City of Columbia v. Tatum et al

Full title: CITY OF COLUMBIA v. TATUM ET AL

Court: Supreme Court of South Carolina

Date published: Dec 1, 1934

174 S.C. 366 (S.C. 1934)

177 S.E. 541

Opinion

13953

December 1, 1934.

Before MANN, J., Richland, October, 1934. Affirmed.

Suit by the City of Columbia against Thomas H. Tatum and others, as members and constituting the Railroad Commission of South Carolina, and others. From an adverse decree, the Railroad Commissioners appeal.

The decree of Judge Mann was as follows:

The City of Columbia commenced this action on October 11, 1934, against the Railroad Commission, asking this Court to review certain orders of the commission. The Columbia Railway, Gas Electric Company (sometimes referred to as the railway company) and the Broad River Power Company (sometimes referred to as the power company) are joined as parties defendant. The jurisdiction of this Court as a Court of equity is invoked in a double aspect, as will be later explained.

A rule was issued by me returnable on October 17. The Attorney General, appearing for the commission, objected to proceeding in this way; but agreed that the action should be heard by me on the merits on October 26. It was heard accordingly, and has since been held under consideration.

The facts cannot be stated more succinctly than they appear in the pleadings. For the convenience of those who may read this decree without access to the pleadings, I quote the pertinent sections.

Paragraphs 1-5 of the complaint read as follows (the italicized portions are denied, the other allegations admitted by the answer of the commission):

"1. That plaintiff, City of Columbia, is a municipal corporation of South Carolina, having duly delegated police power, authority and control over its streets.

"2. That defendants, Columbia Railway, Gas and Electric Company and Broad River Power Company, are public utility corporations and are subject to a duty, as declared by the Supreme Court of South Carolina, to furnish an adequate transportation service in the City of Columbia and its environs.

"3. That the individual defendants constitute the Railroad Commission of South Carolina, hereinafter sometimes spoken of as the `Commission,' and are, by the Act of 1922" (now Section 8253 of the Code) "vested with power and jurisdiction to supervise and regulate the rates and service of public utilities furnishing street railway service, and to ascertain and fix just and reasonable standards, classications, regulations, practices and measurements of service to be furnished, imposed, observed and followed by such public utilities. That the corporate defendants are utilities furnishing and supplying street railway service, and as such are subject to such statutory jurisdiction of the Commission.

"4. That plaintiff has in process the widening and repaving of Harden Street between Gervais and Divine Streets, this being one of the most important traffic arteries of the City, by reason of territory that it serves and by further reason of the fact that U.S. Highway No. 76 enters the City over this street. That one primary purpose of the project is to widen and repave Harden Street, so that it may be a safer and more convenient highway. But another and equally important purpose of the project is to induce traffic to proceed to the business section via Harden Street rather than Green Street, thus avoiding a dangerous grade crossing made by Green Street with a much-used steam railroad track, and also largely relieving the dangers of the great congestion that now exists on Green Street at and near its junction with Harden Street, in an area known as Five Points because five important streets converge to a junction thereat. That the City has secured an allocation of federal funds for this project in the sum of about $80,000.00 and the important incidental work of building a retaining wall and a storm drain has been completed, so that the project has reached the point where it cannot further progress until the street car tracks are removed from Harden Street.

"5. That there are two street car tracks along Harden Street to Divine Street, one of which is within the present paved portion and has been abandoned and covered up. That the other street car track is without the present paved portion, but within the portion projected to be repaved, and is used as a part of the Shandon Annex line."

Paragraph 6 of the complaint reads:

"6. That after careful consideration of all phases of public interest and convenience, City Council has determined that it would make a better and safer street and highway to entirely eliminate the street car tracks and street cars from Harden Street and substitute adequate bus service for the Shandon Annex street car line. That the experience had with substitution of buses on other lines during the past three years, and other facts and circumstances have convinced City Council that bus service is faster, quicker, safer, more flexible as to changes, extensions and routes, and from all angles more convenient and satisfactory to the public in a city of this size."

Paragraph 6 of the answer reads:

"6. That on information and belief these defendants admit that City Council reached the conclusion set forth in paragraph 6 of the Complaint, but these defendants deny that said conclusion is in anywise binding and of legal effect in the premises and they further deny that City Council had any jurisdiction or power to pass upon said matters, as said decision necessarily effects other municipalities and territory whose rights are inseparably involved in any part of the street car system as it exists in the City of Columbia and towns and communities contiguous thereto."

Paragraphs 7-10 of the complaint read:

"7. That on or about May 25, 1934, plaintiff filed its petition with the Commission, asking the Commission to order the corporate defendants to discontinue street car service on the Shandon Annex line and substitute adequate bus service therefor, so that plaintiff might proceed with its project without delay, to accomplish the great improvement inhering in such project, and help relieve the existing unemployment by the proper use of the federal funds allocated thereto, the project having been long contemplated and desired by plaintiff, but plaintiff having been and being now unable to itself supply the large amount of money necessary for its consummation

"8. That after notice to the public, published in three issues of The State newspaper, the Commission held a public hearing on June 12 and an adjourned hearing on July 5, 1934, at which all parties interested were given full opportunity to appear and be heard. That Hon. John M. Daniel, Attorney General, Mr. Richard I. Lane and Mr. R.S. Coleman, Mayor of Eau Claire, appeared for various citizens on the first hearing, and on the adjourned hearing Assistant Attorney General Wilson and Mr. Lane likewise appeared. That after careful consideration and deliberation the Commission passed its Order No. 1066, a copy of which is attached as Exhibit A, and incorporated herein by reference, granting the prayer of plaintiff's petition, and also Supplemental Order No. 1067, attached as Exhibit A-1, prescribing the bus route to be followed.

