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part of the state, irrespective of the con- “The commission is of the opinion that nection formerly existing at Selma by the facilities given heretofore by the Attrain No. 39, were analyzed, and as a mat- lantic Coast Line Company to the travelter of fact the service afforded by these ing public should not be lessened; that the trains was held to be wholly inadequate.connection furnished passengers from the Thus, for example, whilst it was found that Washington branch, the Norfolk & Carothe first train relied upon-the one from lina branch, the Plymouth branch, and the Rocky Mount to Goldsboro, arriving there Nashville branch with No. 135, Southern at 6:50 in the morning-made a connection Railway passenger train at Selma, and also with a Southern Railway train moving from for all points between Rocky Mount and Selma via Raleigh to Greensboro, it was Selma, for nearly ten years, should be repointed out that it was inadequate because stored; that if this cannot be done by the the train had no connection at its point of Atlantic Coast Line train No. 39, as formerdeparture, Rocky Mount, with any incom- ly, on account of this train being heavier, ing train over the large area covered by containing usually one or more extra exthe branch roads, which area, it was stated, press cars, and in all usually ten or more embraced a population of four hundred cars, and on account of increase in business thousand people. Hence it was found that, between Richmond and Selma, which necesto use that train, any person in the ter- sitates longer stops, then other facilities ritory covered by the branch roads would should be furnished by the Atlantic Coast be obliged to leave honie the day before Line Company; that this connection, which and pass the night at Rocky Mount. The was the principal outlet for passengers from fourth train relied upon, that is, a connec-eastern Carolina to Selma and other Southtion made by Coast Line No. 39 at Selma ern Railway points for the last ten years, under the new schedule with a later train instead of being abandoned should be made over the Southern road for Raleigh, was permanent and certain; and that this refound to be but a connection with a South- sult be accomplished by carrying out the ern freight train, having no passenger car, order heretofore made in this court. It but only a caboose. The trains under the is ordered, therefore, that the exceptions second, third, and sixth headings, connect be, and they are hereby, overruled.” ing at Goldsboro or Selma in the afternoon The Coast Line, as authorized by statand night, were found to make a connection ute, appealed to the superior court of only with a slow train over the Southern Wake county, city of Raleigh, and the case road, doing a mixed passenger and freight was there tried de novo before a court and business, and which made no adequate con- jury. The jury, under the instructions of nection beyond Raleigh to the west. The the court, considered and responded to the objection to suggested route No. 8, that is, eight questions, which follow: via Weldon, and thence by the Seaboard “1. Is it practicable for train No. 39 of Air Line to Raleigh and points further west, the Atlantic Coast Line Railroad, due to was decided to be that it was a longer arrive at Selma at 2:50 P. M., to make conroute, more costly, and uncertain as to connection at Selma with train No. 135, westnections. The remaining suggested routes bound, of the Southern Railway, due to were in effect disposed of upon similar con leave Selma at 2:25 P. M.? siderations to those above adverted to.

“Answer. No. Considering the operation of an extra “2. Is it practicable to make said connectrain from Rocky Mount to Selma or the tion by extending the run of the Plymouth extension of the run of one of the branch train daily from Plymouth to Selma and trains as directed in the previous order, return, and, if so, what would be the addiand the objection that a loss would be en- tional expense? tailed in the operating expenses for such

“Answer. No. train or trains, the commission treated that “3. Is it practicable to make said confact as immaterial, because it found as a nection by the use of the Spring Hope train, matter of fact that the total receipts of the and, if so, what would be the additional exCoast Line in North Carolina, taken from pense? business in that state, were sufficiently re

"Answer. No. munerative, and therefore that even if the

“4. In order to make such connection train was operated at a loss, as that loss would defendant company have to run an would not reduce the total earnings below additional train on its main line from what was an adequate remuneration for the Rocky Mount to Selma? whole business, the order would not take “Answer. Yes. the property of the road without due proc- “5. Is it practicable for said train to ess of law. Summing up its conclusions, safely run the schedule prescribed in plainthe commission said:

tiff's order, having due regard to the number of trains and number of stops, on de- , treating the order of the commission so as fendant's main line from Rocky Mount to to render it unnecessary to pass upon the Selma?

particular methods for making the

the con"Answer. Yes.

nection at Selma referred to in the find “6. What would be the daily cost

cost of ings, the court yet reviewed the means of operating such train from Rocky Mount to performance therein stated. In doing so it Selma and return?

was decided that although to execute the “Answer. $40.00.

order of the commission it might be im7. What would be the probable daily perative for the Coast Line to operate at a receipts from such train ?

pecuniary loss a new train from Rocky "Answer. $25.00.

