Chesapeake & O. Ry. Co. v. Public Service Com'n

• Decision Date: 13 October 1914
• Citation: 83 S.E. 286
• Parties: CHESAPEAKE & O. RY. CO. v. PUBLIC SERVICE COMMISSION.
• Court: West Virginia Supreme Court

83 S.E. 286

CHESAPEAKE & O. RY. CO. v. PUBLIC SERVICE COMMISSION.

Supreme Court of Appeals of West Virginia.

October 13, 1914

Syllabus by the Court.

Though competent upon an inquiry as to the reasonableness of an order entered by the Public Service Commission, requiring installation and operation of a passenger carrying service on a lateral line constructed under the provisions of Code 1913 c. 54, § 69 (section 2983), a comparison of the expenses incident thereto with prospective returns therefrom is not controlling.

In determining that question, the relation of the branch line to the system of which it is a part, the public convenience to be served, the character and volume of traffic, personal and freight, present and prospective, the necessary cost of installation and of service, and the effect on the revenues of the entire system, are factors to be considered and viewed in the light of all the circumstances and conditions attendant upon the performance required.

In a proceeding to obtain from the Public Service Commission, an exercise of the power conferred by chapter 9, Acts 1913 (Code 1913, c. 15 o, §§ 1-21 [[sections 636-656]), the question of revenue to a railroad company from a branch line in so far as deemed controlling on the fairness and reasonableness of a requirement for passenger service thereon, is to be determined by consideration of both freight and passenger traffic originating on the branch line in connection with the railroad system as a whole. If, when so considered, the total returns from such traffic permit of a reasonable margin of profit to the company, it cannot properly complain that the requirement entails a loss on the passenger service alone.

Before an order of such Commission, requiring adequate passenger facilities on lateral lines, can be deemed confiscatory, it must appear that the revenues of the entire system are insufficient to meet the additional expenses necessary therefor, with a fair margin of profit.

So long as it retains its corporate entity, a railroad is legally compellable, regardless of costs, to furnish reasonably adequate facilities for the transportation of persons and property on the lines operated, whether main or branch lines subject to such regulations and charges as are prescribed by statute, or by the corporation, not inconsistent with general statutory provisions.

Such Commission has authority, under chapter 9, Acts 1913 (Code 1913, c. 15 o, §§ 1-21 [sections 636-656]), to require railroads to provide adequate facilities for the transportation of persons and property on both main and lateral lines.

Petition by the Chesapeake & Ohio Railway Company against the Public Service Commission to suspend an order entered on the petition of John Vawter and others. Order refused.

Enslow Fitzpatrick, Alderson & Baker, of Huntington, for petitioner.

A. A. Lilly, Atty. Gen., and Frank Lively, Asst. Atty. Gen., for respondent.

LYNCH J.

After due notice and hearing, upon the petition of John Vawter and others similarly situated, the Public Service Commission entered an order requiring the Chesapeake & Ohio Railway Company, a common carrier, to inaugurate and maintain a passenger service, to consist of two trains daily each way, except Sunday, between Hawk's Nest, a station on its main line, and Ansted, a distance therefrom of 2 1/2 miles. Ansted, according to the proof, has a population of 1,500 people, and is the trade center for an active business community surrounding it. At the date of the order, and prior thereto, the only method of travel between the two points was, and so far still is, on foot or by hack or other vehicle of like character, over unimproved and dangerous country roads. Although the company had constructed and for 24 years operated a branch or lateral line to and beyond Ansted, it has at no time provided for the transportation of passengers over this railroad, but has exclusively devoted it to the haulage of freight, consisting for the most part of coal from collieries near Ansted. On the contrary, it has persistently refused to institute such service between the two points, to require which Vawter, a resident of Ansted, and those associated with him, instituted the proceeding before the Public Service Commission, with the result stated; and of this order the railroad complains.

At common law, and, in this state, under constitutional and statutory provisions, railroad companies, because their corporate existence emanates from the public, owe to it in return therefor certain duties, performance of which they cannot evade, among them being the establishment and maintenance of reasonable facilities for the transportation of both persons and freight. Such duties have always existed. They were not created by any statute. They are common-law requirements. Southern Pacific Co. v. Commission, 60 Or. 400, 119 P. 727; Mills, Em. Dom. § 14; Olcott v. Supervisors, 16 Wall. 678, 21 L.Ed. 382. By section 9, art. 11, of the Constitution, and section 71, c. 54, Code 1913 (section 2995), railroads are declared to be public highways, and as such "free to all persons for the transportation of their persons and property thereon, under such regulations as shall be prescribed by law." As the most available method for enforcement of these common-law duties, confirmed by statutes, the Legislature created a Public Service Commission, and clothed it with ample authority to require railroad and other transportation companies to establish and maintain such adequate and suitable public service facilities and conveniences and perform such service in respect thereto as shall be deemed reasonable, safe, and sufficient and in all respects just and fair.

Though upon appeal the company charges failure on the part of the Commission properly to conceive and apply section 4, c. 9, Acts 1913, § 4, serial section 639, Code 1913, it does not point out, in argument or otherwise; any particular wherein the Commission either misconceived the purpose or meaning of the section or misapplied it to the facts upon which the order was based. Nor does it now argue that the section does not empower the Commission to require the corporation to install and maintain adequate facilities in respect to its public duties. And reasonably it could not, because, as the statute provides:

"Every railroad and other transportation company may be required by the Commission to establish and maintain such suitable public service facilities and conveniences as may be reasonable and just."

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