"9. That thereupon Hon. John M. Daniel, Attorney General, and C.T. Graydon, Esq., as attorneys for the State of South Carolina and various property owners, filed a petition for rehearing with the Commission and also filed a petition with Hon. Eugene S. Blease, Chief Justice of the Supreme Court of South Carolina, asking for a stay of the orders of the Commission. That on the latter petition proceedings were had which resulted in an order of the Chief Justice, dated Sept. 18th, 1934, a copy of which is attached as Exhibit B and incorporated herein by reference.

"10. That the Commission set down for argument the question whether the petition for rehearing should be granted by it, and heard full argument in this respect. That thereafter on the 10th day of October, 1934, the Commission handed down its Orders Nos. 1072 and 1073, which are attached as Exhibits C and C-1 and incorporated herein by reference. That thereafter plaintiff applied to the Commission for a rehearing, which was, by order of the Commission, denied on the 11th day of October, 1934."

Paragraphs 7-10 of the answer deny the italicized allegations of paragraph 7 of the complaint and admit the others.

The complaint then alleges that Orders Nos. 1066 and 1067 were within the express statutory power of the Commission under Sections 8252, 8253 of the Code, and that Orders Nos. 1072 and 1073 were based on the erroneous holding that the Commission was without jurisdiction; hence that Orders Nos. 1072 and 1073 should be vacated and Orders Nos. 1066 and 1067 reinstated as the lawful orders of the Commission, or that this Court should grant the relief desired by the city directly by its own decree. This is the alternative relief prayed in this action under the double aspect of the bill. These allegations are denied by the answer and the issues thus raised.

The answer of the railway company and the power company admits the allegations of the complaint and joins in the prayer thereof. Both utilities join with the city in all respects.

THE QUESTION PRESENTED

It thus appears that the question directly involved is whether the right and duty of the city council of Columbia to improve its streets according to their best judgment, after careful consideration, is limited by some inconsistent and superior right that inheres in some person or in the public and prohibits the substitution of adequate bus service for the street car service on this line. The case does not present the abstract question of the general substitution of buses on the entire transportation system, but whether the city must change its mature plan for the improvement of Harden Street, or abandon it, because of its inability to secure an adequate substitute on the particular line.

THE JURISDICTION OF THIS COURT

Section 8254 (Subdivision e) empowers this Court to review decisions of the Commission upon "questions of both law and fact." It provides (Subdivisions g, h), that the stenographic record required to be taken by the Commission shall constitute the record for the hearing in this Court. The statute (Act 1922, 32 Stats., 938, now Sections 8252-8255 of the Code), does not provide that the decision of the Commission shall be prima facie correct or that the contestant shall bear the burden of proof in this Court. It carries no similar provision. While the Legislature might so have provided, it did not do so. Compare Section 6(d) of the Act of 1932 (37 Stats., 1497, 1519), which relates solely to electric utilities and leaves the Act of 1922 controlling as to gas and transportation utilities.

The Supreme Court said in its unreported order of May 16, 1931, in the Street Car case: "The respondent companies and all parties including the City of Columbia and the Railroad Commission are within the jurisdiction of this Court, and this Court therefore exercises its own independent judgment on the questions presented." In Finley v. Cartwright, 55 S.C. 198, 33 S.E., 359, 360, the Supreme Court pointed out that under Article 5, § 4, of the Constitution, it is authorized to "review the findings of fact" in an equity case. It said that "this necessarily involves an examination of the evidence with a view to ascertain what, in the judgment of this Court, is the truth;" and that "it may now be regarded as settled that this Court may reverse a finding of fact by the Circuit Court when the appellant satisfies this Court that the preponderance of the evidence is against the finding of the Circuit Court."

These considerations convince me that in this action I must exercise my own independent judgment on questions of both law and fact, and that, as to the facts, I must examine the evidence in the record of the commission and determine the truth according to my best judgment. Any lesser exercise of the equity jurisdiction of this Court would not accord the contestant the judicial determination of his rights to which he is entitled under "due process of law." "The order of the Railroad Commission was simply legislative," and the party adversely affected thereby is entitled to a judicial determination of its validity. Blease v. Ry. Co., 146 S.C. 496, 144 S.E., 233. The Supreme Court there reviewed the facts and exercised its own independent judgment, reversing the order of the Commission. The Blease case cited with approval and followed the Ben Avon Borough case, 253 U.S. 287, 40 S.Ct., 527, 64 L.Ed., 908. There the United States Supreme Court held that a statute of Pennsylvania providing for a review of orders of a commission was unconstitutional, because (as construed by the State Supreme Court), it did not permit the State Court to exercise its independent judgment as to the facts. Following the Ben Avon case, the Court of Appeals of the District of Columbia, in Potomac Electric Power Co. v. Public Utilities Comm., 51 App. D.C., 77, 276 F., 327, reversed the lower Court for refusing to exercise its independent judgment as to the facts, in reviewing an order of a commission under a statute similar to ours.

