ROSSMAN, J.
This is an appeal by the defendant, the Public Utility Commissioner of this state, from a decree which the Circuit Court for Marion County entered in favor of the plaintiff, Portland Traction Company, in a suit instituted by it which prayed that the defendant (the commissioner) be enjoined from requiring the plaintiff “to furnish any passenger service over any part of its lines of railroad for any period of time as provided in said Order No. 35782 or otherwise.” Order 35782 is supplementary to two other orders which the commissioner also issued; one is 34218 and the other is 35219.
Order 35782 was entered January 25, 1958. On that day the Portland Traction Company (hereafter termed the company) abandoned all of its passenger service. Order 35782 directed it to continue its pas[356]*356senger service as detailed in Orders 34218 and 35219. Order 34218 was entered February 17, 1956, and directed the company to amplify its passenger service with the more frequent schedules which that order set forth. Order 35219 which was entered by the commissioner March 18, 1957, ordered the company to institute shuttle bus service between (1) its east Portland station, beyond which its ears could not go after March 1957 due to loss of trackage rights and (2) its west side terminal in Portland’s downtown west side business district.
The immediate objective of this suit is to secure a decree holding invalid Order 35782 which directed the company to continue to operate its passenger service. The ultimate objective of the suit is to enable the company to abandon its interurban passenger service. Since the company ceased the operation of all of its passenger cars on January 25, 1958, the same day that the commissioner entered Order 35782, the real purpose of the suit is to recognize as valid the company’s abandonment of its passenger service. The issue can be narrowed still further; December 26,1958, the commissioner “rescinded” Orders 34218, 35219 and 35782 through the entry of Order 36459. The words of the latter were: “Ordered that P.U.C. Oregon Orders 34218, 35219 and 35782 * * * relating to the rendition of interurban passenger service by Portland Traction Company are rescinded effective this date.” Thus, since Order 35782 as well as the two supplementary orders were rescinded December 26, 1958, the sole issue as to 35782 is the effect which must be recognized in it between the date of its entry on January 25, 1958, and December 26, 1958, when the commissioner entered his order “rescinded effective this date.” We add that the prayer of the complaint in [357]*357this suit seeks an order holding invalid only Order 35782.
This is the second appearance of this cause before this court. It came here the first time, Portland Traction Company v. Hill, 222 Or 636, 352 P2d 553, 353 P2d 838, shortly after the commissioner had “rescinded effective this date” the three above mentioned orders and the circuit court had thereupon concluded that this suit, which challenged their validity, had become moot. Our decision held that the words “effective this date” had a prospective effect only and that they did not of themselves affect any rights or liabilities that had accrued up to that day. The decision ruled that those words did not rescind the three orders from the day when each of them was entered (No. 35782 on January 25, 1958; No. 35219 on March 18, 1957; No. 34218 on February 17, 1956) but only from December 26, 1958, when the order was entered (36459) which undertook to rescind them.
Since Morgan v. Portland Traction Co., 222 Or 614, 331 P2d 344, which was also concerned with the validity of Order 35782 and its two companions, ruled that a suit of the very kind that is now before us is the exclusive means of testing the validity of orders of that kind, we held that the traction company was entitled to maintain this suit for the purpose of determining the validity of Order 34782, during the period of January 25, 1958, when it was entered, to December 26, 1958, when the order of rescission (“effective this date”) was announced. The decision took note of the threats that had been made of suits for penalties and treble damages based upon the company’s purported violation of the order. We, therefore, ruled that the suit had not become moot and remanded it to the circuit court.
