Southern Ry. Co. v. Public Service Commission

• Decision Date: 23 September 1940
• Docket Number: 15144.
• Parties: SOUTHERN RY. CO. v. PUBLIC SERVICE COMMISSION et al. (SILVER STREET CASE.
• Court: South Carolina Supreme Court

10 S.E.2d 769

195 S.C. 247

SOUTHERN RY. CO. v. PUBLIC SERVICE COMMISSION et al. (SILVER STREET CASE.

No. 15144.

Supreme Court of South Carolina

September 23, 1940

[Copyrighted Material Omitted]

John M. Daniel, Atty. Gen., Irvine F. Belser, of Columbia, and Thos. H. Pope, Jr., of Newberry, for appellants.

Frank G. Tompkins, of Columbia, and Sidney S. Alderman, of Washington, D. C., for respondent.

L. D LIDE, Acting Associate Justice.

Southern Railway Company on June 30, 1938, applied to the PUBLIC SERVICE COMMISSION for permission to discontinue its agency at Silver Street, a station on one of its lines of railway in this State situate 7.6 miles of Newberry and 10.5 miles of Chappells. After a public hearing the Commission filed its report or order refusing the proposed discontinuance, and thereafter, a petition for a rehearing having been denied, the instant case was commenced to vacate and set aside the order of the Commission. After issue was joined the cause came on to be heard before Honorable G Duncan Bellinger, Judge of the Fifth Circuit, upon the testimony taken before the Commission, and in due time he handed down his decree requiring the Commission to abate its order refusing authority to the Southern Railway Company to discontinue its agency at the station in question, this decree being dated October 30, 1939. And the cause comes before this Court upon an appeal from the decree of Judge Bellinger by the Public Service Commission.

There are seventeen exceptions, but in the argument of counsel for the appellants these exceptions are reduced to four propositions, briefly stated as follows:

"(1) Company under statutory and charter duty to maintain agents at stations.

"(2) Order of Commission cannot be set aside unless shown to be arbitrary and without rational basis.

"(3) Company bound to perform public duties and maintain agent as long as it retains charter privileges.

"(4) Commission's order not arbitrary but reasonable and within administrative discretion of Commission."

All of these propositions will be considered by us, but it is obvious that (1) and (3) relate to substantially the same point.

It is indeed true that the Southern Railway Company was and is under its charter and the statutes relating to railroad companies obligated to provide adequate facilities for the transportation of passengers and freight, and this of course would require the maintenance of a sufficient number of stations, at most of which agents should doubtless be employed. But it is quite clear that there are no charter or statutory obligations devolving upon a railroad company to maintain an agent at every one of its stations, for it has long been, if not always, recognized that railroads may maintain certain stations without agents, usually known as flag or nonagency or prepay stations. See 22 A.L.R. 878. Indeed, a careful examination of our statutes will disclose none relating to the maintenance of agents at stations, except perhaps by indirection. Yet it is obvious that the statutes do contemplate the proper operation of a railroad with reasonably adequate facilities, and this general obligation would of course include the maintenance of agents where they are reasonably necessary.

While as above stated there is no explicit statutory requirement relating to the maintenance of agents at stations, the matter is covered by a rule of the Public Service Commission adopted pursuant to the provisions of Section 8251, Code, 1932. This rule is referred to in the record herein as Rule 14, and will be found at pages 1472, 1473 of the Acts of 1937, the same having been filed as required by law on June 30, 1937.

Section 8251 expressly gives to the Public Service Commission general supervision of all railroads and railways in this State, and the rule just referred to provides that no depot, flag stop, station, office or agency heretofore or hereafter established shall be closed, removed, suspended, discontinued or abolished without authority granted by the Commission. Provision is made in the rule for a public hearing upon any application for a discontinuance, and there is no question but that the practice provided in the rule was followed in the case at bar. But while the rule stipulates that no discontinuance should be allowed without permission of the Public Service Commission it follows as a matter of law that the action of the Commission in a case of this kind is subject to review by the Court in some form or by some method.

