ARK:1 ' ARK. RAILROAD COM. V. GRAYSONIA, N. & A. R• CO. 13 ARKANSAS RAILMAD 'COMMISSION V. GRAYSONIA, NASHVILLE & ASHDOWN RAILROAD COMPANY. Opinion delivered June 15, 1925. 1. PUBLIC SERVICE COMMISSIONS-APPEAL FROM ORDER_ DELAY.- Under AFts 1921 p. 177, § 20, requiring, the secretary of the Railroad Commission, on an appeal from an order of the commission, forthwith to file a transcript of the proceedings 'with the clerk of the Pulaski Circuit Court, it was not an abuse of discretion to refuse to dismiss the appeal for delay of the secretary in filing the transcript not caused by the appellant. PUBLIC srancp Comm ISSIONS-DELAY . IN FILING TRAN SCRIPT-EvIDENCE.—Testimony held sufficient to support a finding of the circuit court that the delay of the secretary of the Railroad Com- o mission in filing a transcript of proceedings before the commission was not caused by the negligence of the appellant, and that the delay was excusable. RAILROADS-OPERATION OF BRANCH LINE .-A -railroad .company which did not own a certain branch line of railroad could not .be compelled to operate it merely because,its charter granted it the potential right to acquire and operate such line, and it had temporarily operated it under an option.to purchase. . . Appeal from Pulaski 'Circuit Co . Urt, Second Division; Richard M. Mann, judge; affirmed. . H. W. Ai4legate, Attorney General, Brooks Hays, Assistant, J. C. Pinnix and Utley & H'ainmock, for appellant. J. G. Sain and Hamiltdn Moses, for appellee. MCCULLOCH, C. J.' A domestic . railroad corporation, known as the Memphis, Dallas & ' Gulf Railroad Company, constructed:and_ operated a line of 'railroad from Ashdown,' Arkansas, to Hot Springs through the towns of Nashville and. Murfreesboro. The road was put into 'operation about the year 1909, and wa's operated with more or less . actual loss. during its lifetime until the year 1920, when it was shut down and operations ceased. There was a foreclosure , proceeding instituted by bondholders of the railroad company in the United States District Court for the Western District of Arkansas, 'and on August 15, 1922, the entire property of said railroad coMpany was sold in sections by a
14 ARK..RAI4ROAD COIVE. v. GRAYSONIA, N. & A. R. Co. [169 .conmiissioner of that court. J. K. Riffel as trustee for certain individuals became the purchaser of three sections of the railroad—one from Ashdown to Nashville, another from Nashville to Murfreesboro; and another from Murfreesboro to Shawmut. Those sales were confirmed by the court, and deed was executed to Riffel, dated March 30, 1923, conveying the three sections sold to him as such trustee. In October, 1922, the appellee, Graysonia, Nash-ville & Ashdown Railroad Company, was incorporated under the laws of this State for the purpose, stated -in the articles of incorporation, "of purchasing or otherwise acquiring that part of the said railroad running from Ashdown to Shawmut, Arkansas, * * * and' for the purpose of maintaining and operating said part of said railroad, and for the Purpose of purchasing or leasing any other parts of said property that will be Useful or convenient for the . operation of said railroad." . Some of the incorporators of this railroad are the same parties for whom Riffel made the purChase as trustee, but not all of them are the same parties. . In December, 1923, Riffel as trustee conveyed to appellee the section, or division, of said railroad from Ashdown to Nashville. The deed described the Property . as . "that part of the railroad from Ashdown to • Nashville."—meaning a section of the Memphis, Wallas • .& Gulf Railroad. Riffel . as trustee also entered into contract with appellee. granting an option to appellee to' purchase the section of the railroad from Nashville to Murfreesboro. Appellee at once began operation of the line between Ashdown and Nashville, and also operated . for a short time under its option contract the line between Nashville and Murfreesboro, but did not complete its purchase by exercising the option because of its inability to raise the money to repair the line. and it abandoned the purchase and ceased o p eratinz the, The citizens of the town of Murfreesboro filed a petition with the Arkansas Railroad . Commission on
