[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 423 July 17, 1940. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Arthur L. Gaston, refusing to grant an order of mandamus against the Southern Railway Company, requiring it to restore trains Nos. 117 and 118 as regular, daily passenger trains, between Rock Hill and Kingville, South Carolina, instead of the mixed passenger and freight train which had been substituted therefor, operating daily except Sundays. The facts are fully set forth in Judge Gaston's order, which will be reported herewith.
The appellants contend that under Sections 8204, 8205, 8305 and 8405 of the Code of South Carolina, 1932, and Article 9, Section 8 of the Constitution of South Carolina, the railway company has no right to discontinue separate passenger service on its line, or any portion thereof, without the permission of the Public Service Commission previously obtained. An analysis of the various acts and rules promulgated by the commission thereunder, may lead to a better understanding of the matter.
Sections 8204 and 8395 were enacted in 1882 and Section 8205 in 1885. Section 8204 provides that railroads shall be subject to the general law as set out in the chapter in which these sections are contained, new Chapter 160 of the Code of 1932 Section 8205 provides that every railroad company shall have all the rights and privileges granted in said chapter, and that "said rights, powers, privileges, liabilities, provisions and limitations shall constitute part and parcel of the charter of every such corporation." Section 8395 provides that every railroad shall provide reasonable accommodations for the convenience and safety of its passengers, and shall be penalized for any willful neglect of such duty.
Section 8405, which was enacted in 1896, requires that the railroad commission (now the Public Service Commission) examine into the schedule of all railroads of the State, "with a view to ascertain if said roads can reasonably make close connection with intersecting roads * * *. And, *Page 438 the better to secure connections, they may require all persons, associations or corporations operating any railroad or railroads (except such as may be in the hands of Receivers) to run at least one unmixed daily passenger train each way, over such railroad or railroads, and may likewise require such persons, associations or corporations to furnish to the traveling public facilities for passage over such railroads twice each way daily." (Italics added.)
It is to be noted that though this section gives the commission the right to require the operation of one unmixed train daily, it is for the purpose of making connections with intersecting lines, and there is no inference in the section that the commission can arbitrarily make such a requirement for any other purpose, nor even then without granting to the corporation a hearing on the merits.
Under Section 8251 of the Code, also an Act of 1882, the commission is given general supervision of all railroads, and required to examine them to keep themselves informed as to their condition and the manner in which they are operated, with reference to the security and accommodation of the public and the compliance with the provisions of their charters and the laws of the State. No authority is given to the commission to require any particular type of service, but merely to supervise the roads and, inferentially, to require additional service, if, after a hearing, it be determined that such service is necessary for the security and accommodation of the public.
Section 8248 is a portion of Act No. 533 of 1922, found at page 956 of the Acts of that year, by which the number of commissioners was increased to seven, and their powers increased from supervision of all railroads and railways, express and telegraph companies, as set out in Section 8251, to authority "over all transporting and transmitting corporations, and public utilities." Thus it will be seen that in the Act of 1922, the Legislature very clearly made a distinction between "public utilities" and "transporting *Page 439 and transmitting corporations," over which alone the Railroad Commission had formerly had authority. Therefore Section 8248 of the Code, which is Section 6 of the Act of 1922, in setting out that the Railroad Commission is vested with power to "regulate the rates and service of every public utility in this State and to fix such just and reasonable standards, classifications, regulations, practices and measurements of service to be furnished, imposed or observed and followed by every public utility in this State" must refer to those companies which are classified as "Public Utilities" in contradistinction to "transporting and transmitting corporations."
In further support of this construction of the statute, it will be noted that in the same year, 1922, Section 8252 of our 1932 Code was passed as a part of Act No. 525, found at page 938 of the Acts of that year. By Section 8252 the term "public utility" is defined to mean, "every corporation and person furnishing or supplying in any manner gas, electricity, heat, electric power, water and street railway service, or any of them, to the public, or any portion thereof, for compensation."
These statutes must be construed together. As was said in the case of City of Columbia v. Pearman et al., 180 S.C. 296, at page 309, 185 S.E., 747, 752: "Columbia GaslightCompany v. Mobley, supra (139 S.C. 107,137 S.E., 211), however, appears to be more directly in point. The court there did consider what is now section 8248 (section 6 of act approved March 6, 1922, 32 St. at Large, p. 956), and held that, as this section did not define what are `public utilities' within the meaning of this term as used in the Statute, and as the Statute was elsewhere silent as to what corporations this classification included, it was necessary, in order to correctly interpret the legislative intention, to construe this act in connection with the act approved March 24, 1922 — with especial reference to what is now section 8252 of the Code." *Page 440
Therefore, Rule No. 5 of the commission, which it represents as having been promulgated under authority of Section 8248, in requiring that "No rate, toll, charge, fare nor service of any public utilitity under the regulation of this Commission" shall be deemed approved or consented to by the Commission until such rate, toll, etc., has been affirmatively approved, refers only to "public utilities" as defined in Section 8252, and does not refer to railways.
