Aandahl v. Great Northern Railway Co.

Birdzell, J. (after stating the facts as above). The question presented is one of the power of the Board of Eailroad Commissioners to make the order which lies at the foundation of the judgment of the district court. The existence of this power is dependent upon the statutes which prescribe the powers and duties of the commissioners of railroads. Its seems to be practically conceded that there is no statute which contains a specific authorization in express terms. Section 589, Compiled Laws of 1913, vests in the Eailroad Commissioners general supervision over all railways, etc., and authorizes them to inquire into any neglect or violation of the laws of the state; also to carefully inspect “as provided by law” the condition of each railroad and its equipment, and the manner of its conduct and management, — 582 — with reference to public safety and convenience. Section 4713, Compiled Laws of 1913, recognizes tbe right of city, village, and township authorities to complain to the Board of Railroad Commissioners with reference to rates and the “condition or operation” of any railroad, and recognizes the right of the legal voters to petition the local authorities to make complaint and application to the board, in response to which the commissioners are authorized to adjudicate the matter and report to the governor. Section 4715 makes it the duty of railroads to furnish, start, and run cars for the transportation of persons and property, when offered for transportation “at any of its stations on its line of road, and at the junctions of other railroads, and at such stopping places as may be established for receiving and discharging passengers and freights; and requires that they “shall take, receive, transport, and discharge such passengers and property at, from, and to such stations, junctions, and places on and from all trains advertised to stop at the same for passengers and freight respectively. . . .” Section 4656 requires every railroad to “build and maintain a station house and keep a station agent twelve months each year when so ordered by the Railroad Commissioners at all of its sidings where there is grain and merchandise of any description to be shipped, when the outgoing and incoming freight, and all other receipts at said stations, amount to $12,000 or more in any one year. Provided, that said stations are not less distant than 5 miles apart upon the same line of railway.” The record in the instant case is in one respect quite peculiar. There is an abundance of testimony going’ to establish the freight receipts properly apportionable to the village of East Eairview and also testimony to the effect that the principal shippers of freight in East Eair-view are given the advantage of intrastate rates in North Dakota upon such intrastate shipments as they make. For this purpose the place of origin of the freight is considered to be East Eairview, North Dakota, and not Fairview, Montana, where the billing is done. There is no testimony touching the passenger rates or the handling of passenger traffic at East Eairview, save the statement at various places in the record to the effect that passengers frequently get on and off the trains at East Eairview while they are stopped there for other purposes than receiving and discharging passengers in the regular way. Yet, neither the order of the Railroad Commissioners nor the judgment of the dis583 triet court attempts to compel the railroad company to provide any additional facilities for tbe handling of freight, the order and judgment being limited entirely to the duty to erect a platform and building for the accommodation of such passengers as might desire to get on and off trains at East Fairview. It is clear that the judgment is not founded upon § 4656; for, as before stated, it does not require any alteration in the existing method of handling the freight traffic at East Fairview. It is equally clear that, while § 4113 seems to recognize the municipal corporation as a unit in initiating investigations by the Board of Railroad Commissioners, this section deals primarily with rates and with the “condition and operation” of railroads, affecting the complaining municipality. While it does not provide any specific remedy to be applied by the board, it is doubtless contemplated that the power to adjudicate the complaint shall carry with it the power to direct the employment of reasonable means to remedy the situation complained of, if the necessity is determined to exist. But, as we view this section, it would not authorize the Railroad Commissioners to establish stations where none were provided before, nor could the Commissioners, acting under this section alone, require the outlay by carriers of considerable sums of money in locating, building, and maintaining new stations. We are also of the opinion that § 589, which describes in broad language the powers and duties of the board, cannot be construed as authorizing orders requiring the establishment of new stations. Section 4715, however, specifically mates it the duty of every