Atchison, T. & S. F. Ry. Co. v. State , 23 Okla. 231 ( 1909 )

The only party against whom the order appealed from runs, or was complained against, is the Atchison, Topeka Santa Fe Railway Company. The undisputed proof shows that said railway company was not engaged in the telegraph business for commercial purposes, but only for the transacting of its business as a transportation company.

In the case of People's Telephone Co. v. Eastern Railroad Co.of Minnesota et al. (decided by the Railroad Commission of Wisconsin on October 12, A.D. 1908), the Commission in its opinion said:

"The only telephone facilities that must be furnished by a railroad are such as are necessary to a proper discharge of its duties as a common carrier. With the transaction of its own affairs with its employes or others, when acting in its private capacity, the public is not concerned. In all such matters it possesses the same rights and enjoys the same privileges that are accorded to private corporations and individuals. The regulation of the public service of such a corporation does not extend to or include the management of its purely private affairs. The distinction between the acts of a public service corporation when acting in its public capacity, and those when acting in its private capacity, is often lost sight of, and as a result, not infrequently, erroneous conclusions are reached as to the scope of laws designed to regulate such corporations."

Following the rule laid down by the Wisconsin Commission, the only telegraph facilities that a railway company must furnish are such as are necessary to a proper discharge of its duties as a common carrier, for the moving of trains, etc.

Now, if it were to be insisted that it was necessary to maintain a telegraph station for the purpose of keeping the traveling public advised of the arrival and departure of trains, in determining whether or not such order would be just, reasonable, and correct, the passenger receipts from said station would be relevant. If it were further insisted that, on account of the car lots of freight shipped from said station, it was necessary to have such telegraph station maintained in order to have cars expeditiously furnished at said station, it would follow that the freight receipts from such shipments should be considered. Evidence on these points would be necessary to be introduced and considered in determining the reasonableness, justness, and correctness of such order. The order of the Commission does not, however, appear to have been based upon the theory that the telegraph office should be established as a facility for the transaction of the business of the transportation company, but as a telegraph office for the general use of the public. Nor does it appear to have been tried upon the theory of requiring the railway company to re-establish telegraph service as a facility in its transportation business. It follows that any order made requiring it to maintain a telegraph station for commercial purposes under the record is erroneous.

Had the Western Union Telegraph Company been made a party to this proceeding, then the question would arise as to whether or not the receipts from that station, in connection with other proper matters for consideration, were sufficiently remunerative to justify the requiring of the maintaining of a telegraph station at that point for commercial purposes.

Whilst it is true that public service corporations may be required to render reasonable service for the public, yet that does not mean that the public must have service regardless of whether or not same may be at a loss to the public service corporation. In the case of Western Union Telegraph Company v.Mississippi Railroad Commission, 74 Miss. 80, 21 So. 16, in an opinion delivered by Chief Justice Cooper on May 18, 1896, it was held that:

"The following facts pleaded justified the company in discontinuing a telegraph office, to wit: That its lines were constructed and maintained and its business carried on in Mississippi at a great expense, while the receipts from its business were small and unremunerative; that a large majority of its offices in the state are maintained under agreement with various railroad companies whereby the railroad companies maintain the office and pay the operators, and but for this arrangement it would be unable to maintain its business in the state; that notwithstanding said contracts, and its earnest efforts to economize in every way consistent with efficient public service, for some time prior to the closing of said office, defendant was doing business in the state at a loss, owing to the competition with other lines, and owing to the tariff established by the Railroad Commission, and from other causes; that at Fayette it has no arrangement with the railroad company, and could make none; and that their receipts at that office, at the time it was closed, were insufficient to pay the expenses of keeping it open for business, and, if it was maintained, it would be at a loss to defendant, without its fault, and it could be maintained only at a loss to defendant in the expenditure of money and the consumption of its property, for which it could get no return. Wherefore, to require it to reopen the office would be violation of the Constitution of the state of Mississippi, in that it would be taking private property for public use without due compensation."

It is further pleaded that to require defendant to further keep open and maintain said office would be to deprive it of its property without process of law, and violative of section 1 of the fourteenth amendment of the Constitution of the United States.

It may be that under certain circumstances it would be proper for the Commission to require the railway company to maintain a telegraph station at a certain point in the operation of its business as a transportation company where there would be no commercial business whatever. That question does not appear to have been seriously raised before the Commission. At any rate, in this case no such showing was made as would justify such an order requiring the maintenance of such station at Payson.

The evidence offered tending to prove the amount realized from the telegraphic business at the town of Payson for 24 months prior to the date of the complaint or the discontinuance of such service, to show that the telegraph station had been maintained at considerable loss during the period of 12 months prior to its discontinuance, and the expense of maintaining said office, was competent, and should have been admitted and considered by the Commission in connection with any other testimony introduced in determining whether or not it was reasonable, just, and correct to make such order against said appellant, had it been engaged in the transmission business.Atlantic Coast Line v. North Carolina Corporation Commission,206 U.S. 26, 27 Sup. Ct. 585, 51 L.Ed. 933; Home Ins. Co. v.Weide, 11 Wall. 438, 20 L.Ed. 197; Reagan v. Farmers' Loan Trust Co., 154 U.S. 399, 14 Sup. Ct. 1047, 38 L.Ed. 1014;Railroad Commission Cases, 116 U.S. 307, 6 Sup. Ct. 334, 29 L.Ed. 636; Lake Shore, etc., Ry. Co. v. Smith, 173 U.S. 690, 19 Sup. Ct. 565, 43 L.Ed. 858; L. A. Ry. Co. v. State,85 Ark. 12, 106 S.W. 962; Ward v. Young, 42 Ark. 554.

In that such cases are tried before the Corporation Commission and not before a jury, and the record should be preserved as in chancery or equity cases, it would be a more expeditious practice, when testimony is offered by either side, to permit the same to be introduced and made a part of the record, objections being noted; and the ruling of the Commission thereon, as to the admission or exclusion of the same, being preserved.

It follows that the order of the Corporation Commission appealed from is reversed, with directions to proceed in accordance with this opinion.

All the Justices concur.