The record of the Commission, including a stenographic transcript of the evidence on the several hearings, has been filed with, and carefully considered by, me. The facts as herein stated by me are the facts that I find from the preponderance of the evidence in the exercise of my independent judgment searching for the truth.

THE RIGHT OF THE CITY TO IMPROVE ITS STREETS

The power of the City of Columbia as a municipal corporation to improve its streets and to regulate traffic thereon is not denied, as a general proposition. This power is necessary to the accomplishment of a primary function of all municipal governments. As long ago as 1871 (14 Stats., 572), the General Assembly vested in the city council of Columbia "full and ample power, * * * to make all such ordinances, rules and regulations, relative to the streets and markets of said city, as they may think proper and necessary. * * *" The Legislature has since continued and enlarged this power. It has been consistently recognized by all Courts. The Supreme Court has affirmed it as recently as Huffman v. City of Columbia, 146 S.C. 436, 144 S.E., 157.

No question arises here as to whether the city could remove the tracks in violation of a franchise contract right in the utility to continue its tracks and operate its cars along Harden Street. In the absence of a contrary franchise right, the city may require the removal of street car tracks from its streets. This is within the power of a municipality to control its streets. Detroit United Ry. v. Detroit, 229 U.S. 39, 33 S.Ct., 697, 57 L.Ed., 1056. The utility has here consented to the plan of the city. No opposing rights are advanced in its behalf, and this phase of the matter may be dismissed from further consideration.

THE CONTENTION OF THE ATTORNEY GENERAL

The Attorney General contends with great earnestness that no substitution should be allowed. He has consistently and earnestly presented this view throughout this long-drawn litigation. He fears that substitution may impair the obligation of the utilities to furnish adequate transportation service. He recalls the efforts made by the utilities to wreck the transportation system — this is ineradicably impressed upon his memory — and he will not agree to any change, because he fears that the rights of the public may be endangered.

The consistency and perseverance of the Attorney General command the admiration of the Court and merit its commendation. It is doubtless due to the insistence of the Attorney General that the rights of the public have been so carefully guarded and every possible precaution taken to avoid any prejudice to the public interest. He has caused this Court to approach the matter with great caution and with full realization of the dangers involved.

The Court is confronted with the accomplishment of two important public purposes: One, that of the progressive and growing Capital City of the state to improve its street, also the entrance of a great national highway, to make it more convenient and, in the judgment of its city council, safer for its own people, the people of the State and visitors from the nation at large, to solve an incidental but important traffic problem of its people, and, at the same time, to take what experience has taught to be a step forward, in the development of a permanent and adequate transportation system. The other, the desire of the public to be secure in an adequate and permanent transportation system, enjoy the benefits of improved facilities and instrumentalities of transportation, and yet not endanger the public interest in this respect by impairing the legal duty of the utilities.

If these public interests may be harmonized and both purposes accomplished, this is, of course, a happy result. The Court is of the deliberate opinion, after the most careful consideration, that this may be done.

Mr. Paul A. Cooper, city attorney, and Mr. Joseph L. Nettles, who represented the city in the street car litigation, after the case had been remanded by the United States Supreme Court, appear for the city in this action. They assure me that the City of Columbia is more directly and extensively interested in a permanent and adequate transportation system than any one else; that they would not for a moment sponsor or agree to any proposition that would endanger either the adequacy or the permanency of the transportation system, or that might impair the obligation of the utilities to furnish the same. They state, however, that they are satisfied, from the most thorough consideration and study, that the substitution may be lawfully accomplished without endangering any rights or interests of the city or of the public generally.

Mr. William S. Nelson and Mr. Harry N. Edmunds, both of whom actively represented parties petitioner to the mandamus proceeding in the Supreme Court, and whose legal ability is well known, testified before the Commission that, in their opinion, the substitution can be accomplished without impairing the obligation of the utilities to furnish an adequate and permanent transportation system.

THE HOLDING OF THE SUPREME COURT

Careful study of the reported and relevant unreported opinions and orders of the Supreme Court convinces me that the Supreme Court has decided that substitution may be safely made. The original opinion by Mr. Justice Carter, filed July 7, 1929, is found in State ex rel. Daniel v. Broad River Power Co., 157 S.C. 1, 153 S.E., 537. The first opinion of the United States Supreme Court was filed May 19, 1930, Broad River Power Co. v. South Carolina, 218 U.S. 537, 50 S.Ct., 401, 74 L.Ed., 1023, and the opinion following the rehearing on December 15, 1930, Id., 282 U.S. 187, 51 S.Ct., 94, 75 L.Ed., 287. The peremptory writ of mandamus was actually issued by our Supreme Court on January 12, 1931, but to be deemed issued as of July 9, 1929.

