Union Pacific Railroad v. Public Service Commission

Mr. Chief Justice PARKER

delivered the opinion of the court.

Union Pacific Railroad Company has appealed from a judgment of the district court affirming an order of the Public Service Commission which in part rejected the appellant’s petition seeking to close its agency station at Hawk Springs, Wyoming, the railroad being required to maintain agency service and an agency station during the months of July, August, and September, each and every year. Appellant contends that the order entered by the Public Service Commission is not in conformity with law, that the findings of fact contained in the order were not supported by substantial evidence, and that the order is arbitrary and capricious or is characterized by an abuse of discretion. The railroad does not criticize the commission’s finding that out-of-pocket expenses for maintaining a full-time agent at Hawk Springs were almost equal to the station’s revenues but points out that the income from the town’s freight shipments did not meet a pro rata share of the entire sys-tern’s expenses. In that connection, it is argued, inter alia, that the basic concept, or factor, to be kept in mind in determining whether an agency station should he closed or kept open is the public convenience and necessity, that the courts have held the public convenience and necessity to be considered in granting or denying an application to close an agency station mean the convenience and necessity of the public and not of an individual or individuals, and that in the absence of public convenience and necessity the maintenance of a railroad agency station primarily involves a question of business policy with which regulatory bodies should not interfere.

Here, as in the companion case (Union Pacific Railroad Company v. Public Service Commission of Wyoming, No. 4255, Wyo., 518 P.2d 23), appellant’s argument that the agency station does not serve the public convenience and necessity but rather serves only the individual convenience of the grain elevator, which the evidence shows to be handling the products of various residents of the area, is unpersuasive. Relevant is the court’s observation in State of Nebraska ex rel. Nebraska State Railway Commission v. United States, D.Neb., 255 F.Supp. 718, 722, “The effect upon the total community may be seen through the effect * * * upon the individual shippers who serve the community.”

Here the commission in its order stated:

“The railroad offered testimony to show that the work done by the agent at Hawk Springs could easily be handled by the agent at Yoder, approximately eleven miles away. They show that there is an all weather road connecting the two points and that telephone service is available. This testimony was countered by testimony to the effect that the telephone does not always work, that there would be no one to contact when the agent at Yoder is out of his office, and that loading, billing, car repair, door closing and car ordering go on simultaneously at both Yoder and Hawk Springs during the harvest season.

“The railroad shows out of pocket expenses for maintaining an agent in Hawk Springs are almost equal to revenues derived by the station. * * * The Commission does not insist that the railroad be unduly burdened with people and facilities which make little or no money. This situation is carefully weighed against the inconvenience to the public.

* * * * * *

“The railroad has testified that if more men are needed to service the area in peak periods they will be put on. The Commission does not see this as a solution to the problem presented in this case. The Commission can foresee that the determination of when more men are needed can become an argumentative point. It therefore believes that full agency service should be available during the wheat harvesting season between July 1 and October 1. Large shipments made at other times of the year can be planned for and provided for in advance.”

From our review of the record we disagree with appellant’s assertion that the requirement for the presence of an agent at Hawk Springs during the months of July, August, and September is not supported by substantial evidence. The testimony shows the commencing of the harvest is dependent on the weather — it may start in July but again it may not until August, lasting up to thirty days thereafter. Furthermore, although the Yoder Grain and Lumber Company, with elevators at Veteran, Yoder, and Hawk Springs — the latter with a capacity of 120,000 bushels — could store the farmers’ wheat, if dry, grain which has a high moisture cannot be so stored and must immediately go onto railroad cars to be shipped out.

Considering the burden of the carrier to prove the lack of the public’s necessity and convenience in order to justify the closing of the station, we conclude that the district court was correct in affirming the commission’s order.

Affirmed.