common carrier to furnish, start, and run cars for the transportation of persons offering themselves for transportation at any of its stations and at such stopping places as may be established for receiving and discharging passengers, and it requires that they shall take, receive, transport, and discharge, such passengers from and to such stations and places from nil trains advertised to stop at the same for passengers. Exhibit 1 in this ease is a folder, such as is generally issued by railroad companies, containing the local time-tables upon the lines, of the appellant company. Time-table No. 146 is a schedule of trains on •the Snowdon-Fairview-Amegard and Watford line. In this schedule East Fairview appears as a station at which two of the trains of the .appellant, one going each way daily, except Sunday, are advertised to ■stop, there being five minutes difference in time between East Fairview — 584 — and Fairview, a distance of approximately half a mile. The time-table in this respect is the same as in the cases of Grand Forks and East Grand Forks, Fargo, and Moorhead, and Wahpeton and Breckenridge, at the eastern boundary of the state, whei’e separate stations are maintained. This exhibit, in connection with the testimony going to establish a more or less well-defined custom of allowing passengers to get on- and off trains that stop at East Fairview for other purposes, in the opinion of the writer, and of Mr. Justice Grace, constitutes a sufficient showing of the handling of passenger traffic at East Fairview to make that place a stopping place within § 4715, above quoted. But a majority of the court is of the opinion that the evidence is insufficient to show that any stopping place had been established by the railroad company or recognized by it, other than the regular station established at Fairview. It is conceded by all that this question of fact is, under the record, a close one, the majority being impressed particularly by the fact that there is no evidence that passenger tickets have been sold to and from East Fairview, and that" those desiring to get on and off the trains at such point have merely availed themselves of the uncertain opportunity afforded by the stopping of trains there for other purposes. If the fact of the establishment of the stopping place were found to be in accordance with the view of the writer of this opinion, the propriety of the judgment directing the construction of a station house and platform for the accommodation of passengers would, of necessity, be tested in the light of the condition thus created by the company itself. The statutory duties, under § 4715, would follow as a matter of course. In, view of the ample argument of counsel and of the public nature of the question, we feel warranted in saying that, under this construction, the following considerations would be controlling as to the powers of the Railroad Commissioners: It is one‘thing to require that a station be established at a point not previously recognized as a station and quite another matter to require the maintenance of suitable facilities for the accommodation of passenger traffic that has its beginning and ending at a definite place. Upon the supposition that the legislature has made it the duty of the railroad company to receive and discharge passengers at East Fairview, the action of the Board of Railroad Commissioners could not be regarded as going further than necessary to require reasonable accommodations for such traffic. While there is no — 585 — statute which, in specific terms, authorizes such an order, we are of tbe opinion that if the evidence warranted a finding of the existence of a stopping place at East Fairview there is ample authority for the railroad commissioners to make the order in question. Upon the supposition that a definite duty is imposed to supply cars and stop trains for the handling of passenger traffic, the obligations incident to the public calling of the appellant, in the light of the conditions under which its traffic must be handled, are not met unless there be provided such reasonable facilities as will enable the company to handle the traffic in a reasonably safe and convenient manner; and we are of the opinion that the judgment in question goes no further than this, and that it would be amply warranted by §§ 4713 and 4715 of the Compiled Laws of 1913. There is even respectable authority for the proposition that the courts possess inherent power to require those engaged in public callings to respect the obligations incident thereto, even where the legislature has not imposed a positive duty and even where duties of similar character are imposed by a statute not applicable to the particular situation. See People ex rel. Hunt v. Chicago & A. R. Co. 130 Ill. 175, 22 N. E. 857. A somewhat similar principle was applied in State v. Hartford & N. H. R. Co. 29 Conn. 538; Railroad Comrs. v. Portland & O. C. R. Co. 63 Me. 369, 18 Am. Rep. 208; State ex rel. Mattoon v. Republican Valley R. Co. 17 Neb. 647, 52 Am. Rep. 424, 24 N. W. 329, also reported upon rehearing in 18 Neb. 