Atchison, T. & S. F. Ry. Co. v. State , 23 Okla. 210 ( 1909 )

We will consider all the assignments of error under two propositions: (1) Had the Commission jurisdiction to make the order complained of? (2) If so, was the order reasonable and just?

1. Section 18, art. 9 (section 222, Bunn's Ed.; Snyder's Ed. p. 238), of the Constitution of Oklahoma provides:

"The Commission shall from time to time prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service facilities and conveniences as may be reasonable and just, which said rates, charges, classification, rules, regulations and requirements the Commission may from time to time, alter or amend."

Freund on Police Power, in section 395, p. 411, says:

"Within the scope defined by the charter, the business must be provided with facilities adequate to render the service offered to the public and which may be expected to be called for under ordinary conditions, though not sufficient to cope with an unusual pressure or emergency. * * *"

There can be no question but that the Legislature of the state, unless otherwise in the organic charter thereof restricted, has the power to require railroad companies, in the carrying on of their business as common carriers, to afford every reasonable facility and convenience for the transaction of such business with the patronizing public. The only limitation upon such power is that the duty imposed must relate to the matter which is within the domain and a proper subject of police regulation, and that it is reasonable. RailroadCommissioners v. P. O. Cent. R. R. Co., 63 Me. 269, 18 Am. Rep. 208; 4 Bl. Com. 162; Commonwealth v. Alger, 7 Cush. (Mass.) 53; Thorpe v. Rutland Burlington R. R. Co., 27 Vt. 140, 62 Am. Dec. 625; Lake Shore Mich. So. Ry. Co. v. Ohio,173 U.S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702; Southern Ry. Co.v. State, 125 Ga. 289, 54 S.E. 160, 114 Am. St. Rep. 203; Statev. Redmon, 134 Wis. 89, 114 N.W. 137, 14 L. R. A. (N. S.) 229; Cooley's Const. Lim. (7th Ed.) p. 844, and authorities cited in footnotes 1 and 2; 23 Am. Eng. Ency. of Law, pp. 727, 728.

The sovereignty, expressing its will through the organic law, may confer such legislative authority upon the Corporation Commission. Dreyer v. Illinois, 187 U.S. 71, 23 Sup. Ct. 28, 47 L. Ed. 79; Winchester Strasburg R. R. Co. et al. v.Commonwealth, 106 Va. 264, 55 S.E. 692; Prentis et al. v.Atlantic Coast Line Co. et al. (decided by the Supreme Court of the United States November 30, 1908, but not yet officially reported) 29 Sup. Ct. 67, 53 L.Ed. —

If a telephone is a facility or convenience, as contemplated in said section 18, art. 9, the Commission had jurisdiction to determine whether or not it would be just and reasonable to require the same to be installed in appellant's station at Skedee. Hence it becomes necessary to determine whether or not a telephone is a facility or convenience.

In the case of Hopkins v. United States, 171 U.S. 591, 19 Sup. Ct. 45, 43 L. Ed. 296, the court said:

"The commission agent, in selling the cattle for their owner, simply aids him in finding a market; but the facilities thus afforded the owner by the agent are not of such a nature as to thereby make that agent an individual engaged in interstate commerce, nor is his agreement with others engaged in the same business, as to the terms upon which they would provide these facilities, rendered void as a contract in restraint of that commerce. Even all agreements among buyers of cattle from other states are not necessarily a violation of this act, although such agreements may undoubtedly effect that commerce.

"The charges of the agent on account of his services are nothing more than charges for aids or facilities furnished the owner, whereby his object may be more easily and readily accomplished. Charges for the transportation of cattle between different states are charges for doing something which is one of the forms of, and which itself constitutes, interstate trade or commerce, while charges or commissions based upon services performed for the owner in effecting the sale of the cattle are not directly connected with, as forming a part of, interstate commerce, although the cattle may have come from another state. Charges for services of this nature do not immediately touch or act upon, nor do they directly affect, the subject of the transportation. Indirectly, and as an incident, they may enhance the cost to the owner of the cattle in finding a market, or they may add to the price paid by the purchaser, but they are not charges which are directly laid upon the article in the course of transportation, and which are charges upon the commerce itself. They are charges for the facilities given or provided the owner in the course of the movement from the home situs of the article to the place and point where it is sold.