Mount to Selma, or the extension, with like “8. Is it reasonable and proper that, for result, of the movement of one or the convenience of the traveling public, the de-other of the branch trains from Rocky fendant company should be required to Mount to Selma, no violation of any right make such connection?

of the Coast Line protected by the Constitu"Answer. Yes."

tion of the United States or of the state The answers to the first four questions would arise. This was based upon the findwere the result of peremptory instructions ing by the court that the average net earnby the court, and the responses to the last ing of the railroad from its business in four were deduced by the jury from the North Carolina was of such a character testimony submitted to its consideration. that an adequate remuneration would re

The court granted the prayer of the At- main after allowing for any possible loss lantic Coast Line to that effect, and rendered which might arise from operating either of judgment on the verdict in its favor. The the trains in question. 137 N. C. 14, 49 S. corporation commission was held to be with E. 191. out power “to interfere with the right of All the assignments of error challenge the railway companies to regulate for them correctness of the decision below on the selves the time and manner in which pas- ground of its repugnancy to the due process sengers and property should be transport- or equal protection clauses of the 14th ed,” provided only such companies com- Amendment. The elementary proposition plied with the existing statutory direction that railroads, from the public nature of "to run one passenger train at least each way the business by them carried on and the over its line every week day.” On appeal interest which the public have in their the supreme court of North Carolina re-operation, are subject, as to their state versed the judgment. The facts found by business, to state regulation, which may be the corporation commission were reiterated exerted either directly by the legislative auand it was held that error had been com-thority or by administrative bodies endowed mitted by the court below in instructing with power to that end, is not and could not the jury to give a negative response to the be successfully questioned, in view of the first three propositions. Indeed, it was de- long line of authorities sustaining that clared that the only essential proposition docrine.† Accepting this general rule, the submitted to the jury was the eighth, which required it to be determined whether cago, B. & 'Q. R. Co. v. Cutts) 94 U. S. 155,

† Chicago, B. & Q. R. Co. v. Iowa (Chithe connection at Selma was necessary for 24 L. ed. 94; Peik v Chicago & N. W. R. the public convenience. Treating the facts Co. 94 U. S. 164, 24 L. ed. 97; Chicago, M. found by the commission as sustaining the & St. P. R. Co. v. Ackley, 94 U. S. 179, 24 conclusion reached by that body, it was de- L. ed. 99; Winona & St. P. R. Co. v. Blake, cided that the commission had power to 94 U. S. 180, 24 L. ed. 99; Stone v. Wisconmake the order, and that the exercise of sin, 94 U. S. 181, 24 L. ed. 102; Ruggles v. the authority was not repugnant either to Illinois, 108 U. S. 536, 27 'L. ed. 816, 2 Sup. the Constitution of the United States or of 108 U. S. 541, 27 L. ed. 818, 2 Sup. Ct. Rep.

Ct. Rep. 832; Illinois C. R. Co. v. Illinois, the state. Notwithstanding the finding of 839: Stone v Farmers' Loan & T. Co. 116 facts made concerning the means by which U. S. 307, 29 L. ed. 636, 6 Sup. Ct. Rep. 334, the connection at Selma was to be per- 388, 1191; Stone v. Illinois C. R. Co. 116 formed, the court construed the order of U. S. 347, 29 L. ed. 650, 6 Sup. Ct. Rep. the commission as not having been solely 348; Stone v. New Orleans & N. E. R. Co. based upon the means of performance re

116 U. S. 352, 29 L. ed. 651, 6 Sup. Ct. Rep. ferred to in the findings, and as embracing 349, 391; Dow v. Beidelman, 125 U. S. 680, not only a choice of the methods referred 31 L. ed. 841, 1 Inters. Com. Rep. 56, 8 Sup.

