Portland Railway Light Power Company v. Railroad Commission of Oregon

This case originated in a complaint made by the municipal corporation of Milwaukie, in the state of Oregon, before the railroad commission of that state, seeking an order restraining the Portland Railway, Light, & Power Company, the plaintiff in error, operating a system of street railways in the city of Portland, Oregon, and certain suburban roads in connection therewith, from practising certain alleged discriminations in rates of fare, and fixing reasonable fares between the city of Portland and the town of Milwaukie. Upon hearing, the railroad commission found that the fares charged by the railway company were unjustly discriminatory against the inhabitants of Milwaukie, and ordered a reduction between Milwaukie and Portland from 10 cents to 5 cents, and ordered the railway company to furnish to the passengers traveling between such points the same transfer privileges as were given to passengers on the Mt. Scott line of the plaintiff in error. The circuit court refused to enjoin the enforcement of the order of the commission, and this judgment was affirmed by the supreme court of Oregon. 56 Or. 468, 105 Pac. 709, 109 Pac. 273. The case was then brought to this court upon writ of error.

An idea of the physical situation of this railroad may be had by an inspection of the attached plat, which may be used for illustration, and which is reproduced from one appended to plaintiff in error's brief (the city limits of Portland being represented by the dotted line).

The circuit court made the following findings of fact:

'1. That the plaintiff Portland Railway, Light, & Power Company is a corporation duly organized and existing under and by virtue of the laws of the state of [NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)] Oregon, and owns and operates by electric power a suburban and interurban railroad as a common carrier in this state, between First and Alder streets in the city of Portland, and Canemah, Clackamas county, Oregon, known as the 'Oregon City division,' and also a line of railroad from said First and Alder streets to Lents and Lents Junction, Multnomah county, Oregon, known as the 'Mount Scott division' and also a line of railroad from a point known as Golf Junction, on the first-mentioned line of railroad, easterly and southerly through Multnomah county to Nickum, Gates, and Cazadero, in Clackamas county, Oregon, said Nickum, Gates, and Lents being points outside of the city of Portland, Oregon.

'2. That the defendant is the duly appointed, organized, and acting railroad commission of Oregon, under the provisions of chapter 53 of the Laws of Oregon for the year 1907.

'3. That the town of Milwaukie is a municipal corporation duly organized under and existing by virtue of the laws of the state of Oregon.

'4. That the Portland Railway Company is a corporation organized and existing under and by virtue of the laws of the state of Oregon. That its street cars are operated by electric power within the city of Portland and to the city of St. Johns, Multnomah county, Oregon, and that it is a common carrier. That a majority of the capital stock of the said Portland Railway Company is owned by the plaintiff herein; and that the said Portland Railway Company and the plaintiff herein are operated under a common management.

'5. That plaintiff has established rates of fare for the transportation of persons traveling as passengers traveling upon its said line of railway and between different points upon its said railways and its said terminus at First and Alder streets in said city of Portland, and between Golf Junction and the places and points named below, the following rates, fares, and charges being those so established and the distances being as given below: Between Portland and

On Oregon City Division.

Golf Junction (within city of Portland)...... 5.36  miles  5  cents. Lambert................. 5.93    "   10    " Knight.................. 6.29    "   10    " Hendee.................. 6.44    "   10    " Milwaukie............... 6.71    "   10    " Island.................. 7.05    "   10    " Milwaukie Heights....... 7.70    "   15    " Courtney................ 8.30    "   15    " Oak Grove............... 8.48    "   15    " Center.................. 8.68    "   15    "  Risley.................. 9.26    "   15    " Oregon city............ 14.47    "   25    " Canemah................ 15.47    "   25    "

On Mt. Scott Division.

Reservoir (within city of Portland)........... 4.69    "    5    " Lents................... 7.69    "    5    " Lents Junction.......... 8.31    "   10    "

On Springwater Division.

