MISSOURI PAC. R. CO. v. STATE

MISSOURI PAC. R. CO. v. STATE
1977 OK 77
563 P.2d 1179
Decided: 04/26/1977
Supreme Court of Oklahoma

MISSOURI PACIFIC RAILROAD COMPANY, A CORPORATION, APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE.

Appeal from an order of the Corporation Commission of Oklahoma.

¶0 Appellant appeals from an order of the Oklahoma Corporation Commission denying its application to discontinue its agency service at Claremore, Oklahoma.

ORDER REVERSED.

Dyer, Powers, Marsh, Turner & Powers, Tulsa, for appellant.

Jack P. Fite, Asst. Gen. Counsel, Oklahoma Corporation Commission, Oklahoma City, for appellee.

HODGES, Chief Justice.

¶1 This is an appeal from an order of the Oklahoma Corporation Commission, appellee, denying the application of Missouri Pacific Railroad Company, appellant, to discontinue its agency station at Claremore, Oklahoma. The application alleged: there was not sufficient business at the Claremore station to justify its operation and the lack of business imposed an economic hardship. Claremore is located approximately 27 miles from the town of Wagoner and toll-free telephone service to the agent at Wagoner would be provided customers and emergency personnel; there is no passenger train service operated by applicant, and all freight business is on a carload basis which can be adequately handled from the Wagoner depot; public service and necessity do not require the continued maintenance of the Claremore station; shippers and users of the railroad service can be conveniently served by the Wagoner agent or the toll-free or collect telephone service provided; and the continued operation of the agency and station at a substantial loss results in a taking of railroad property for public use without just compensation in violation of the United States and Oklahoma Constitutions.

¶2 A hearing was held before a Corporation Commission referee who found the services of a station agent at Claremore to be a necessity, and denied the application. Appellant filed its exceptions to the report of the referee in which it enumerated expenses chargeable to the Claremore station,

¶3 The issue on appeal is whether the Corporation Commission may require appellant to continue to sustain substantial losses by furnishing a full-time station agent and deny substitute service to the public by its agents at Wagoner through toll-free telephone communication.

¶4 The evidence reflects the only service offered at Claremore is car-load freight service and there is no on-tract-industry at this location. In relation to an agent's service and the time spent on appellant's business, the witness stated only two outgoing cars (requiring bills of lading) had been handled in the past 3 1/2 years. During the past 1 1/2 years no over-short or damage reports had been made by this agent. Freight generally moves on prepaid or nationally credit billed freight charges and in the year 1974 freight charges were collected on 2 inbound cars. This agent spent 30 minutes a day in service to the public regarding freight shipments. Although the Commission required retention of the agent as a safety feature so he could clear the crossing and "break" the trains, the evidence was after 4 p.m. daily when the agent at Claremore goes home for the day, there is nobody on duty at Claremore to provide this service. However, at Wagoner there would be someone practically 24 hours a day, and the dispatcher in Kansas City could provide the same service if the agent at Wagoner could not be reached. The agent at Claremore has no control or authority regarding the movement of trains, and although the agent could "break the train" it is against the rules for him to do so. If the agent at Claremore receives a call from the Fire Department, or any other emergency persons, he has to contract the dispatcher at Kansas City to get permission to do this and then notify the train crew. This is the same procedure and involves the same time factor as if it is done by the Wagoner agent.

¶5 This Court has held where agents spend an average of less than thirty working minutes per day at the station and there is no actual public necessity for a full-time station agent, maintenance of a particular type of agency is not an absolute duty, but involves a question of business policy.

"The only possible legal way to require a railroad to maintain an agency is to show either that it is profitable or that there are peculiar circumstances in the case showing that the public convenience and necessity is such that it would require them to operate there in any event."

[563 P.2d 1181]

¶6 The Corporation Commission argues it did not rule contrary to law and further that it is bound by the Okla.Const. art. 9, § 14

¶7 We find that neither the public convenience and necessity, nor the safety of the citizens of Claremore would be impaired by closing the agency because the same services would be provided in the same time frame, and that the finding of Commission was not supported by substantial evidence. Under the provisions of Okla.Const. art. 9, § 20 ,

¶8 After a careful examination of the entire record, including all the evidence, we find the Commission's order denying appellant permission to close its agency was not supported by substantial evidence, and the cause is remanded with directions to enter an order granting appellant's application.

¶9 DAVISON, IRWIN, BERRY, BARNES, SIMMS and DOOLIN, JJ., concur.

Footnotes:

1 U.S.Const. Amendment XIV. Okl.Const. Art. II §§ 2, 7, 23.

2 The out-of-pocket expenses chargeable to the Claremore station reflect:

Out-of-Pocket

Year

Cost

Revenue

Loss

1972

$16,735.18

$6,229.62

$10,505.56

1973

20,085.39

4,411.80

15,673.59

1974

23,575.69

5,623.45

19,952.24

1975(5 mo.)

9,195.69

1,450.79

7,744.90

3 St.L.-S.F. Ry. Co. v. State, Okl., 515 P.2d 233 (1973); St.L.-S.F. Ry. Co. v. State, Okl., 486 P.2d 734 (1971); Atchison, T. & S.F. Ry. Co. v. State, 190 Okl. 18, 119 P.2d 840 (1941); Atchison, T. & S.F. Ry. Co. v. State, 189 Okl. 485, 118 P.2d 202 (1941); Lowden v. State, 189 Okl. 491, 118 P.2d 238 (1941); Lowden v. State, 188 Okl. 106, 106 P.2d 801 (1940); Lowden v. State, 186 Okl. 654, 100 P.2d 890 (1940); Lowden v. State, 182 Okl. 549, 78 P.2d 1059 (1938); Kurn v. State, 179 Okl. 440, 66 P.2d 52 (1937); Kurn v. State, 175 Okl. 379, 52 P.2d 841 (1935).

4 St. Louis-S.F. Ry. Co. v. State, 515 P.2d 233, 236 (Okl. 1973); St. Louis-S.F. Ry. Co. v. State,, 486 P.2d 734, 736 (Okl. 1971); Atchison T. & S.F. Ry. Co. v. State, 189 Okl. 485, 118 P.2d 202 (1941).

5 It is provided by Okla.Const. art. 9, § 14 :

No railroad hereafter constructed in this State shall pass within a distance of four miles of any county seat without passing through the same and establishing and maintaining a depot therein, unless prevented by natural obstacles such as streams, hills, or mountains: Provided, such town, or its citizens, shall grant the right-of-way through its limits and sufficient ground for ordinary depot purposes.

6 Act of Congress June I, 1886 Ch. 395, § 1, 24 Stat. 73 granted appellant's predecessor the right to construct and operate a railway through Indian Territory.

7 The Okl.Const. art. 9, § 20 provides in pertinent part:

The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Upon review, the Supreme Court shall enter judgment, either affirming or reversing the order of the Commission appealed from.

8 St. Louis-S.F. Ry. Co. v. State, 301 P.2d 228, 232 (Okl. 1956); Kansas, O. & G. Ry. Co. v. State, 275 P.2d 274, 276 (Okl. 1954); St. Louis-S.F. Ry. Co. v. State, 262 P.2d 168, 172 (Okl. 1953).