. ; Co. v. to therein, but any other which the Coast Gibbes, 142 Ú. S. 386, 35 L. ed. 1051, 12 Line might choose to adopt, provided only Sup. Ct. Rep. 255; Chicago & G. T. R. Co. it accomplished the purpose of the order. v. Wellman, 143 U. S. 339, 36 L. ed. 176, 12 But whilst thus, from one point of view, Sup. Ct. Rep. 400; Pearsall v. Great Northassignments of error rest upon the hypoth- | although numbered separately, but reiteresis that the order which the court be- ates grounds of error to be found in the low enforced was so arbitrary and un- others. In other words, the various grounds reasonable in its character as to transcend of error are so interblended in the several the limits of regulation, and to be in effect propositions as to render it impossible to a denial of due process of law, or a depriva-treat one as distinct from the other. All tion of the equal protection of the laws. the grounds, however, which the proposi

As the public power to regulate railways | tions assert as establishing the arbitrary and the private right of ownership of such and unreasonable character of the order property coexist and do not the one destroy complained of may be embraced under four the other, it has been settled that the right general headings, which we proceed to disof ownership of railway property, like other pose of. property rights, finds protection in consti- 1. That the order was arbitrary and untutional guaranties, and, therefore, wher- reasonable, because beyond the scope of the ever the power of regulation is exerted in authority delegated to the corporation comsuch an arbitrary and unreasonable way as mission by the state law. to cause it to be in effect not a regulation, As this proposition involves no Federal but an infringement upon the right of question, and is concluded by the judgment ownership, such an exertion of power is void entered below, we put the subject out of because repugnant to the due process and view. And, although not cognate to this equal protection clauses of the 14th Amend proposition, to clear the way for the conment. The result, therefore, is that the sideration of the substantial issues, we also proposition relied upon is well founded if it put aside the suggestion made in argument, be that the order which the court below that, as the Southern Railway,

by its enforced was of the arbitrary and

arbitrary and un change of schedule, originally rendered the reasonable character asserted.

connection at Selma impossible, therefore In coming to consider the question just that road should have been compelled to restated it must be borne in mind that a store the connection by a modification of court may not, under the guise of protect the schedule or schedules of the trains by ing private property, extend its authority it operated. We put this suggestion aside to a subject of regulation not within its because it does not seem to have been competency, but is confined to ascertaining seriously urged in the court below, and bewhether the particular assertion of the sides is so directly refuted by the findings legislative power to regulate has been exer- that we think it requires no further notice. cised to so unwarranted a degree as, in 2. The order was arbitrary and unreasonsubstance and effect, to exceed regulation, able, because, when properly considered, it and to be equivalent to a taking of proper- imposed upon the Coast Line a duty foreign ty without due process of law, or a denial to its obligation to furnish adequate faciliof the equal protection of the laws. We ties for those traveling upon its road. shall not, in analyzing the case, undertake This rests upon the assumption that, as to review in their order the ten propositions | the order was based not upon the neglect of of error found in the record and reproduced the Coast Line to afford facilities for travel in the briefs of counsel, as each proposition, | over its own road, but because of the failern R. Co. 161 U. S. 646, 665, 40 L. ed. 838, 33 L. ed. 970, 979, 3 Inters. Com. Rep. 209, 844, 16 Sup. Ct. Rep. 705; Louisville & N. 10 Sup. Ct. Rep. 462, 702; Chicago & G. T. R. Co. v. Kentucky, 161 U. S. 677, 695, 40 R. Co. v. Wellman, 143 U. S. 339, 344, 36 L. ed. 849, 857, 16 Sup. Ct. Rep. 714; Wis- L. ed. 176, 179, 12 Sup. Ct. Rep. 400; Reacousin, M. & P. R. Co. v. Jacobson, 179 U. gan v. Farmers' Loan & T. Co. 154 U. S. S. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115; 362, 399, 38 L. ed. 1014, 1024, 4 Inters. Minneapolis & St. L. R. Co. v. Minnesota, Com. Rep. 560, 14 Sup. Ct. Rep. 1047; St. 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, Rep. 900; Minneapolis & St. L. R. Co. v. 657, 39 L. ed. 567, 570, 15 Sup. Ct. Rep. Minnesota, 193 U. S. 53, 48 L. ed. 614, 24 484; Chicago, B. & Q. R. Co. v. Chicago, Sup. Ct. Rep. 396; Chicago, B. & Q. R. Co. 166 U. S. 226, 241, 41 L. ed. 979, 986, 17 v. Illinois, 200 U. S. 561, 584, 50 L. ed. 596, Sup. Ct. Rep. 581; Smyth v. Ames, 169 605, 26 Sup. Ct. Rep. 341; Atlantic Coast U. S. 466, 512, 42 L. ed. 819, 838, 18 Sup. Line R. Co. v. Florida, 203 U. S. 256, 51 L. Ct. Rep. 418; Chicago, M. & St. P. R. Co. ed. 174, 27 Sup. Ct. Rep. 108; Seaboard Air v. Tompkins, 176 U. S. 167, 172, 44 L. ed. Line R. Co. v. Florida, 203 U. S. 261, 51 L. 417, 420, 20 Sup. Ct. Rep. 336; Minneapolis ed. 175, 27 Sup. Ct. Rep. 109.