Street car service had been finally discontinued in February, 1927, so that the street car system as a whole had been abandoned for practically four years — several of the lines for a longer time — when our Supreme Court resumed control of the case. The physical properties were in such a state of dilapidation as to require a complete rehabilitation before adequate service could be furnished. For a long time the utilities refused to acknowledge their responsibility or to co-operate towards the proper restoration of the system and the furnishing of adequate service. Their dilatory tactics brought them into actual contempt. The Supreme Court was obliged to exercise actual supervision of the rehabilitation of the tracks and the resumption of proper service. It might have done this through a receiver. More charitably and patiently, it did so itself; later on with the assistance of a board of engineers.

In these circumstances, the Court issued its unreported order of February 13, 1931, detailing the twelve lines to constitute the system, as it had existed in 1925, and concluding: "Provided, that the said system and lines as hereinbefore specified may be modified or changed in furtherance of this Court's judgment to require a full, adequate and satisfactory service, either upon written agreement of the parties hereto approved by this Court, or by petition to this Court in this cause after notice to the other parties hereto."

The question of the substitution of buses thereafter came into the cause. The Court, by its unreported order of May 16, 1931, permitted the substitution of buses on five of the twelve lines, resulting in seven lines of street cars and five lines of buses. One of the street car lines was the Shandon line, one of the so-called "contract lines," originally constructed under a contract with a development company (Columbia Land Investment Company). This line was a part of the Heathwood line, and is later spoken of under both names. It is from this line on Divine Street that the Shandon Annex line branches off at King Street.

Both utility companies consented to this order, so that it became a contract as well as an order. Thereby they foreclosed themselves by contract from thereafter contending that the transportation franchise is separable or that transportation service may be discontinued because it can be performed only at a loss. The importance and conclusive effect of this consent should not be overlooked in view of the suggestion in the minority opinion of the United States Supreme Court on the rehearing that the utility might later claim confiscation.

In this order of May 16, 1931, in response to the objections of the Attorney General, the Court said that: "This matter does not involve in any sense the abandonment of the people's rights to the continuance of electric street car service. The Court believes and intends that such rights should be and are fully protected under the terms of this order." The Court went on to say that the utilities are ordered "to operate and maintain for public transportation purposes, in connection with and as part of their public service operations in Columbia and vicinity," the seven street railway lines and the five bus lines.

And again:

"Said respondent companies shall operate and maintain the said electric street car lines and bus lines and the buses and street cars serving the same as one entire public transportation system with interchangeable transfers, and the said companies shall make the said transportation service adequate and satisfactory.

"The authority hereby granted to said respondent companies to operate said bus lines shall not be construed in any way to change the nature of said companies as railroad corporations under the decisions heretofore rendered affecting their status in regard to the Bankruptcy Act [11 U.S.C.A. ]."

And again: "It is further ordered that respondent companies shall assume full responsibility for the public transportation service of the City of Columbia and vicinity, and during the term of their electric-light-and-power and gas franchises in Columbia and vicinity, they shall provide and maintain said public transportation service by means of electric street cars or electric trolley buses, or gasoline motor buses, or any combination thereof or other means, as the public welfare may require and as may be directed by competent authority in pursuance of the provisions of law now or hereafter governing the said transportation service; it being the intention of this order however to provide for the continued operation of the seven electric street car lines without change except as may be provided for by subsequent order of this Court."

It is contended that the last clause forbids any further substitutions here except by order of the Supreme Court, although the proceeding has been dismissed by that Court and remanded to the Railroad Commission, as hereinafter pointed out.

Then came the unreported order of July 13, 1931, whereby the Supreme Court adopted the unanimous recommendation of the board of engineers, made after an exhaustive investigation, and permitted the substitution of buses on the Shandon or Heathwood line, and also on a portion of the Union Station-Olympia line.

Next is the unreported order of October 21, 1931 (note the attached memorandum by the Chief Justice), whereby the Court declined to allow substitution on the Shandon Annex line. This is the particular order that is claimed to be res adjudicata and and to prohibit the substitution in this case. This feature will be later considered.

This constituted the transportation system as it exists today, with the exception of the extension of a number of bus lines to serve additional territory. The transportation system today serves twice as much territory as the street car system served in 1925. The bus service is adequate and satisfactory to its patrons. Those petitioning the commission to retain street cars on the Shandon Annex line expressly state that the street car service as rendered thereon is adequate and satisfactory. The street car tracks were reconstructed according to the specifications and to the satisfaction of the board of engineers. The street cars were renovated. Much incidental paving was done. Columbia and its environs today enjoy a first-class transportation system and service, the equal of any existing in a community of comparable size in the country.

The executives of both utilities in charge of operations testified that they recognize their obligation as defined by the Supreme Court, that they have made, are now making, and intend in the future to make, every bona fide effort to furnish, not only an adequate, but an attractive, transportation service. The utilities prefer buses for the same reasons that appeal to the city, and for the additional reason that they are substantially less expensive to operate; the operating expense of a bus running three cents per mile less than that of a street car. This executive is desirous of substituting an entire bus system, and, speaking from his experience here, testifies that, in his opinion, the great majority of the people would be better satisfied and would patronize an entire bus system to a substantially greater extent. His experience is that the large majority of the people greatly prefer buses.

