Lynchburg Traffic Bureau v. Com.
| Decision Date | 20 June 1949 |
| Docket Number | Record No. 3518. |
| Citation | 189 Va. 612 |
| Court | Virginia Supreme Court |
| Parties | LYNCHBURG TRAFFIC BUREAU, A CORP. v. COMMONWEALTH OF VIRGINIA, EX REL. |
Present, Gregory, Eggleston and Miller, JJ.
(1) Railroads — Powers and Obligations — Charter Obligations Subject to General Constitutional Provisions.
(2) Public Service and Corporation Commissions — Powers of Virginia State Corporation Commission as to Maintenance and Discontinuance of Service.
(3) Railroads — Powers and Obligations — Conditions Justifying Discontinuance of Service.
(4) Railroads — Powers and Obligations — Transportation of Mail.
1. The proviso in an act of the legislature under which a carrier operates that it maintain a first class railroad, with ample accommodations for all passenger travel and freight transportation, is relative. Under section 156(b) of the Constitution of Virginia and section 3716 of the Code of 1942 (Michie) the duties imposed upon transportation companies by charter, franchise or legislative enactment are subject to the control of the State Corporation Commission, which may require only that a public carrier render such service as is reasonable and just, and the yardstick by which a carrier's obligations must be measured is the duty to afford such transportation as is reasonably adequate to meet the public convenience and necessity. If the act under which a carrier operates should impose a greater burden it would be subject to and modified by the paramount police power of the State, and the obligation of the carrier ultimately measured by the terms of the Constitutional provision, since the obligations imposed by such an act are for the benefit of the public, and no individual or community can enjoy any special interest or contractual right exclusive of or paramount to that of the State.
2. The scope of the powers accorded the State Corporation Commission not only enables it to require the exercise and maintenance of adequate public service by a public service corporation, but authorizes it to relieve such company of the burden of public service when circumstances justify.
3. A railroad carrier applied to the State Corporation Commission to be allowed to discontinue a part of the service rendered by it, because during an average month the trains in question went twenty-five per cent of the average daily distance with no passengers, and for almost half the distance with none or only one, and the revenue loss to it was about five thousand dollars per month. Service similar to that to be abandoned was to be continued by the carrier and four mail passenger trains run by other carriers, as well as buses, served the territory. Although State highways in the vicinity were secondary roads, passenger travel on trains in the area was shown to be negligible. The carrier's application was opposed on the ground that operation of the trains was necessary for adequate service to the public. The Commission properly ordered the service discontinued, because the availability of other public facilities, the public need for the service in question, the use made thereof, and the loss to the carrier in maintaining it were the controlling factors in determining whether it might rightfully be discontinued, and the evidence amply sustained the Commission's finding that the public did not use the service to such an extent as to justify its continued rendition at the loss incurred. To conclude that public convenience and necessity required continued operation of the trains at such a loss would approach, if not constitute, confiscation of private property for unneeded public service.
4. Under the facts of headnote 3 the carrier's application was opposed on the ground that mail facilities would be seriously impaired by removal of the trains in question, but the testimony disclosed that whenever local trains that transport mail are discontinued, the government makes other arrangements for adequate mail collection and delivery and frequently local post offices are afforded improved service, and the contention was not justified.
Appeal from an order of the State Corporation Commission.
The opinion states the case.
W. G. Burnette and Powell Glass, Jr., for the appellant.
Horace L. Walker, Richard T. Wilson, Jr., Edward M. Hudgins and Hewitt Biaett, for the appellee.
On September 14, 1948, the State Corporation Commission allowed The Chesapeake and Ohio Railway Company, hereinafter called appellee, to cease operation of two passenger trains known as Nos. 11 and 12, on its James River Division between Richmond and Lynchburg, Virginia. The Lynchburg Traffic Bureau, referred to herein as appellant, and which, along with other interested parties, opposed the application of the carrier to discontinue such public service, appealed from that judgment and order. The matter is now before us for review.
