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Thompson v. Commerce Com.

OPINION FILED NOVEMBER 18, 1953.

GUY A. THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD CO., APPELLEE,

v.

ILLINOIS COMMERCE COMMISSION, APPELLANT.



APPEAL from the Circuit Court of Randolph County; the Hon. QUINTEN SPIVEY, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Randolph County which set aside an order of the Illinois Commerce Commission dated May 16, 1952, denying the petitioner, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, the authority to discontinue the operation of two passenger trains between Menard and Mt. Vernon, Illinois, and remanding the cause to the commission with directions to grant the petition.

The commission on behalf of the public served by the trains has taken this appeal. There is very little conflict in the factual situation both as to the use of the trains by the public and as to the out-of-pocket loss to the railroad by the operation of the trains in question.

The trains in question are trains numbered on said railroad as 832 and 831. These are not passenger trains in the accepted sense, but consist of rural suburban units of single gas electric motorcars of considerable age containing power plant, passenger accommodations, and some room for small freight. Train number 832 travels west from Mt. Vernon to Menard every morning and train number 831 makes the return trip every afternoon. The route of these trains is approximately 64 miles, and covers a mining and agricultural section, serving three county seats, as well as industries and the State penitentiary at Menard. Twenty-seven thousand people are shown to live in the area through which the railroad runs, but many of the areas are farm areas. The record discloses that the trains in question afford the only railroad passenger service for these areas.

Considerable public opposition appeared to the petition for discontinuance. One hundred twenty-seven persons appeared at the hearing held on said petition on July 28, 1950. Half of them appeared as witnesses against the granting of said petition and there was presented a resolution of opposition from the city councils of Chester, Pinckneyville and Mt. Vernon. The chambers of commerce of Steeleville and Chester, and the village board of Tamaroa were introduced, and several witnesses appeared from these communities all in opposition to the petition.

The record discloses that the trains in question are used for small freight shipments, merchandise, as well as cream and chickens, and also that they carry mail and parcel post. In contemplation of the discontinuance of the trains, the petitioner has instituted a truck service to serve the shipping and express needs of the communities. Some criticism of this service appears in the record on the grounds that the same operates during the night and early morning hours and not at the time of railroad operation, and as a consequence inconvenience results. The Commerce Commission made no finding as to the adequacy or inadequacy of this service, and based its order of denial of the petition entirely upon an alleged need for passenger service transportation.

The principal question to be determined is whether the order of the commission finding the public convenience and necessity required the continued operation of these trains is against the manifest weight of the evidence. This court, in Illinois Central Railroad Co. v. Commerce Com. 410 Ill. 77, held that there were three factors that should be considered in determining this question, (1) the cost of providing the service, (2) the use made by the public of the service, and (3) the availability and adequacy of other transportation facilities.

There is practically no dispute in the record as to the figures regarding the cost of providing service, and same is incorporated in the commission's findings.

In 1945 the out-of-pocket loss for the train operations of these two trains was $7757. In 1949 this had increased to $14,984, and in 1951 it had reached the sum of $20,436. The total expense in 1946 was $17,759 and in 1951 it had reached the sum of $29,167. The passenger revenue was $2041.93 in 1950 and in 1951 it amounted to the sum of $1511.40. The trains require a three-man crew, and the wages for the month of December amounted to $1157. The total gross passenger, mail, express and baggage revenues for the year amount to only $8731.

The second factor to be considered, according to the Illinois Central case, is as to the use of the service provided by the trains for the public. The best evidence, of course, as to whether there is a public necessity for the continuation of the trains is the extent to which the public makes use of them. The record discloses that in 1947, 9803 persons used both trains, in 1948, 8261, in 1949, 5072, and in 1951, the last available year for which statistics were gathered for the purpose of this case, the number was 4598. It is apparent that beginning with the year 1947 and including the year 1951 there was a decrease of 50 percent in the number of passengers who made use of the service provided by the trains. Inasmuch as each of these trains in question was operated every day in the year, except Sundays, each train would average only about 7 passengers getting on and off the train daily.

The record further discloses that the passenger revenue received during the year 1951 was $1511.40 and that the average fare paid by each was 32.8 cents and the average distance traveled per passenger was only 13.8 miles. The commission's findings indicate there are 27,125 inhabitants in just the incorporated areas served by the trains in question, and therefore only 34 percent of 1 percent of the population of the area in the incorporated towns used the accommodations of the trains during 1951. During the month of December, 1951, the average passenger per train mile was 1.27, with passenger revenue from both trains in the amount of $98. In determining the existence of public necessity or convenience the controlling interest to be considered is the public interest, and the convenience and necessity required to support an order of the commission and that of the public rather than the interest or convenience of some few individuals. Roy v. Commerce Com. ex rel. North Shore Connecting Railroad, 322 Ill. 452; Illinois Central Railroad Co. v. Commerce Com. 410 Ill. 77.

The third factor as set forth in the Illinois Central case is the availability and adequacy of other transportation facilities in the event the operation of the trains was discontinued. The commission contends by its finding that there is no direct highway parallel to the route of the railroad and therefore there can be no other comparable adequate public passenger service available by rail or bus to the residents of the communities. To this the petitioner replies that direct service is not required where public convenience and necessity is being adequately serviced through the use of transfer or connecting transportation facilities. Gulf Transport Co. v. Commerce Com. 402 Ill. 11.

An examination, however, of the bus service if it is available discloses as follows: In finding 18 of the commission it is recited that it takes almost 2 1/2 hours to travel from Chester to Mt. Vernon by rail while by bus it requires 7 hours and 22 minutes one way and 5 hours and 53 minutes in returning. In this connection, however, it is also shown that during the month of December, 1951, only 4 passengers traveled on Train No. 831 from Chester to Mt. Vernon and only 9 persons traveled on Train No. 832 between these points. During the last six months of 1951, being the last period during which testimony was introduced in this proceeding, only 40 persons traveled on train No. 832 from Chester to Mt. Vernon, and only 42 persons used No. 831 in returning.

Finding 18 of the commission also shows that it is possible to travel from Pinckneyville to Steeleville in 34 minutes by rail while 3 hours and 53 minutes is ...


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