ARK.] ARK, RAILROAD COM. V. GRAYSONIA, N. & A. R. Co. 15 January 3, 1924, praying for an order to compel appellee to repair the line of railroad between Nash-ville • and Murfreesboro and furnish adequate freight and passenger service over the line. Notice was served on appellee and on the day set for hearing, the commission, : after hearing, the testimony of numerous witneSses, granted the prayer of the petition and entered an order . in accordance therewith. This order was entered on January 29, 1924, and specified that it must be ' complied with by appellee within six months from the date thereof. On February 16, 1924, appellee filed with the Railroad CommisSion its prayer for . an appeal, which was granted, but the transcript was not filed in the office of the circuit clerk of Pulaski County until a day . in November, 1924. The circuit court made an order restraining the commission from proceeding with the enforcement of its order against appellee during the pendency of the proceedings in the circuit court The Railroad Cornmission and the original petitioners appeared in circuit court and filed a motion to dismiss the •appeal on the ground that it had not been filed within the time specified by statute. The court . overruled the motion and on final hearing rendered a judgment setting aside the order of the Railroad Commission and dismissing the original petition. An appeal has been duly prosecuted to this court. Section 20 of act No. 124 of the General Assembly of 1921 (General Acts 1921, p. 177) governing appeals frnm - the :Arkansas- Railroad Commission: 'reads-fol-T 1 ows : "Within thirty days after the entry on the recOrd the said Arkansas : Railroad Commission of any Order made by it, any party aggrieved may file • a written motion with any member of such commission, or with
the secretary thereof, praying for appeal from such order to the circuit court of Pulaski , COunty; and thereupon said appeal 'shall be automatically deemed as granted as a matter of right without any further order.
16 Ann. RAILROAD COM. V. GRAYSOINIA, & A. B. Co. [169 The secretary of said . commissiOn shall .then at once make full and complete transcript of all , proceedings had before such commission in such matter, and of .all evidence before it in . such matter, including all files • therein, and deposit-same 'forthwith in the office of the-clerk : of said circuit court, which appeal shall be 'given preference over all other cases on- the docket of said circuit court. Upon the filing of the aforesaid motion of said appeal and at . any tithe thereafter the said, cir- • cuit court or . its: circuit .judge shall, have the, right to issue such temporary or preliminary .orders . as 'to it or him may seem proper until final decree is rendered. The said circuit court shall thereupon review said order . upon the record presented as 'aforesaid In the .case 'and enter its .finding and order theredn and cause to be cerg fied forthwith to such: commission the said order, therein .directing that action . be taken by said commission in conformity therewith,, unless an appeal from said order to the Supreme Court of this State shall: be . taken,within the time• hereinafter specified, and in case . of such appeal to await further orders of 'said circuit court." contended , by counsel for appellants that the court 'erred in overruling the motion to dismiss the appeal, on the ground that there was , inexeusable delay in filing .the , transcript. There was • oral testimony introduced before, the court on the hearing of appellant's .motion to dismiss the appeal. It appears , from the testimony that the secretary of the Railrdad Coro— mission made out the transcript on March 5, 104, and forwarded the same to , one of appellee 's attorneys at Nashville for the purpose of having the latter examine the transcript. The attorney received the transcript - and held it for some tinie-in 'conferring with the officers concerning tho payment of court fees. The attorney' testified that be was not aware of the fact that this was the original transcript 1\, hieli was to be filed by the secretary of the commi ssiOn with the circuit clerk,
ARK." 'ARK. RAILROAD COM. V. GRA YSONIA, &-A. R. Co. 17 but :thought it, was a copy thereof, and that soon after he was apprised of. the fact that it . was the original, lie returned , it to . the. secretary .to file. There is some • conflict in the testimony on this point, but we treat it as, being settled in favor of the findings of the trial court.. It will be observed :that the statute makes- it the •uty of the secretary of the Railroad Commission to file.' thetranscript in the' office of the clerk of the circuit cOurt, and . that the jurisdiction of . .the circuit court attaches. from the time of the . filing of the motion for appeal with the:commission. .. In. -the ca-se of, Van Buren Water Co. v. Van Buren, 152 . Ark. 83, we decided that, where there* was, a delay . beyond the limit fixed by the statute in filing •transcripts -on .appeal from.the Railroad Commis-. sion,.'there was no ' •abuse of the .court's . . discretion in refusing to dismiss •the,appeal, if it was• found that the • delay was : not caused by the fault of the appellant. ,We cannot say that the :testimony Was insuffiCient to support the finding of the circuit court in this cases that the ., delay was not caused by negligence of appellee's eoun-sel, or that the delay was excusable. • . .The . main-issue was heard by the trial court on tes- • timony . adduced before the . Railroad Comthission, a- - transcript of . which was before the court. There- were. numerous, witnesses introduced .by the original . peti-. tioners, who testified concerning, the- volumei of' business over the line, in and . out of Murfreesboro •and the prospects for . rapid future increase of the . busineSS. Appellee introdifced testimony from its records showing that that portion-of the line had always been operated at a .loss. There was no-, pyoof, however,' that tfie operation . of the- whole line froth Ashdown to Murfreesboro would result In a hiss. The proof was undisputed, however, that the railroad line between Nashville and Murfreesboro was badly out of repair, and -that it would cost at least $40,000 . to repair the roadbed, ties and bridges, so that- trains could be safely operated. •• Appellee also proved by its . president rePeated
18 ARK. RAILROAD COM. V. GRAYSONIA, N. & A. R. Co. [169 efforts to secure funds with which to consummate the purchase of this line under the option contract with . Riffel and the inability to raise the money, and that on that account the option to purchase was never consummated, hence the abandonment of the line. Counsel for appellants invoke the doctrine that where a corporation takes a franchise and begins operation under it there can be no abandonment of a portion of the franchise merely because it proves ' unprofitable. In other words, counsel rely on the doctrine • announced by this court and the Supreme Court of the United States that where a public utility, after having taken advantage of its charter to operate a line, cannot "pick and choose" —retaining the profitable part and discarding and abandoning the unprofitable part. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, s. c. 267 U. S. 330. That doctrine is not applicable, however, to a case where it is sought to compel a public utility to operate a line over which the charter rights have nOt been extended merely because there is a potential right granted in the charter. The proof in the *case shows that appellee never acquired, either by purchase or lease, the line of railroad from Nashville to Murfrees-boro. It acquired only an option to purchase, which was never exercised. The doctrine referred to above cannot be invoked to compel a public . utility to acquire a line, but merely to compel it to continue operation of a line 'which it has once acquired and undertaken to operate. Appellee's charter does not 'require it to operate the entire line of railroad specified therein. - It merely grants a franchise to own and operate such portions of the old railroad as might be acquired "by purchase or otherwise." If appellee decided not to Or- • chase the additional section of the road, it could not be compelled to do so. The question whether its failure to do so would constitute grounds for forfeiting the charter is not before us. The evidence in the case is not altogether clear as to why appellee commenced
operation of this line of the railroad without finally • exercising its option to purchase, but it is fairly infer-able that it was a mere :temporary occupancy in antici-• pation of the ability to make the purchase, but without committing appellee . to an ' exercise of the option. . The option contract was not introduced in the record; but , Mr. Conway, the president of appellee company,, was permitted- to testify without objection that :the .con-:tract was a , mere option to purchase, and that after gent effort the company was unable to find the Moneys with -Which to make the purchase under the option: Our conclusion is, that, 'under the evidence introduced in the case to the effect that 'appellee did not own this line of railroad, either by purchase • or, lease, it would not be compelled to acquire ownershiti for the purpose of operating the road. The judgment of the circuit coUrt is therefore affirmed. .•
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.