"The contract condemned by the statute is one whose direct and immediate effect is a restraint upon that kind of trade or commerce which is interstate. Charges for such facilities as we have already mentioned are not a restraint upon that trade, although the total cost of marketing a subject thereof may be thereby increased. Charges for facilities furnished have been held not a regulation of commerce, even when made for service rendered, or as compensation for benefits conferred."

In the case of People's Telephone Co. v. Eastern Railway Co.of Minnesota et al. (decided by the Railroad Commission of Wisconsin, October 12, 1908), it is said:

"The telephone is at present an indispensable aid in the conduct of almost every business and calling of any importance. No railroad company could manage its business at any center of population economically or satisfactorily without telephonic connection between its stations, warehouses, and grounds and the mercantile, manufacturing, and other places of business in the community. The duty of furnishing the public with adequate telephonic service for the purpose of transacting business with the railroad has been self-imposed in many instances by reason of usage and necessity. It has therefore become a necessary facility in such cases for the proper discharge of the transportation business of the railway company, within the rule of the common law as well as in contemplation of the express legislative enactments. While a carrier may select the agencies by which to serve the public, it may not select an agency exclusively which for any reason is incapable of fully discharging the duty of the carrier to the public. The right of the selection of facilities is limited by the condition that those selected are adequate and efficient for the purposes required."

In said opinion it is further said:

"As we view the situation, the only complaint against the adequacy of the telephone service afforded the public by the respondents that we may lawfully consider in this proceeding is that relating to the connections with the city ticket office on the Tower Avenue and the general freight offices. There was no contention on the part of respondents that the convenience of the public would not be subserved by the installation of petitioner's telephone in such offices. It seems to have been tacitly admitted that the services at such offices are inadequate to meet the requirements of the railroads in dealing with the shippers and in transacting the general passenger business, because of the inability to communicate by telephone with the subscribers of petitioner's exchange. The evidence shows that about one-half of the telephones in use at Superior have no connection with the respondent's offices, buildings, or grounds, excepting only the Union Depot and elevator 'S.' Under the circumstances disclosed by the evidence, we conclude and determine that the telephone facilities in the respondent's city ticket office and general freight office at Superior are inadequate for the satisfactory performance of their duty to the public as common carriers of freight and passengers, and do further find that in order to provide adequate telephonic connections with said office it will be necessary for the respondents to install, in each of said offices, one of the petitioner's telephones connected with its exchanges in the city of Superior."

We conclude that a telephone is a facility and convenience within the purview of section 18, art. 9, supra.

2. In the case of Interstate Commerce Commission v.Louisville Nashville R. R. Co. (C. C.) 102 Fed. 709, Toulmin, District Judge, said:

"But the findings of fact in the report of the Commission are made by law prima facie evidence of the matters therein stated, and the conclusions of the Commission based upon such findings are presumed to be well founded and correct, and they will not be set aside unless error clearly appears. The record does not clearly show that the Commission's findings and conclusions on this branch of the case are erroneous, and not in accordance with the law and the evidence, and the court should not overrule or in any manner interfere with them."

In the case of B., C. R. N. Ry. Co. v. Dey, 82 Iowa, 342, 48 N.W. 106, 12 L. R. A. 436, 31 Am. St. Rep. 477, the court said:

"We conclude that according to the obvious construction of the two statutes read together, that joint rates are not absolute, but are prima facie evidence only of their reasonableness and justness."

In the case of Louisville Nashville R. R. Co. v. InterstateRy. Co., 107 Va. 225, 57 S.E. 655, the court said:

"It must be remembered that under section 156, cl. 'f,' of the Constitution of Virginia of 1902 (Code 1904, p. cclv), the finding of the Commission is prima facie correct, and all presumptions are therefore in favor of its action, and the burden is on the appellant to show that the wide discretion with which that tribunal is invested has been erroneously exercised."

In the case of Newport News Old Point Ry. Electric Co. v.Hampton Roads Ry. Electric Co., 102 Va. 850, 47 S.E. 858, the court said:

"As to the necessity and propriety of the crossing in question, authorized by the Corporation Commission, it need only be said that, in addition to the provision contained in the Constitution (article 12, § 156, cl. 'f'), that such rulings of the Commission are to be regarded as prima facie just, reasonable, and correct; and that the provisions of the statute referred to, there is nothing whatever in the record that overcomes, in the slightest degree, the presumption arising upon the finding of the Corporation Commission that the crossings authorized are necessary and proper to be made; nor is there anything in the record to sustain that contention that they are unnecessary and would be unsafe. On the contrary, the expert engineer, in his report, says as to the crossings, when constructed in accordance with the methods and specification furnished him by the chairman of the Corporation Commission: 'I consider them all necessary, and all reasonably safe, considering the conditions to be met. I would make no suggestions as to changes, additions, or safeguards. I believe that while these complicated crossings would retard the schedules of both roads, and will necessitate slow and careful running down Mellen street by both companies, they are not, with proper care and diligence on the part of both companies, associated with particular danger to passengers or to the public.' The right of the appellee to cross the tracks of appellant is not in question. It is the manner of crossing, not for the benefit of the railroads, but for the benefit of the public. The object of creating the state corporation commissions was to protect the public rights by regulating public utilities."

In the case of Standard Oil Co. v. Commonwealth, 104 Va. 688, 52 S.E. 391, the court said:

"We have, however, no doubt of the correctness of the construction placed upon section 37 (Code Va. 1904, p. 2214), by the State Corporation Commission. If we entertained doubt merely, our hesitation would have to be solved in favor of the state, as the Constitution requires us to regard the action of the Corporation Commission as prima facie correct. Const. § 156, cl. 'f.' "

We have quoted at length from the foregoing decisions where orders of commissions were reviewed, where it was provided by law that such order is to be regarded prima facie correct, just, of reasonable. And it would not be amiss further to see how the term "prima facie" has been regarded when applied to evidence in the trial of a case.

In the case of Boykin v. State, 34 Ark. 445, Mr. Justice Eakin, in delivering the opinion of the court, said:

"Possession of property recently stolen, without reasonable explanation of that possession, is evidence of guilt to go to the jury for their consideration. In this sense, it isprima facie evidence, but not in the sense that it is such evidence as must compel the jury to a conviction, unless it be rebutted. It would have been better to have modified the instruction complained of, so as to impress upon the jury the idea that the evidence went to them for their consideration, under all the circumstances, to be weighed as tending to show guilt, but not imperatively imposing upon the jury the duty of conviction, unless rebutted."

In the case of Union Central Life Insurance Co. v. Caldwell,68 Ark. 519, 58 S.W. 359, Mr. Justice Wood, in delivering the opinion of the court, said:

"Proof of the giving of a promissory note by one person to another, without anything else appearing, is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of the note was indebted to the payee upon such settlement to the amount of such note; but this is a mere presumption, which may be repelled by proofs of the consideration of such note, and the occasion for and circumstances attending the giving of same."

In the connection that the term "prima facie" is used in section 22, art. 9, supra, it is not contemplated that any additional evidence should be considered by the Supreme Court on review, unless within the discretion of said court the cause should be remanded for further investigation. If no additional testimony is to be considered on appeal in the Supreme Court, reviewing the same in the same capacity as a legislative body, as held by the Supreme Court of the United States in the case of Prentis et al. v. Atlantic Coast Line Co. et al., supra, what is the effect of being "regarded as prima facie just, reasonable, and correct?" It simply means that, in considering the testimony and the record upon which the order was based, the presumption arises in the Supreme Court that the order thereon made is to be regarded as prima facie just, reasonable, and correct, such presumption subject to be overcome by evidence that may be in the record that clearly rebuts same.

Such presumption arising in favor of the order, while a strong one, is not one of a conclusive character. It will give way to a fair exhibition of the contravailing evidence in the record. The presumption given by this provision in favor of the Commission's order belongs to that class of prima facie orders or presumptions that are rebuttable, and will yield to the legitimate recitals of the record or the probative force of the evidence in the record. It casts upon the appellant the burden of making it clearly appear to the reviewing body that the order made by the Commission is erroneous. The appellant cannot with hope of success ask the revising tribunal to overthrow the findings of the Commission upon vague inferences or remote possibilities. It will fail unless it overcomes the presumption by making error manifest. Elliott's Appellate Procedure, § 711.

The only question in this record as to telephone facilities to be furnished by the railroad company pertains to such as are necessary to a proper discharge of its duties as a common carrier. It is not necessary to determine the distinction between the acts of a public service corporation when acting in its public capacity and when in its private capacity, for the acts complained of upon which this order is based relate solely to that of a public service corporation in its public capacity.

The evidence in the record neither rebuts nor overcomes the presumption in favor of the justness, reasonableness, and correctness of the Commission's order. In fact, the great weight of it sustains it. The order of the Commission is accordingly affirmed.

All the Justices concur.