Paragraph 2 of the answer of both utilities here, in identical language with Paragraph 1 of the return of both utilities before the Commission, is as follows: "Defendants acknowledge that they are bound by the orders of the Supreme Court of South Carolina in State ex rel. John M. Daniel, Attorney General, v. Broad River Power Company et al., first reported in 157 S.C. 1, 153 S.E., 537, commonly called the Street Car Case; and further expressly agree that any substitution of bus service for street car service that may be made at any time, in any manner, and under any authority, shall not impair their obligation in this respect, to any extent or degree whatsoever."

To "give the Devil his due," it is only fair to place these facts on record in this decree.

The Supreme Court held that the Broad River Power Company, as well as Columbia Railway, Gas Electric Company, must ride the people of this community so long as it sells them electricity and gas. The Court was looking to a permanent and adequate transportation service for the City of Columbia and its environs. The adequacy has in fact resulted. The permanency has been accomplished in so far as the law can accomplish this. The obligation has been fixed on Broad River Power Company. This obligation is admitted of record and agreed to, now many times. This company, as well as the railway company, is a corporation of this State. It owns tangible electric and gas property worth millions of dollars situate in this State, in addition to the property devoted to transportation service. Both the corporations and their properties are subject to the jurisdiction of the Courts of this State. To suggest that Broad River Power Company may by some chicanery escape its obligation to furnish transportation service is to conjure up a fear rather than a possibility. It simply cannot be done. The Courts are not futile and will not permit it to be accomplished. I am thoroughly satisfied in this respect; else I would not consider the matter further.

The legal status is now far different from that when the railway company attempted to enter the bankruptcy Court. Then it was contended, and thought by some, that the obligation to furnish transportation service rested only on the railway company and not on the power company. The former owns only the street railway properties. The latter owns the extensive electric and gas properties. Now, it is finally adjudged, many times admitted of record and agreed, that the transportation duly rests on the power company, and it is expressly stipulated in the consent order of May 16, 1931, that the substitution of buses shall not change the legal character of the power company from that of a railroad company. The opinion of the Circuit Court of Appeals in the Bankruptcy case ( Columbia Ry., Gas Electric Co. v. State of South Carolina), 27 F.2d 52, 59 A.L.R., 665, denies that any public utility may take bankruptcy and thus escape its primary duty to serve the public. I do not believe that any Court today would sanction such a course. But the power company cannot take this course, except as a deliberate effort to sacrifice its electric and gas properties. It would hardly do this. It must ride the people so long as it sells them gas and electricity. It cannot abandon its transportation service so long as it uses its gas and electric properties.

It seems clear to me that the unreported orders of the Supreme Court of February 13, May 16, and July 13, 1931, are not res adjudicata in the judicial sense; that is, that they do not adjudge that street cars must be used forever on the lines where they are now in service, and that buses must be forever employed on the lines where they now run. The same is true of the unreported order of October 21, 1931, where the Supreme Court refused the substitution on this particular line. This order discloses on its face that the Court recognized that it had the power to allow the substitution, but declined to do so because it was not then satisfied as to the progress made and good faith shown by the utilities. All of these orders were of a mere administrative character, such as orders issued in a receivership, purely incidental to and by way of enforcement of the legal obligation of the utilities to furnish an adequate transportation service. The Supreme Court itself expressly stated that in passing these administrative orders it was acting as an administrative agency, such as the Railroad Commission. The circumstances in which the Court was taking action show that it was not particularly concerned with — in fact, not in a position to determine — the instrumentalities best adapted to the public service. To hold that these administrative orders are res adjudicata so that street cars must be used in perpetuity, although the public convenience demands improved instrumentalities, would deny both to the public and to the utility the benefit of improved appliances and instrumentalities that otherwise might promote the public convenience and safety. A similar rule enforced in 1892 would have forbidden the change then made by the utility from horses to electricity as the motive power for street cars and would prevent any similar advance in the future. In its order of May 16, 1931, the Court made it very clear that buses might be substituted for street cars in proper instances and under proper precautions to avoid impairing the obligation of the utilities to furnish an adequate transportation service.

The last-quoted clause of the order of May 16, "without change except as may be provided for by subsequent order of this Court," must now mean "without change except as provided for by order of lawful authority," now the Railroad Commission and this Court on review; else, as I see it, an impasse is brought about and the public deprived of the benefit of progress.

In its dismissory order, Ex parte Broad River Power Co., 166 S.C. 207, 164 S.E., 637, 639, the Court pointed out that the remaining questions "relate to where street railway lines should be run, where buses should be operated, the condition of street cars, street car tracks, and buses, and schedules of street cars and buses." The Court said that it had been performing "duties which should be discharged by the Railroad Commission of South Carolina, a body charged especially, under the law, with the performance of such duties." The Court reiterated that it thought that all the matters not settled "relate incidentally to the operation of the transportation system, * * * and that all these matters may be properly considered, acted upon, and decided by the Railroad Commission of South Carolina. That Commission, under the law, is charged with the supervision of street railway companies." The admonition "that it will be the duty of the Railroad Commission to carry out the order of the Court" was a warning that the Commission should not permit any impairment of the obligation of the utilities to furnish adequate transportation service; it was not an inhibition against the adoption of improved instrumentalities of transportation.

