1 We have revised the title of this case to conform to the requirements of Rule 37 of this court and the decision in Gardner v. Blaine County, 15 Idaho 698, 99 P. 826. *Page 598 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 599
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 600 The following statement of facts appears in appellant's brief, over which there seems to be no dispute, to-wit:
"The latter part of August, 1941, the Union Pacific Railroad Company filed with the Public Service Commission of Utah an application for authority to discontinue its trains 553 and 554 between Cache Junction, Utah, and Preston, Idaho, and trains 559 and 560 between Ogden, Utah, and Malad, Idaho. *Page 603
"Following the filing of this application with the Utah Commission the Idaho Public Utilities Commission having been informed of the application filed in Utah issued its Order No. 1755 on September 13, 1941, directed to the Union Pacific Railroad Company to show cause why such trains should not be continued under their present schedules in order to provide 'proper service for both persons and property within the State of Idaho.' Joint hearings were held by the Public Service Commission of Utah and the Public Utilities Commission of Idaho at Ogden, Utah, on October 13, 1941, and at Preston, Idaho, on October 14, 1941. On December 30, 1941, the Idaho Public Utilities Commission made and entered its Order No. 1765 requiring the Union Pacific Railroad Company to maintain the service between the Utah-Idaho state line and Preston, Idaho, and between the Utah-Idaho state line and Malad, Idaho, and that the operation of the trains in question be continued, which order was received by the Railroad Company on January 24, 1942. Following the receipt of the order of the Commission and within the time required by law appellant served and filed its petition for rehearing, which was on the 17th day of March, 1942, by the Commission denied. From the order requiring the Railroad Company to continue the service of the trains in question and from the order denying the petition for rehearing the Railroad Company has appealed to this court for a review of the Commission's order.
"Trains 553 and 554 are motor passenger trains and operate between Cache Junction, Utah, and Preston, Idaho, a distance of 51 miles. * * * and only two stations are located in Idaho on this branch where any passenger business is handled, to-wit: Franklin and Preston. Trains 559 and 560 operate between Ogden, Utah, and Malad, Idaho, a distance of 73 miles. * * * and only two stations are located in Idaho on this branch which handle any passenger business, to-wit: Cherry Creek and Malad. The Railroad Company proposed to take off these passenger motor cars and to substitute in lieu thereof mixed trains, which means that the Company would place a passenger and baggage car on its existing freight trains, to handle any passengers, baggage and express that may require transportation."
We shall hereafter refer to the Public Utilities Commission as the "Commission" and the Union Pacific Railroad Company as the "Railroad Company" for brevity. *Page 604
At the conclusion of the hearing and consideration by the Commission of testimony introduced by all parties, the Commission made its findings of fact and order, to-wit:
"1. We find that the Union Pacific Railroad Company is a public service corporation organized under and by virtue of the laws of the State of Utah and has been authorized under the laws of the State of Idaho to engage in the railroad transportation business in Idaho.
"2. We further find that the trains in question, Nos. 553 and 554 operating between Cache Junction, Utah, and Preston, Idaho, and Nos. 559 and 560 operating between Ogden, Utah, and Malad, Idaho, are branch lines of the Union Pacific system and this Commission has jurisdiction over an abandonment of such service.
"3. We find that these trains, if considered apart from the other operations of these branch lines, are not operated at a profit, but from the record we are unable to determine the amount of the deficit.
"4. We find that the service performed by these trains has been allowed, either deliberately or otherwise, to deteriorate with a consequent loss of patronage.
"5. We find that the operation of these trains is an integral portion of the entire service rendered by the Union Pacific Railroad Company over these branch lines and by its system generally, and that the loss sustained by the operation of these trains does not materially affect and is not an unreasonable burden on the entire system.
"6. We find that the service, even as at present rendered, is both convenient and necessary to the public, and that the operation of these trains should be continued.
