State ex rel. Taylor v. Union Pacific Railroad Co.

• Decision Date: 20 April 1939
• Docket Number: 6624
• Citation: 89 P.2d 1005,60 Idaho 185
• Parties: STATE ex Rel. J. W. TAYLOR, Attorney General, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, and OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

89 P.2d 1005

60 Idaho 185

STATE ex Rel. J. W. TAYLOR, Attorney General, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, and OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellants

No. 6624

Supreme Court of Idaho

April 20, 1939

RAILROADS-REGULATIONS-PUBLIC UTILITIES COMMISSION-FINDINGS-REVIEW.

1. The Public Utilities Commission has authority to require a railroad to acquire adequate facilities and if necessary to order railroad to build a new depot, the test of the order being its reasonableness and whether it is confiscatory.

2. Regulation of railroad by Public Utilities Commission may not be extended to the management and control of the railroad.

3. Although a railroad's facilities must be commensurate with business done and progress of the community, the facilities required of the railroad, by the Public Utilities Commission, must be consistent with and restrained by economy of operation within the realm of businesslike principles of income and expenditures.

4. Record required reversal of order of Public Utilities Commission ordering railroad to construct new depot at Soda Springs, which contemplated expenditure of approximately $25,000 to $30,000 and remanding of cause for further evidence relating to repairing of the existing depot, in view of fact that if depot could be repaired for approximately $3,000 and if, as repaired, depot would be reasonably as adequate as a new structure, the difference between the cost of repair and cost of new depot would be so disproportionate as to render unreasonable the requirement that a new depot be constructed. (I. C. A., sec. 59-629.)

5. The Supreme Court will take judicial notice of business depressions.

6. The Public Utilities Commission is a fact-finding body to investigate and determine in first instance whether to require railroad to construct new depot.

7. Although findings of fact of Public Utilities Commission are binding on the Supreme Court, the findings and conclusions of the commission must be sustained by competent evidence. (I C. A., sec. 59-629.)

APPEAL from an order of the Public Utilities Commission ordering appellants to build a new depot at Soda Springs. Reversed and remanded to the commission.

Reversed and remanded with directions.

Geo. H Smith, H. B. Thompson and L. H. Anderson, for Appellants.

A carrier is required to maintain only adequate, efficient and reasonable depot facilities, and in determining what constitutes reasonable facilities regard must be had to the patronage and increased cost to the carrier. (Section 59-302 Idaho Code Annotated; Murray v. Public Utilities Commission, 27 Idaho 603, 150 P. 47, L. R. A. 1916F, 756; Washington ex rel. Ore. R. & N. Co. v. Fairchild, 224 U.S. 510, 32 S.Ct. 535, 56 L.Ed. 863.)

The burden is upon the state to establish by competent proof the allegations of its complaint. (Washington ex rel. Ore. R. & N. Co. v. Fairchild, supra.)

A mere declaration of the commission that public necessity requires certain facilities is not conclusive, and a finding or conclusion not based on evidence is arbitrary and baseless. ( Oregon Short Line R. Co. v. Public Utilities Com., 47 Idaho 482, 276 P. 970; Interstate Commerce Com. v. Louisville & N. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431, 433; Florida E. C. R. Co. v. United States, 234 U.S. 167, 34 S.Ct. 867, 58 L.Ed. 1267, 1271.)

A mere convenience alone will not justify the building of a new depot. (Vicksburg S. & P. Ry. Co. v. Railroad Commission, 132 La. 193, 61 So. 199, Ann. Cas. 1914C, 1168.)

Ariel L. Crowley, for Respondent.

An assignment of error that a finding is "not supported by any competent evidence" will not raise any issue on the sufficiency of the evidence to support the finding; but raises only the issue of whether or not there is any evidence at all. (Lott v. Oregon Short Line R. Co., 23 Idaho 324, 130 P. 88; State v. Moodie, 35 Idaho 574, 207 P. 1073.)

