
    The Akron, Canton & Youngstown Railway Co. et al. v. The Public Utilities Commission of Ohio.
    
      Railroads — Physical connections — Intersecting tracks — Railroads for promotion of public benefit — Statutory jurisdiction of public utilities commission — Public necessity the test for proposed connection — Lawfulness of finding by commission.
    
    1. The laws of this state do not make it the absolute duty of a railroad company whose tracks cross or intersect those of another company to establish and maintain a physical connection between the tracks of such railroads so as to admit of the passage of cars from one road to another.
    2. Statutes regulating railroad traffic are enacted for the purpose of promoting adequate, prompt and efficient service, not primarily in the interest of the railroad companies but for the benefit of the public, and the test to be applied in every case of a proposed physical connection of tracks is that of practicability of construction and reasonable necessity to accommodate the public.
    3. In this state jurisdiction over such matters has been by statute conferred upon the public utilities commission, and it is authorized to require such physical connection of tracks where, upon hearing, it finds the same to be practicable and reasonably necessary to accommodate the public.
    4 A charge of unjust discrimination is not made out by the mere fact of a previous connection with the tracks of one company and a refusal to establish such connection with the tracks of another company. Reasonable public necessity for the proposed connection is the ultimate test in every case.
    5. Under the circumstances shown in this case the action of the public utilities commission, in finding that the connection of tracks asked for was not reasonably necessary to accommodate the public, and in dismissing the application therefor, was neither unlawful nor unreasonable.
    (No. 15373
    Decided June 26, 1917.)
    Error to the Public Utilities Commission.
    This case comes into this court by proceeding in error from the Public Utilities Commission of Ohio, which commission denied the application of the plaintiffs in error for an order requiring that physical connection of the tracks of The Cleveland, Akron & Cincinnati Railway Company and The Akron, Canton & Youngstown Railway Company be made at a point approximately 820 feet west of the intersection of said railroads in the city of Akron.
    The record discloses that the line of railroad of The Akron, Canton & Youngstown Railway Company is constructed and operated from a point in the village of Mogadore, Summit county, Ohio, where it has physical connection of its tracks with the tracks of The Wheeling & Lake Erie Railroad Company, westwardly to and into the city of Akron, where it connects with the Northern Ohio, the Erie and the Baltimore & Ohio railroads; that it is 7 miles in length, and has about 13 miles of sidetracks; that it has no passenger station or cars, and handles only freight, its equipment consisting of 5 engines and 99 cars; that The Cleveland, Akron & Cincinnati Railway Company owns a line of railway extending from Hudson, Ohio, (at which place it forms a junction with a line of railway leased and operated by the defendant, The Pennsylvania Company, extending to Cleveland, Ohio,) to Columbus, Ohio, passing into and through the city of Akron, Ohio, and from Kill-buck, Ohio, to Morrow, Ohio; and that the defendant, The Pennsylvania Company, is in possession of and operates, among other lines of railway in the state of Ohio, The Cleveland, Akron & Cincinnati Railway, which latter road has physical connection between its tracks and the tracks of The Erie Railroad Company, The Baltimore & Ohio Railroad Company and The Northern Ohio Railroad Company, all in the city of Akron.
    It is averred in the complaint that the tracks of The Akron, Canton & Youngstown Railway Company lie contiguous to certain enumerated manufacturing plants and places of business in the city of Akron, which would use- the Cleveland, Akron & Cincinnati railway in the shipping of their products to various points reached by that railway and its connections, if the physical connection were made between said roads, and that such connection would be of advantage to the several industries and places named and to the public. It is averred further that the defendants do not secure and extend to all persons, companies and corporations the same and equal facilities for the receiving and shipping of freight, but on the contrary unreasonably, unlawfully and unjustly discriminate against the complainants; and that The Akron, Canton & Youngstown Railway Company is unable for want of such physical connection to afford reasonable and proper facilities to the shippers along its line of railroad.
    
      The defendants aver that the complainant, The Akron, Canton & Youngstown Railway Company, consists of a fragmentary line of railroad, approx-, imately 7 miles in length, which is without any adequate terminals either in the city of Akron or elsewhere, and without the means of acquiring the same; that said railroad is a mere switching line and renders no service which cannot now be performed and better performed by the other railroads operating in and through the city of Akron; that the sole purpose of this action is to cause the defendants to open to the Akron, Canton & Youngstown railway the valuable and exclusive property of The Cleveland, Akron & Cincinnati Railway Company in the city of Akron; and that any order such as is sought .by the complainants would be unreasonable, unlawful and void, and would deprive the defendants of their property without compensation and without due process of law, contrary to the provisions of the Constitution of the . United States and of the state of Ohio.
    The complainants by reply deny the averments of the answer.
    Evidence was submitted upon the issues made by the pleadings, upon consideration whereof the Public Utilities Commission announced its conclusion that the evidence disclosed no such public necessity as would justify an order requiring the connection. A petition for rehearing was filed by the complainants and was overruled by the commission, and thereupon a petition in error was filed in this court.
    
      
      Messrs. Taylor & Stewart, for plaintiffs in error.
    
      Mr. Freeman T. Eagleson; Mr. Karl E. Burr and Mr. W. E. Young, for defendant in error.
   Matthias, J.

The plaintiffs in error are in this ' court by virtue of Section 544, General Code, which provides that a final order of the Public Utilities Commission of the state may be reversed, vacated or modified by the Supreme Court on a petition in error, if upon consideration of the record the court is of the opinion that such order was unlawful and unreasonable.

The action of the Public Utilities Commission complained of is that it denied the application presented by the plaintiffs in error for an order requiring that a physical connection be made of the tracks of The Akron, Canton & Youngstown Railway Company and those of The Cleveland, Akron & Cincinnati Railway Company. The company last named refused to make or permit the connection of tracks sought by the former, whereupon the jurisdiction of the Public Utilities Commission was invoked under the provisions of the statute conferring upon it authority to act in such matters, particularly Section 614-42, General Code, which provides in substance that if any such road or .roads fail, neglect or refuse to make such connection, upon complaint of any party authorized by statute to file complaint, the commission shall proceed to hear and determine the same, and if upon hearing the commission shall find it is practicable and reasonably necessary to accommodate the public to connect such tracks and that when so connected, it will be practicable to transport over such road, cars without endangering the equipment, tracks or appliances of either company, then the commission shall make an order requiring such railroads to make connection, describing the terms and conditions, and apportion the cost thereof between the railroads.

It was argued in the presentation of this case that by force of the provisions of Section 522 and Section 8997, General Code, every steam railroad in this state has the absolute right to connect its tracks with the tracks of any railroad of the same gauge which it crosses or intersects, so as to admit the passage of cars from one road to another with facility, and that likewise an absolute duty devolves upon every steam railroad in the state to join in establishing and maintaining such connection of its tracks with the tracks' of each and every road of the same gauge which it crosses or intersects.

We are of the opinion, however, that a consideration of the provisions of the several sections of the statute having to do with the connection of tracks of railroad companies, and the interchange of traffic by them, does not warrant the conclusion that an absolúte right is thereby conferred upon one company to make or require such physical connection of its tracks with the tracks of any and every road of the same gauge which it crosses, but that its right so to do depends upon whether the proposed connection is practicable and reasonably necessary to accommodate the public.

The test of public necessity must be applied in every case, and an order requiring the connection óf tracks is invalid unless the conditions disclosed meet that test. Wisconsin, M. & P. Rd. Co. v. Jacobson, 179 U. S., 287; Oregon Rd. & Nav. Co. v. Fairchild, 224 U. S., 510; Great Northern Ry. Co. v. Minnesota, 238 U. S., 340; and Seaboard Air Line Ry. Co. v. Georgia R. R. Com., 240 U. S, 324.

In the case last cited, which was decided in 1916, the supreme court of the United States, in upholding the order of the railroad commission of the state of Georgia, whereby it had required a physical connection of the tracks of two railroads, cited with approval the cases above referred to, and held:

“It is within the power of a State, acting through an administrative board, to require railroad companies to make physical track connections where public necessity exists .therefor.
“In determining whether such public necessity exists, just regard should be given on the one side to probably resulting advantages, and, on the other side, to the necessary expenses to be incurred.
“A finding of public necessity for a physical track connection cannot be supported by the mere declaration of the commission; there must be sufficient evidence to support it.”

It could not have been contemplated therefore that any of the statutes to which reference has been made, or any law of the state, should reqitire a railroad company, regardless of the existence of public necessity, to throw open its terminals and facilities and thereby transfer to another company valuable property rights. (Louisville & Nashville Rd. Co. v. Central Stock Yards Co., 212 U. S., 132.) It is quite obvious that the purpose of the enactment of these statutes was to promote adequate, prompt and efficient transportation service, not in the interest or for the advantage of a railroad company, but for the advantage and benefit of the public.

The following statement of the court in The L. S. & M. S. Ry. Co. v. The C., S. & C. Ry. Co., 30 Ohio St., 604, 616, is quite pertinent here: “These roads are great public highways, and as such are amenable to such reasonable regulations, not inconsistent with vested rights of private property, as will promote that object.”

