
    CAHILL & REDMAN et al, Respondents, v. GREAT NORTHERN RY. COMPANY, Appellant.
    (166 N. W. 306.)
    (File No. 4186.
    Opinion filed February 5, 1918.)
    1. Carriers — Application for Stockyard Scales — Carrier’s Duty to Install, for Local Dealers — Rule.
    A railway carrier owes no duty to' the local buyer or seller k>f live stock, as to installation of stockyards scales for his convenience in buying live stock; nor at all until the stock is tendered at the stockyards for shipment.
    2. Railroads — Railroad Commissioners, Order of to Insta'l Stockyards Scale — Sparcity of Shipments — Evidence, Sufficiency.
    Where, in an application for installation by a railroad of a stockyards scale, the evidence showed that 56 interstate carloads of stock were shipped from the station in question from 1912 to April, 1915, immediately preceding the hearing, and no intra-state shipments were made save 2 single animal shipments, held, that the Board of Railroad Commissioners properly ordered the railroad in question to install at a station a four-ton stockyard scale, to facilitate the weighing of local stock loaded into and unloaded from cars at the station.
    3. Carriers — Furnishing by Railroad of Stockyard Scales, Whether Pertaining to Transportation — Reasonable Facilities — Rule.
    The furnishing of stockyard scales by a railroad carrier, at point of shipment of live stock, by means of which shipper may ascertain the minimum loading of cars, as well as excess loading, so far pertains to transportation business as to constitute such scales a reasonable facility for transacting its business with shippers at initial points of shipment; the reasonableness of such requirement, however, depending upon surrounding circumstances and conditions.
    4. Railroad Commissioners — Authority to Investigate, Determina^ tion, Conditions re Transportation Facilities — Decision of Board, When Reversal Justified — Rule.
    Where an administrative commission, such as the Board of Railroad Commissioners, has been created by law, and vested with authority to investigate and determine conditions which justify requirement of proper facilities for transportation of commodities or passengers, the general rule is that its determination upon matters of fact should not be disturbed by appellate courts, unless it clearly appears that the decision is unreasonable, or arbitrary, or based upon an erroneous or mistaken theory of law. ,
    Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.
    Upon application of Cahill & Redman, to the Board of Railroad Commissioners, said Board ordered that the Great Northern Railway Company, a corporation, installed and put into operation at a station a stockyards scale at Albee Station, and from the judgment of the Circuit Court, reversing the order of the Board, the State appeals.
    Order affirmed.
    
      Olii'er B. Swee't, Assistant Attorney General, for the Railway Commiis’si'co.
    
      Aikens & Judge, for Respondent.
    (3) To point three of the opinion, Appellant cited: Great Northern Railway Company v. Minnesota Railroad and Warehouse Commission. 238 U. S. 340; New Mexico Wool Growers Association v. Atchison, Topeka & Santa Ee Railroad Co., (N. M.), 145 Pac. Rep. vyyf.
    
    Respondent cited: Florida East- Coast R. R. Co. v. U. S. 234 U. S. 185; Mo. Pac. R. R. Co. v. Neb., 164 U. S. 417; I. C. C. v; Louisville & N. R. C., 227 U. S. 90; Washington, ex rel Oregon R. & N. Co. v. Fairchild, 224 U. S. 510, 532, 533.
    (4) To point four of the opinion Appellant cited; Chap. 207, Laws of 1911, Sections t, 2, 4; Chap. 214, Laws 1907; Chap. 39, Laws 1909; Chap. 209, Laws 1909; Chap. 267, Laws 1909; Chap. 2R2, Laws ign; Gh-ap. 214, Laws 1911; Chap. 215, Laws 1911; Chap. 303, Laws 1913; Chap. 264, Laws 1915; Chap. 263, Laws 1915; Chap. 270, Laws 1915; Chicago, R. I. & P. Ry. Co. v. Nebraska State Railway Commission, 85 Neb. 818; 124 N. W. 477; 26 L. R. A. (NS) 444; Minneapolis, St. P. & S. St. M. R. Co. v. Railroad Commission of Wisconsin, 116 N. W. 905; 17 It. R. A. (NS) 821; Chicago, I. & R. Ry. Co. v. Railroad -Commission of Indiana, 78 N. E. 338.
    Respondents cited': New Mexico Wool Growers Association v. Atchison, Topeka & Santa Ee (N. M.) 145 Pac. Reporter 1077; Great Northern Railway Company v. Minnesota Railroad & Warehouse Company, 238 U. S. 240.
   SMITH, J.

