
    The Adena Railroad Co. et al. v. The Public Service Commission of Ohio.
    
      Railroads — Charter—Common carriers — Public utilities commission —Order to furnish passenger service.
    
    
      A railroad company, organized under the general laws of the state, whose charter declares its purpose of “building, acquiring, owning, leasing, and maintaining a railroad to be operated by steam or other motive power,” is amenable to the control of the railroad (now public utilities) commission in so far as its property or its traffic is intrastate; and under such a charter the company, as a common carrier, in addition to its obligations as a carrier of freight, may be required by such commission to provide reasonably adequate passenger service and facilities, if the circumstances warrant and the corporation is reasonably able' to comply with such order.
    (No. 14340
    Decided March 16, 1915.)
    
      Error to the Court of. Appeals of Franklin county.
    The Adena Railroad Company, organized under the general laws of the state of Ohio as a railroad company, on March 4, 1901, obtained a charter from the state, which provided for a capitalization of $1,000,000, and, “Third: Said corporation is formed for the purpose of building, acquiring, owning, leasing, operating and maintaining a railroad to be operated by steam or other motive power having for its termini the village of Adena, Jefferson county, Ohio, and Martin’s Ferry, Belmont county, Ohio, * * * and to have, exercise and enjoy all other powers, rights, privileges, immunities, and franchises of a railroad company under the laws of the state of Ohio.”
    The company acquired rights of way between Adena, in Jefferson county, and Neffs, in Belmont county, a distance of about twenty miles, and in 1904 completed its road between those points.
    On July 5, 1911, one James T. Bentley filed a complaint before the railroad commission of Ohio ■against The Adena Railroad Company and its lessee, The Wheeling and Lake Erie Railroad Company, and Worthington as receiver, alleging that no service had been established for the transportation of persons or passengers and that no adequate freight service had been established for the carriage of freight in less than carload lots, and praying for the establishment of two passenger trains per day in each direction and for the establishment of reasonable and adequate freight service for the transportation of freight in less than carload lots.
    Testimony was taken before the commission, which found that the defendants failed to provide reasonable and adequate passenger service and freight service for freight in less than carload lots between Adena and Neffs, and ordered them to provide the following service and facilities to the public residing along the company’s line: . First, by operating daily, except Sunday, a train for passengers, leaving Adena at some convenient hour in the morning and another at some convenient hour in the afternoon, each to arrive at Neffs as soon after leaving Adena as a proper running schedule would permit, and stopping at the stations between Adena and Neffs, when signaled so to do, to receive and discharge passengers. Second, by operating daily, except Sunday, a train for passengers, leaving Neffs at some convenient hour in the morning and another leaving Neffs at some convenient hour in the afternoon, under the same conditions. Third, that reasonably adequate freight service should be provided for traffic offered in less than carload lots at stations, by operating a train carrying freight shipments in less than carload lots, daily, except Sunday, between Adena and Neffs, and Neffs and Adena.
    Thereupon the defendants, under authority then given them by statute, filed their action in the common pleas court to vacate and set aside the order of the commission, on the ground that the service fixed in such order was unreasonable and in violation of the federal and state constitutions. The common pleas court found against the plaintiff companies and dismissed the petition. An appeal was then taken to the court of appeals, where the case was heard on substantially the same testimony tendered before the commission.
    The court of appeals made substantially the same order as the commission and dismissed the petition, but reserved the right, upon application of the plaintiffs, to open up the judgment and rehear the question as to the reasonableness of the order as to the second daily passenger train at the end of six months after the service had been installed, and upon such rehearing to make such order as the justice of the case required. From this order error was prosecuted to the supreme court.
    After such error proceedings were begun the public utilities commission of Ohio, the successor of what was formerly known as “the railroad commission” and later “the public service commission,” by leave of this court, filed an answer to the petition in error, in which it was alleged that since the hearing in the court of appeals, upon a motion for new trial and application for rehearing under the reservation in judgment entered by that court, the court of appeals, upon the evidence in the original hearing and supplementary evidence offered in relation to the result of the operation of the passenger service installed upon said Adena railroad, found that said order, in so far as the same required the operation of a second daily passenger train, was unreasonable and unjust, and ordered that one passenger train a day, in either direction, should be run at convenient hours, and further reserved the power in the commission to make such additional orders in respect to passenger service as might thereafter be just and proper under changed conditions.
    
