Denton Bros. v. Atchison

• Decision Date: 11 April 1929
• Docket Number: No. 3384.,3384.
• Citation: 277 P. 34,34 N.M. 53
• Parties: DENTON BROS. et al.v.ATCHISON, T. & S. F. RY. CO. et al.
• Court: New Mexico Supreme Court

34 N.M. 53

277 P. 34

DENTON BROS. et al.

v.ATCHISON, T. & S. F. RY. CO. et al.

No. 3384.

Supreme Court of New Mexico.

April 11, 1929.

Syllabus by the Court.

In reviewing order of State Corporation Commission, requiring a railroad company to reopen and maintain an agency, it is immaterial whether the discontinuance of the service was on notice to the patrons, on notice to or with permission of the commission, or justified by revenues.

In testing the reasonableness of order requiring a railroad agent at a point where not needed for public safety, the number of persons to be benefited and the relative value and cost of the service are to be considered.

Where sole inconvenience, resulting from failure to maintain an agent at a station, is in respect to freight traffic, and where but slight inconvenience results in shipping and receiving carloads, the revenues from which are $19,000, but considerable inconvenience, principally to two merchants, results as to less than carloads, the revenues from which are $1,300, an order requiring maintenance of local agent at $2,400 held unreasonable.

Appeal from Corporation Commission; Hugh C. Williams, Mas Fernandez, and Bonifacio Montoya, Commissioners.

Suit by Denton Bros. and others against the Atchison, Topeka & Santa Fé Railway Company and others, wherein the Railroad Company removed to the Supreme Court an order of the State Corporation Commission requiring it to reopen and maintain a certain agency. Order held unreasonable, and matter remanded to the State Corporation Commission.

Where sole inconvenience resulting from failure to maintain an agent at a station, is in respect to freight traffic, and where but slight inconvenience results in shipping and receiving carloads, the revenues from which are $19,000, but considerable inconvenience, principally to two merchants, results as to less than carloads, the revenues from which are $1,300, an order requiring maintenance of local agent at $2,400 held unreasonable.

W. C. Reid, of Albuquerque, J. M. Hervey, of Roswell, and E. C. Iden, of Albuquerque, for defendants.

WATSON, J.

The railroad company has removed to this court an order of the State Corporation Commission, requiring the company, “on or before the 17th day of September, 1928, to reopen the agency at Kenna, New Mexico, and maintain said agency in future, until further order of this Commission.” There were no arguments or briefs before the commission. The matter is here submitted on the railroad's brief alone.

In its opinion and order, the State Corporation Commission, after summarizing the evidence adduced at the hearing, makes the following findings:

“1. That the agency at Kenna was improperly discontinued without notice to the patrons of the road.

2. That the agency at Kenna was improperly discontinued by the said defendant company without notice to, or permission of, this Commission.

3. That the total revenues of the station at Kenna did not justify the discontinuance of the agency at that point, and that said agency was therefore improperly and illegally discontinued.

4. That the revenues received by the said company and the convenience of the public require the reopening and maintenance of an agency at Kenna within thirty (30) days from the date of this order.”

This court has, on previous occasions, reviewed orders of the State Corporation Commission with reference to the maintenance of local agencies. Seward v. Denver & R. G. R. Co., 17 N. M. 557, 131 P. 980, 46 L. R. A. (N. S.) 242; Woody v. Denver & R. G. R. Co., 17 N. M. 686, 132 P. 250, 47 L. R. A. (N. S.) 974; State Corporation Commission v. Atchison, T. & S. F. R. Co., 32 N. M. 304, 255 P. 394. In those decisions, and particularly in the Seward Case, careful consideration was given to the principles which control the present case.

[1] The commission's findings, Nos. 1, 2, and 3, may be dismissed with the observation that they do not tend, in any respect, to support the order made. State Corporation Commission v. Atchison, T. & S. F. R. Co., supra. The only question before us is that presented by finding 4, and that is whether, under the conditions shown to exist, the commission's order is reasonable and just, considering the interest and rights, both of the public and of the railroad.

[2] From an operating standpoint it is not claimed that an agent is needed at Kenna. The public safety is not involved. It is a matter of public convenience only. So due regard must be had of the cost of the service required. Seward v. Denver & R. G. R. R. Co., supra. We may further narrow the point by saying that it is not claimed that passenger service is inadequate. The inconvenience shown is in respect to freight traffic only. Is that inconvenience of such proportion as to justify imposing upon the company the additional expense of maintaining an agent? The commission estimates that it would cost $200 per month.

[3] The immediate population of Kenna is not shown. It has considerably decreased in recent years. Its importance as a business or trading point has diminished. Its rather large trade territory is principally stock-raising, with some dry farming, served by two mercantile establishments, a post office, and a school. The school has 75 pupils, some of whom, at least, are gathered by two school busses. Its post office serves 250 patrons.

Prepaid freight is delivered at Kenna without delay. If less than a carload, it is placed in the depot, under lock, and may be removed by the consignee by applying to an employee of the company who operates the coal chute at the station, and who holds the key. Before this custom was instituted, there had been occasional damage to package goods left unhoused. Under the present system, there is no...