Residents of Royalton v. Central Vermont Railway Co

• Decision Date: 05 October 1927
• Citation: 138 A. 782,100 Vt. 443
• Parties: RESIDENTS OF ROYALTON ET AL. v. CENTRAL VERMONT RAILWAY CO
• Court: Vermont Supreme Court

138 A. 782

100 Vt. 443

RESIDENTS OF ROYALTON ET AL. v. CENTRAL VERMONT RAILWAY CO

Supreme Court of Vermont

October 5, 1927

May Term, 1927.

APPEAL from order of Public Service Commission, dismissing petition of Residents of Royalton and vicinity to restrain the Central Vermont Railway Co., from substituting caretaker service in lieu of existing agency service at its Royalton station. The petitioner appeals. The opinion states the case.

Order affirmed. Let the result be certified to the Public Service Commission.

George L. Hunt and John F. Neal of counsel for the petitioner.

Robert R. Twitchell, State's attorney, for the State.

John W. Redmond and Horace H. Powers for the petitionee.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

SLACK

This is an appeal from an order of the Public Service Commission dismissing a petition brought by citizens of Royalton and vicinity seeking to restrain petitionee from substituting caretaker service in lieu of the present agency service at its Royalton station. The order is predicated on facts found and stated by the Commission.

It appeared from the record first before us that petitioners' motion for an appeal was not filed within twenty days from the date of the Commission's order and at the January Term, 1927, the appeal, on motion of petitionee, was ordered dismissed. Thereupon petitioners claiming that the order appealed from was erroneously dated asked and had leave to have the same amended, and the case was entered with the Court. An amended order was filed February 21, 1927, which is dated August 31, 1926, instead of August 27, 1926, the date of the original order. Reckoning from the date of the amended order petitioners' motion for appeal was seasonably filed. That the Commission had authority to amend its order to conform to the facts cannot be doubted. Castonguay v. Grand Trunk Railway Co., 91 Vt. 371, 100 A. 908, although an action at law, is authority for this. The petitionee, contends, however, that the findings of the Commission respecting this matter do not disclose error in the original order which the Commission had power to correct, and says in its brief that it seasonably appealed from the action of the Commission in holding otherwise. But the record before us, which determines the question for review, discloses nothing concerning such appeal, or the finding of the Commission, if any, regarding the alleged error. For aught that appears the amendment was properly made, and if so petitioners' motion for appeal was filed within the time prescribed by statute.

The petitionee contends that the Commission did not have jurisdiction of the subject-matter of the petition and therefore that the order dismissing it should be sustained. The petitioners insist that the Commission had jurisdiction under both G. L. 5050 and G. L. 5231. The former section so far as here material reads as follows: "Said Commission shall have jurisdiction on due notice to hear, determine, render judgment, and make orders and decrees in all matters provided for in the charter of any railroad corporation, or in the statutes of this state relating to railroads, and shall have like jurisdiction in all matters respecting; * * * IX. The manner of operating railroads and conducting the business thereof so as to be reasonable and expedient and to promote the security, convenience and accommodation of the public and to prevent violations of law and unjust discriminations, usurpations or extortions." G. L. 5231 reads as follows: "A person or corporation operating a railroad shall give to all persons reasonable and equal terms, benefits, facilities and accommodations for the transportation of themselves, their agents and servants, and of merchandise and other property, upon such railroad, and for the use of the depots, buildings and grounds thereof, and, at any point where such railroad connects with another railroad, reasonable and equal facilities of interchange." We doubt not that subdivision IX of section 5050 gives the Commission jurisdiction of the subject-matter, here involved. And it seems equally clear that the provision of that section which gives the Commission jurisdiction in all matters provided for "in the statutes of this state relating to railroads" is broad enough to include questions arising under G. L. 5231. The petitionee insists that the question of whether the Commission had jurisdiction of the subject-matter of the petition under the provisions of the statutes last referred to is not for consideration here because not raised before the Commission. Assuming the fact to be as claimed, the ruling of the Commission will be sustained if it can be done on any legal ground (Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 111 A. 346), although the rule is as claimed by petitionee where a reversal is sought on grounds not raised below. Wood v. James, 93 Vt. 36, 106 A. 566.

