St. Louis-San Francisco R. Co. v. State

• Citation: 230 P.2d 709,204 Okla. 432
• Decision Date: 21 November 1950
• Docket Number: LOUIS-SAN,Nos. 34356,34357,s. 34356
• Parties: ST.FRANCISCO R. CO. v. STATE (two cases).
• Court: Supreme Court of Oklahoma

Page 709

230 P.2d 709

204 Okla. 432

ST. LOUIS-SAN FRANCISCO R. CO. v. STATE (two cases).

Nos. 34356, 34357.

Supreme Court of Oklahoma.

Nov. 21, 1950.

Rehearing Denied May 1, 1951.

Syllabus by the Court.

1. In performance of absolute duty by railway company, question of expense is not to be considered, but where duty sought to be enforced is one of additional convenience rather than necessity, question of expense to company and relative benefit to public is the deciding factor and may not be disregarded.

2. Where a public necessity therefor no longer exists, the operation of passenger trains is not an absolute duty notwithstanding the company's charter or franchise requires both passenger and freight service. And in such situation the operation of the trains can be required only on the basis of the carrier's duty to serve public convenience.

3. Where the operation of passenger trains to meet public convenience, in contradistinction to public necessity, cannot be done without entailing an out of pocket loss, to require such facilities would be to take the carrier's property without due process of law.

E. G. Nahler, of St. Louis, Mo. and Satterfield, Franklin & Harmon, of Oklahoma City, for plaintiff in error.

James G. Welch, Choice D. Holden, D. C. McCurtain, all of Oklahoma City, for corporation commission.

Paul Harkey, of Idabel, James G. Welch, of Oklahoma City, for protestants and intervener.

GIBSON, Justice.

These are separate appeals from orders of the Corporation Commission in each of which appellant was denied permission to discontinue the operation of its passenger trains on a branch of its system in Oklahoma. The appeals are consolidated for the purpose of review.

In case 34356 there was sought to discontinue trains 609 and 610 operating between Enid, Oklahoma, and the Oklahoma-Texas line, south of Frederick, Oklahoma, and in cause 34357 trains 773 and 774 between Hugo, Oklahoma, and the Oklahoma-Arkansas line east of Bokhoma, Oklahoma.

The grounds alleged for the permission to discontinue are that public necessity and convenience no longer require the continued operation of said trains at a tremendous deficit to the railway company, which condition has obtained for a long period and will continue. It is further represented that if the authority be granted the towns presently served by said trains will be served by mixed trains on an indicated time schedule.

In each case the Commission found, in substance, as follows: That the railway by virtue of its charter and franchise was under an absolute duty to furnish adequate and reasonable passenger service and that the obligation could be avoided only by a showing that the rendition thereof is an undue burden upon the entire system. That the only passenger service being rendered was that afforded by the trains sought to be discontinued and that there was no showing that the operation of the branch, including both freight and passenger service or the operation of the entire system, was unprofitable. And, that the mixed train service proposed would not afford reasonable and adequate service.

The company charges in each case that the evidence does not sustain the findings nor the findings the order, and that such order would deprive the company of its property without due process of law and, further, would constitute an unauthorized burden upon interstate commerce.

There is no dispute as to the salient facts.

The extent of the Enid line in Oklahoma is approximately 191 miles, and that of the Hugo line approximately 60 miles. The only passenger service being rendered on the lines is that of trains 609 and 610 on the Enid line and trains 773 and 774 on the Hugo line. The train equipment is known as electric motor car with passenger compartment attached as a trailer, such car being a combined passenger, mail, baggage and express car.

The trains on each line have, for a number of years, been operated at a deficit, which has greatly increased during the recent years by reason of a rapid decline in public patronage. The direct or out of pocket cost (which does not include taxes, depreciation of rolling stock, administration expenses and other expense and costs which are apportioned on system-wide basis) of operation of said trains on the Enid line during 1948 was $115,365.75, and the revenues derived therefrom, other than for the carriage of mail ($27,593.59) were: passenger service $16,953.03; express $11,387.00; baggage $106.63; milk and cream $811.13, or a total of $29,257.79, thus showing a deficit of $86,107.96, or 61.3 cents per train mile. The direct or out of pocket cost on the Hugo line for 1948 was $35,521.36, and the revenues therefrom other than from mail carriage ($9,601.90) were: passenger service $7,583.61; express $1,449.36; baggage $92.84; milk and cream $534.93, or a total of $9,666.74, thus showing a deficit of $25,929.46 or 57.1 cents per train mile. The revenues derived from the carriage of mail are not included in the computation because they are received by the company while serving as an agency of the federal government and have no relation to the rights and liabilities of the company as a common carrier. Atchison, Topeka & Santa Fe R. Co. v. United States, 225 U.S. 640, 32 S.Ct. 702, 703, 56 L.Ed. 1236.

