On the other hand, the order of a state commission requiring a railroad company to install weighing scales at a station has been held to amount to a taking of the company's property, since the scales, while a convenience to the public, have no direct part in transportation. So an ordinance forbidding common carriers to transport milk when warmer than a specified temperature is unreasonable where the milk is also required to be in sealed cans, the seals cannot be broken, and the milk is taken from platforms at various stations at some of which there are no agents or employees of the road when the train arrives.3

Public service commissions ordinarily have power, among other things, to compel a railroad to comply with its charter provisions. And generally the statutes creating public service commissions authorize such commissions to determine what transportation facilities are reasonably necessary for the accommodation of the public, and to require railroad companies to furnish such facilities and also to require, from time to time, any reasonable change in such facilities which will promote the security or convenience of the public.

A statute, or order of a commission, requiring a railroad company to connect a station with a local telephone exchange, for the convenience of shippers and passengers, does not deprive the company of property without due process of law or deny it the equal protection of the laws.5

§ 4437. Requiring extension of line. The commission has power to order a railroad company to comply with its charter provisions specifying the points to and from which its road was to be constructed. But a commission has no authority to require a railroad

South Bend, 174 Ind. 203, 36 L. R. A. (N. S.) 850, 91 N. E. 809, 89 N. E. 885. To same effect, see Lake Roland El. Ry. Co. v. Baltimore, 77 Md. 352, 20 L. R. A. 126, 26 Atl. 510. Contra, People's Co. v. Baldwin, 14 Phila. (Pa.) 231. Compare Hestonville Co. v. Philadelphia, 89 Pa. St. 210.

"We cannot say that an ordinance is unreasonable which would restrict the number of railroad tracks on a street, for a distance of three or four squares, to one track, when more than one might tend to interfere with the free use of the street by the general

public or affect the security of life or property in its use."' Grand Trunk Western R. Co. v. South Bend, 174 Ind. 203, 36 L. R. A. (N. S.) 850, 91 N. E. 809, 89 N. E. 885.

2 Great Northern R. Co. v. Minnesota, 238 U. S. 340, 59 L. Ed. 1337, rev'g 122 Minn. 55, 141 N. W. 1102.

3 Chicago v. Chicago & N. W. R. Co., 275 II. 30, L. R. A. 1917 C 238, 113 N. E. 849.

4 Chicago & N. W. R. Co. V. Dougherty, 39 S. D. 147, 163 N. W. 715. 5 State v. Missouri Pac. R. Co., 100 Neb. 700, 161 N. W. 270.

6 Chicago & N. W. R. Co. V.

company to extend its line of railroad, or to build a new line, so as to connect with its existing line, points that have not theretofore been connected and which the company has not undertaken to so connect.7

§ 4438. Requiring operation of road or of trains. Regulations requiring operation of trains include (1) regulations requiring trains to be operated on a branch line which has been abandoned; (2) regulations requiring passenger trains in addition to freight trains or separate passenger service; (3) regulations requiring additional trains. The governing principles applicable to all these requirements seem to be in the main identical, although the duty to give additional train service is perhaps greater than the duty to operate branch lines. So far as the validity of regulations requiring a railroad company to operate a certain number of trains a day, or certain kinds of trains, is concerned, it is necessary to keep in mind (a) that the cost is of minor importance where the furnishing of a necessary facility, i. e., a compliance with the charter, is concerned, and hence a railroad may be compelled to operate at least one train per day each way although the gross income does not exceed the expenses or is less than the expenses, where there is a public necessity therefor; and (b) that the income from the road, if a branch road, is not to be considered independently of the income from the entire system.9

A public service commission may compel a railroad company to establish a passenger service, although it has so far been a carrier of freight only, where reasonably necessary in order to provide adequate service to the public.10 So such a commission may require passenger service on a branch line, where there is a public necessity therefor although the returns may be less than the operating expenses,11 and

Dougherty, 39 S. D. 147, 163 N. W. 715.

7 Atchison, T. & S. F. R. Co. v. Railroad Commission of California, 173 Cal. 577, 160 Pac. 828.

A commission cannot compel a railroad company to extend its road to a certain point. Public Service Commission v. United Rys. & Elec. Co., 126 Md. 478, 95 Atl. 170.

8 See Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 54 L. Ed. 472.

So far as operating a branch line is concerned, a commission may require the railroad company which had aban

doned its operation, to resume its operation even at a loss, where public interest requires the operation of such branch, especially where it appears that the road as a whole is making money and paying large dividends. Colorado & S. R. Co. v. State Railroad Commission, 54 Colo. 64, 129 Pac. 506. 9 See infra, this section.

