Chicago, M., St. P. & P. R. Co. v. Public Service Commission
| Decision Date | 14 August 1959 |
| Docket Number | No. 7778,7778 |
| Citation | 98 N.W.2d 101 |
| Court | North Dakota Supreme Court |
| Parties | CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Respondent, v. PUBLIC SERVICE COMMISSION of State of North Dakota; Brotherhood of Locomotive Engineers, Brotherhood of Firemen, and Brotherhood of Railroad Trainmen, Appellants. |
Syllabus by the Court.
1. Where a railroad company in this state makes application to the Public Service Commission for authority to discontinue operation of local passenger trains the question for determination is whether public convenience and necessity require the continued operation of such trains.
2. The Public Service Commission is empowered by Section 49-0204 NDRC 1943 to make rules and regulations governing services to be performed or methods to be observed by public utilities in this state, but the Commission may not under the guise of rules and regulations take the property of a carrier by compelling it to provide services and facilities no longer necessary to public convenience and necessity.
3. Section 49-1402 NDRC 1943 which provides that 'every railroad corporation operating a line of railroad within this state * * * shall move over its line of road within this state, each way on every business day of the year, at least one local passenger train to consist of not less than one engine and tender and combination mail, express and baggage car, and two passenger coaches', will not be construed to apply to discontinuance by a railroad company of local passenger trains where it clearly appears that public convenience and necessity do not require operation of such trains, and it further appears that the expense of such continued operation substantially exceeds the revenue derived therefrom.
Gerald G. Glaser, Commerce Counsel, Bismarck, for appellant Public Service Commission.
Gallagher & Paul, Mandan, for appellants Brotherhood of Locomotive Engineers, Brotherhood of Firemen and Brotherhood of Railroad Trainmen.
Kelsch, Scanlon & Kelsch, Mandan, and Dwight Campbell, Aberdeen, S. Dake., for respondent Chicago, M., St. P. and P. R. Co.
This is an appeal by the Public Service Commission of the State of North Dakota, the Brotherhood of Locomotive Engineers, the Brotherhood of Firemen, and the Brotherhood of Railroad Trainmen, appellants, from a judgment of the district court of Bowman County, North Dakota, in favor of the respondent Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a corporation. The respondent railroad company, which will be referred to hereinafter as the Milwaukee, owns and operates an interstate railway system between Chicago, Illinois, and Seattle-Tacoma, Washington. The main line of the Milwaukee traverses a part of North Dakota, entering the south line of the state at a point near Haynes and running in a northwesterly direction to Marmarth, North Dakota, near the North Dakota-Montana line, a distance of approximately 76 railroad miles.
At the time these proceedings were started the Milwaukee had in operation over its main line in North Dakota, and still has trains numbered 15 Westbound and 16 Eastbound, known as the Olympian Hiawathas, running between Chicago, Illinois, and Seattle-Tacoma, Washington. These are high-speed transcontinental trains making few local stops. These trains, however, do make regularly scheduled stops in each direction on the North Dakota portion of the main line, at Marmarth, Bowman, and Hettinger, furnishing interstate transportation to and from these points and intrastate transportation between them. Prior to these proceedings two other transcontinental passenger trains, numbered 17 and 18, operated between Chicago and Seattle-Tacoma. However, they were known as local trains and made local stops at practically all stations along the main line. The operation of these trains proved to be unprofitable and from time to time they were discontinued between designated points on the main line, and at the time of the commencement of these proceedings they were operating only between Marmarth, North Dakota, and Aberdeen, South Dakota.
On May 10, 1955, the Milwaukee posted public notice that trains Nos. 17 and 18 would be discontinued on May 21, 1955.
On May 16, 1955, the Public Service Commission, on its own motion, ordered a public hearing to be held on June 28 1955, at Bowman, North Dakota, for the purpose of investigating the matter of public convenience and necessity of passenger train service on the main line of the Milwaukee between Lemmon, South Dakota, and Marmarth, North Dakota, and the Commission also ordered the Milwaukee to maintain operations of trains Nos. 17 and 18 until further order of the Commission.
Thereafter, upon application by the Milwaukee, the district court of Burleigh County issued an order restraining the Commission from enforcing that portion of its order requiring the Milwaukee to maintain operation of trains Nos. 17 and 18 pending hearing and final determination of the case.
After the hearing on June 28, 1955, the Public Service Commission on the 9th day of May, 1956, issued an order requiring the Milwaukee to restore daily-except-Sunday local main line service for passengers from Marmarth, North Dakota, to the North Dakota border point of entry of said main line each way, from and after the 9th day of June, 1956, such daily service to include baggage, express, and milk and cream between said points.
The Milwaukee appealed to the district court of Bowman County from the order and thereafter, on the 18th day of December, 1956, the Milwaukee applied to the district court for an order remanding the proceedings to the Commission for the purpose of taking additional evidence, which application was granted by order of the district court dated January 22, 1957.
A second hearing was held at Bowman, North Dakota, on March 28, 1957, at which time additional evidence was presented to the Commission by the Milwaukee. After a regular meeting held on June 14, 1957, and on July 18, 1957, the Commission issued its order denying the application of the Milwaukee for further consideration, affirming its original decision, and certified the entire record to the clerk of the district court of Bowman County.
The appeal to the district court was heard at Bowman, North Dakota, on November 9, 1957.
The district court reversed the order of the Public Service Commission, made findings of fact and conclusions of law, and ordered judgment in favor of the appellant Milwaukee, authorizing discontinuance of operation of trains Nos. 17 and 18.
Judgment was entered accordingly. The Commission and the three brotherhoods appealed to this court and have demanded a trial de novo.
It is the contention of the appellants that, under Section 49-1402 of the North Dakota Revised Code of 1943, the Milwaukee is required to maintain in operation on its railroad in North Dakota, each way on every business day, at least one local passenger train to consist of not less than one engine and tender and combination mail, express, and baggage car and two passenger coaches, and at least one freight train. Said section reads as follows:
Appellants further contend that the only change of service permitted from daily local passenger service under said statute, on proper showing, is maintenance and operation of one mixed train on the main line each way on every business day of the year, for such time as the Commission may direct, and that such mixed train shall be supplied with not less than one passenger coach and one combination baggage and passenger coach for the accommodation of passengers.
The respondent Milwaukee, however, argues that the only question for consideration under the order of the Commission of May 9, 1956, was whether local passenger train service furnished by the Milwaukee was adequate for the requirements of public convenience and necessity on the main line of the Milwaukee between Haynes and Marmarth, North Dakota.
The order issued by the Commission on May 9, 1956, is as follows:
'It is ordered that the Chicago, Milwaukee, St. Paul and Pacific Railroad be and it is hereby directed to restore daily except Sunday local main line service for passengers and L. C. L., baggage, express, milk and cream from Marmarth, North Dakota, to the North Dakota border point of entry of said main line each way from and after the 9th day of June 1956.'
The questions thus presented upon the record before us are substantially as follows:
Does public convenience and necessity require the continued operation of trains Nos. 17 and 18 for daily local passenger train service on the Milwaukee line within the State of North Dakota?
If it appears from the evidence and record that daily local passenger service is not necessary to satisfy the requirements of...
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