Several assignments of error are made to the judgment and order of the Commission. They may be consolidated and set forth as follows: Appellant asserts that —
1. Appellee, successor to the Richmond and Alleghany Railroad Company, has failed to perform the obligations imposed upon its predecessor by an Act of the General Assembly of Virginia of February 27, 1879, Acts 1878-79, ch. 139, p. 118, which, among other things, required that the road along this route "be a first class railroad, * * * equipped with ample accommodations for all passenger travel and freight transportation."
Appellant compares the services rendered on this division between Lynchburg and Richmond with that on the main line between Charlottesville and Richmond, and asserts that it discloses an unreasonable and unlawful discrimination against the service rendered on the route in question, which is violative of appellee's franchise obligation. It invokes the aid of section 3772 of the Code, which provides for enforcement of the obligations imposed by the Act of 1878-79 against the Richmond and Alleghany Railroad Company or its successor.
2. That public convenience and necessity require the operation of these trains between Richmond and Lynchburg, and their continued operation is reasonably necessary for adequate service to the public.
In elaborating upon this assignment of error, appellant says that if only a few passengers are now carried on trains Nos. 11 and 12, it is because of the unreasonably poor service rendered by appellee over a period of years and to permit discontinuance of these trains will, in effect, allow appellee to profit by its own wrong at the expense of the traveling public and the communities served.
The scope of the testimony and evidence heard and considered by the Commission was wide. To recite it in detail would serve no good purpose. Yet, the salient facts that disclose the conditions obtaining incident to the operation of these trains, such as the cost incurred, the use made of the services by the public, and the character of other transportation furnished by this and other carriers to the territory and communities involved, must be recited for an understanding of the problem presented to the Commission.
The road maintained by appellee from Richmond to Lynchburg follows the curving course of the James River and is primarily a single track. The distance is 147 miles as compared with 112 miles by highway.
Trains Nos. 11 and 12 actually consist of only one unit or train. Designated as train No. 11, it leaves Richmond daily, except Sunday, at 5:15 o'clock p.m., and arrives in Lynchburg at 10:30 o'clock p.m. As train No. 12, it leaves Lynchburg, Sundays excepted, at 2:30 o'clock a.m., and arrives in Richmond at 8:10 o'clock a.m. These trains are described by the superintendent of passenger transportation as consisting of "one car unit which contains motor equipment, railway motor car, a baggage compartment and a smaller compartment with seats. * * * and, in addition, we operate what is known as a trailer coach." When motor car power is not available (which, however, is seldom), they are operated by regulation steam passenger equipment.
In 1928, due to the fact that passenger service on this line, which was then operated with steam equipment, was being maintained at a considerable loss, application was made to the Commission for permission to discontinue these trains. The right to terminate their operation was refused. To lessen the loss being sustained, the more economical car and lighter equipment were put in use. Though the equipment is not modern, there is evidence that it is reasonably comfortable and maintained with a fair degree of cleanliness.
There are fifty-five intermediate stops along the 147 mile route. According to the schedule, this averages a stop about every two and one-half minutes. However, the trains do not stop at all of these flag stations by any means. This is due to the fact, as we shall presently see, that seldom are there passengers on the train to get off or any waiting to get on. However, each station must be approached at a speed and under such control that a stop can be made if need be.
In May, 1948, the average daily patronage on train No. 11 was 3.1 passengers per train-mile and on train No. 12, it was 1.8 passengers per train-mile. The testimony proves this to have been an average month with about the usual amount of passenger travel. During that month the two trains operated a combined average distance of 294 miles each day, excepting Sundays, and over tweny-five per cent of such daily train-miles were traveled without any passengers. For the entire month the trains were operated 7,664 miles, and for almost half that distance, i.e., 3,776 miles, no passenger, or only one, occupied the train.
For the twenty-month period immediately preceding the hearing before the Commission, i.e., October, 1946, to May, 1948, inclusive, the passenger revenue earned by trains Nos. 11 and 12 was eight cents per train-mile. Their total earnings, which include revenue...
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Bureau v. Commonwealth Ex Rel
...189 Va. 61254 S.E.2d 66LYNCHBURG TRAFFIC BUREAU.v.COMMONWEALTH ex rel.Supreme Court of Appeals of Virginia.June 20, 1949.[54 S.E.2d ... opposed by the Lynchburg Traffic Bureau and others, for permission to cease operation of two passenger trains. From an ... ...