10 Adena R. Co. v. Public Service Commission of Ohio, 92 Ohio St. 1, 110 N. E. 631.

11 Chesapeake & O. R. Co. v. Public Service Commission, 75 W. Va. 100, L. R. A. 1917 F 1190, 83 S. E. 286.

an order of a commission directing a railroad company to run a regular passenger train over its line, instead of a mixed passenger and freight train, is not necessarily invalid even if such train is run at a loss.12 However, the requiring a short line railroad, wholly unconnected with any system of roads, to run two trains each way every day has been held unreasonable and invalid where the gross earnings of the company were barely sufficient to pay operating expenses when running one mixed train a day.13 A commission cannot require additional passenger trains where to do so would be unreasonable and deprive the railroad company of its property without due process of law.14 A regulation requiring at least one passenger train to be run on Sundays as well as week days has been held valid, the main contention being as to the validity of compelling work on Sunday.15 In Ohio, an order requiring a railroad to continue an interurban service on a portion of its ro: 1 was upheld as reasonable.15

An important question is whether a railroad company may abandon a branch or all of its road. Mr. Morawetz states the rule to be that "if there is not sufficient traffic over a particular line of road to pay for the expense of running trains, this is sufficient evidence that the public do not require it to be kept in operation; and in such case the company may cease operating the road, unless this be contrary to the express terms of its charter." 17 So it is held that a

The mere fact that requiring a railroad company to operate passenger trains upon a branch line will be attended by some pecuniary loss is not conclusive that the regulation is unreasonable. Chesapeake & O. R. Co. v. Public Service Commission, 242 U. S. 603, 61 L. Ed. 520, aff 'g 75 W. Va. 100, L. R. A. 1917 F 1190, 83 8. E. 286.

12 Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 54 L. Ed. 472, aff'g 76 Kan. 467, 92 Pac. 606.

An order is not unreasonable merely because it will result in a pecuniary loss to the corporation, where the order merely requires the company to perform its duty by running a regular passenger train over a branch line. Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 54 L. Ed. 472, aff'g 76 Kan. 467, 92 Pac. 606.

18 Washington, P. & C. Ry. Co. v. Magruder, 198 Fed. 218.

14 Mississippi Railroad Commission v. Mobile & O. R. Co., 244 U. S. 388, 61 L. Ed. 1216.

15 State v. Chicago, B. & Q. R. Co., 239 Mo. 196, 143 S. W. 785.

16 Hocking Valley R. Co. v. Public Utilities Commission of Ohio, 92 Ohio St. 9, L. R. A. 1918 A 267, Ann. Cas. 1917 B 1154, 110 N. E. 521.

17 2 Morawetz, Corporations, § 1119. citing Com. v. Fitchburg R. Co., 12 Gray (Mass.) 180, and State v. Sioux City & P. R. Co., 7 Neb. 357, 374, and followed in State of South Carolina v. Jack, 145 Fed. 281, 286.

See also textbooks on the subject of railroads, and see note in L. R. A. 1915 A 549.

A railroad corporation cannot be required to exercise its franchises

branch line may be abandoned where it is not only not self-supporting but its continued operation jeopardizes the successful operation of the entire system of which it is merely a part.18 But in Colorado, in a well considered case, it has been held that the commission may require a railroad company to resume the operation of a portion of its road which it had abandoned, even though such operation would be unprofitable, where the suspension of operation had occasioned and would occasion great inconvenience and additional burdens to the public.19 The prohibiting the removal of the main track of a railroad, although the company is financially unable to operate the road, does not violate the due process clause where removal was contrary to a statute in force when the charter was granted.20

So far as the operation of branch lines is concerned, the general rule is that the sufficiency of the earnings to justify the expense is to be determined by considering the earnings of the entire road rather than the past or prospective earnings of the branch line; 21 but it be discontinued. State v. Sioux City & P. R. Co., 7 Neb. 357.

without reasonable remuneration, nor at a loss, without regard to whether it is solvent or insolvent. Jack v. Williams, 113 Fed. 828, 828.

The compelling a railroad company to apply its assets to the construction and operation of a line of railroad which it does not desire to construct or operate is a taking of property without due process of law. Atchison, T. & S. F. R. Co. v. Railroad Commission of California, 173 Cal. 577, 160 Pac. 828.

So a railroad company cannot be required to rebuild and operate a branch railroad connection which had been abandoned long before the creation of the commission making the order. Public Service Commission of Maryland v. Philadelphia, B. & W. R. Co., 122 Md. 438, 89 Atl. 726.