      Messrs. Henderson, Livesay & Burr; Messrs. Squire, Sanders & Dempsey and Mr. Robert F. Denison, for plaintiffs in error.
    
      Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee; Mr. George Thornburg; Mr. Herbert W. Mitchell and Mr. Charles C. Marshall, for defendant in error.
   Jones, J.

What might have been the duties and obligations of the railroad company as a common carrier, had its charter specifically declared its purpose to carry 'freight only, or whether such an authorization would be valid, it is not necessary here to determine. Its declared purpose, under its incorporation, was to build, acquire, own, lease, operate and maintain a railroad to be operated by steam or other motive power. It was thus organized under the general laws of the state, and assumed all the functions and became saddled with all the obligations of a common carrier of freight and passengers. By its charter it obtained the special powers and privileges granted railroad corporations, including the right of eminent domain. Having the undoubted power, under its charter, to perform the functions of a common carrier of passengers, it became amenable to the state’s control in relation to that specific duty. Its obligations are mutual and correlative. Since the railroad company under its franchise could insist upon its right to carry passengers, the state could also insist upon the performance of that duty by the carrier within reasonable limits. By authority of law supervisory and regulatory duties over common carriers, were imposed upon the commission under the provisions creating that body. It is provided by Section 504, General Code, that “Each railroad shall furnish reasonably adequate service and facilities.”

Section 535, General Code, provides that if, upon investigation, the commission finds that any service in connection with the transportation of passengers is unreasonable or that any service is inadequate, it may fix reasonable service to be imposed and followed in the future. These and other kindred sections recognize the commission’s governmental agency and control over railroads as common carriers, and make no distinction between them as carriers of passengers or commodities.

By its incorporation, under the general laws, the corporation assumed the performance of duties for the benefit of the public generally as a common carrier. Scofield v. The L. S. & M. S. Ry. Co., 43 Ohio St., 571; State v. The Hazelton & Leetonia Ry. Co., 40 Ohio St., 504; 4 Elliott on Railroads (2 ed.), section 1392.

That it has held itself out to the public, for a period of time, as a carrier of freight only, does not impinge upon the right of the state to compel .the exercise of its franchise, if that right existed at the time of the grant and was not affected by subsequent legislation.

The cases cited by plaintiffs in error are not in conflict with the right of the state regulation and control of common carriers. These cases were decided before the modern plan of commission control had been adopted by many of our commonwealths, and they go no further than to hold that the carrier’s duties are measured by the public needs and limited by the reasonable exercise of its franchise. Unless otherwise provided by law, these duties are not absolute but relative, and depend in each instance upon varying conditions, involving the public service on the one hand and reasonable regulation upon the other. These questions have .been confided by the state to the commission, which had full power to determine, upon the evidence, whether reasonably adequate service, including passenger service, had been furnished. This included also the determination of the question whether under the circumstances the railroad was able to furnish such service and whether the public needs reasonably demanded it.

The principle is stated by Mr. Justice White in the case of Atlantic Coast Line Rd. Co. v. North Carolina Corp. Commission, 206 U. S., 1: “As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the obligation to discharge that duty must be considered in connection with the nature and productiveness of the corporate business as a whole, the character of the services required, and the public need for its performance.”

We hold, therefore, that under the charter herein obtained at least a relative duty was imposed upon the corporation to maintain a passenger service if the evidence justified the commission in finding that the same was reasonably necessary-in order to provide adequate service to the public and did not otherwise violate a constitutional right by imposing a burden upon the company heavier than it could sustain. Inasmuch as the evidence upon which the court of appeals based its finding upon the rehearing is not before us at this time, it is obvious that we cannot consider whether the order made by that court was reasonable or other-' wise.

The judgment of the court of appeals is affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker and Matthias, JJ., concur.  