[358]*358For the sake of achieving greater clarity we will retrace a few steps so as to develop better the sequence of events. February 17, 1956, while the company was operating its freight and passenger service the commissioner entered Order No. 34218 which directed the company to amplify its passenger service by operating more cars and more frequent schedules. The commissioner believed that superior service would cultivate increased patronage for the passenger service. The company complied with the order. By March 18, 1957, as we will later explain, the company lost the right it had enjoyed for many years of running its passenger cars across the Willamette River upon Hawthorne Bridge in Portland from the east side where it entered the city into the west side central business district where it maintained a station. At about the same time it lost its city franchise which had enabled it to maintain car rails in the city’s west side business streets. At that juncture the commissioner entered Order 35219 which directed the company to institute shuttle bus service between the east end of the Hawthorne Bridge and the company’s west side station. That order was entered March 18, 1957. By November 25, 1957, the company’s car riders were less than one-third their number in 1952, and thereupon the company gave notice to the commissioner and to the public, as permitted by ORS 760.215, that on December 15, 1957, it would abandon its passenger service. The commissioner directed the company to suspend its notice of abandonment and in the meantime held a series of hearings concerning the projected abandonment and the need for the company’s service. In the course of these hearings testimony was taken which, as transcribed, constitutes five volumes and covers 1,050 typewritten pages. It is accompanied with numerous ex[359]*359hibits of a statistical nature. Tbe bearings concluded December 30, 1957. January 25, 1958, tbe commissioner entered Order 35782 wbicb, as we bave said, directed tbe company to continue its passenger service. On the same day tbe company abandoned all of its passenger service. Since then it has operated no passenger ears. January 28, 1958, tbe circuit court, upon tbe commissioner’s ex parte demand, entered an order of peremptory mandamus commanding tbe company to comply with tbe various orders aforementioned issued by tbe commissioner. That proceeding resulted in Morgan v. Portland Traction Company, 222 Or 614, 331 P2d 344, which held that tbe validity of Order No. 35782 could not be questioned in that proceeding (mandamus) and could be challenged only in a suit of tbe type that is now before us, that is, one instituted in Marion County under ORS 756.580 et seq. and 760.580 et seq.
April 25, 1958, eight months before this court announced the Morgan decision, the company filed this suit (the one at bar) in the Circuit Court for Marion County under ORS 756.580 et seq. and 760.580 et seq., being the very kind of a suit which the Morgan decision held was essential to challenge Order 35782. November 17, 1958, the commissioner filed bis amended answer in this suit. It submitted that Order 35782 was reasonable and not confiscatory. Then testimony was taken and at its close, December 15, 1958, the court, as required by ORS 756.600, remanded the matter to the commissioner to enable him, among other matters, to make findings upon the testimony which was taken by the court. ORS 756.600 (2) provides that when a cause has been remanded to the commissioner be “may alter, modify, amend or rescind his order.” December 26, 1958, the commissioner [360]*360entered Order 36459 which referred to Orders 34218, 35219, and 35782, and then declared, as we have noted, that they “are rescinded effective this date.” Thereupon, the circuit court, under a belief that the three orders had become moot, dismissed the suit, that is, this suit. We reversed the order of dismissal and remanded the cause to the circuit court which stated in a memorandum opinion:
“It is the opinion of the Court that to require the plaintiff to provide the services directed in Order No. 35782 under the operation circumstances herein above related, is to deprive the company of its property without due process of law * * * and to deny to the plaintiff the equal protection of the laws * * *. There does not appear to be any schedule of rates or of services which would reasonably compensate plaintiff for its property dedicated to the public use, and that said Order No. 35782 is not reasonable. * * *”
The decree that was entered was in harmony with the statements made in the memorandum opinion which we just quoted. The date of its entry, December 20, 1960, was almost three years after the company had ceased to operate passenger service.
From the decree just mentioned the commissioner appealed; accordingly, the cause is before us again. When the commissioner entered Order 36459 which, referring to Orders 34218, 35219 and 35782, stated “they are rescinded effective this date” he entered nothing which he entitled findings of fact. The order gave a review of the proceedings that preceded its entry. It noted, for instance, that the company had twice previously, unsuccessfully, given similar notice of intention to abandon passenger service and expressed the commissioner’s disappointment over the outcome of judicial proceedings which had not sup[361]*361ported his orders to the extent that he desired. It questioned whether any orders given for the rehabilitation of the suburban service at that time could restore it. The Order took note of the bus transportation service that was available to those who previously had patronized the interurban railroad and after doubting its adequacy shortly mentioned that “InterCity Busses had obtained additional equipment and increased the frequency of its schedules traversing the Company’s service area by something in excess of 33 1/3%, all routes considered.” It added that InterCity Busses had materially increased its patronage and amplified its equipment after the company had ceased its passenger service. Order 35782, being the one under review, expressed the conviction that much of the company’s loss of patronage was due to its own desires and designs. It even attributed fault to the company in not having secured the right to maintain rails in the Hawthorne Bridge and the city streets.
