Chi., R. I. & P. R. Co. v. Neb. State Ry. Comm'n

• Decision Date: 20 January 1910
• Docket Number: No. 16,399.,16,399.
• Court: Nebraska Supreme Court
• Parties: CHICAGO, R. I. & P. R. CO. v. NEBRASKA STATE RY. COMMISSION.

85 Neb. 818

124 N.W. 477

CHICAGO, R. I. & P. R. CO.

v.NEBRASKA STATE RY. COMMISSION.

No. 16,399.

Supreme Court of Nebraska.

Jan. 20, 1910.

Syllabus by the Court.

The Legislature has authority to provide, in appeals from orders of the State Railway Commission, that the burden of proof should rest upon the party seeking to set aside the decision of the commissioners to show by clear and satisfactory evidence that the order is unreasonable and unjust, and that the record should be prima facie evidence that the order is just and reasonable.

In such a case the evidence must outweigh that offered by the defendant, and it must be of the same clear and satisfactory nature as that required in other cases where presumptions of validity attach to the instrument sought to be set aside, or to the transaction sought to be declared void.

The cost of a proposed improvement ordered by such commission is not in all cases a proper test for determining the reasonableness of such an order. It is proper to be taken into consideration, but is not controlling.

The mere fact that the income from the expenditure at a particular point upon its line may not earn a fair return upon the capital invested at that point can only be considered in connection with the revenue from the entire operation of the road within the state at least.

In such an appeal from an order to establish a station, the whole demand for both freight and passenger service must be considered; and if, taking all the circumstances into consideration, the order is not unreasonable, the appeal will be dismissed.

Appeal from District Court, Lancaster County; Cornish, Judge.

Proceedings before the Nebraska State Railway Commission to compel the Chicago, Rock Island & Pacific Railway Company to furnish a depot. The district court on appeal refused to set aside an order of the commission requiring the erection of a depot, and the railway company appeals. Affirmed.

E. P. Holmes, G. L. De Lacy, M. A. Low, and P. E. Walker, for appellant.

W. T. Thompson, Grant G. Martin, and L. E. Gruver, for appellee.

LETTON, J.

This is an appeal from a judgment of the district court refusing to set aside an order of the State Board of Railway Commissioners. On August 23, 1907, a complaint was filed before the State Board of Railway Commissioners by J. A. Beal and others against the Chicago, Rock Island & Pacific Railway Company. The substance of the complaint is that the complainants are residents and citizens of University Place, Neb., a city of upwards of 4,000 inhabitants, and are doing business therein; that the tracks of the defendant extend into and through said city, but that defendant has no depot or station house therein for the accommodation of passengers or for the receipt or delivery of freight; that several thousand students attend the educational institutions in said city each year; that there is a large amount of passenger traffic on this account; and that people are obliged to leave and take trains at Lincoln, and are subjected to great trouble and annoyance in getting local transportation for themselves and baggage to and from University Place. It is also alleged that there is a very large amount of freight business done to supply the needs of the population, and that this in itself is sufficient to require a depot on the line of defendant's railroad in said city. The prayer is that an order be made requiring the defendant to erect at a convenient place in said city a passenger and freight depot, to provide an agent, side tracks, and other things necessary for the proper use of such depot by the patrons of the defendant company, and for general relief. The defendant answered, denying any jurisdiction in the railroad commission. It further answered to the merits, alleging that University Place lies between Lincoln and Havelock, which are four miles apart; that the street car and transportation facilities are such that it is easier to reach Lincoln from the center of University Place than a station at any place that could be established in University Place; that it has recently constructed at a great expense a switch some two or more miles in length from Lincoln to the center of the business district of University Place, and thereby has satisfactorily handled freight business to that point over its line; that passenger traffic arising from students does not come from the line of defendant, which has only a short line in Nebraska, so that only a small part of such traffic would come over its lines; that it is willing to furnish additional facilities as fast as the returns on business will justify; that the returns from the business in University Place, which are small, would be not greatly increased; that the expense of acquiring and constructing a station would be at least $5,000; and that “the compelling of the construction by the defendant of the transportation facilities prayed for in the petition would amount to a confiscation of its property to the extent named. * * * and would be unreasonable, unjust, and unfair in law and in fact.”