Golf Junction (within city of Portland)...... 5.35    "    5    " Nickum.................. 6.51    "    5    " Kerrigan................ 7.26    "   10    " Bell.................... 8.51    "   10    " Kendall................. 9.32    "   10    " Lents Junction......... 10.71    "   10    " Gilbert................ 11.65    "   10    " Gates.................. 12.38    "   10    " Wilson................. 13.00    "   15    " Sycamore............... 13.48    "   15    " Jenne.................. 14.42    "   15    "

Page 402 Between Golf Junction and

On Oregon City Division

Lambert .................. .57   "    5    " Knight ................... .93   "    5    " Hendee..................... 1.08 "    5    " Milwaukie.................. 1.35 "    5    " Island..................... 1.69 "    5    " Milwaukie Heights.......... 2.34 "   10    " Courtney................... 2.94 "   10    " Oak Grove.................. 3.12 "   10    " Center..................... 3.32 "   10    " Risley..................... 3.90 "   10    " Oregon City................ 9.21 "   20    " Canemah................... 10.21 "   20    "

On Springwater Division.

Nickum..................... 1.15 "    5    " Kerrigan................... 1.90 "    5    " Bell....................... 3.15 "    5    " Kendall.................... 3.96 "    5    " Lents Junction............. 5.35 "    5    " Gilbert.................... 6.29 "   10    " Gates...................... 7.02 "   10    " Wilson..................... 7.64 "   10    " Sycamore................... 8.12 "   10    " Jenne...................... 9.07 "   10    "

'6. That the distance between Lents and the limits of the city of Portland on said plaintiff's line of railroad is 3.50 miles. That the station of Hazelwild on plaintiff's said Mt. Scott line is a mile and one half from Lents, and 2 miles outside the limits of the city of Portland. That the distance on the line of the said Portland Railway Company from the terminus of said company near First and Alder streets in the said city of Portland, to the terminus in the city of St. Johns, Oregon, is to wit: 9 miles. The distance from the said terminus in the city of Portland, Oregon, to the city limits of the said city of St. Johns, is about 7 miles, and from there to the terminus in the said city of St. Johns proper is about 2 miles.

'7. That the aforesaid places are suburbs of the city of Portland.

'8. That plaintiff's predecessor acquired about 4 miles of track and right of way which extended from Mt. Tabor Junction and Lents, on the 13th day of April, 1901, by and pursuant to an agreement wherein and whereby it was agreed in consideration thereof that not more than a 5-cent fare should be charged by plaintiff's said predecessor, its successors and assigns, for any ride between Lents and Portland. The plaintiff is carrying out said agreement. The said track and right of way are facilities, among other facilities, used by the plaintiff in the transportation of passengers between Lents and Portland.

'9. That before and at the time said Lents contract was entered into, the population of the territory contiguous to said railroad was small. That now the population of said territory is about 10,000; and the value of real estate in Lents and said territory has increased rapidly. That the said increase in population and land values has been and is due in a great measure to the fact that the plaintiff has charged and is charging but 5 cents for transportation of passengers between First and Alder streets in the city of Portland, and Lents, and intermediate points.

'10. That at the time said Lents contract was entered into the town of Milwaukie had a population of about 500 people; that at all times since said Lents contract was entered into the plaintiff and its predecessor companies have charged 10 cents for the transportation of passengers between First and Alder streets in the city of Portland and the town of Milwaukie. That since the 5 cents fare between Lents and Portland has been in operation it has caused the said Lents and Lents territory to increase in population as aforesaid, and said land values in said Lents and Lents territory to increase in value as aforesaid, and has stagnated the growth and population of the town of Milwaukie territory, and its business has not appreciably increased.

'11. That by reason of the fact that the inhabitants of the town of Milwaukie are charged double the fare charged the inhabitants of Lents for transportation between their respective residences and the city of Portland, the inhabitants of the town of Milwaukie have paid to the plaintiff large sums of money in the aggregate for transportation from the town of Milwaukie in excess of the charges made inhabitants of Lents for transportation from Lents to First and Alder streets in the city of Portland, to the great injury to the said inhabitants of Milwaukie; and that a just and reasonable rate, not discriminatory, to be charged to persons between First and Alder streets in the city of Portland and the town of Milwaukie, Oregon, is 5 cents.

'12. That the bulk of the inhabitants of the town and territory of Milwaukie are employed in the city of Portland, and go to and from their homes on the lines of plaintiff's said railroad to work mornings and evenings daily.