The foregoing gives us the sequence of events. We will now mention additional facts.
The company for many years operated two short lines of railroad which rendered freight and passenger service between Portland and points south and east of it. Since its freight service is of collateral interest only, we will confine our description of the company’s operations largely to its passenger business. One segment of the railroad ran south of Portland for a distance of about 14 miles where it terminated at a point one mile beyond Oregon City. Upon it the company rendered passenger service to 25 intermediate points between Portland and Oregon City. The other segment ran for 24 miles in a direction from Portland which may be termed easterly. Passenger service which was rendered upon it for 13.10 miles terminated in a com[362]*362munity known as Bellrose. It served 24 intermediate points. The passenger service was rendered by cars of the kind commonly known as trolley or interurban cars. Freight trains also operated upon both segments of the company’s line.
Order 35219 was entered March 18, 1957, after the county commissioners of Multnomah County (Portland), incidental to the closing to rail traffic of Hawthorne Bridge in Portland, had torn up the rails which the company had used in running its cars into the west side (downtown) section of Portland. The company’s cars, before reaching Hawthorne Bridge, ran upon the east bank of the Willamette River for a considerable distance and then through an industrial area which brought them to southeast Front and Hawthorne streets on the east side of Portland where the company maintained a station. A hundred feet or so to the west was the east approach to the Hawthorne Bridge. The latter crosses the Willamette River to the west side of Portland. The car rails used by the company after crossing the river upon Hawthorne Bridge continued on for a distance of a mile or so to southwest First and Washington streets in downtown Portland where the company maintained a waiting room. Southwest First and Washington streets was the west side terminal of the company’s line.
When the rails on the bridge were torn up the company’s cars could no longer cross the bridge and reach the west side terminal. Services thereupon ended at southeast Front and Hawthorne streets. The inability of the passengers to cross the river in the company’s cars and proceed to the downtown part of the city was very unsatisfactory to them. About the same time the franchise which enabled the company [363]*363to maintain tracks in the city streets and operate its cars from the west end of the Hawthorne Bridge to southwest First and Washington streets expired and was not renewed by the city council of Portland. The county commissioners tore up the company’s tracks upon Hawthorne Bridge incidental to extensive reconstruction of the bridge and because of a belief that the operation of electric street cars upon the bridge would materially decrease the volume of traffic which the bridge could accommodate. In the meantime the company’s terminal at southwest First and Washington streets was condemned and thereupon destroyed by the state incidental to the construction of Harbor Drive and expanded approaches to the west end of Morrison Bridge. Order 35219, which we have mentioned, directed the company to institute shuttle bus service to its stations on the east and west sides of Portland. The company complied with Order 34218 and after contesting the validity of Order 35219 complied in the main with it. The city and county officials were firmly opposed to any rails in the deck of Hawthorne Bridge and in the pavement of the city streets. They believed that the operation of trolley cars upon the bridge and in the streets hindered the flow of traffic.
ORS 760.205—760.255 (Oregon Laws 1957, chapter 415, page 576) prescribes the circumstances under which railroads may reduce or abandon their passenger service and also the extent of supervision which the commissioner may exercise over them as they reduce or abandon their service.
Section 3 of the statute just cited provides:
“(2) ‘Reduction of Passenger Transportation service’ means:
“ (a) Any discontinuance or reduction in the fre[364]*364quency of passenger trains per day in either direction over a particular railroad route.”
Section 3 of the act states:
“A railroad shall give 20 days’ notice, unless exempted by the commissioner under section 7 of this Act, to the commissioner and to the public, of any proposed reduction of passenger transportation service to any point or place in this state before such proposed reduction shall become effective. Such notice shall explicitly indicate each proposed reduction in passenger transportation service and shall set forth the reasons for such reductions.”
It is clear that the company gave the required notice. It was given November 25, 1957, and stated that passenger service would cease December 15, 1957. There is, in fact, no controversy upon that subject. The notice was suspended by the commissioner’s Order on December 3, 1957, while he conducted the hearings which we have mentioned. January 25, 1958, the commissioner entered Order 35782, which directed the company to continue its passenger service, and thereupon it abandoned the latter.