ORDER "WHEREFORE IT IS ORDERED that the Union Pacific Railroad Company be and it is hereby required to maintain the present service inasmuch as public convenience and necessity require the continued operation of passenger trains Nos. 553 and 554 operating between Utah-Idaho State line and Preston, Idaho, and trains Nos. 559 and 560, operating between Utah-Idaho State line and Malad, Idaho.
* * *
DONE AT BOISE, IDAHO, this 30th day of December, 1941, by the Commission." *Page 605
Briefly stated, appellant attacks the sufficiency of evidence to support the findings of the Commission, Nos. 3 to 6, inclusive. To bring about the substitution, appellant contends throughout that there was, and is, no public necessity for passenger service rendered by these exclusive passenger trains on said branch lines. And secondly, the service performed by said trains does not yield an adequate return. Incidentally, and as an additional ground for discontinuance of passenger train service, appellant urges the need in the present emergency for skilled laborers who are handling these trains. For the purpose of determining whether or not the Railroad Company has established its contention, the burden rested upon it to show that the proposed passenger service would be adequate, efficient, just and reasonable. Sec. 59-302, I. C. A., provides:
"Every public utility shall furnish, provide and maintain such service, instrumentalities, equipment and facilities, as shall promote the safety, health, comfort and convenience of its patrons, employees and the public, and as shall be in allrespects adequate, efficient, just and reasonable." [Italics ours.]
We will first undertake to analyze the situation as it affects the branch line from Preston to Cache Junction, for the purpose of determining whether or not substitution of a mixed train between Preston and Cache Junction would be adequate, efficient, just and reasonable in lieu of the present passenger trains which are now operated between the two above-mentioned points. From the record it appears there are three Union Pacific Stages scheduled through Preston each way per day; in addition to this bus service, the Utah-Idaho Central Railroad Company operates an electric railroad with five schedules each way per day between Ogden, Utah, and Preston, directly connecting with the Bamberger Electric Line at Ogden. We will take judicial notice of the existence of paved highways practically paralleling the railroad lines, which materially add to necessity and convenience of the traveling public.
On the Cache Valley branch during a 28 day period, one passenger got on at Franklin, and undoubtedly got off at Preston, four passengers got on at Preston, and none got off at Franklin. For 28 days of September, 1941, 46 passengers were handled on train 553 [Cache Junction to Preston], or an average of 1.64 passengers per day, and 38 passengers on train 554 [Preston to Cache Junction], *Page 606 or an average of 1.36 passengers per day. Total revenue over a period of 18 months for these two trains was $11,473.80, as against an expense of $23,063.46, showing a net loss to the Railroad Company of $11,589.66. It appears there is a negligible use of passenger train service by the public, and there are adequate and efficient means of transportation to and from Preston to Logan, and Preston to Ogden, with direct connections to Salt Lake, as to reasonably accommodate the public which might have occasion to use either rail or bus service between these points. In reviewing the order of the Commission requiring appellant to continue operation of its train service as of the date of hearing, it is necessary to consider, as one of the elements, whether or not operation of passenger service only at a loss justifies discontinuance thereof when earnings of the entire system reflect no deficit. The following authorities adhere to the view loss sustained only in providing passenger service is not justification for discontinuance: Pond on Public Utilities, Vol. 3, par. 911, p. 1832; Ft. Smith L. T. C. v. Ward, 169 Ark. 519, 275 S.W. 757;Marshall v. Bush, 102 Neb. 279, 167 N.W. 59; Colo. etc. R. Co.v. State Rr. Comm., 54 Colo. 64, 129 P. 506; Atl. Coast LineRr. Co. v. No. Car. Corp. Comm., 206 U.S. 1, 27 S.Ct. 585,51 L.Ed. 933, 11 Ann. Cas. 398; Nichols on Public Service Discrimination, p. 173; Ches. O. Rr. Co. v. P. S. Comm.,61 L.Ed. 520, 37 S.Ct. 234, 242 U.S. 603; State v. Geo. So. Flor. Ry. Co., 139 Fla. 115, 190 So. 527; So. Ry. Co. v. S.C.Publ. Ser. Comm., 31 Fed. Supp. 