But if statute requires operation of road, the railroad company may be compelled to operate a ferry as part of its line although the ferry alone is unprofitable. Brownell v. Old Colony R. Co., 164 Mass. 29, 29 L. R. A. 169, 49 Am. St. Rep. 442, 41 N. E. 107.

So if duty to operate is created by a provision in a land grant, an unprofitable portion of the line cannot

18 State of Iowa v. Old Colony Trust Co. of Boston, 215 Fed. 307, L. R. A. 1915 A 549 with note. To same effect, see Sherwood v. Atlantic & D. Ry. Co., 94 Va. 291, 26 S. E. 943. Compare People v. Rome, W. & O. R. Co., 103 N. Y. 95, 8 N. E. 369.

The right to compel service on branch lines depends, it would seem, upon the entire revenues of the railroad system, and a railroad company should not be required to operate a branch line at all if the loss therefrom is so great as to jeopardize the successful operation of the remainder of the road. State of Iowa v. Old Colony Trust Co. of Boston, 215 Fed. 307, L. R. A. 1915 A 549.

19 Colorado & S. R. Co. v. State Railroad Commission, 54 Colo. 64, 129 Pac. 506. But see Union Trust Co. of Indianapolis v. Curtis, 182 Ind. 61, 73, L. R. A. 1915 A 699, 105 N. E. 562.

20 State v. Enid, O. & W. R. Co., 108 Tex. 239, 191 S. W. 560, rev'g Tex. Civ. App. -, 181 S. W. 498.

21 Colorado & S. R. Co. v. State Railroad Commission, 54 Colo. 64, 129

has been held in North Dakota that, following the recent ruling of the Supreme Court of the United States that a state has no power to compel a railroad to carry a particular commodity at less than cost regardless of the earnings from its other freight business, 22 the earnings of the branch line must be considered separately.23 In West Virginia, it is said that, although "competent upon an inquiry as to the reasonableness of the requirement, the result of a comparison of expenses with prospective returns, under such limitations, is not controlling." 24

§ 4439. Requiring stopping of trains at stations. Reasonable regulations as to the number of trains to be stopped at stations to accommodate passengers are valid,25 provided interstate commerce is not unduly interfered with thereby.28 In Wisconsin a statute requiring railroads to stop at least one passenger train each day each way at stations with a population of two hundred or more, if so many are run, and "if four or more passenger trains are run each way daily, at least two passenger trains each day each way shall be stopped," has been upheld as reasonable.27 These regulations often apply only to stations at county seats or stations at places having more than a certain population. The most general objection to such statutes has been that, so far as interstate trains are concerned, they constitute an unlawful interference with interstate commerce. Generally, the test is whether the service objected to is necessary or reasonable, in addition to the existing service, i. e., whether the passenger service is already adequate. If there is adequate service, then requiring further service is unreasonable.28

Pac. 506; People v. St. Louis, A. & T. H. R. Co., 176 Ill. 512, 35 L. R. A. 656, 52 N. E. 292, 45 N. E. 824; State v. Atkinson, 269 Mo. 634, L. R. A. 1918 A 46, Ann. Cas. 1917 E 987, 192 S. W. 86 (sleeping car service). See also Chesapeake & O. R. Co. v. Public Service Commission, 75 W. Va. 100, L. R. A. 1917 F 1190 with note, 83 S. E. 286

22 See § 4526, infra.

23 In re Minneapolis, St. P. & S. S. M. R. Co., 30 N. D. 221, Ann. Cas. 1917 B 1205, 152 N. W. 513.

24 Chesapeake & O. R. Co. v. Public Service Commission, 75 W. Va. 100, L. R. A. 1917 F 1190, 83 S. E. 286,

aff'd 242 U. S. 603, 61 L. Ed. 520. 25 Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. Ed. 702; Gladson v. Minnesota, 166 U. S. 427, 41 L. Ed. 1064; Atchison, T. & S. F. R. Co. v. State, 28 Okla. 476, 114 Pac. 721; St. Louis & S. F. R. Co. v. Troy, 25 Okla. 749, 108 Pac. 753.

26 See § 4392, supra.

27 Chicago, B. & Q. R. Co. v. Railroad Commission of Wisconsin, 152 Wis. 654, 140 N. W. 296, reviewing the decisions at some length.

28 Herndon v. Chicago, R. I. & P. R. Co., 218 U. S. 135, 54 L. Ed. 970; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. Ed. 230;