& St. L. R. Co. v. Minnesota, 186 U. S.

257, 46 L. ed. 115l, 22 Sup. Ct. Rep. 900; IStone v. Farmers' Loan & T. Co. 116 Chicago, B. & Q. R. Co. v. Illinois, 200 U. U. S. 307, 331, 29 L. ed. 636, 644, 6 Sup. s. 561, 592, 50 L. ed. 596, 609, 26 Sup. Ct. Ct. Rep. 334, 388, 1191 ; Chicago, M. & St. Rep. 341. P. R. Co. v. Minnesota, 134 U. S. 418, 455,

ure to furnish facilities to those traveling | ditional facilities, we think the proposition on the Coast Line who desired also to con- here relied on to be without merit. Its nect with and travel on the Southern road, error arises from assuming that adequate therefore the order was in no just sense a facilities were afforded at Selma or via regulation of the business of the Coast Weldon and the Seaboard without referLine. This reduces itself to the contention ence to the order complained of. In view that, although the governmental power to of the facts as to the connections at Selma regulate exists in the interest of the public, and the Weldon route, found by the comyet it does not extend to securing to the mission and reiterated by the court, which public reasonable facilities for making con- we have previously stated, and which we nection between different carriers. But accept, we cannot escape drawing for ourthe proposition destroys itself, since at one selves the conclusion deduced both by the and the same time it admits the plenary commission and the court below that the power to regulate, and yet virtually denies connections relied on were wholly inade. the efficiency of that authority. That quate for the public convenience, and, therepower, as we have seen, takes its origin fore, a state of things existed justifying the from the quasi public nature of the busi- order. ness in which the carrier is engaged, and 4. That, however otherwise just and embraces that business in its entirety; reasonable the order may have been, it is which, of course, includes the duty to re- inherently unjust and unreasonable because quire carriers to make reasonable connec- of the nature of the burden which it necestions with other roads, so as to promote the sarily imposes. convenience of the traveling public. In This proposition is based on the hyconsidering the facts found below as to the pothesis that the order, by necessary inconnection in question, that is, the popu- tendment, directed the Coast Line to operlation contained in the large territory ate an additional train, although such train whose convenience was subserved by the could not be operated without a daily peconnection, and the admission of the rail-cuniary loss. The premise upon which this road as to the importance of the connection, proposition rests would seem to be irwe conclude that the order in question, con- relevant, since the court below, in one sidered from the point of view of the re- aspect of its opinion, treated the order of quirements of the public interest, was one the commission as not requiring the operacoming clearly within the scope of the tion of an extra train from Rocky Mount power to enforce just and reasonable regu- to Selma. Yet, as the facts found by the lations.

commission and which were affirmed by the 3. That the facilities afforded the public court would indicate that it was considered by the railroad were of such a character as that the operation of such train was the to demonstrate that the extra burden which most direct and efficient means for making would result from the complirince with the the ordered connection, and as the court order was wholly arbitrary and unreason- considered and passed upon the duty of the able.