'13. That the population and territory between and including Lents and Hazelwild, a distance of 1 1/2 miles, on plaintiff's Mt. Scott line, are substantially the same territory and population between Golf Junction on the city limits of Portland and Milwaukie, a distance of 1.31 miles, on plaintiff's Oregon City division. That the conditions and circumstances under which plaintiff transports passengers between First and Alder streets in said city of Portland, and the stations on the Mount Scott line from Hazelwild to Lents, inclusive, are substantially the same as the circumstances and conditions under which plaintiff transports passengers from said First and Alder streets to stations on the Oregon City line from said Golf Junction to Milwaukie, inclusive, except as to the rate of fare charged and the giving of transfer privileges as hereinafter set forth, which fares and transfer privileges are in favor of the inhabitants of the territory from Hazelwild to Lents, inclusive.

'14. That Nickum is a station on the plaintiff's Springwater division, 1.15 miles easterly from Golf Junction, and about 3,000 feet outside the city limits of the city of Portland, Oregon. That the plaintiff operates but seven trains per day through Nickum, between Cazadero and Portland, in either direction. That otherwise, except as to the rates of fare charged and the giving of transfers, and conditions and circumstances as to the transportation of passengers between Nickum and the plaintiff's terminus at First and Alder streets, aforesaid, are substantially the same as between said terminus and Milwaukie, and except also that the travel between Milwaukie and Portland is greater than between Nickum and Portland.

'15. That from points on the Mt. Scott division without the city of Portland, and Nickum, on the Springwater division, and other points on said division, the plaintiff furnishes to passengers who pay fare to First and Alder streets in the city of Portland, transfers, entitling the holder thereof to transportation over the lines of the street railway of said Portland Railway Company in the city of Portland, and the city of St. Johns, and that such transfers are not furnished to the citizens of Milwaukie, traveling and paying fare from Milwaukie to said First and Alder streets.

'16. That the evidence does not show that, considered by themselves, or in comparison with other lines of travel, the charges of the plaintiff upon the Oregon City division are unreasonable, but that compared with the charges made by the plaintiff upon the Springwater and Mt. Scott divisions, the charges of the plaintiff for the transportation of passengers between said First and Alder streets and the town of Milwaukie are unjust and unreasonable, discriminatory, and give undue preference.

'17. That the evidence is not sufficient to show the value of the property of the plaintiff used in the operation of its road, or the value of any of the divisions thereof, heretofore mentioned; and that the evidence does not show the income or expenditures or profits or loss, if any, from the operation of the respective divisions of the plaintiff's line above mentioned, or the cost of transporting passengers upon any of such divisions.

'18. That the plaintiff operates its cars and transports passengers between First and Alder streets and Milwaukie either wholly over the Oregon City division, from the junction at the east end of the Madison street bridge, or from said junction over what it terms its Sellwood division to Golf Junction, and then over the Oregon City division to Milwaukie. The plaintiff credits all of the Milwaukie business transported by way of the Sellwood division to that division, and no credit or account is taken of it as in part earned by the Oregon City division. That the evidence does not disclose the length of haul of any of the passengers transported by the plaintiff. That the court is therefore unable to find as to the traffic density to and from Milwaukie, or on the Oregon City division, or any of the plaintiff's other divisions.

'19. That on to wit, January 30th, 1908, the defendant, after due notice and full hearing, made and entered, and caused to be served upon the plaintiff, the certain orders and findings set out as 'Exhibit A,' attached to the plaintiff's complaint. That upon the resubmission of the said matter to the said defendant, as aforesaid, the said defendant made a certain amendment to the said order, and returned the same into this court, and that the same is now on file herein. That the defendant has caused to be filed in this court a certified transcript of all its proceedings leading up to and including its said order and amendment. That the said order, amendment, and transcript are hereby made a part of these findings.'

It should be noticed that by the laws of Oregon, Portland being a city exceeding fifty thousand in population, a greater fare than 5 cents cannot be demanded for a continuous trip in one general direction between any two points in the city. Bellinger & C. Anno. Codes & Stats. § 2096.

Messrs. Franklin T. Griffith, Joseph S.C.lark, and Frederick V. Holman for plaintiff in error.

Mr. A. M. Crawford, Attorney General of Oregon, and Messrs. Clyde B. Aitchison, R. M. Sewell, and R. R. Giltner for defendant in error.

Statement by Mr. Justice Day:

Mr. Justice day, after making the foregoing statement, delivered the opinion of the court: