Chicago, Indianapolis & Louisville Railway Co. v. Public Service Commission

Lairy, J. — On application of the Chicago, Lake Shore and South Bend Railway Company, the Public Service Commission made an order directing that a physical connection should be constructed for the transfer of freight in carload lots between the lines of that company and the lines of the Chicago, Indianapolis and Louisville Railway Company at Michigan City, Indiana. The order contemplates the construction of an interchange track connecting the two lines of railroad, and provides that, in case the two companies should be unable to agree on a division of the costs, éither company might apply to the commission for an apportionment of the costs. Appellant filed an action against the appellee to have the order set aside and declared null and void. This action was tried in the Porter Circuit Court, and resulted in a judgment in favor of appellee. Appellant assigns as error that the trial court erred in overruling its motion for a new trial, which was based on the grounds that the decision of the trial court was not sustained by the evidence and was contrary to law. In support of the assignment of error it is asserted by appellant that the location of the proposed connection and its situation with respect to the streets of the city and the existing railroad tracks render the construction of the connecting track unpractical and its operation dangerous. ' Upon this question there is evidence to sup [337] port the decision of the court, although there is some conflict. 1. It is next claimed that the evidence does not show that the physical connection for the interchange of freight will result in any substantial benefit to the pub-lie by affording an additional convenience or accommodation to shippers or receivers of freight, or that it will in any way facilitate or improve shipping conditions. In discussing a similar case, the Supreme Court of Ohio well said: “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 lóss to the carrier. (Oregon Rd. & Nav. Co. v. Fairchild, supra [224 U. S. 510.]) 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.” Akron, etc., R. Co. v. Public Util. Comm. (1917), 96 Ohio 359, 117 N. E. 314; Wheeling, etc., R. Co. v. Public Util. Comm. (1917), 96 Ohio 370, 117 N. E. 317. 2. After a full consideration, the court is of the opinion that there is no substantial evidence that there exists any public necessity for the physical connection ordered by the commission. No shipper or receiver of freight testified in the case, and there is no evidence to show that any freight in carload lots. would be transferred from either of the roads to the other over the interchange track contemplated if the same were to be constructed. It is shown by the evi [338] dence that the Chicago, Lake Shore and South Bend Railroad Company receives for its own consumption each year 1,400 or 1,500 carloads of coal, which could be transferred to its tracks by means of the proposed interchange track. This coal comes from some place in the Brazil fields over the Chicago, Indianapolis and Louisville Railway, and in the past the cars have beer-switched from the tracks of that road to the tracks of the Lake Erie and Western Railroad Company, and from the tracks of that road to those of the Chicago, Lake Shore and South Bend Railroad Company over interchange tracks already in existence. This involves a double switching charge which the Chicago, Lake Shore and South Bend Railroad Company seeks to avoid by securing the contemplated interchange track. The president and general manager of the Chicago, Lake Shore and South Bend Railroad Company, Mr. Wilcoxon, testified that the tracks in Michigan City were already open to the company which he represented, and that all freight in carload lots could move over the lines of such road into Michigan City over its connection with the Lake Erie and Western Railroad Company and its connecting lines, and that the proposed connection, if provided, would afford his company facilities for- getting into the Haskel and Barker plant which otherwise it would not have, and also would enable it to abate the double switching charge. The same witness also testified that, if such terminal facilities with Haskel and Barker Company could be secured, his company would obtain a part or all of the line haul on freight destined for Haskel and Barker Company, which otherwise would be carried by the Chicago, Indianapolis and Louisville Railroad Company. It thus appears that the company seeking the connection is actuated, in part at least, by a desire to gain an advantage in its contest for business. [339] 3. [338] This court has recently decided that the law does not [339] contemplate that orders of this kind will be made for the purpose of aiding or assisting one carrier as against another in its competition for business. Indiana Harbor Belt R. Co. v. Public Service Commission (1918), 187 Ind. 660, 121 N. E. 540. It may be said with equal force that such an order will not be denied because it may have the effect of affording facilities which will be of advantage to one of the companies interested in securing business which otherwise would be handled by another company. Such controversies are wholly foreign to the considerations which control the action of the commission making or denying such orders and of the courts in passing on their validity. The necessities and requirements of the public is the paramount consideration in all such cases. Public necessity is the test; but it does not follow that a physical connection must be indispensable to' the public in order to be a public necessity as the expression is here used. When it is shown that such a connection will be a great convenience to shippers and that it will add materially to available transportation facilities so as to be a substantial benefit to commerce, it will be held to satisfy the test. Lourie Mfg. Co. v. Cincinnati, etc., R. Co. (1916), 42 I. C. C. 448. 2. The evidence bearing on the benefits to be derived by the public from the establishment of the interchange track contemplated by the order .is purely conjectural and speculative in character. The court is of the opinion that it does not satisfy the test, and that the order is not justified by evidence showing a public necessity. The judgment is reversed with instructions to sustain appellant’s motion for a new trial.