It is evident that the commissioner was aware of the principles of law that govern proceedings for the abandonment of passenger train service even in cases that are unaffected by legislation such as ORS 760.-205—760.255, supra. We observe, for example, that in Order 35782 which we just mentioned, the commissioner, in referring to an application for the abandonment of its passenger service which the company made in a year prior to the enactment of ORS 760.205—760.255, supra, stated:
“In November 1952 the Company filed an application with the Commissioner for authority to abandon passenger service on its interurban lines. Public hearings were held and, on February 10, [365]*3651953, the Commissioner by his Order 31858 denied the application, noting that public convenience and necessity required continued operation of the service * * *
Thus, the commissioner recognized that in order to deny an application for the abandonment of passenger service, public convenience and necessity must require continuance of the service. See Railroad Service Discontinuances, 43 Minn. L Rev. 275.
Section 8 of the 1957 statute provides:
“(1) Whenever any railroad files with the commissioner any schedule of passenger transportation service the effect of which is to reduce an existing passenger transportation service, the commissioner may, either upon written complaint or upon his own initiative after reasonable notice to the railroad, conduct a hearing to determine the propriety and adequacy of such service.
“(2) At the hearing the burden of showing that the proposed passenger transportation service is just, reasonable and adequate is upon the railroad proposing the reduction.”
The section of our laws just quoted requires that “just, reasonable and adequate” passenger service must remain after the reduction has been made which the applicant railroad proposes. The draftsman of our act chose the words “just, reasonable and adequate” rather than the more commonly employed phrase “public convenience and necessity” which the commissioner included in Order 35782. Section 8 (1) of the act authorizes the commissioner to “conduct a hearing to determine the propriety and adequacy of such service.” The commissioner, as we have seen, conducted an extensive hearing of that character. A part of the facts that he learned are disclosed when [366]*366one takes note of the averments of the complaint that are admitted in the answer filed ‘by the commissioner. We believe that those facts have a bearing upon the issue as to whether or not the operation of the company’s passenger cars was needed in the latter part of 1957 and the early part of 1958 to provide “just, reasonable and adequate” transportation service for the area served by the company. The facts to which we will now resort indicate whether or not (1) there was sufficient patronage in the area served by the company’s cars to pay at least the out-of-pocket expenses of rendering the service; (2) the patronage was on the decline and offered no prospects of increasing; and (3) other suitable transportation service at equally low prices and operating with equal celerity was available. If the facts established by the pleadings do not settle all of the above issues we will then turn to the evidence.
Paragraphs of the complaint which the answer admits allege:
“During the past several years, and up until the abandonment of all passenger operations by PTCO as hereinafter alleged, PTCO experienced a steady decline in passengers carried upon its lines of railroad. The total of all passengers carried each year from the year 1952 through the year 1957 is as follows:
We have noticed that it was in 1956 that the commissioner required the company to run more frequent schedules under a belief that enhanced service would [367]*367increase patronage. We have also taken note of the fact that in or about the early part of 1957 the company lost the right to run ears from east Front and Hawthorne streets across the Hawthorne Bridge into downtown Portland. One sees from the statistics just quoted that from 1952 through 1957 the company’s passengers declined in number from 1,551,094 to 447,-448, even though the company was providing daily the more frequent service required by Order 34218.
[366]*3661952 1,551,694
1953 1,439,105
1954 1,309,934
1955 1,097,073
1956 952,663
1957 447,448”
[367]*367Another paragraph of the complaint, which is admitted by the answer, sets forth:
“PTCO’s out-of-pocket costs during the year 1955 from passenger operations under the schedules of passenger service in effect prior to August 20, and under the reduced schedules of passenger service in effect during the remainder of said year, exceeded total passenger revenues received during said year by more than $41,000. Contrary to the prediction of the Public Utility Commissioner that increased schedules would provide increased passenger revenues, such revenues further declined during the year 1956 and PTCO’s out-of-pocket costs from passenger operations under the schedules of service which were in effect until March 16, and under the schedules of service prescribed by the aforesaid Order No. 34218 and in effect on and after March 16, exceeded total passenger revenues received during said year by more than $59,000. Passenger revenues further declined during the year 1957, and PTCO’s out-of-pocket costs from passenger operations under the schedules of service prescribed by the aforementioned Order No. 34218, including shuttle-bus service on and after October 21,1957, between said Southeast First and Hawthorne streets and the downtown area on the west side of the Willamette River, as prescribed by the aforesaid Order No. 35219, exceeded total passenger revenues received during said year by more than $154,000.”
