ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. STATE

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. STATE
1955 OK 126
283 P.2d 519
Case Number: 36282
Decided: 05/03/1955
Supreme Court of Oklahoma

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, PLAINTIFF IN ERROR,

v.

STATE OF OKLAHOMA, DEFENDANT IN ERROR.

Syllabus

¶0 1. To require the operation of passenger trains at a loss to meet public convenience, as distinguished from public necessity, is a taking of the carrier's property without due process of law.

2. An order of the Corporation Commission not supported by substantial evidence reasonably tending to sustain the order will be reversed.

[282 P.2d 519]

Appeal from an order of the Corporation Commission denying application to discontinue passenger trains Nos. 409 and 404 from Lawton to the Oklahoma-Texas State Line. Reversed.

John E. McCullough, Satterfield, Franklin & Harmon, Oklahoma City, for plaintiff in error.

James G. Welch, Montford Johnson, T. Earl Curb, Oklahoma City, for Corporation Commission of State of Oklahoma, for defendant in error.

ARNOLD, J.

¶1 This is an appeal from an order of the Corporation Commission denying St. Louis-San Francisco Railway Company permission to discontinue the operation of passenger trains over its branch line running from Lawton to the Oklahoma-Texas State line and having its terminus at Quanah, Texas.

¶2 In support of its application to discontinue such passenger trains the evidence of the railway company is to the effect that trains 409 and 404 operate daily between Lawton and the Oklahoma-Texas State line, a distance of 85.7 miles, Train 409 being the westbound and Train 404 the [282 P.2d 520] eastbound bound train over said line; that these trains serve and make a scheduled stop at Lawton, Cache, Indiahoma, Odetta, Snyder, Headrick, Altus, Olustee, and Eldorado; that each train consists of an engine, baggage car, combination baggage-mail car, and air conditioned chair car with a seating capacity of 60 persons; that five employees are required to run each of these trains, and each train also carries an express messenger whose salary is paid one-half by the express company and one-half by the railroad company; that the average number of passengers carried by these trains per train mile during the last three months of 1951 was 4.9 persons, the year 1952 was 5 1/2 persons and for the first four months of 1953 was 4.5 persons; that over this 19-month period these trains operated at a loss of 97› per mile when direct, out-of-pocket expenses were compared with the earnings of these trains and at a loss of $2.64 per train mile when the fully distributed operating expenses (such as taxes, administration expense, etc.) were compared with the earnings; that even if the earnings from the carriage of mail, (which is not a common carrier duty) were considered the trains still operated at a loss of 60› per train mile; that every one of the 9 communities having a total population of 48,465, located on this route is located on a federal, state, or other all-weather highway; that all have highway express service; that of the population of these nine communities 97.55 per cent have available common carrier bus service, 95.20 have rail passenger train service other than the two trains in question; that only 2.45 per cent have neither bus nor train service available except these two trains.

¶3 The evidence of protestants consisted of a written protest signed by 145 people of the town of Olustee and one letter from a resident of Headrick asking that the trains not be discontinued, and oral testimony to the effect that the freight service on this line was profitable and sufficient to pay for the loss incurred by reason of the passenger service.

¶4 The Commission found that applicant failed to prove that public convenience and necessity no longer required the continued operation of these trains, that the overall revenue from this particular branch line was insufficient, and wholly and completely failed to establish its case, and denied the application to discontinue the passenger trains.

¶5 The facts in this case are very similar to those in St. Louis-San Francisco Ry. Co. v. State, 204 Okl. 432,

¶6 Protestants argue that since the Supreme Court of the United States held in King v. United States,

¶7 Reversed.

¶8 JOHNSON, C.J., WILLIAMS, V.C.J., and CORN, DAVISON, HALLEY, BLACKBIRD and JACKSON, JJ., concur.