Hence regulatory statutes have been enacted whereby railroads and public utilities are required to conform their operations to- the necessities of the public, and in the several states various provisions have been made for the determination of the question of practicability and reasonable necessity for the proposed connection of the tracks of railroads. In this state jurisdiction over such matters has been conferred upon the Public Utilities Commission by statute, particularly Sections 524 and 614-42, General Code. It is essential, therefore, that before an order can be made by the commission, such as is sought in this proceeding, the commission shall find that the proposed connection of tracks is practicable and reasonably necessary to accommodate the public, and, unless the conditions and circumstances laid before the commission are such as to induce and warrant such a finding, an order of the commission requiring the connection of the tracks of such railroads would be invalid.

In this casé the commission, after a full hearing, in which much evidence was adduced, .the locality visited and the conditions there investigated, found that considerations of public necessity did not require the connection of tracks as asked for by the complainants, and refused the order prayed for. This court has heretofore held that in proceedings of this character it will not substitute its judgment for that of an administrative board of the state whose finding and judgment is under review, and that before it will disturb an order of such board, made after a full hearing upon a matter within its province, it must appear from a consideration of the record that the action of the board was unlawful and unreasonable. The Hocking Valley Ry. Co. v. The Public Utilities Commission of Ohio et al., 92 Ohio St., 362.

In order to determine whether the action of the commission in refusing to order the track connection was unlawful and unreasonable, this court has fully and carefully examined the evidence and considered the same in accordance with the rule stated in Oregon Rd. & Nav. Co. v. Fairchild, supra, and adopted by this court in The Hocking Valley Ry. Co. v. The Public Utilities Commission of Ohio et al., 92 Ohio St., 9, which is that the court in reviewing such proceedings shall examine the evidence, not for the purpose óf passing upon conflicts in the testimony or of deciding upon bare questions of fact, but to determine whether what purports to be a finding upon questions of fact is so involved with and dependent upon questions of law as to be in substance and effect a decision of the latter.

The question of public necessity must be determined in each case in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier, and upon a consideration of the evidence showing the places and persons interested, the volume of'business to be affected, the saving of time and expense to shippers as against the cost and loss to the carrier. (Oregon Rd. & Nav. Co. v. Fairchild, supra.) It is not enough that it be shown that a mere convenience would be furnished to a few individuals by the proposed change, but it must appear that material and substantial public benefit and advantage would result therefrom. The record discloses that the extent of territory affected by the proposed connection is quite circumscribed, the volume of business to be thereby served relatively small, and the saving of time and expense to shippers inconsiderable.

It is not necessary and would not be profitable to incorporate in this opinion a recital or discussion in detail of the evidence shown by the record. It is sufficient to say that it supports the conclusion of the commission that considerations of public necessity do not warrant an order compelling the connection of the tracks of these two companies. The tracks of The Akron, Canton & Youngstown Railway Company now connect with the tracks of The Northern Ohio Railroad Company, The Erie Railroad Company and The Baltimore & Ohio Railroad Company, in the city of Akron, and with the tracks of The Wheeling & Lake Erie Railroad Company, at Mogadore, which is the terminus of the Akron, Canton & Youngstown railway. The tracks of The Cleveland, Akron-& Cincinnati Railway Company now also connect with the tracks of The Northern Ohio Railroad Company, The Erie Railroad Company, and The Baltimore & Ohio Railroad Company. The proposed connection would afford shippers but little benefit in addition to that now secured by established connections. We are of opinion that the commission was right in concluding that a provision whereby a few local points could be reached by a less mileage than at present would not result in material benefit or advantage to the public. The mere fact that a physical connection is maintained with another road in the same locality, while denied the complainant, does not establish the claim of unreasonable or unjust discrimination. What is undue or unreasonable preference or advantage, or unjust discrimination, is not a question of law but of fact. (Pennsylvania Co. v. United States, 236 U. S., 351, and Louisville & Nashville Rd. Co. et al. v. United States, 242 U. S., 60.) Under the decision of the commission the facts must have been found adverse to complainants. Such conclusion is amply supported by the record. Reasonable necessity to accommodate the public is the ultimate test in the consideration of every such application. A charge of unjust discrimination therefore is not made out by the mere fact of a previous connection with the tracks of one company and a subsequent refusal to establish such connection with the tracks of another, in the absence of the essential fact of reasonable public necessity for the proposed connection.

We find no substantial or prejudicial error in the proceeding before the commission, and its order is therefore affirmed.

Order affirmed.

Nichols, C. J., Newman, Jones, Johnson and Donahue, JJ., concur.  