Rule No. 12 of the commission was passed under authority of Section 8418 of the Code, which requires that notice of any change in passenger schedules or time tables be published at least three days before the change goes into effect. By Rule 12, the railroad is required to publish notice of such proposed change eight days before it is made, and to give the commission notice in writing for an equal period of time. There is nothing in the rule, nor in the statute under authority of which it was passed, which requires a railway company to do more than give this notice, as neither the statute nor the rule itself mentions the necessity of permission from the commission. If such a procedure as is contended for by the commission is indeed necessary for the protection of the public, it is a matter for legislative rather than judicial action.
The commission, appellant herein, relies largely on the recent case of Southern Railway Company v.South Carolina Public Service Commission, recently decided by a three-Judge Federal Court sitting in the Eastern District of South Carolina, which decision is reported in 31 F. Supp., pages 707, 714. In that case Judge Parker, in writing the opinion of the Court, said: "The duty of railroad companies to furnish passenger service, as we have seen, is unquestionably imposed by the law of the State;but the general law does not prescribe what service shall bea sufficient discharge of the duty. Section 8405 vests discretion as to this in the Commission, authorizing it to require *Page 441 the running of passenger trains, as distinguished from mixed trains, and to require one such train a day each way instead of the less frequent service that might be offered in discharge of the duty. * * * It must be rememberedthat the issue before the Commission was not whether theplaintiff should be required to furnish more or less passengerservice over the portion of the line in question, but whetherit should be permitted to abandon all passenger service overit." (Italics added.)
It is, therefore, clearly seen that the case in question, while holding that the company was required to operate passenger trains, did not by any means hold that any particular type of service was required, but that it was within the discretion of the commission to specify what type of service was necessary. In doing this, we think it quite clear that the commission, before specifying any particular type of service, and before exercising its discretion in this matter, was bound to have a hearing on the merits of the case.
Adequate service to the public is a primary consideration and duty of the railroad companies. They operate under a franchise granted to them by the State, and are bound to serve the public fairly and impartially. But, where the public does not use the facilities furnished to a sufficient extent to compensate the company therefor, it is a matter for the commission to determine, after a hearing, whether or not more than the minimum of service should be supplied, their action being subject, of course, to the judicial review. In this connection we quote with approval from the case of Blease v. Charleston W.C. Railway, 146 S.C. 496,144 S.E., 233, 240, as follows: "A railroad corporation has only restrictive power in the management of its business, affairs, and property, for the Congress of the United States and the general assembly of the state enact laws on the subject; the Interstate Commerce Commission and the State Railroad Commission promulgate rules and regulations for its control; then its employees have their *Page 442 say in the premises; however, the writer has no criticism to make of this situation, but does think that such corporation should be guarded against undue encroachments withoutfull investigation, and a clear case established showing that the same are necessary for reasonable public service, without confiscating the railroad's property." (Italics added.)
Counsel for appellants have cited two cases, Missouri PacificR.R. Co. v. Kansas, 216 U.S. 262, 30 S.Ct., 330,54 L.Ed., 472, and People ex rel. Cantrell v. St. Louis, A. T.H.R. Co., 176 Ill., 512, 52 N.E., 292, 35 L.R.A., 656, as holding authoritatively that mixed service is not adequate passenger service. In both of those cases, this conclusion was reached from the particular facts of the respective cases, after a hearing and investigation. But even if the Courts in question meant at that time to lay down an arbitrary rule to be followed, which we think they did not, it must be borne in mind that the most recent of the cases was decided more than thirty years ago, when the railroad companies had a practical monopoly of the transportation of passengers for all except very short distances. That condition no longer exists, as the railroad lines are now, in many instances, paralleled by bus lines, and the private automobile, traveling on State maintained roads, has deprived the railroads of a large part of their passenger business. Hence, a standard setting up what constitutes "reasonable accommodations" thirty years ago could not possible be a reasonable and just standard to be followed arbitrarily today. If the public has other facilities for travel furnished either by private automobiles or by bus lines, so that they no longer patronize the railroads, then it is a matter to be determined by the commission only after a full hearing and investigation of the facts, whether or not a mixed train furnishes the "reasonable accommodations" required by the statute. The public must be served by the railroads, but *Page 443 should not expect service to any greater extent than they are willing to use the service provided for them.
The order of his Honor, Arthur L. Gaston, is hereby affirmed and approved in its entirety, and the complaint herein dismissed.
MR. CHIEF JUSTICE BONHAM and MR. JUSTICE BAKER concur.
MESSRS. JUSTICES FISHBURNE and STUKES discent.