707. In other words, the fact one branch of its service reflects a loss, and, at the same time, the entire earnings of the system reflect a substantial profit, would not be decisive of its duty both under Sec. 5 and 6, Art. 11, Const., and Sec. 59-302, I. C. A., to furnish to the public adequate and reasonable service. The Company is committed to the reasonable discretion of the controlling state authority. The law enjoins what is adequate, efficient, just and reasonable service under the circumstances. This rule is as old as the law itself. If the service in all respects be adequate, efficient, just and reasonable, it would neither be just nor reasonable to impose an unreasonable and unjust economic loss on the Railroad Company, and, indirectly, on the public, to require unnecessary and useless expenditures. This is not a case in which the utility seeks to entirely abandon the service, but to minimize service to the needs and necessities of the public, *Page 607 and when the public needs are met adequately, efficiently and reasonably, which is the primary and important consideration, the utility has met its obligation to the public. When we take into consideration the limited public use of passenger service, the expense and net loss to the Railroad Company in the operation of said service between Preston and Cache Junction, the available passenger service furnished by another railroad company paralleling appellant's line, bus service, and paved highways, all of which must be considered in determining whether or not such service is adequate, efficient, just and reasonable, we are forced to the conclusion the Commission's order cannot be upheld, requiring the Railroad Company to maintain present passenger service on said branch line. Furthermore, during the present emergency, the inconvenience of the public is subordinate to national defense. Changed conditions could well require that present passenger service be later reinstated.
Coming now to the question of whether or not the order of the Commission should be sustained so far as it relates to the Ogden-Malad Branch, the record shows during a 28 day period of September, 1941, only 4 passengers got on at Cherry Creek going to Malad, 23 passengers got on at Malad, and none got off at Cherry Creek. For said 28 day period, 51 passengers were handled north-bound between Ogden and Malad, or an average of 1.82 passengers per day, and on the south-bound movement there were 68 passengers handled, or an average of 2.43 passengers per day. The record discloses for an 18 month period total revenue of $13,995.81, as against a deficit expense of $34,466.88, making a net loss of $20,471.07. We have in the record no estimate of net earnings of the system; that is to say, no estimate of earnings for handling freight. Appellant has simply set up a net loss in operating passenger service. It is conceded by appellant the operation of passenger service over all railroads within the United States reflects a loss; there is not a branch line in Idaho which shows a profit in operating passenger service. As heretofore stated, it is proper to take into consideration expense of furnishing service in determining whether or not the patronage justifies the expense, however, it is not the most important question to be considered by the Commission; the controlling question being the necessity and reasonableness of the service to the public. (Village ofMillersburg v. P. U. C., 137 Ohio St. 75, 27 N.E.2d 1020.) *Page 608
In People ex rel Cantrell v. St. Louis A. T. H. R. Co.,176 Ill. 512, 52 N.E. 292, it is held:
"Inasmuch as a railroad company is bound to carry both passengers and freight, and the duties and liabilities of a railroad company to passengers riding on freight and passenger trains are very different, a railroad company is obliged to furnish and operate passenger trains separate from its freight trains for the accommodation of its passengers.
"By the running of a mixed train consisting of freight, coal, stock and passenger cars, a railroad company does not discharge its duties to the public of furnishing transportation to passengers.
"Where the system of railroads under one management is paying, and the company is solvent and prosperous, it cannot escape performance of its charter duty of furnishing transportation over one portion of its road by showing that that particular portion does not pay, when all parts of the system are so interwoven that an accurate ascertainment of the profits of any one portion of the road is impracticable."