On appeal from an order of the Public Utilities Commission, no matter is subject to review which was not included in the petition for rehearing. The question of absence of any evidence having not been before the commission on petition for rehearing, it is not before this court on assignments 1 to 26 inclusive. (Consumers Co. v. Public Utilities Com., 41 Idaho 498, 239 P. 730; Kootenai v. Public Utilities Com., 41 Idaho 505, 239 P. 733.)

The making of an order by the Public Utilities Commission requiring the appellants to build a new station is a legislative or administrative and not a judicial function, and the order may be reviewed by the court only so far as to determine its reasonableness; and if it is supported by substantial evidence, it is final. (Re New Depot at Ada, P. U. R. 1917B, 413, 135 Minn. 19, 159 N.W. 1089.)

GIVENS, J. Ailshie, C. J., and Morgan, J., concur, Budge, J., concurs in the conclusion. Holden, J., sat at the hearing but did not participate in the decision of the case.

OPINION

GIVENS, J.

This appeal is from an order of the Public Utilities Commission requiring defendants to build a new depot at Soda Springs, the county seat of Caribou county, a city of the second class of approximately 1007 people, serving a community of about 5000.

The present depot, built in 1884, a frame building with a waiting room 18 by 24 feet and seating capacity for 24 persons, ticket and express office in the west end and a freight compartment in the east end, is situated 257 feet east from Dillon Street and 100 feet west from First East Street and 12 feet south of the main line track, the space between icy and slippery in winter. About 60 feet southwest is a large warehouse, and two side or "team tracks" run parallel to and south of the depot. There is no evidence of any repairs having been made other than an occasional painting, the last about 1928, and the building is substantially in the same condition as twenty years ago and is one of the oldest and most unkempt buildings in the city. The condition and soundness of the foundation and structural frame-work is disputed.

There is running water therein but no sewer connections and the water from the drinking fountain in the waiting room drains to the ground under the building creating an offensive odor. The closest sewer connection, laid in 1919, is about a block distant. The building is sporadically and often insufficiently heated in cold weather and people usually wait for trains at the hotel rather than at the depot. There are no separate waiting rooms for men and women or for smokers and non-smokers. There is also evidence that the roof is in bad condition, that it leaks and that daylight can be seen through it in many places, and the electric wiring is neither modern nor standard. Refuse of various kinds from floor sweepings, has collected under the freight part of the depot and the chimney rests on brackets on the wall surrounded by a wooden box.

The only toilets are outside, old-fashioned privies, unlighted at night, about 120 feet from the depot across the south team and switch tracks. The two compartments thereof are not marked as to men or women, one kept locked with key at the ticket office. Replacement of the toilets has been on appellants' budget for two years. Appellants' accounting system provides a depreciation fund of 4 per cent of the valuation of buildings up to 75 per cent thereof.

Appellants offered evidence to the effect that by extending the present depot some 10 or 12 feet west, adequate toilet facilities, segregated as to men and women, could be installed. The only evidence indicating that paint could not be satisfactorily applied was a statement that the wood fibre had so disintegrated that paint could do no good; there was, however, evidence to the contrary.

Appellants further contend rebuilding is unjustified by the business handled at the depot as follows during the first 10 months in 1937: Outgoing freight, 2336 car loads and 212 tons L. C. L., a total freight collection of $ 328,168.28; freight received, 388 cars, 915 tons L. C. L., a total collection of $ 57,759.39; number of local tickets sold, 1285; interline tickets sold, 108, a total of 1393 passengers and charge of $ 5,804.61; total express receipts, $ 5,026.76; Western Union messages forwarded, 1656; Western Union messages received 1942, value, $ 526.74, thus making a gross revenue during the ten-month period reported of $ 397,285.78.

Mr Matthews, mayor of the city, testified Mr. Plumhof, general manager of appellant Oregon Short Line Railroad Company, stated in a conference with the city officials prior to the hearing before the commission he would do what he could to get a new depot, but that business conditions did not warrant expansion at the...