In the trial before the Commission the petitioners excepted to the exclusion of evidence offered by them and to the admission of evidence offered by petitionee. The petitionee insists that these exceptions are not before this Court because not saved in the manner provided by G. L. 1520, and cites Vermont Marble Company v. Eastman et al., 91 Vt. 425, 101 A. 151, and Rowley v. Shepardson, 90 Vt. 25, 96 A. 374 (to which might have been added Osha v. Higgins, 90 Vt. 130, 96 A. 700, and Barber v. Bailey, 86 Vt. 219, 84 A. 608, 44 L.R.A. [N.S.] 98), in support of this claim. The manner of saving exceptions to the admission or rejection of evidence in trials before a chancellor has been changed since those cases were decided. See G. L. 1511, the last sentence of which provides: "Exceptions taken on trial of controverted questions of fact before a chancellor shall be available on appeal in the same manner as in county court causes tried by the court." The effect of this statute was pointed out in Essex Storage Electric Co. v. Victory Lumber Co., 93 Vt. 437, 108 A. 426. And in Gray et al. v. Brattleboro Trust Co., 97 Vt. 270, 122 A. 670, it was held that the method prescribed by the latter statute for saving exceptions in trials before a chancellor is exclusive. But it should be noted that, exceptions so saved will be unavailing unless the case is properly here on appeal perfected in the manner provided by G. L. 1561. United States of America v. Cano et ux., 100 Vt. 111, 135 A. 1. We think these exceptions were properly saved.

On the direct examination of one Toomey, petitionee's station agent at Royalton, petitioners offered to show that the witness received a letter from some one in which the writer said, in effect, that he wanted to ship lumber from the Royalton station and complained that the condition of the freight yard crossing was such that he could not do so and asked the witness to take the matter up with the petitionee; that the witness did so but that the petitionee did nothing about it, and the shipment went elsewhere. This was excluded, subject to petitioners' exception. The offer in part was, in effect, to show by parol the contents of a letter which evidenced the foundation of what was claimed to have occurred after its receipt by the witness without accounting for the non-production of such letter. Then, too, for aught that appeared from the offer the incident might have occurred in the early part of the witness' service as such agent, which it had already appeared covered a period of eleven years, and if so it was clearly immaterial to any issue before the Commission. The exception is without merit.

The same witness, after testifying in direct examination that he had had a talk with one Thresher, who he knew was in the employ of petitionee, and he thought was its traveling agent, about the duties of a caretaker at the Royalton station, was asked to tell what Thresher said about such duties, and also what he said as to why he approached the witness about the matter. This was excluded, to which petitioners excepted. What Thresher said about the duties of a caretaker was inadmissible until his authority to speak concerning that matter was established, which could not be done by his own declarations, and we find no other evidence tending to show such authority. Moreover no offer was made as to what petitioners expected to show, without which the exception is unavailing. Capital Garage Co. v. Powell, 99 Vt. 244, 131 A. 10.

Edwin Deschenes, who it appeared was petitionee's comptroller and had been in charge of its accounting department for about thirteen years, was called as a witness by petitionee, and after testifying in detail to the amount of business, both passenger and freight, done at the Royalton station in 1925, and to the proposed change in service at that point, and that the purpose of such change was to save money, was asked on cross-examination: "Q. Couldn't you save money by putting a caretaker in at Randolph and let him handle the $ 4,800 express and do the accounting at Bethel?" This was objected to, and excluded subject to petitioners' exception. This was not proper cross-examination since the inquiry related to a matter wholly collateral to any issue before the Commission. That a saving could be made at some other station by a change similar to that proposed had no bearing whatever on the question of whether such change was justified in the instant case. A question somewhat similar in principle was before the Court in State v. Dropolski, 100 Vt. 259, 136 A. 835, McGovern v. Smith and Hays, 73 Vt. 52, 50 A. 549, and Clark, Admr. v. Smith and Hays, 72 Vt. 138, 47 A. 391, and it...