Kansas, Oklahoma & Gulf Railway Co. v. State

1954 OK 215, 275 P.2d 274, 1954 Okla. LEXIS 641, 1954 WL 73475

• Court: Supreme Court of Oklahoma
• Decided: July 7, 1954
• Docket: 35763
• Status: Published

Opinions

WILLIAMS, Justicé.

This case is here on appeal from 'an order of the Corporation Commission of Oklahoma, refusing permission and - authority to appellant and denying it the right to discontinue operation of its passenger trains numbers 9 and 10 between Muskogee, Oklahoma, and the Oklahoma-Texas state line.

1 The factual situation herein is so similar' to those in the recent cases of St. Louis-San Francisco Ry. Co. v. State, Okl., 262 P.2d 168, and St. Louis-San Francisco R. Co. v. State, 204 Okl.' 432, 230 P.2d 709, and Missouri-Kansas-Texas R. Co. v. State, Okl., 266 P.2d 642, wherein we reversed the orders of the-commission because not supported by substantial evidence reasonably tending to sustain such orders, that much of the language used in those opinions is applicable here.

It is further to be noted that the language of the charter and franchise of appellant here does not specifically require the furnishing of passenger service, whereas the language of the charter and franchise of appellant in the three cited cases specifically required the furnishing of passenger service.

It might further be noted that only one or two people . travel over appellant’s " road daily. Also, while a small number of the children of one school district are using appellant’s facilities temporarily, the school district plans to buy a bus for their use. We are unwilling to say that the convenience and occasional use by a few citizens of the communities through which appellant’s line runs constitutes. general public necessity, when, as shown here, 97.7% of the affected population live on State or Federal Highways, and 95.8% of the affected population have inter-city bus service available, and approximately one person out of each four in the counties traversed by the affected portion of appellant’s road owns a private automobile.

Under the provisions of the Constitution, this Court on appeal from an order of the Corporation Commission, is required to review the evidence, for the purpose of determining whether the order appealed from is supported by substantial evidence, and when there is such evidence reasonably tending to support the order of the Commission, such order must 'be sustained; and, conversely, if the order is not so sustained the Commission’s order will be reversed.

We have examined the record and find that the Commission’s order denying appellant permission to discontinue its passenger trains numbers 9 and 10 on the ground that there existed a public necessity as distinguished from a public convenience for the continued passenger train service supplied by said trains is not supported by substantial evidence reasonably tending to sustain the order.

The order herein is reversed on the authority of the three cases, supra, and the cause is remanded with directions to enter an order granting the application.

HALLEY, C. J., JOHNSON, V. C. J., and WELCH, CORN and O’NEAL, JJ., concur. DAVISON, ARNOLD and BLACKBIRD, JJ., dissent.