[368]*368Thus, the commissioner admitted that the company-carried its passengers at an ever-increasing financial loss. The out-of-pocket loss amounted, in 1957, to $154,000. A witness, after examining the records of the company testified:
if* * * in examination of the current financial statements indicating, as I pointed out earlier today, the current operating expenses of the passenger service are about five times the revenues being received.”
No one who participated in the proceeding suggested any combination of passenger rates and schedules which would enable income to equal out-of-pocket expenses. Seemingly, the ears were destined to run virtually empty at an ever increasing annual financial loss. The record indicates that in the last year of operation the company suffered a small loss in its total operations (intrastate and interstate).
Evidence indicates that in recent years the company sustained an ever greater financial loss in rendering its passenger service. In those years wages and the cost of materials constantly increased. The increase was sufficient so that although the number of passengers expanded the company’s net loss also expanded. For example, in 1950 the company carried 1,403,641 passengers but incurred a net loss of $98,316. In 1951 it carried 1,436,772 passengers but met with a net loss of $121,150. In 1952 it carried 1,491,085 passengers but incurred a net loss of $159,000. In that three year period the company gained 87,000 passengers but its net loss expanded from $98,316 to $159,000. An observation was made in the course of the hearing that the company 'had not sought to diminish its losses through applying for increased passenger fares; but one of its officials stated: “If [369]*369we increased our rates we would lose a certain amount of traffic,” and added: “I have to admit that we are 5 cents higher in one or two points along there” than one of its competitors.
We noticed that when the company could no longer run its cars across the Hawthorne Bridge and into the downtown section of Portland the number of its passengers declined drastically. The record indicates that the county commissioners refused to permit the laying of track upon Hawthorne Bridge. One of the commissioners of the city of Portland who testified swore that he was positively opposed to the operation of trolley cars upon the downtown streets of the city. A witness who served the interurban railway industry in various parts of the country testified that when passengers are required to transfer from one carrier to another before reaching their destination the carrier has, in that incident, a severe handicap in competing with others. The record indicates that the transfer from the company’s electric cars to motor busses adds five minutes to the time required in reaching downtown Portland and that the company’s passengers reach their destination five minutes later than those who travel by bus.
After the company’s ears were no longer able to cross the Hawthorne Bridge and run to the company’s west side station the number of its passengers became very small. During the course of the trial the commissioner’s counsel admitted the following averment which is a part of the complaint:
“The total of all revenue passengers being carried by PTCO at the time of abandonment of passenger operations hereinafter alleged, and for more than one year prior thereto, averaged less than one passenger per train mile * *
[370]*370The area served by the company is criss-crossed by a network of roads and streets. The numerous recurring street intersections have prevented the company from developing fast schedules and of thereby offering superior service to the area. Since streets and roads are frequent, many who live in the area drive their own automobiles and do not patronize the company’s interurban cars. The numerous roads and streets, some of which parallel for considerable distances the company’s tracks, have brought into the area 17 motor bus routes. Evidently, virtually every one who lives in the area has a choice and may travel by the company’s interurban cars or by a bus. The most important exception is an amusement park known as The Oaks. In the summer months it offers various attractions, but in the remainder of the year it centers largely upon a skating rink. Its location denies ready access to the bus routes, but we observe from the record that it provides for the free use of its patrons a large automobile parking area.
The evidence indicates that the busses charge those who live in the company’s area no more than does the company itself. They offer schedules that compare favorably with the company’s, and after it became necessary for the company’s passengers to transfer from the company’s electric ears to a bus at Front and Hawthorne streets, the busses delivered their passengers into Portland’s west side area more promptly than the electric cars.
Order 36459 which was announced December 26, 1958, and which “rescinded effective this date” Orders 34218, 35219, and 35782, states:
“On trial in the Circuit Court it appeared that since the abandonment of service by the Traction [371]*371Company on January 25, 1958 Inter-City Busses had obtained additional equipment and increased the frequency of its schedules traversing the Company’s service area by something in excess of 33 1/3%, all routes considered. Inter-City Busses’ patronage increased gradually over the period January 1958 through October 1958 so that during the latter weeks of the period concerned a total increase in Inter-City bus patronage approximating 40% of the previous Portland Traction Company patronage was noted.”
