As disclosed by the foregoing opinion, the Union Pacific Railroad Company very largely rests its right to discontinue passenger service between Preston, Idaho and Cache Junction, Utah, upon a showing of a net loss to the Railroad Company of $11,589.66, covering a period of eighteen months. The operation of passenger service on a branch line at a loss will not justify discontinuance of passenger service on such branch if the earnings of the system as a whole show a substantial profit, as in the case at bar. (Southern Ry. Co. v. S.C. PublicService Comm., 31 Fed. Supp. 707; Ches. Ohio Ry. Co. v. Pub. *Page 611 Ser. Comm., 242 U.S. 603, 61 L.Ed. 520, 37 S.Ct. 234; AtlanticCoast Line Ry. Co. v. N. Car. Corp. Comm., 206 U.S. 1,51 L.Ed. 933, 27 S.Ct. 585, 11 Ann. Cas. 398; Colorado etc. Ry. Co. v.State Ry. Comm., 54 Colo. 64, 129 P. 506; Marshall v. Bush,102 Neb. 279, 167 N.W. 59; Ft. Smith L. T. C. v. Ward,169 Ark. 519, 275 S.W. 757; State v. Georgia So. Fla. Ry. Co.,139 Fla. 115, 190 So. 527.)
In Southern Ry. Co. v. S.C. Public Service Comm., supra, premised upon repeated decisions of the Supreme Court of the United States, the court held:
"Since, therefore, plaintiff is charged with the duty under its franchise of maintaining passenger service on the entire line of the railroad, an order enforcing that duty may not be said to be unreasonable and arbitrary merely because its performance may result in loss to plaintiff. Atlantic CoastLine v. North Carolina Corp. Comm., 206 U.S. 1, 27 S.Ct. 585,51 L.Ed. 933, 11 Ann. Cas. 398; Mo. Pac. Ry. Co. v. Kansas,216 U.S. 262, 30 S.Ct. 330, 54 L.Ed. 472; Chesapeake Ohio Ry. Co.v. Pub. Ser. Comm., supra; Fort Smith Traction Co. v. Bourland, supra; State v. Broad River Power Co., supra. As said by Mr. Justice [later Chief Justice] White in the Atlantic Coast Line case (206 U.S. 1, 27 S.Ct. 595, 51 L.Ed. 933, 11 Ann. Cas. 398), 'As the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although, by doing so, as an incident some pecuniary loss from rendering such service may result.'
"A case directly in point is Missouri Pac. Ry. Co. v. Kansas, supra, 216 U.S. 262, 263, 279, 30 S.Ct. 330, 336, 54 L.Ed. 472, where an order directing the running of a passenger train was objected to as arbitrary and unreasonable on the ground that the train could not be run except at loss to the company. In rejecting this contention, the Supreme Court, speaking through Mr. Justice White, said:
" 'The fact that the performance of the duty commanded by the order which is here in question may, as we have conceded for the purpose of the argument, entail a pecuniary loss, is, of course, as declared in the Atlantic Coast Line case, as a general rule, a circumstance to be considered in determining its reasonableness, as are the other criteria indicated in the opinion in that case. But where a duty which a corporation is obliged to render is a necessary *Page 612 consequence of the acceptance and continued enjoyment of its corporate rights, those rights not having been surrendered by the corporation, other considerations are, in the nature of things, paramount, since it cannot be said that an order compelling the performance of such duty at a pecuniary loss is unreasonable.' "
In the case at bar it is conceded passenger service on theentire system is operated at a loss, so that if loss in the operation of branch line passenger service justifies a discontinuance of branch line service, then loss in the operation of passenger service on the entire system would likewise justify discontinuance of all passenger service. Furthermore, it is urged with much reason by protestants that lack of patronage of the passenger service between Preston and Cache Junction is "due to too poor service." Therefore, upon grounds of both law and fact, I dissent from that part of the opinion of the majority reversing the order of the Public Utilities Commission which required the Union Pacific to continue its passenger service between the last above-mentioned points.
And the grounds which prompt me to dissent from the opinion of the majority reversing the order of the Commission which required the Union Pacific to continue its passenger service between Preston and Cache Junction, lead me to concur in the majority opinion affirming the order of the Commission which required the Union Pacific to continue its passenger service on the Malad, Idaho, branch line.