512, 26 N. W. 205; Concord & M. R. Co. v. Boston & M. R. Co. 67 N. H. 464, 41 Atl. 263; State ex rel. Tompkins v. Chicago, St. P. M. &. O. R. Co. 12 S. D. 305, 47 L.R.A. 569, 81 N. W. 503. But since our legislature has seen fit to enact legislation which seems to be quite comprehensive, embracing the major duties attaching to the operation of railroads in this state, we do not feel called upon to express our adherence to a doctrine as broad as was applied'in some of the foregoing cases. The regulation of railroads is primarily a legislative function; and where the legislature has attempted to exercise its powers 'to the extent that it has in this state, we are of the opinion that it is only in exceptional cases a court would be warranted in exercising its inherent powers through mandamus. The fact, however, of the existence of such a power indicates the necessity of giving a reasonable construction to the regulatory — 586 — and supervisory statutes vesting general supervision in tbe administrative agencies created by tbe Constitution, to tbe end that specific duties attaching to tbe particular calling, and wbieb are imposed by tbe legislature, shall be discharged in a reasonable manner, viewed from tbe standpoint of public safety and convenience. We have examined tbe cases of Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. Rep. 185; Northern P. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. ed. 1092, 12 Sup. Ct. Rep. 283; People v. New York, L. E. & W. R. Co. 58 Am. Rep. 484, 104 N. Y. 58, 9 N. E. 856; Nashville, C. & St. L. R. Co. v. State, 137 Ala. 439, 34 So. 401; and State ex rel. Smart v. Kansas City, S. & G. R. Co. 51 La. 200, 25 So. 126. While these authorities are not consistent with the holdings in Connecticut, Maine, Nebraska, New Hampshire, and South Dakota, in the cases hereinbefore referred to, they cannot be regarded as direct authorities, where the duty sought to be enforced is one which is fairly to be inferred from the statutes. These authorities point only to the necessity of there being legislative authority for such an order as the one in question. According to the view of the majority of the court, no stopping place having been established at East Eairview, no duties devolve upon the railroad company to provide passenger facilities at that point, and there being no statute upon which the order and judgment can be based, the judgment appealed from must be reversed. It is so ordered. BRONSON, J., being disqualified, did not participate, Honorable W. L. Nubs sue, Judge of Sixth Judicial District, sitting in his stead. Robinson, J. This is an appeal from an order of the district court in accordance with an order of the Eailroad Commissioners which is that the railway company must construct and maintain at East Eair-view a platform and passenger depot. As appears, East Eairview is on the east side of the Montana line, and Eairview is just on the other side. The villages are separated only by the imaginary line. The distance from the center of one village to the center of the other is a quarter of a mile; from the center of East Fairview; to the depot is about f of a mile, because the depot is well to the west of Eairview so as not to impede traffic and to give the trains a good starting place. — 587 — Now East Fairview is 4-| miles west from Cartwright and f of a mile east from the depot. It has a few business bouses, a schoolhouse, but no postoffice. Its population is less than 300; that of Fairview is over 900. In time the two villages may become cities and be united as greater New York. The company shows that the cost of a platform and a depot would amount to $3,000 and the cost of maintenance $200 a month, and that a loss and detriment to the railway company and the public would result from the construction of a railway station and the stopping of trains at such short distances as a half mile or f of a mile. There is nothing except the state line to obstruct the transit from one village to the other, or to prevent the two villages from becoming a greater New York. Yet, it is claimed that each village should be given the same railway facilities as St. Louis and East St. Louis, Nansas City and West Kansas City, Omaha and Council Bluffs, Fargo and Moorhead, Grand Forks and East Grand Forks, Bismarck and Mandan. Yet we should remember that even in these big cities many people have to go § of a mile to the railway depot, and many people do not like to have a railway station in the hack alley or in very close proximity. Doubtless it was for that reason, as well as for the high ground, that the railway station was put § of a mile from the business center of those villages, and to give them a better chance to grow westward. But, waiving the humor of the question and leaving jokes aside, it does seem quite funny and ridiculous for a little place with but two or three score families to insist on having a railway station and a depot built and maintained for their special accommodation when they have a good depot, at the most, within a half or § of a mile. Of course the order must be reversed.