The concluding sentence of the opinion reads: "Any person interested, under the law, will have at any time the right and privilege to apply to the Railroad Commission for relief, if the respondents, companies, in any way fail to perform their duty to the public."

This dismissory order removes any doubt that may have arisen from the several administrative orders, although these are clear when the circumstances in which they were passed be borne in mind.

I hold that the Supreme Court has not forbidden the substitution of buses on the Shandon Annex line, or any other line, and that it is within the jurisdiction of the Commission to allow such substitution when this is in the public interest, provided that the obligation of Broad River Power Company and Columbia Railway, Gas Electric Company to furnish an adequate transportation service to the City of Columbia and its environs, as defined by the Supreme Court, be not impaired to any extent.

ORDERS 1066 AND 1067 ARE VALID

Order No. 1066, requiring the substitution, was based on the finding that this was in the public interest, that the substitution could be accomplished without impairing the obligation of the utilities, and upon the condition that the utilities and the city consent thereto, notwithstanding that the utilities had expressly consented in their return, as above quoted. Supplemental order No. 1067 merely designated the route for the buses, in a tentative way, following, as far as practicable, the existing street car line, and adding an extensive territory now having no transportation service at all. Leave was given to any interested party to petition the Commission for any alteration in the route. Under the views stated above, and based on the conclusions of fact hereinbefore and hereinafter set forth, these orders were a lawful exercise of the jurisdiction expressly vested in the Commission by the Act of 1922.

ADDITIONAL CONTENTIONS

The Attorney General further suggests that, if the substitution of buses proceeds to the point where the transportation system consists entirely of the bus service and has no street car service, the utility will not then be furnishing any street railway service and would not come within the statute. This seems a strained construction of the statute. The utilities are merely changing the instrumentalities used in performing their charter duties to furnish transportation. The language of the statute should be construed from a modern viewpoint, and not to prohibit progress in the public interest. The substance, and not the form, should control. In view of the provisions of the consent order of May 16, 1931, and the many and repeated estoppels of record and by agreement that would defeat such contention if and when made by the utilities, such construction is not necessary to protect the public interest. However, this is a bridge that need be crossed only if and when reached. Admittedly the objection does not apply now, and admittedly it will not apply after the substitution permitted by this decree becomes effective, since the utilities will continue to operate six main street car lines and will continue to be railroad companies and to furnish street car service within the express language of the statute.

The Attorney General further argues that the City of Spartanburg case, 130 S.C. 125, 125 S.E., 295, prohibits the substitution here. There the Commission undertook to allow the complete substitution of buses over the objection of the City of Spartanburg and in violation of the franchise contract between the utility and the city, whereby the utility agreed to operate street cars. The Supreme Court held that the Commission could not order the substitution over the objection of the city. It will be noted that the proceeding was instituted by the city to compel the operation. Here the city not only agrees to the substitution; it is asking that it be made. The situation is the same as in the several instances where the Supreme Court saw fit to permit the substitution in its orders of May 16 and July 13, 1931. Doubtless the Spartanburg case was there cited and relied upon by the Attorney General, as he opposed these substitutions, and considered inapplicable by the Supreme Court for the reasons here suggested.

Mr. C.T. Graydon appears for several persons owning property on the existing line. In their behalf, he contends that the Shandon Annex line is a "contract line" by reason of the development contract between the utility and the Shandon Annex Company, and that his clients are vested with contract rights in the continuance of the existing line and street car service thereover. The evidence discloses that this development company has long since gone into bankruptcy and its trustee discharged, and that it was not a party to the proceeding in the Supreme Court. There is no positive evidence as to the contract relied upon in this record. But, in view of the public interests involved, it is my desire and purpose to pass on all relevant questions involving public interests, and I assume the existence of this contract, as indicated in the Supreme Court record.

The Supreme Court itself allowed the substitution on the Shandon or Heathwood line by its order of July 13, 1931, and the Shandon line was a "contract line" under a similar contract with the Columbia Land Investment Company. But the Supreme Court clearly pointed out that it was considering only the rights accruing to the public, by reason of the development contracts, and not any separate or individual rights, irrespective of whether any such rights accrued to the individual property owners. It said: "The duties are essentially public," and "the Development Company contracts were made for the benefit of the public, and this furnishes an additional reason for holding that the same are enforceable in this proceeding."

"All contracts made by a utility relating to the public service must be deemed to be entered into in contemplation of the exercise by the State of its regulatory powers whenever the public interests may make it necessary. * * *" 51 C.J., 7. The right of the Commission to supervise and change such contracts, insofar as the public interests requires, is well recognized. 51 C.J., 45; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.S. 372, 39 S.Ct., 117, 63 L.Ed., 309, 9 A.L.R., 1420; State ex rel. Zimmerman v. Gibbes, 171 S.C. 209, 172 S.E., 130. Citizens and property owners have rights therein only as members of the public, insofar as the present question goes. The Commission is the duly constituted agency to determine the public interest. The power of the Commission to change from street cars to buses in a contract for public transportation service cannot be questioned by a private property owner who enjoys the benefits of the contract, not as a party thereto, but only as a member of the public. Stated in another way, a private property owner acquires no individual rights under such a contract as to the continued location of the line, or the employment of any particular instrumentality of transportation. His only right is the public right to an adequate transportation service to be furnished according to the mandate of the regulatory authority of the State, in the proper exercise of the police power.

