Oregon-Washington R. & Nav. Co. v. United States
| Decision Date | 29 January 1931 |
| Docket Number | No. 9113.,9113. |
| Citation | 47 F.2d 250 |
| Parties | OREGON-WASHINGTON R. & NAV. CO. (SOUTHERN PAC. CO. et al., Interveners) v. UNITED STATES (INTERSTATE COMMERCE COMMISSION et al., Interveners). |
| Court | U.S. District Court — District of Oregon |
Henry W. Clark, of New York City, J. M. Souby, of Omaha, Neb., and Arthur C. Spencer and Roy F. Shields, both of Portland, Or., for petitioner.
Ben C. Dey, of Portland, Or., Guy V. Shoup, of San Francisco, Cal., and Alfred A. Hampson, of Portland, Or., for intervening plaintiff Southern Pac. Co.
Charles A. Hart, of Portland, Or. (Carey, Hart, Spencer & McCulloch, of Portland, Or., of counsel), for intervening plaintiffs Great Northern Ry. Co., Oregon Trunk Ry., and Oregon Electric Ry. Co.
George Neuner, United States Atty., of Portland, Or.
Daniel W. Knowlton, Chief Counsel, and J. Stanley Payne, Asst. Chief Counsel, both of Washington, D. C., for intervening defendant Interstate Commerce Commission.
I. H. Van Winkle, Atty. Gen., of Oregon, William C. McCulloch, of Portland, Or., and William P. Ellis, of Salem, Or., for intervening defendant Public Service Commission of Oregon.
W. D. Gillis, Atty. Gen. of Idaho, and J. M. Thompson, of Boise, Idaho, for intervening defendant Public Utilities Commission for Idaho.
Before RUDKIN and WILBUR, Circuit Judges, and McNARY, District Judge.
May 24, 1927, the Public Service Commission of the State of Oregon filed its complaint with the Interstate Commerce Commission against the Oregon-Washington Railroad & Navigation Company, the Union Pacific Railroad Company, and a number of other railroads, alleging that the carriers named as parties to the proceeding had failed and refused to provide reasonable and adequate facilities of transportation by railroad to a large area within the state of Oregon; that such facilities were reasonably required in the interest of public convenience and necessity; that the expense of providing such facilities will not impair the ability of the carriers to perform their duty to the public; and praying for an order requiring some one or more of such carriers to construct a line of railroad between Crane, Or., on the east, and Crescent Lake, or some adjacent point on the line of the Southern Pacific Company, on the west. After full investigation and hearing, the commission made its order requiring the Oregon-Washington Railroad & Navigation Company to extend its line of railroad, now terminating at, or near, Burns, Or., to a connection with the Cascade line of the Southern Pacific Company, at, or near, Crescent Lake, Or., and that the Union Pacific Railroad Company be, and it was thereby, authorized to join in the construction and operation of such extension and to finance it from current funds or by advances. The present proceeding was thereupon instituted in this court by the Oregon-Washington Railroad & Navigation Company, as petitioner, against the United States, as defendant, to set aside, annul, and suspend the order of the commission and to permanently enjoin the government, its officers and agents, from enforcing, or attempting to enforce, the same, and for an interlocutory injunction pending the final hearing.
While many incidental and subsidiary questions are discussed in the able and comprehensive briefs filed by the respective parties, there are but two important and controlling questions in the case: First, the authority of the commission to order a railroad extension such as this under any circumstances; and, second, the sufficiency of the testimony to justify or support the order if authority for the same be found to exist.
The general situation may be briefly summarized as follows: The Union Pacific Railroad Company owns all of the capital stock of the Oregon Short Line Railroad Company, and the Oregon Short Line owns all but fifteen shares of the capital stock of the Oregon-Washington Railroad & Navigation Company. The present line of the Oregon-Washington Company extends from Portland, Or., to Huntington, Or., where it connects with the Oregon Short Line. The line of the Oregon Short Line extends from Huntington, Or., to Ogden, Utah, where it connects with the line of the Union Pacific Company, which extends from Ogden to Omaha, Neb. These three lines, together with the line of the Los Angeles and Salt Lake Railroad Company, extending from Salt Lake City, Utah, to Los Angeles, Cal., make up the Union Pacific System. In 1916 the Oregon-Washington Company completed a branch line from its main line at Ontario, Or., to Crane, Or., a distance of approximately 127 miles, which has since been operated by the Oregon Short Line under a lease. In 1924 the line in question was further extended to Burns, Or., a distance of about 30 miles. The extension now ordered is from a point at, or near, Crane, Or., to a point at, or near, Crescent Lake, Or., as above stated, a distance of approximately 185 miles, and the estimated cost of the extension is from nine to eleven million dollars.