A hearing was had by the State Railway Commission upon the issues thus raised, and, after being argued and submitted, the commission ordered that the defendant “be and the same is hereby notified and directed to erect on or before the 1st day of July, 1908, and thereafter maintain on its road at or near a point in University Place, Neb., where it intersects or touches Warren avenue, a suitable station and freighthouse with a floor space of not less than 500 square feet, together with the necessary switch tracks and appurtenances thereto.” The order further directed that an agent be provided, and schedules of rates and charges be published and put into effect. Afterwards the railway company, being dissatisfied with this order, filed a petition in the district court for Lancaster county on appeal, setting forth the particular causes of objection to the order. A large part of the petition is devoted to setting forth constitutional objections to the statute authorizing the creation of the commission, and the proceedings of which complaint is made. The further objections are made that the matter concerns interstate commerce, and that the order is therefore beyond the powers of the commission; that the complaint does not state facts sufficient to entitle the complainants to relief; that the allegations are not established by the evidence; and it is further contended that the order is unreasonable because no necessity exists for the establishment of a station at University Place. The petition prays that the order of the Railway Commission be vacated, and that it be enjoined from ordering the railway company to establish such station. The Railway Commission answered, setting forth at length the proceedings and findings of fact upon which the order was based, alleged that the facts so found are the facts in relation to the matter, and further alleged that the railway company is a common carrier engaged in intrastate transportation of both passengers and freight for hire in the state of Nebraska.

The findings as to matters of fact, so far as material here, are as follows: “From the evidence it appears, and the commission so finds: That University Place is an incorporated town, having a population between 2,500 and 3,500 inhabitants. That a university enrolling several hundred students is located within its limits. That there is a considerable number of merchants maintaining business houses in said city engaged in the business of shipping, buying, and selling drugs, groceries, hardware, lumber, coal, general merchandise, plumbing, and building supplies. That the main line of the defendant company passes through the northern portion of the town at a distance of about three-fourths of a mile from the center of town. That the nearest stations on the defendant's road or any other steam railroad are located at Lincoln and Havelock, each at a distance from the center of University Place of about 4 miles and 1 3/4 miles, respectively. That the defendant company has constructed a switch track from its main line for a distance of about two miles to a point near the center of the city. That car load freight alone to the extent of several hundred cars a year is delivered on said switch track. That, except where competition enters into the service, a switching charge of $5 per car is added to the regular tariff rate to Lincoln on all car load shipments delivered on said switch track. That no ‘less than car load’ shipments are received on said switch track; and that the citizens of said city are compelled to either go to Lincoln or Havelock for such shipments, thereby causing them more or less inconvenience, and entailing considerable and unnecessary extra expense and loss of time. * * * Furthermore, it is the opinion of this commission that the entire business of the railroad done at University Place will not only pay expenses, but indeed return a fair profit to the defendant. * * * We do not concur in the conclusions of counsel for defendant that the transportation facilities afforded the complainant and his fellow citizens in University Place are sufficient to satisfactorily and reasonably supply the public need.”

A trial was had before the district court upon the issues thus raised, and the court found as its conclusion of fact “that the decision of the commission appealed from is not unreasonable or unjust within the meaning of the law providing for appeals, and that appellant is not entitled to relief prayed for.” The court further found as a matter of law that the only question for it to determine upon the appeal was “whether the order of the commission is unreasonable or unjust, and, if the order is found to be such that reasonable men might differ as to its correctness, it cannot be said to be unreasonable; in other words, that the court is not empowered to put itself in the place of the commission with power to substitute its own...