing to provide shelter for passengers during inclement weather and, in the winter, heat will be supplied.

For the six years commencing 1938 and including 1943, the gross revenue from all business handled at the Wilbern station varied from $3043 in 1939 to $18,992 in 1942. In 1941, total revenue amounted to $6589; in 1943, $16,106. The wages of the station agent during this period varied from $1659 in 1939 to $2088.32 in 1943. The substantial increases in gross revenue from 1941 through 1943 resulted almost entirely from large shipments of coal to the Sinclair Refining Company, operator of the pipe line pumping station at Wilbern. Station wages during 1942 for the railway system as a whole were 3.52 per cent of the total system revenue. At Wilbern, for the same year, station wages were 11.4 per cent of the total revenue accruing on station business. In 1941, station wages for the entire system were 4.28 per cent of the total system revenue. At Wilbern, for the year 1941, station wages were 29.57 per cent of the total revenue. In 1940, the discrepancies were even greater, the system percentage being 5.02 per cent and the station, 49.7 per cent. In this connection, particular mention must be made of the Sinclair Refining Company's use of the facilities at Wilbern. In 1940, the Wilbern station received no revenue from the oil company. In 1941, the total revenue from the station from all sources amounted, as recounted, to $6589. Of this, Sinclair traffic produced revenue of $4257.76. Excluding the revenue from the Sinclair company, station wages amounted to 76.15 per cent of the total revenue at Wilbern for the year 1941. In 1942, the results were even more startling. Of the total revenue of $18,992, at Wilbern, Sinclair revenue amounted to $17,217.70, leaving but $1774.30 derived from all other traffic. For the year 1942, station wages at Wilbern amounted to $1916, or 107.94 per cent of the total revenue from business handled for the general public at Wilbern.

A breakdown of the 670 carloads of Sinclair traffic at Wilbern amounted to February, 1944, inclusive, discloses that 562 carloads were delivered to the Sinclair Refining Company. In 1941, revenue from Sinclair Traffic at Wilbern amounted to over 64 per cent of the total revenue from all sources. In 1942, Sinclair traffic produced over 90 per cent of Wilbern's gross revenue. In 1943, Sinclair revenue comprised over 73 per cent of the gross income and, for the first two months of 1944, it was over 86 per cent of the total receipts at Wilbern. The increase in coal shipments to the pipe line pumping station resulted from wartime regulations imposed during World War II, requiring the use of coal as fuel instead of gas or oil. With the lifting of these regulations, the revenue derived from the Sinclair company will very likely disappear completely. The Sinclair company acquiesces in the removal of the agent at Wilbern and proposes to have shipments of coal delivered to it at Wilbern through the agency stations at LaRose and Chillicothe.

Six witnesses testified in opposition to the removal of the agent. The first witness, a farmer, shipped livestock out of the station at Wilbern and, in his one year's residence, near Wilbern, ‘I have had only one carload of stuff shipped in.’ A second farmer testified that, from 1938 to 1942, inclusive, he shipped six carloads of hogs by rail from Wilbern, and that he would use trucks to ship his hogs if the Wilbern agent were removed. He testified, further, that about a year prior to the hearing he discovered a fire on the bridge east of Wilbern and notified the railroad agent at Wilbern about 9:30 P. M., and that the agent extinguished the fire. The witness added he had heard that the railway's agent had discovered broken rails west of Wilbern fifteen or twenty years ago. The wife of the agent at Wilbern operates the general store and post office. She testified that if Wilbern were a prepay station, she would discontinue operation of the store because of the difficulty in receiving goods. The fourth witness, who testified that she ships a can of cream every other day from the station, stated that she would not have bought her farm had not Wilbern been an agency station. Another witness testified that from 1938 to 1943, inclusive, he shipped 800 pounds of wool and received about 400 or 500 rods of fencing from Wilbern but would make future shipments by truck if Wilbern were made a prepay station. This witness has a telephone and, like most of the witnesses, could call LaRose without paying a toll charge. The sixth witness testified that from 1938 to the spring of 1943, inclusive, he had received four cars of limestone and about two tons of hog feed through the station at Wilbern but that if Wilbern were a prepay station if would be inconvenient and unprofitable to use the railroad and he would haul the limestone from a nearby quarry in his farm truck.

The order of the commission is based upon findings, among others, that, on two different occasions, broken rails were reported to the agent at Wilbern station and necessary steps were taken to insure the safety of passenger and freight traffic; that, upon discovery of a fire at the bridge immediately east of the station, the railway company's agent was notified and put out the fire; the the Wilbern station is the only agency station maintained by the railway company in or nearby Wilbern; that toll charges are involved from Wilbern to Chillicothe and, for some patrons, from the vicinity north of Wilbern to LaRose; that the company received various undivulged sums at Wilbern for the years 1940 through February 1944, for Western Union and express; that the railway company received $27 in 1943 for the lease of land at Wilbern station; that it received an undisclosed amount for delivery of United States mail by their trains at Wilbern; that the diversified nature of the shipments inbound and outbound shows the public is making a general use of Wilbern station; that the revenue accruing to the station for the period covered by the evidence shows a substantial increase; that the formula used by the railway company...