railroad to comply with the order, even if to This rests upon the assumption that as do so it became necessary to operate the there were several existing daily connec- extra train at a loss, we think the propositions between trains of the Coast Line and tion relied upon is open and must be dethose of the Southern at Selma, which cided. The contention is that the fact that might be availed of by those desiring to some loss would result from the requiretravel from eastern to western North Caro- ment that the extra train be operated, in lina and beyond, and as, besides, the proof and of itself, conclusively establishes the established that another connection operat- unreasonableness of the order, and demoning the same result was afforded by way of strates that to give it effect would constiWeldon and the Seaboard Air Line to tute a taking of property without due Raleigh and thence further west, therefore process of law, in violation of the 14th it was both arbitrary and unreasonable to Amendment. Conclusive support for this superadd an unnecessary connection. Con- contention, it is insisted, is afforded by the ceding, as must be done, that the nature doctrine upheld in Smyth v. Ames, 169 U. and extent of the existing facilities fur- S. 466, 42 L. ed 819, 18 Sup. Ct. Rep. 418, nished by a carrier for the public conven- and the cases which preceded that decision. ience are essential to be considered in de- The cases relied upon, however, only intermining whether an order directing an involved whether a general scheme of maxicrease of such facilities is just and reason- mum rates imposed by state authority preable, and that the deficiency of facilities vented the railroads from earning a reasonmust clearly appear to justify an order able compensation, taking into view all directing the furnishing of new and ad- proper considerations as to the value of the property and the cost of operation, and, It is insisted that, although the case be if so, whether the enforcement of rates so not controlled by the doctrine of Smyth v. unreasonably low would be unjust and un- Ames, nevertheless the arbitrary and unreasonable, and, therefore, be confiscation - reasonable character of the order results that is, a taking of property without due from the fact that to execute it would reprocess of law, in violation of the Consti- quire the operation of a train at a loss, even tution of the United States. The princi- if the result of the loss so occasioned would ple upon which the cases in question pro- not have the effect of reducing the aggreceeded was thus summed up by Mr. Justice gate net earnings below a reasonable profit. Harlan, delivering the opinion of the court The power to fix rates, it is urged, in the in Smyth v. Ames, 169 U. S. 526, 42 L. ed. nature of things, is restricted to providing. 842, 18 Sup. Ct. Rep. 426:

27 S. C.-38.

for a reasonable and just rate, and not to “A state enactment, or regulations made compelling the performance of a service for under the authority of a state enactment, such a rate as would mean the sustaining establishing rates for the transportation of of an actual loss in doing a particular persons or property by railroad that will service. To hold to the contrary, it is not admit of the carrier earning such com- argued, would be to admit that a regulation pensation as, under all the circumstances, might extend to directing the rendering of is just to it and to the public, would de a service gratuitously or the performance of prive such carrier of its property without first one service and then another and still due process of law, and deny to it the another, at a loss, which could be continued equal protection of the laws, and would, in favor of selected interests until the point therefore, be repugnant to the 14th Amend was reached where, by compliance with the ment of the Constitution of the United last of such multiplied orders, the sum States."

total of the revenues of a railroad would But this case does not involve the en be reduced below the point of producing a forcement by a state of a general scheme reasonable and adequate return. But these of maximum rates, but only whether an extreme suggestions have no relation to the exercise of state authority to compel a car- case in hand.

case in hand. Let it be conceded that if a rier to perform a particular and specified scheme of maximum rates was imposed by duty is so inherently unjust and unreason- state authority, as a whole adequately reable as to amount to the deprivation of munerative, and yet that some of such property without due process of law or a rates were so unequal as to exceed the denial of the equal protection of the laws. flexible limit of judgment which belongs to In a case involving the validity of an order the power to fix rates, that is, transcendenforcing a scheme of maximum rates, of ed the limits of just classification, and course the finding that the enforcement of amounted to the creation of favored class such scheme will not produce an adequate or classes whom the carrier was compelled return for the operation of the railroad, in to serve at a loss, to the detriment of other and of itself demonstrates the unreasonable class or classes upon whom the burden of ness of the order. Such, however, is not the such loss would fall, that such legislation case when the question is as to the validity would be so inherently unreasonable as to of an order to do a particular act, the do- constitute a violation of the due process ing of which does not involve the question and equal protection clauses of the 14th of the profitableness of the operation of the Amendment. Let it also be conceded that railroad as an entirety. The difference be a like repugnancy to the Constitution of tween the two cases is illustrated in St. the United States would arise from an order Louis & S. F. R. Co. v. Gill, 156 U. S. 649, made in the exercise of the power to fix 39 L. ed. 567, 15 Sup. Ct. Rep. 484, and a rate when the result of the enforcement Minneapolis & St. L. R. Co. v. Minnesota, of such order would be to compel a carrier 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. to serve, for a wholly inadequate compensaRep. 900. But even if the rule applicable tion, a class or classes selected for legisto an entire rate scheme were to be here lative favor, even if, considering rates as a applied, as the findings made below as to whole, a reasonable return from the operathe net earnings constrain us to conclude tion of its road might be received by the that adequate remuneration would result carrier. Neither of these concessions, howfrom the general operation of the rates in ever, can control the case in hand, since force, even allowing for any loss occasioned it does not directly involve any question by the running of the extra train in ques- whatever of the power to fix rates and the tion, it follows that the order would not constitutional limitations controlling the be unreasonable, even if tested by the exercise of that power, but is concerned doctrine announced in Smyth v. Ames and solely with an order directing a carrier to kindred cases.

furnish a facility which it is a part of its

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