There is at present but one east and west line of railroad in Eastern Oregon, extending along the southerly bank of the Columbia river, which forms the northern boundary of the state in part. A vast area in Central and Southeastern Oregon is thus left without reasonable or adequate transportation facilities, and the need for a line of railroad in that vicinity is apparent, assuming, of course, that there will be sufficient traffic along and over the line of the proposed road to justify its construction.
On the latter issue, the parties submitted to the commission elaborate and painstaking estimates of the tonnage available and potentially available for the first five years of operation and thereafter, together with a like estimate of the revenues to be derived from such operation. These estimates were supported by other testimony and differed widely in their results, generally as much as 100 per cent. and often a great deal more. The traffic estimates furnished by the complainant before the commission showed that the gross revenues derived from operation for the first five years would approximate the entire cost of construction. Speaking generally, the commission accepted these estimates and rejected those offered by the railroad companies. We do not now understand that there is any claim that the extension of the line is not reasonably required in the interest of public convenience and necessity, if the findings of the commission are supported by the testimony. Indeed, if the petitioner shared the optimism of the state and interstate commissions, we think it reasonably safe to say that the present suit would never have been brought, or even contemplated.
The argument of the petitioner is directed largely against the weight of the testimony submitted by the Oregon Commission before the Interstate Commerce Commission and accepted by that body. If we were at liberty to review this testimony independently of the findings made by the commission, we might find no little difficulty in reaching the same conclusion. It might well be urged that the hopes and aspirations of those advocating the extension will never be fully realized; that the local traffic from the sparsely settled desert waste through which the line in large part extends will be much less than estimated, and that the traffic from Southwestern Idaho to California points, and the traffic diverted from the Southern Pacific at the intersection, will fall short of expectations. But we have no such general power of review. If the determination of the commission finds substantial support in the testimony, its findings are conclusive upon the courts, unless the commission has exceeded its power or has proceeded upon an erroneous theory of the law, or unless its action is so manifestly arbitrary and unreasonable as to virtually transcend the authority conferred upon it.
"It is not for courts to weigh the evidence introduced before the Commission * * * or to enquire into the soundness of the reasoning by which its conclusions are reached, * * * or to question the wisdom of regulations which it prescribes. * * *" Assigned Car Cases, 274 U. S. 564, 580, 47 S. Ct. 727, 733, 71 L. Ed. 1204.
"But if the determination of the Commission finds substantial support in the evidence, the courts will not weigh the evidence nor consider the wisdom of the Commission's action." Chicago, R. I. & P. R. Co. v. United States, 274 U. S. 29, 33, 47 S. Ct. 486, 488, 71 L. Ed. 911.
"The finding of reasonableness, like that of undue prejudice, is the determination of a fact by a tribunal `informed by experience' * * * This court has no concern with the correctness of the Commission's reasoning, with the soundness of its conclusions, or with the alleged inconsistency with findings made in other proceedings before it." Virginian Ry. v. United States, 272 U. S. 658, 665, 47 S. Ct. 222, 225, 71 L. Ed. 463.
"To consider the weight of the evidence, or the wisdom of the order entered, is beyond our province." New England Divisions Case, 261 U. S. 184, 204, 43 S. Ct. 270, 278, 67 L. Ed. 605.
See, also, United States v. Erie R. Co., 280 U. S. 98, 50 S. Ct. 51, 74 L. Ed. 187; Merchants' Warehouse Co. v. United States (D. C.) 44 F.(2d) 379.
In the light of these decisions, it seems quite manifest that the findings of the commission are not without substantial support in the testimony, and beyond this we are not at liberty to inquire.
Section 1, paragraph 18, added to Interstate Commerce Act by section 402 of the Transportation Act of 1920 (49 USCA § 1(18), provides, among other things, that no carrier by railroad subject to the act shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction...
To continue reading
Request your trial
-
McLean Trucking Co. v. United States
... ... 28 U.S.C.A., § 45a; Interstate Commerce Commission v. Oregon-Washington R. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588 ... As we have found that the evidence was sufficient to support the findings of the ... United States, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463; Assigned Car Cases, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 1204; Oregon-Washington R. & Nav. Co. v. United States, D. C., 47 F.2d 250. It follows, of course, that the remaining question is whether the findings provide adequate support for ... ...