ADDITIONAL CONCLUSIONS OF FACT

In addition to the facts already found and stated, I find the following facts from the clear preponderance of the evidence:

(1) That modern bus service of the type now furnished in Columbia is faster, quicker, safer, more flexible as to changes and routes and from all angles more convenient and satisfactory to the public in a city of this size. That this applies to the Shandon Annex line, which is entirely within the limits of the City of Columbia.

(2) That Harden Street, as widened and repaved, will be better and a safer street and a better and safer portion of United States Highway No. 76 if the street car tracks be removed therefrom, and the operation of street cars be discontinued thereon and buses be substituted therefor.

(3) That the improvement of Harden Street in this manner will divert traffic from Green Street, reduce the congestion now existing on that narrow street, reduce the hazards of the dangerous railroad crossing at grade on that street, and materially relieve the traffic congestion and dangers now existing at the junction area known as Five Points, bordering on both Harden and Green Streets.

There is no dispute in the evidence involved on finding Nos. 2 and 3. The physical and indisputable facts disclosed, as well as the entire evidence in the record, admit of no other reasonable inferences.

(4) That conclusions and purposes of the city council of Columbia alleged in Paragraphs 4, 6 and 7 of the complaint are soundly based on reason and facts and supported by the clear preponderance of the evidence.

ORDERS 1072 AND 1073

The commission had requested from the Attorney 11, 12 General an opinion. This negatived jurisdiction and was furnished the commission prior to the passage of Orders 1066 and 1067. Upon the filing of these orders, the Attorney General and Mr. Graydon, on behalf of his property owning clients petitioned for a rehearing. The commission set down for argument the question whether the rehearing should be granted. This was fully argued by the attorneys. These arguments were taken down and transcribed, and are part of the record before me.

Order 1072 reads:

"Upon consideration of the petition for a rehearing filed by the Attorney General and C.T. Graydon, Attorney at Law, in the above matter:

"It is ordered: That the petition be and the same is hereby granted and a rehearing therein allowed and Orders Nos. 1066 and 1067 be rescinded."

Order 1073 reads:

"In this matter, upon the request of the Commission, the Attorney General rendered a written opinion advising the Commission that it did not have the power nor the jurisdiction to grant the relief prayed for in the petition and we so hold; and for that reason the petition is dismissed.

"However, it is the opinion of a majority of the Commission that if the Commission had the jurisdiction to determine the merits of the case, its decision would be in favor of granting the relief prayed for; but not having such power the Commission has declined to pass upon the merits."

Both orders were passed on the same day, probably at the same time. They must be construed together, as they are in effect one instrument. It is a novel situation, but the principles involved are simple. The Court should look at the substance and disregard form.

No one doubts the power of the commission to change such an administrative order, in the absence of rights vested thereunder. Such orders are not res adjudicata in the judicial sense. Holmberg v. Ry. Co., 115 Neb. 727, 214 N.W., 746. They occupy the same status as the administrative orders of the Supreme Court hereinbefore discussed. Section 8254 expressly authorizes the commission to amend and rescind its orders.

"The argument comes to this: The railroad commissioners are under two laws, namely, the statute law of the state, which confers upon them certain powers over railroads, and the constitutional law of the state and of the United States, which requires that they shall exercise the powers conferred by statute only by due process of law; that is, after giving the railroad company due notice and opportunity to be heard. A statute is invalid which requires something to be done which is forbidden by the Constitution, but it cannot be essential to the validity of a statute that it should enjoin obedience to the Constitution." Railroad Commissioners v. Railroad Co., 82 S.C. 418, 64 S.E., 240, 242.

This requires that an order based on findings of fact be not changed without a further hearing on the facts, with notice and hearing accorded the adverse party.

The commission held no further hearing on the facts. Orders 1072 and 1073 were based solely on the erroneous legal conception of the commission that it was without jurisdiction. It seems to me, particularly in view of the fact that in Order 1073 a majority of the commission still adheres to its conclusion that the substitution should be allowed in the public interest, in so far as the facts are concerned, that the relief granted by me may properly be predicated on the theory that Orders 1066 and 1067 of the commission are still valid legal orders of that body, as well as upon the conclusions of fact and law, to the same effect, that I have reached in the exercise of my independent judgment; and I so hold and adjudge, and base the relief herein awarded on both grounds.