The commissioner entered no finding that the company failed to establish with evidence that the passenger transportation upon which the area would have to depend after the company withdrew its electric cars would not be “just, reasonable and adequate.” Likewise, he made no finding that public convenience and necessity required the continuance of the company’s passenger service.
We believe that the complaint is fairly susceptible to an interpretation that it not only charged that the three challenged orders deprived the company of constitutional rights but that it also set forth facts which ORS 760.205—760.255, supra, authorized the commissioner to deem a sufficient basis for permitting the company to abandon its passenger service. During the hearing before the commissioner and during the trial in the circuit court statements were frequently made that the sections of the laws just cited were applicable to this proceeding. For example, near the beginning of the hearing the commissioner, through his examiner, recognized that this proceeding was brought in part under ORS 760.205—760.255. The examiner stated:
“* * * taking into consideration the inherent nature of the case it also might be said that it is in the nature of an application on the part of [372]*372Portland Traction Company to abandon, and I earlier considered these matters pertaining to method and conduct of the hearing, and I concluded that perhaps in order to keep within the proper realm of procedure that we’d best construe this particular hearing more in the nature of an application to abandon more so than a general investigation, and that is the basis that I am operating on at the present time until I can be convinced otherwise.”
Later, the commissioner inquired of the company’s counsel:
“Do you object to the inclusion of public convenience and necessity of patrons and residents of the service area as another matter that needs full and fair consideration?”
The company’s counsel replied:
“I have no objection to the evidence being offered on that. But, I wanted to state that the two are tied together in our theory of the case.”
The examiner clarified the issues by declaring:
“Now, as I understand it, the applicant is proceeding under Chapter 415 of the Laws of 1957, and under that section of law a hearing is in order. An applicant is to go forward and meet the burden of proof, and he is entitled to do that in any way he sees fit; in other words, put on such evidence that he thinks or it thinks is necessary to meet that burden. Now, that is in the nature of an application, an application to the commission to abandon.”
The “Laws of 1957” to which the examiner referred are, of course, ORS 760.205—760.255.
When the cause was before the circuit court the commissioner’s attorney, in addressing the judge, stated:
“Our position is, when the Commissioner is presented with an application to abandon service, his [373]*373decision is -whether or not public convenience or necessity require the continuance of service, and the language of the U. S. Supreme Court is that these might be relevant but they are not controlling. * *
The foregoing -will suffice as a review of the issues and of the evidence. We have observed that the issue of abandonment is controlled by ORS 760.205—760.255, supra. In Railroad Service Discontinuances, 43 Minn. L Rev. 275, a member of the faculty of the University of California, in the course of a comprehensive review of the available decisions, states:
“Recently a number of state courts have taken a new view of public necessity when reviewing commission denials of passenger service discontinuances, and many commission denials of discontinuances have been reversed. The change has been in the relative weight of the evidence required. The burden of proof of lack of public necessity is, of course, still on the carrier petitioning to discontinue services presently rendered pursuant to its franchise. The new approach to sustaining this burden, which has been approved by the courts of many states, requires the carrier to prove its direct operating loss and meet the test of only one of the two elements of public necessity outlined in the Illinois Central case. Proof of direct operating losses on the trains to be discontinued plus adequate substitute bus service was sufficient in six states to reverse commission denial of discontinuance. In these cases the carrier did not have to prove lack of use, although usually the patronage was slight. Likewise, proof of direct operating losses on the trains together with evidence that the public had virtually abandoned use of the trains was a sufficient ground in eight states to reverse a commission denial of discontinuance. In these cases, adequate substitute public transportation did not have to be proved. In effect this is a recog[374]*374nition that in many areas the private automobile has replaced public transportation. Thus, an entire passenger train will not be required to operate to carry the very few people who prefer trains to buses or private automobiles. The courts distinguish public necessity from transportation needs of a few individuals who wish to continue riding trains. * * * Some evidence of the public’s need for the service must 'be offered by the individuals or municipalities protesting a discontinuance petition.”