In Judge Bellinger's decree it is stated that the instant action was commenced under Section 8254, Code, 1932, to review the order involved herein handed down by the Commission; and the action appears to have been so treated by both the parties thereto. Section 8254 does specifically provide that decisions of the Public Service Commission may be reviewed by the Court of Common Pleas upon questions of both law and fact, with the right of appeal, and it is further provided therein that an aggrieved party may, so as to obtain the benefit of such a review of an order of the Commission, commence an action in the Court of Common Pleas for Richland County, within the time specified, to vacate such order or enjoin the enforcement thereof, on the ground that the same was insufficient, unreasonable, unjust or unlawful. And it is further stipulated in this section that the transcript of the testimony taken before the Commission shall constitute "the record of the commission on the review". It will thus be seen that this section provides an expeditious method for the judicial review of orders passed by the Commission.

But this section constitutes a part of a statute enacted in the year 1922, Acts 1922, 32 St. at Large, page 938, and this statute is now incorporated in Sections 8252, 8253, 8254 and 8255 of the Code of 1932. And as will appear by reference to the majority opinion of this Court in the recent case of Darby et al. v. Southern Ry. Co., 10 S.E.2d 465, filed July 17, 1940, the Act of 1922 in question does not cover railroads, but relates only to other public utilities, because the term "public utilities" as defined in this statute does not include railroads. The result therefore of this decision is that Section 8254 provides no method of review of an order of the Public Service Commission relating to railroads, and so is not applicable to the case at bar. This point was not made in the Court below, nor is it made by any exception here. Hence it may be said to have been waived and that we may disregard it. However, it may at least be apposite to the question of the burden of proof and the effect which should be given by the Court to an order of the Public Service Commission relating to railroads.

It is doubtless true that any right to appeal from the orders of a public utility commission is founded upon constitutional or statutory provisions. And even where the statutes provide for an appeal it is said that the Court does not, strictly speaking, exercise appellate jurisdiction, since there can be no appeal in the legal sense from the order of an administrative body. 51 C.J. 70, 71. Hence the provision in Section 8254 for an action in the Court of Common Pleas for Richland County. But assuming that there is no statutory authority for any sort of review of an order of the Public Service Commission relating to railroads, we are nevertheless of the opinion that the instant action may be maintained. It is quite clear that the Commission is without power to enforce its own orders, but that application must be made to the Courts for the enforcement thereof, and this incidentally involves the judicial determination of the validity of such orders. Likewise we are of opinion that an aggrieved party would have the right to apply to the Court for relief against the threatened or attempted enforcement of an invalid order. In the case of State ex rel. Daniel v. Broad River Power Company, 157 S.C. 1, 153 S.E. 537, the Attorney General commenced a proceeding in the original jurisdiction for mandamus to require the Broad River Power Company to obey the Railroad Commission's order. And it was held that the Commission had the right to intervene in the cause, that the testimony taken before the Commission should be considered, and its order enforced by a writ of mandamus. While this case involved a street railway and therefore came within the terms of what is now Section 8254, that section was not the basis of the Court's jurisdiction, for no action was brought in the Court of Common Pleas, as therein provided. And in the suit of Railroad Commissioners v. Atlantic Coast Line Railroad Co., 74 S.C. 80, 54 S.E. 224, relating to a railroad company, mandamus was likewise sought in the original jurisdiction of this Court. See also Shealy (R. R. Commission) v. S. A. L. Ry. Co., 131 S.C. 144, 126 S.E. 622. Hence the instant case is properly before us, as we have indicated, regardless of statutory authority.

Judge Bellinger concluded in the light of the case of City of Columbia v. Tatum, 174 S.C. 366, 177 S.E. 541, that it was his duty to exercise his own independent judgment on the questions of both fact and law, but notwithstanding this specification of his duty he stated that he accorded the order of the Commission the respect due a decision of an important agency of the legislative department. And it clearly appears in his well considered decree that he did give due weight to the findings of the Commission. But we are constrained to hold that the cases of City of Columbia v. Tatum, supra, and City of Columbia v. Pearman, 180 S.C. 296, 185 S.E. 747, are not applicable on this point to the case at bar, because they relate to Section 8254 and involve public utilities as defined in the Act of 1922, which did not include...