with whom McEWAN, J., joins (concurring).
I concur in the result herein with some reluctance. This is based upon that portion of the opinion which sets out that the carrier has failed to support its burden of proof of the lack of public necessity and convenience. Further, because some relief was granted herein and that it is impossible for this writer or any person to determine the effect of such modification and the agency may become profitable and properly serve the public convenience and necessity by operations during this limited period.
The writer does, however, find from an examination of the Discussion, Findings and Order of the Commission a statement which causes him concern and which should not be allowed to pass unnoticed. A statement referring to profit and loss appearing in the discussion in a companion case herein involving Burns (No. 4255) was considered necessary of notice. In the present case the statement is as as follows:
“The railroad shows out of pocket expenses for maintaining an agent in Hawk Springs are almost equal to revenues derived by the station. These facts were not substantially controverted and for the purpose of this case are accepted by this Commission. 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.” '
This statement causes the writer concern and may indicate that the commission applies the wrong standard for determination of the “profitability” of an agency. If the commission had made this the basis of its disposal the writer would be forced to dissent. However, because the order read as a whole does indicate that the real basis of this decision is the public convenience and necessity a dissent is not indicated.
The writer feels this concurrence may be helpful and that attention should be directed to this statement because I believe from a national viewpoint it may be said without contradiction that the regulation of our public carriers is not one of unqualified success nor has it benefited either the carriers or the public which they are presumed to serve.
The brief of appellee concedes that if a prorated share of the railroad’s system-wide expenses were added to the out-of-pocket expenses this agency would operate at a loss.
The writer commends the commission’s attention to the case of Missouri-Kansas-Texas Railroad Company v. City of Savonburg, 186 Kan. 120, 348 P.2d 1015, 1021, where the following appears:
“Generally speaking, the authorities are nearly, if not entirely, unanimous in their holding that in determining whether a particular station agency is operated at a profit or loss, it is proper for an administrative agency to consider the ratio of cost of maintaining the agency, including both out-of-pocket and system-wide expenses applicable to railroad operations, to revenue , received from the station [citing many cases.] * * * ”
In the same vein the Court of Appeals of Kentucky has said in the case of Commonwealth ex rel. Kentucky Railroad Commission v. Illinois Central Railroad Company, Ky., 358 S.W.2d 533, 535:
“ * * * The Commission failed to take into account the proportionate share of general operating expenses, rent and taxes of the Railroad’s freight system as it properly should have done and considered only the direct station expense. * * * If
It is the view of this writer that to fail to do so is to confuse “gross” with “net” profit insofar as the operation of the agency is concerned and that this standard *20should be applied in cases which may arise hereafter.