Marshall v. Bush
| Decision Date | 16 March 1918 |
| Docket Number | 19922 |
| Citation | 167 N.W. 59,102 Neb. 279 |
| Parties | R. W. MARSHALL ET AL., APPELLEES, v. BENJAMIN F. BUSH, RECEIVER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the State Railway Commission. Order vacated, and cause remanded.
ORDER VACATED.
E. J White, J. A. C. Kennedy and M. V. Beghtol, for appellant.
Willis E. Reed, Attorney General, John L. Cutright and Hugh La Master, contra.
The Missouri Pacific Railway Company operates a line of railroad from Omaha to Kansas City and St. Louis. In Nebraska the road runs southward. At the station of Talmage a branch line runs westward to Crete upon the main line of the Chicago Burlington & Quincy Railroad Company. The length of this branch is 59 miles. The towns intervening between Crete and Talmage have a total population of 1,911. At Hickman a line of the Union Pacific Railroad Company and a main line of the Chicago, Burlington & Quincy Railroad Company cross the Missouri Pacific. The lines of the Chicago, Burlington & Quincy Railroad Company nearly parallel the branch under consideration, one about six miles to the north and one about six miles to the south of it. These lines both enter the city of Lincoln, as do the Union Pacific line spoken of, and the main line of the Chicago, Rock Island & Pacific Railroad Company, which crosses this branch near the town of Sprague. The branch passes through a rich and well-settled agricultural region, but probably largely on account of the fact that the line reaches no city or large town, and so many other lines near-by do afford such access, there has been very little passenger traffic; people living along the line at points not reached by other railroads usually driving six or eight miles to the north or south to reach the line of the Chicago, Burlington & Quincy Railroad Company.
An informal petition was filed with the Nebraska state railway commission by a number of citizens of Panama, Auburn, Cook Douglas and the vicinity, requesting better passenger service on this branch. The defendant at this time was operating a mixed freight and passenger train each day over this branch daily except Sunday. The answer sets forth, in substance, that the railroad company was now in the hands of a receiver; that it is an interstate carrier; that it has annually since 1909 suffered a deficit on its total business in Nebraska, the net deficit since 1909 to 1916, inclusive, varying from $ 85,000 to nearly $ 300,000; and that under the Nebraska two-cent-fare act it is compelled to transport passengers at an actual loss.
After a hearing an order was made by the commission that a passenger train be operated daily except Sunday, but giving the defendant the option to make its freight service tri-weekly. An application was afterwards made by the defendant to set aside this order and allow further testimony to be taken. This was done, and after the hearing the commission found that by reason of the nature of the freight traffic it is necessary to schedule freight trains on this branch so as to make connection with the stock train on the main line from Kansas City to Auburn; that it is impossible to do this and to make connection with any passenger trains on the main line or with passenger trains on the lines of the Burlington running to Lincoln; that it is impossible to know what the passenger traffic would be if adequate passenger trains were operated making connections at junction points. It was ordered that the defendant install and operate upon this branch a passenger train each way daily except Sunday. From this order defendant appeals.
Four errors are assigned: (1) That the evidence does not sustain the order of the commission as to inadequacy of service; (2) that the trains required cause an unreasonable burden to be placed upon the interstate business of defendant; (3) that the receipts from the operation of the trains would be so light compared with the expense of operation as to be confiscatory; (4) that the order is unreasonable, denies the equal protection of the law to the railroad company, and deprives it of its property without due process of law.
By the decisions of the United States supreme court in the cases of Chesapeake & O. R. Co. v. Public Service Commission, 242 U.S. 603, 61 L.Ed. 520, 37 S.Ct. 234. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U.S. 287, 45 L.Ed. 194, 21 S.Ct. 115, Atlantic C. L. R. Co. v. North Carolina Corporation Commission, 206 U.S. 1, 51 L.Ed. 933, 27 S.Ct. 585, and Missouri P. R. Co. v. State of Kansas, 216 U.S. 262, 54 L.Ed. 472, 30 S.Ct. 330, the following principles seem to be definitely established: By the acceptance of a charter which confers upon it the power of eminent domain and other valuable privileges a railroad company assumes certain duties. It must exercise the functions for which it was organized and in consideration of which the privileges were conferred. Under the statute of 1866 in force until 1913, railroad corporations were required to "furnish sufficient accommodations for the transportation of passengers and freight," and it was required also that every such corporation "shall take transport, and discharge all passengers to and from such stations as the trains stop at, from or to all places and stations upon their said road, on the due payment of fare or freight bill." Rev. St. 1866, ch. 25, sec. 121 (Ann. St. 1911, sec. 10596). They were also made liable in damages for refusal to transport any property or passenger. Rev. St. 1866, ch. 25, sec. 122 (Rev. St. 1913, sec. 6059). Long before the defendant railroad company entered the state, these provisions, which really are merely declaratory of the common law, imposed fixed duties upon every railroad corporation seeking to do business in the state, and defendant by accepting the benefits of the statute assumed the burdens imposed thereby. Railroads are public highways, and the right and duty of the government to regulate the conduct and business of railroad corporations have been founded on that fact. In...
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