In the instant case appellant contends that it should not be required to furnish passenger transportation between Ogden and Malad for the reason that it is not profitable, and, at the same time, at least impliedly admitting its system, as a whole, as well as its branch line operations, as a whole, are profitable, and without taking into consideration its earnings in the transportation of passengers from Ogden to Brigham City on the Malad Branch. From the record it appears approximately two million bushels of wheat alone were shipped out of Malad over the branch line yearly; what was received from the shipment of all farm products, livestock, machinery, etc., over the system is not disclosed, loss being predicated on passenger service only. In 123 A.L.R. 922, the question is exhaustively discussed. From that annotation the following paragraph is quoted:
"The rule supported by the majority of the decisions is that in considering the question of whether or not a railroad company should be compelled to continue the operation of a branch line, the entire revenues of the system are to be taken into account, and not merely the direct return from the branch line itself." *Page 609
In State v. Geo. So. Flor. Ry. Co., 139 Fla. 115,190 So. 527, 123 A.L.R. 914, it is stated:
"In determining whether local train service may be reduced all revenue receipts of every nature and kind on and from the particular line and the entire system should be considered as well as the total proper expenses."
There is no parallel railroad operating from Ogden to Malad as there is from Preston to Cache Junction. There is but one bus service each day: One from Malad to Salt Lake, and one from Salt Lake to Malad, and on to Pocatello. We are also justified in taking judicial notice, due to the war, operation of motor propelled vehicles is limited to a minimum, passenger cars being practically eliminated. No doubt, the loss sustained by operation of passenger trains is reflected in the freight rates. The Commission was justified and it was their duty, to take into consideration the inconvenience the public would suffer by reason of such change in service by transmitting mail, express and baggage, as well as passenger service, all on one and the same train. As was said in People v. St. Louis,etc. R. Co., supra:
"and, when a passenger rides on a freight or mixed train, he takes upon himself the increased risk and lessened comfort which is incident thereto; nor has he the legal right to demand any other care in the management of such a train than is requisite for that kind of a train, or any other security than such a mode of conveyance affords."
(So. Ry. Co. v. S.C. Publ. Ser. Comm., supra; Village ofMillersburg v. P. U. C., supra.) Thus, in this instance, the public will be left practically without railroad passenger service, limited to the minimum in bus service, and seriously restricted in the operation of all motor vehicles. In such circumstances, the action of the Commission, in denying appellant's right to discontinue its present passenger service, and in lieu thereof substitute mixed train service, was neither arbitrary nor capricious. The Commission is vested with discretionary power, and, in the absence of abuse of such power, this court would not be justified in setting aside its order.
While there are numerous decisions on all phases of the questions here involved, no fixed or definite rule can be applied. Each case must be considered and determined *Page 610 in the light of all facts and circumstances of the individual case.
We feel constrained to hold, upon the entire evidence, to substitute mixed train service in lieu of the present passenger service would not be adequate, efficient, just nor reasonable, but, on the contrary, would be inadequate, inefficient, unjust and unreasonable to the public. We have concluded to sustain the Commission's order requiring the Railroad Company to continue its passenger service on the Malad Branch.
Respondents complain by reason of appellant's failure to comply with Sec. 59-307, I. C. A., the Commission was without jurisdiction to grant appellant relief. It is conceded the Commission issued its order which was duly served upon appellant to appear and show cause, and offer testimony as to why such service should not be continued under present schedules. In pursuance to such order appellant appeared. A hearing was duly had, and testimony taken, without objections on the part of the state or protestants, and controversy decided by the Commission just as effectually as it would have been done had appellant instituted proceedings under provisions of Sec. 59-307, supra. The Commission had jurisdiction of the parties and subject matter, and jurisdiction to make the order here sought to be reviewed at its hearing in Preston, Idaho. There is no merit in respondent's contention in this regard.
The order of the Commission is hereby reversed as to the Preston-Cashe Junction feature of the order, and sustained as to the Malad Branch. Costs awarded to respondents.
Ailshie, Givens, JJ., and Koelsch, D.J., concur.