It thus appears that the company in the operations of said trains on both lines sustained an actual direct loss during 1948 of $111,968.58 or an average of 60 cents for each mile operated. From the company's reports to the Interstate Commerce Commission and Corporation Commission of Oklahoma, covering the year 1947, the evidence shows that the company operated its passenger service over its entire system at a loss of $6,799,299.00 and within the state of Oklahoma of $2,218,176.00. And in the company's brief attention is called to the fact that like reports for the year 1948, filed since the hearing, reflect corresponding losses of $8,488,033.00 and $2,836,849.00, respectively. The evidence does not disclose the revenues received from the operation of freight trains on either line nor that the operation of either line including both freight and passenger service was unprofitable, nor that the entire system was operated at a loss during the period.

The extent of the public patronage is reflected by the fact that on the Enid line there was one passenger for each ten miles operated and on the Hugo line one for each two miles operated, or one-tenth person per train mile on the Enid line and one-half person per train mile on the Hugo line. That such decline in patronage is not local but general is reflected from the fact that in 1916 the railroads throughout the United States handled 97.98 percent of the passenger miles in this country while in 1941 they handled only 9.39 percent of the passenger miles (Civilian War Transport--a record of the control of domestic operations--Office of Defense Transportation--published May 1, 1948). And, bearing upon the cause of such decline, in 1914 there were only 11,954 miles of improved highways in the United States while in 1946 there were 349,786 miles of improved highways. In 1915 there was an average of over forty persons for each motor vehicle registered while in 1947 there was an average of only 3.8 persons for each motor vehicle registered in the United States. In Oklahoma, the 1948 registration reflects one passenger car for each 4.61 persons. In the counties traversed by the Hugo line there was an average of 12.62 persons per passenger car and in those traversed by the Enid line there was an average of 3.92 persons per passenger car (population 1940 census).

The territory through which the Enid line passes is criss-crossed by state and federal highways as well as improved country roads serving practically every community served by the trains. The line from Arapaho south to the state line (a distance of about 100 miles) is paralleled by U. S. Highway 183. There are four daily bus schedules operating along highway 183 between Clinton and said state line (a distance of approximately 95 miles). Between Enid and Vernon, Texas (the terminus of said line) there are six daily bus schedules over alternate routes. Of the population in the communities served by the Enid line 98 percent live in communities situate on a state or federal highway and 94.29 percent thereof have available intercity bus service.

The Hugo line is paralleled by U. S. Highway 70 between Hugo and Idabel (43.5 miles) and by State Highway 21 from Idabel to the Arkansas line. With the exception of Kulli, Oklahoma (having a population of three, according to 1940 census), all the communities served by the trains are also served by either a state or lederal highway. There are fourteen bus schedules operated between Hugo and Idabel and eight daily bus schedules between Idabel and Ashdown (an Arkansas point on the line) through Haworth and Bokhoma, two of the intermediate points on the line. of the population of the communities served by the Enid line 94.29 percent have intercity bus service and of the population served by the Hugo line 99.97 percent have intercity bus service.

The mixed train service proposed to be furnished in lieu of each of the trains if discontinued will consist of a combination passenger and baggage car attached to a freight train serving each of the communities now served by the passenger trains. The schedule time of the run of the mixed trains is much longer than that of the passenger train, and by reason of the varying freight service also being rendered its movement according to the schedule is less likely than that of the passenger train.

Against the discontinuance of trains 609 and 610 on the Enid line there were filed two protests signed by numerous citizens of the town of Drummond, Oklahoma, situate on the line, and at the hearing there was offered as exhibits thirty-two protests each signed by either a chamber of commerce or citizens and business men of communities served by said...