Chicago, M., St. P. & P. R. Co. v. Board of R. R. Com'rs

• Decision Date: 12 October 1953
• Docket Number: No. 9229,9229
• Citation: 255 P.2d 346,126 Mont. 568
• Court: Montana Supreme Court
• Parties: CHICAGO, M., ST. P. & P. R. CO. v. BOARD OF. R. R. COM'RS et al.

Page 346

255 P.2d 346

126 Mont. 568

CHICAGO, M., ST. P. & P. R. CO. v.BOARD OF. R. R. COM'RS et al.

No. 9229.

Supreme Court of Montana.

Submitted Jan. 5, 1953.

Decided March 5, 1953.

Rehearing Denied April 13, 1953.

Wri of Certiorari Denied Oct. 12, 1953.

See 73 S.Ct. 40.

Arnold H. Olsen, Atty. Gen., Vera Jean Heckathorn, Asst. Atty. Gen., Edwin S. Booth, Jr., and John H. Risken, Helena, for Board R. R. Commissioners.

Murphy, Garlington & Pauly, Missoula, Harry C. Pauly, Missoula, B. E. Lutterman, Seattle, Wash., for respondent.

Lester H. Loble, Helena, Loble & Loble, and Gene A. Picott, Helena, for intervenors and appellants.

ANDERSON, Justice.

The board of railroad commissioners made an order on March 6, 1951, denying and dismissing an application of plaintiff, railroad company, requesting authority to discontinue passenger trains Nos. 117 and 118, operating between Harlowton, Lewistown and Great Falls, Montana, a distance of 199 miles.As authorized by law, a complaint was filed by the plaintiff in the district court.

The entire transcript, including all pleadings and exhibits, and the evidence introduced at the hearing before the board was, by stipulation, introduced in evidence for consideration in the district court.Considerable evidence was taken by the lower court and at the termination of the trial a decree was entered, the substance of which was that the order of the board above referred to was unreasonable and contrary to law and was therefore annulled, and the board was enjoined from carrying out its order.

The court's judgment or decree resulted from findings and conclusions, the essential parts of which are: That the cost of operating the trains in question is disproportionate to the use and revenue derived therefrom; that public convenience and necessity do not require or justify the continued operation of the trains; that their continued operation constitutes an unreasonable burden upon interestate commerce; that to require their continued operation would constitute, in legal effect, a confiscation of private property to the extent of the losses resulting from the operation thereof, without compensation, contrary to the provisions of the United States Constitution and of the Constitution of the State of Montana; that the order rendered by the defendant board is unreasonable, unjust, arbitrary and illegal, and should be set aside and held for naught; that the plaintiff is entitled to an order authorizing it to discontinue the operation of the trains.

The record discloses that the railroad operates a line of railroad through various states, including Montana, and the trains here in question are operated on a branch line wholly within the state of Montana.For the past five years there has been a gradual decline in the use of passenger service offered by trains Nos. 117 and 118, and, because of a rising cost of operating these trains, the revenues derived from their operation is inadequate to defray the costs of the operation.During the year ending August 31, 1950, the total revenue for this operation was $54,942, whereas the expenses amounted to $138,632, resulting in a net, out-of-pocket loss of $83,690.There is no evidence in the record as to the revenue derived from freight operations over the line here in question, but it was conceded by the railroad that this branch line is a good revenue producer.

A number of witnesses appeared as opponents to the proceedings.These witnesses included, among others, representatives of the Chambers of Commerce of Great Falls and Lewistown, a representative of the U. S. Air Base at Great Falls, and individuals from most of the points along the entire railroad.

It was generally shown that the roads along a substantial portion of this railroad are not geared to modern needs and transportation.Except in part, there are no highways maintained by the state of Montana as primary roads.In the winter the roads are, at times, impassable.The railroad crosses a good stock raising and agricultural district.It is apparent, from the record, that part of this district of Montana, saving therefrom Great Falls, Lewistown and Harlowton, has not, highwaywise, kept abreast with other parts of Montana.The blame for the condition cannot be placed at the doorstep of the railroad or the people living along the railroad.However, poor roads do exist and the board of railroad commissioners did not pass this by without concern.

It was further shown that there is no other common carrier serving a substantial portion of the area served by trains Nos. 117 and 118.There was a showing that express service and mail service would be adversely affected if these trains were discontinued.Respondents argue that these services are not to be considered because the carrier has no control over them and that they may be terminated at the will of the Post Office Department or Railway Express Company.

It might work some inconvenience to the public by abandonment of the service which carried with it the loss of mail and express facilities and therefore the board had a right to consider mail and express in connection with public convenience and necessity.Gardner v. Commerce Commission, 400 Ill. 123, 79 N.E.2d 71;In the Matter of Application of Union Pacific, etc., 64 Idaho 597, 134 P.2d 1073.

It is well established that no set rule can be used to determine whether or not public convenience and necessity require a given service to be performed.The facts in each case must be separately considered and from those facts the question is to be determined.Gardner v. Commerce Commission, supra.

The board found there is a public need and convenience for the operation of the service offered by trains Nos. 117 and 118.

Under R.C.M.1947, Secs. 72-132 and 72-155, a district court is given the power to determine whether or not any order of the board of railroad commissioners is just and reasonable, provided that any order of said board shall prima facie be deemed reasonable, just and proper.

Respondent takes the position that section 72-132 is the law applicable here.With this we agree.Respondent says the legislature intended, by R.C.M.1947, Sec. 72-132, that the court action is to be a trial de novo, and the trial court should make its own independent determination of the matter before it.

The courts have a measure of judicial authority in matters concerning orders of the board of railroad commissioners, such as the one under consideration.The rule that was followed in the case of Fulmer v. Board of Railroad Commissioners, 96 Mont. 22, 28 P.2d 849, 855, is applicable to the instant case.In that case it was held the review by the court includes consideration of the questions: '(1) Did the board act beyond the power which it could constitutionally exercise?(2) Did the board act beyond its statutory power? and (3) Did the board base its action upon a mistake of law?This court has qualified the above rule [when passing upon rate questions] by the following language: 'But questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property without due process of law; or if the Commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or if the authority therein involved has been executed in such an unreasonable manner as to cause it to be within the elementary rule that substance, and not the shadow, determine the validity of the * * * power.'Billings Utility Co. v. Public Service Comm.[62 Mont. 21, 203 P. 366].'

The findings of the board are by law deemed prima facie just, reasonable and proper, and courts should ascribe to them the strength due to the judgments of a tribual appointed by law and informed by experience.Illinois Central R. Co. v. Interstate Commerce Commission, 206 U.S. 441, 27 S.Ct. 700, 51 L.Ed. 1128.The board's conclusion is subject to review, but when supported by evidence is accepted as final.

In Great Northern Ry. Co. v. Nagle, D.C., 28 F.Supp. 812, 813, the court said, when speaking of the operation of trains between certain points in Montana: 'Several places, as shown by the evidence, are served by the trains and not by the busses and trucks.Even where the towns are served, or partly served, by the last two means of transportation, the service does not appear to be adequate or altogether dependable. * * *

'* * * However,...