The Board of Railroad Commissioners- made an order:

“That the Great Northern Railway Company construct and put in operation at its stockyards at its station at Albee, in Grant county, in this state, not later than April 15, iqi6, a four-ton Eairbanks-Morse stockyards scale, in- such manner as to permit -of the weighing of local stock loaded into and unloaded from cars at that station, as well as the weighing of stock .received into the stockyards at Albee.”

The Great Northern Railrttad appealed from this order to the circuit court o-f Minnehaha county, and that court, upon review of the evidence and proceedings before the Board of Railroad Commissioners, found as a matter of fact that a scale at the -stcckyyards at Albee was not a facility necessary foto the convenience and accommodation of the public; that shipments of local stock from said station are made and freight charges thereon computed upon a basis not requiring the use of stockyard' scales-at said station; that live stock so shipped and loadW into care is subject to tariff minimum weights, arid) is weighed1 ulpoln trade scales at the terminal market, and that the weight so ascertained is the basis upon which freight charges -are computed; that stockyard -scales at the town- of Albee is not an instrumentality of shipment or carriage, and is not included in “transportation,” and is not .a facility for receiving, forwarding, or delivering property -by the oommion carrier to and from its 'lines-, or other l'inles arid places -connected' therewith: that such scales would be useful and would 'be used' onlv for the purpose of facilitating the -consummation -of business transactions between buyers and sellers of local stock, and would not h** "«tol at the station of Albee as the basis of weight for ascertaining or computing freight charges for 'transportation, or for any purpose connected with transportation of such property by the defendant; that carload lots of stock are always shipped subject to tariff minimum carload rates, and that weighing at terminal or other points en route is for the purpose only of ascertaining the excess of the load over minimum weight, upon which excess freight charges are computed to be addled to tine minimum, carload, rate.

The following facts, although not included in the express findings of the Board of Railroad Commissioners, or in the findings of the trial court, are shown by undisputed evidence in the record, viz.: From May, 1912, to April, 1915, inclusive, only 56 carloads of stock were shipped from the town of Alfeee to. terminal points outside of the state, .and during the same period not a single carload shipment was made to. any point in South Dakota ; also that -in the same .period only two- shipments of single animals were made ito a point in -South. Dakota.

As a -conclusion of law the court found that the enforcement of the order woul-d not be justified by public necessities which defendant Could lawfully be compelled to meet, and wo-ukl 'Constitute an arbitrary aadi 'unre'asonaiM’e talcing of 'defendant’s property. Thereupon judgment was entered, reversing the order of the Board of Railroad Commissioners, and the matter is before us upon appeal from the finding's, conclusion, and judgment of the circuit court.

Appellant relies upon two proposition's: First, that local buyers and sellers of live stock have the right to- demand the installation of stockyard scales for their o-wn convenience in buying live stock: and, second, that it is the duty of the carrier to furnish the shipper such facilities- as will enable him to avoid underloading cars where the rate is fixed upon minimum loads, and to ascertain the cost of shipping stock in .a car in excess of the minimum carload wp'™’1'- fallacy of the first proposition is, to clear that discussion would be idle. The carrier owes no duty to the local buyer -or seller of live stock until the stock is tendered at the stockyards for shipment. New Mexico Wool Growers’ Ass’n v. ‘ ‘ ' T. & S. F. R. R. Co., 20 N. M. 33, 145 Pac. 1077: McDonald v. Pittsburg, C., C. & Ct. L. R. Co., P. U. R. 1916E, 801.

The evidence on behalf of appellant is substantially as follows: Mr. Cahill, one of the complainants, -testified that his firm were the -only buyers of live stock at Albee; that the stockyards scales were required for their convenience and for the convenience o-f -the patrons of the railroad -company; that when they bought stock, and weighed it on different scales, the sellers were not satisfied : that they -did not -buy in carloads, and thait carload weights would not determine the amount of stock bought from any individual; that his firm bought by weight; that, when buying stock, i-t wa-s' -driven into the stockyard-s, and each animal was taken to a scale belonging to a coal dealer, about 200 feet from -the stockyards, where it was weighed; that the freight rates on stock shipments ' '--'rmined by weighing on track scales at the terminal point, which is the uniform practice; that his firm ships practically all .their stock to South St. Paul; that they had made no shipments of stock in carload lots to any point in South Dakota; that the only way they can arrive at values of stock is by weighing it — that is, the value allowed the seller; that sometimes they 'had two or three carloads of stock in the yards a.t one time; that stock cars were of different capacities, and that it was, necessary to weigh stock when loading it, in order to- determine the minimum load for each car; that the main thing is -to guard -against overloading and underloading; that they pay more attention to the condition of the ca-rs as to overcrowding than as to weight. Mr. Redman, his partner, testified that it would be more convenient for his firm and for the men they buy from to ¡have a -scale on account of weighing the stuff; that it would also be handy in the way -of loading cars, as Mr. Cahill stated; that two or three times -parties at Watertown would have bought hogs, hut -they were unable to sell them on account of n'ot having any way to weigh them. Mr. Street, a witness for the complainants testified that the principal reason why there should be scales at th-e s-tockyaudis at Alb-e-e -is in buying -cattle; ¡that he- w-as a stock raiser and would rather sell stock to¡ a buyer where there was a stockyards scale: that he preferred to- sell by weight rather than on the hoof; that the scale facilitates busines-s between the -purchaser and the seller; that he ships his stock -t-o South St. Paul-, Wellatz, -a witnesis om behalf of -compila'inant-s, testified that he was a stock raiser and sold mostly to- Red-man and Cahill; that they ought to have a stockyards scale' ar Albee because they had so much- bother with other scales when stock was weighed. Mr. Chambers, station agent at Albee, testified that in 1912 eleven carloaldls of stock were shipped from Albee, in 1913 four carloads, in 1914 nineteen carloads, in 1915 from January to April, inclusive, nine carloads — a total of 56 carloads; that no carload shipments of stock during that time 'had been made to any point in South Dakota; that .a couple of single animals carried to Bancroft were the only intra sítate shipments made in the 'Same period.

The general rule, as stated in 10 Corpus Juris, 59 (§ 44), is that:

“The Legislature of a state has the power to require carriers, in the carrying on of their business as such, to afford every reasonable facility, and convenience for the transaction of such business with the patronizing public, and .this power may be delegated to a commission by the Legislature. The carrier may, in addition to the facilities and accommodations already furnished, be required to render a particular service that is essentially its duty to do, for the reasonable requirements of the public service undertaken, and the fact that such service would be unremunerative and burdensome does not operate to prevent the state from imposing the duty to perform it, if the burden to the carrier has some fair relation to the benefits accruing to the .public, and the burden of the particular service, considered with reference to the entire business of the carrier, does not in fact amount to a denial to the carrier of a reasonable compensation for the service rendered by it as an entirety. * * * The duty of a carrier’ of live stock it is said cannot- be efficiently 'discharged without "the aid of .pens or yards in which the live stock offered for shipment can be received and handled with •safet}'’ and without inconvenience :to. the public, before being loaded- in the cars in which •they are to be transported, and such, duty is strictly analogous to the duty of the carrier to construct and maintain-a secure depot for inanimate freight.” Id. 79 (§ 81).

The principle stated is applicable here. The furnishing ■of stockyard scales by. the carrier, at the point of shipment of live stock by means of which the shipper may ascertain! the minimum loading of cars, as well as excess loading, so- far pertains to the business of transportation itself as to constitute such scales a reasonablé facility for transacting its business with shippers at the initial point of shipment. The reasonableness of such requirement, 'however, •depends in . each instance upon surrounding circumstances and conditions. The judgment appealed from appears to have been based largely upon the theory that stock} ard scales are not an instrumentality of transportation of live stock, although the trial court found that such a scale “is not a facility necessary for the safety, convenience, and accommodation of the public” at the town of Albee. The evidence is undisputed as to the amount of live stock shipped each- year during the three years preceding the ¡hearing; but we are not convinced that the installation of a four-ton stock scale, as ordered 'by the Board of Railway Commissioners, is not actually and reasonably necessary for the proper convenience of shippers, of live stock.

The general rule, where such administrative commissions have been created by law, and vested with authority to investigate and determine conditions which justify the requirement ■of proper facilities for the transportation of commodities dr passengers, is that a determination or decision upon matters of fact should riot be disturbed by appellate courts, unless it clearly appears that such decision is unreasonable or arbitrary ,or is based upon an erroneous or mistaken theory of the law. Minneapolis, etc., Ry. Co. v. Railroad Comm., 136 Wis. 146, 116 N. W. 906; 17 L. R. A. (N. S.) 821; People ex rel v. Public Service Comm. et al., 173, App. Div. 780, 160 N. Y. Supp. 63; Hocking Valley Ry. Co. v. Board of Public Ut. Comms., 92 Ohio St. 9, 110 N. E. 621, Am. Cas. 1917B, 1154; Public Service Ry. Co. v. Board of Public Ut. Comms., 87 N. J. Law, 250, 93 Atl. 585; State ex rel. v. Great Northern Ry. Co., 123 Minn. 463, 144 N. W. 155.

We are therefore of the view that the findings and judgment of the trial court should be reversed, and the order of the Railway Commissioners, requiring the installation of any standard four-ton stockyards scale at the town of Albee, should be affirmed. It will be so ordered and adjudged.  