Illinois Central R. R. Co. v. Commerce Commission, 410 Ill 77, 101 NE2d 588, had its inception in a petition which the Illinois Central Railroad Company filed with the Illinois Commerce Commission requesting permission to discontinue the operation of two passenger trains between Chicago and Carbondale. If out-of-pocket expenses only were considered the operation of the two trains did not yield a loss, but if there was assigned to the trains their fair share of total expenses a sizeable net loss was shown. In that case, as in the one at bar, the protestants to discontinuance claimed that the railroad had not done all that was reasonably possible to create patronage for the trains. The patronage was small. In sustaining the judgment of the trial court which set aside the order of the Illinois Commerce Commissioner requiring the continued operation of the trains, the court said:
“Both parties to the present cause agree that in determining the existence of public convenience and necessity three factors should be considered: (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. * * *
[375]*375“In determining questions of public convenience and necessity today, consideration must be given to the fact that railroads no longer have a monopoly of transportation. Older decisions, requiring the continuance of particular passenger-train services even though conducted at a loss, were rendered in a period when railroads provided the principal source of land transportation. Horse-drawn vehicles provided little if any competition. Today, on the other hand, railroads are in competition with bus and truck lines as well as private automobiles traveling over a vast system of improved highways built, not by private capital as is the case with rail carriers, but by public expenditures. They are in competition also with government subsidized waterways and, in recent years, with the expanding activities of air lines. In the light of such changed conditions it is a duty of the carrier to seek, and of the regulatory agency to permit, elimination of uneconomic services no longer needed or used by the public to any substantial extent. The reasons which originally may have provided justification for compulsory facilities maintained at substantial losses have largely disappeared today, rendering local train service in many cases an obsolete form of transportation. Recognition of such factors by regulating bodies not only results in financial benefit to the railroads but, by eliminating unnecessary passenger-train service, makes possible more economical transportation for the public on the trains which remain in substantial demand.
“We conclude that the order of the commission in the case at bar has no substantial foundation in the evidence. Under the manifest weight of that evidence, the economic waste involved in the operation of the two trains outweighs what small benefit and convenience they may afford to the public, and no substantial curtailment of services would be incurred by their removal. * * *”
Notes and Comments, 31 N.C. L Rev. 137, in review[376]*376ing many decisions that passed upon passenger train abandonment cases, states :
“The very fact that a line of railroad does not pay the expense of running some of its trains is cogent evidence that public convenience and necessity does not require that they be kept in operation.”
The discourse adds:
“A case for discontinuance is materially strengthened when alternative services are available, whether over the lines of the applicant carrier or some other railroad, or merely by virtue of the existence of adequate highways or bus service.”
We deem it unnecessary to review the authorities any further. It is evident from the ever increasing financial losses .that the operation of the passenger service created, together with the fact that the number of passengers was less than one per train mile, that the public was no longer giving its patronage to the railroad. We also think that it is clear that bus lines together with private automobiles were capable of taking care of those who previously patronized the company’s, cars.
ORS 760.205—760.255, as we have observed previously, provides that it must appear, before a carrier will be permitted to withdraw its facilities, that the remaining service will be of such character that it will provide “just, reasonable and adequate” transportation for the area. In view of the fact that the Honorable Howard Morgan, immediately before he voluntarily resigned from the office of commissioner, entered on December 26, 1958, Order 36459 which “rescinded effective this date” Orders 34218, 35219 and 35782, we think that it is safe to believe that transportation facilities remained after the rescission of those orders [377]*377that were “just, reasonable and adequate” to take care of the area’s needs.
Nothing was disclosed in the evidence which indicated that the conditions that existed November 25, 1957, when the company gave notice of intention to quit its passenger service was substantially different from December 26, 1958, when the commissioner entered his order of rescission. The fundamental facts that were injurious to the company’s patronage was its inability to run cars across the Hawthorne Bridge and over the west side streets.
The foregoing convinces us that the circuit court properly sustained the company’s right to discontinue its passenger service. The court should not, however, have enjoined the commissioner “Prom instituting or prosecuting any proceedings against the plaintiff for the collection of any penalties by reason of plaintiff’s noncompliance with the requirements of said Order No. 35782 and the provisions of Orders Nos. 34218 and 35219 incorporated therein by reference, as altered, modified or amended by said Order No. 36459.” Proceedings of penal nature should never be enjoined by a court of equity. We express no opinion as to whether or not any action of that kind may be maintained against the company. Apart from that modification, the decree of the circuit court is affirmed.