Darby v. Southern Ry. Co.
| Decision Date | 17 July 1940 |
| Docket Number | 15129. |
| Citation | 10 S.E.2d 465,194 S.C. 421 |
| Parties | DARBY et al. v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Rehearing Denied Aug. 23, 1940.
The order of Judge Gaston follows:
This matter was heard by me at Chester on the 27th of July, 1939. The record before me consists of the petition for a writ of mandamus in behalf of the petitioners, rule to show cause dated 15th of July, 1939, return of the respondent thereto and certain records and exhibits offered in evidence at the hearing before me, as will more fully appear by reference to the stenographic report and transcript. The matter was fully argued by counsel for both parties at the hearing before me but no testimony of witnesses was offered by either side. The petition sets forth that the S. C. Public Service Commission is vested with power to supervise and regulate the service of every public utility and is charged with the general supervision of all railroads, under the statute law of this State, including the Southern Railway Company. It is further set forth that about the 1st of June 1939, the superintendent of the Charleston Division of the Southern Railway Company appeared in person at the office of the Commission in Columbia and gave notice that the Southern Railway Company wanted to discontinue Trains No. 117 and 118, operating as daily passenger trains between Rock Hill and Kingville, in this State, and to substitute mixed trains operating daily, except Sunday. Thereupon, the Commission orally notified the Railroad Company that under the rules and practice of the Commission, it was necessary for the Railway Company to post and publish notice of the proposed change, and if protest against such change were filed, a hearing would be held, before the Commission could authorize or pass on the change. This was regarded as an informal application for leave to make the change, if protest were filed. Thereafter protests were made, and the Commission, on June 6, 1939, notified the Railway Company by telegram to file a formal application for authority to remove said trains; and also notified the Southern Railway Company that a hearing had been set and would be held thereupon on Tuesday, June 27, 1939.
The petition further sets forth that the Southern Railway Company, on June 12, 1939, "prior to the date set for said hearing and without the approval of this Commission, did unlawfully and wilfully undertake to and did discontinue the operation of Trains No. 117 and 118 as daily passenger trains and in lieu thereof commenced operating mixed trains between Rock Hill and Kingville."
The petition further sets forth that the Commission, on June 14, 1939, issued its order directing the Southern Railway Company to restore the said trains as daily passenger trains not later than June 16, 1939. Also, that the Commission issued its order, dated June 17, 1939, to the effect that if the Company forthwith restored the said trains and made application within five days for the right to remove said trains, the Commission would hold a hearing upon said application on July 11, 1939, and that the Railway Company has declined and refused to restore the trains. It is further alleged that the Railway Company was familiar with the rules and practice of the Commission requiring an application to be filed and authority granted to discontinue such trains, and "the action of the respondent in making such change before the hearing set and without the authority of the Commission, was and is a high handed, wilful and flagrant violation of the rules of the Commission and of law". It is further set forth in the petition that the Commission has not "at this time formed any judgment on the merits of the question as to whether the respondent should or should not as a result of the proper hearing be permitted to remove the daily passenger trains and to substitute mixed trains operating daily, except Sunday". The Commission alleges that the respondent has no right to remove the said trains or make such change in the service without application to and the approval of the Commission, and that, under Sections 8272 and 8341 of the Code of 1932 the Commission is now entitled to a writ and order enjoining and restraining the respondent company from continuing its violation of its said duties and ordering and directing the respondent, pending the filing of the proper application by it, forthwith to restore Trains No. 117 and 118 as daily passenger trains. By the return to the petition and rule to show cause, the Southern Railway Company contends that no formal or informal application for leave to make the change was made by it to the Commission, and that under the rules of the Commission all applications are to be made in writing. The respondent denies that such permission is required by any rule of the Commission or statute laws of the State of South Carolina, before the trains could be changed, and that it did not discontinue these trains unlawfully. The Southern Railway Company says that it has, during the past several years, applied to the Commission for permission to discontinue other trains as a courtesy, a method which until recently has been satisfactory but not in consequence of any rule of the Commission or any statute of the State; and that the Southern Railway Company has on several previous occasions discontinued passenger trains without permission from the Commission or application to them; and that the only rule or law of the Commission with reference to running trains by any railway company was Rule No. 12, which does not require application to the Commission or its permission in order to make changes in schedules and to take off existing trains.
The Southern Railway Company further sets forth that the Orders of June 14th and June 17th were protested in writing by it, and a re-hearing asked, which have not been acted upon by the Commission. The Railway Company also claims that no rule of the Commission has been passed and filed with the Secretary of State, as required by law, and that there is no statute or other law which requires the Railway Company to get the permission of the Public Service Commission before changing the character of its service, and that there is no proper legal foundation to sustain the petition herein. The Southern Railway Company then goes on to allege that the trains, Nos. 117 and 118, had been operated at a loss of over seventeen thousand dollars per annum, as passenger trains; and that in order to avoid the loss of operating daily passenger trains, and in order to retain the mail and express revenues, and to increase the freight service, the Southern Railway Company decided to substitute daily, except Sunday, mixed passenger and freight service, and so notified the Commission, and that it had the lawful right to make the change without applying to the Commission for its authority. The Railway Company then alleges that it has been operating at a loss during the year 1938 on its entire business and system in this state, and that it became imperative to curtail many of its most unprofitable passenger train operations in this and other states, in order to enable it to serve the shipping public in freight operations; and that during the year 1938 it made numerous applications to the Commission for its authority to discontinue certain passenger trains, and that, due to excessive delays on the part of the Commission, these matters were continued for many months, and that the hearings and decisions by the Commission have been unnecessarily delayed, postponed, and some cases not yet disposed of; and that such delays have caused the continuance of such other passenger train operations by respondent at large monthly losses; "with the result that in connection with the matter of changing the operation of passenger trains Nos. 117 and 118 to mixed train operations," respondent determined that it could not afford to follow the method of applying to the Commission and suffering the probable excessive delay of many months which it had experienced at the hands of the Commission in connection with said other matters, and therefore respondent determined that in this instance it was necessary to exercise the legal right which respondent has to act without applying to the Commission for authority. The Railway Company alleges and asserts its constitutional and legal rights to change the operation of its trains, and that it is not required to restore the unprofitable separate passenger train operation under the showing made herein, and under the facts now before the Court.
It will, therefore, be seen that while a great many issues of law and fact arise under the petition and the return, that this Court is now called upon to decide upon only one question of law.
The legal question involves the right of the Southern Railway Company, on the one hand, to change the operation of its passenger trains on a branch line, and to substitute a mixed freight and passenger train therefor, without first applying to the Commission for authority to do so. And the legal question involves the right and power, on the other hand, of the Commission, under its rules and the law of the State, to apply for a writ of mandamus against the change in the service of the two passenger trains, before the matter has been heard on its merits by the Commission, and before the Commission has rendered its decision in regard to the change, and before the Southern Railway Company is permitted to make formal application therefor. The Commission contends that the status quo ante must be restored by the Southern Railway Company before it can apply for permission to change its service, and that no change in the service can be made by law until the Commission has expressly ordered and granted the change.
The...
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