In this connection, it is a consolation to me that my conclusion on the facts is the same conclusion reached by the commission and still adhered to by a majority thereof, and, in so far as concerns the question whether buses be preferable to street cars on this route in the public interest, the same conclusion as reached by the board of engineers after an exhaustive examination and recommended to the Supreme Court. And I take further consolation in permitting the substitution, from the language of the Supreme Court in its order of May 16, 1931, to wit, that the utilities "shall provide and maintain said public transportation service by means of electric street cars or electric trolley buses, or gasoline motor buses, or any combination thereof or other means, as the public welfare may require and as may be directed by competent authority in pursuance of the provisions of law now or hereafter governing the said transportation service of said companies."

This action is now in this Court, and this Court should grant plaintiff the relief to which it is entitled without further delay. The litigation should be ended. Vacillation and delay have already shaken the confidence of the people in the quickness and finality of justice. All concede that this matter is of great urgency and public concern. The order of the Chief Justice so admonishes. It was pending before the commission from May 25 to October 10. It is my duty, as I see it, to end it here and now, in so far as this Court is concerned.

Mr. Graydon argues that his clients should have a rehearing before the commission because they did not actually know of the hearing. These property owners have not asked to intervene in this action. Yet I have patiently and gladly heard their counsel and considered their rights. Notice of the first hearing was published three times; notice of the second hearing was also published. No law required this. It was an extra precaution taken by the commission. Two hearings were held by the commission; prior to both, news items appeared in the newspapers; hundreds of citizens signed petitions pro and con. Many appeared before the commission. The matter had evidently been much discussed generally; more particularly in this section.

In these circumstances, to sustain Mr. Graydon's position might result in too much delay. Under such a rule, a hearing before this important tribunal could be made an endless proceeding.

CONCLUSION

The order of Chief Justice Blease was a stay order for the benefit of the Attorney General and Mr. Graydon's clients. When the commission passed Orders 1072 and 1073, it expired by its own terms. Its purpose was then accomplished. It has no further bearing.

I regret the length of this decree. It has seemed my duty to consider and decide the many questions involved.

I have noticed, during the preparation of this decree, a newspaper item stating that the railway company will convey all of the street railway and bus property to the power company and that the latter has expressly assumed all duties and obligations of the former as to transportation service and otherwise. This is not in evidence before me, and has not received the slightest consideration. By reason of my great interest in the wise solution of this problem, I am moved to comment on its importance. If true, as reported, it would indicate a proper attitude on the part of this utility — a recognition of its public duties and a purpose to discharge them in good faith. I hope that this is the case. I suggest to this utility and the people of this community that they should live in harmony and not in discord.

It is therefore ordered, adjudged, and decreed:

First. That the City of Columbia is entitled to the relief prayed for in the complaint, and the same is hereby accorded.

Second. That Orders 1066 and 1067 of the Railroad Commission of South Carolina are hereby adjudged to be valid, and made effective forthwith.

Third. That Columbia Railway, Gas Electric Company and Broad River Power Company be and they are hereby required to forthwith discontinue street car service on the Shandon Annex line, from the intersection of Sumter and Gervais streets in the City of Columbia to the southeastern terminus of that line, and to forthwith substitute therefor adequate bus service along the route specified in Order 1067 of the Railroad Commission of South Carolina; without impairing the obligation of such corporations to furnish an adequate transportation service in the City of Columbia and its environs.

Fourth. That the Columbia Railway, Gas Electric Company and Broad River Power Company do forthwith remove the street car tracks on Harden street, between Gervais and Divine streets, upon the request of the city, or that the City of Columbia may itself remove said tracks forthwith and charge the expense thereof to said companies.

Messrs. John M. Daniel, Attorney General and J. Ivey Humphrey and J. Ingram Wilson, Assistant Attorneys General, for appellants, cite: Statute as to public utility construed: Section 8252, Code 1932; 139 S.C. 107.

Mr. J.B.S. Lyles, for respondents, Columbia Railway, Gas Electric Co., and Broad River Power Co., cites: As to jurisdiction: 55 S.C. 198; 146 S.C. 496; 144 S.E., 233; 253 U.S. 287; 64 L.Ed., 908; 276 F., 327. Right of city to improve streets: 146 S.C. 436; 144 S.E., 157; 229 U.S. 39; 57 L.Ed., 1056; 157 S.C. 1; 153 S.E., 537; 27 F.2d 52; 166 S.C. 207; 164 S.E., 637; 130 S.C. 125; 125 S.E., 295; 51 C.J., 7; 248 U.S. 372; 172 S.E., 130.

Messrs. Paul A. Cooper and Joseph L. Nettles, for respondents.

December 1, 1934. The opinion of the Court was delivered by

MR. JUSTICE BONHAM.

The well-considered decree of Judge Mann fully considers and disposes of every issue made by this appeal. Any opinion of this Court must of necessity be merely a duplication of the decree.

It may not be amiss to add that the jurisdiction of the Railroad Commission in the premises is further sustained by the provisions of Section 8248, Volume 3, Code 1932, Act March 6, 1922, 32 St. at Large, page 956, § 6, to wit:

"Powers as to Public Utilities. — The railroad commission is hereby vested with power and jurisdiction to supervise and regulate the rates and service of every public utility in this State and to fix such just and reasonable standards, classifications, regulations, practices and measurements of service to be furnished, imposed or observed and followed by every public utility in this State."

It would be difficult to conceive of a more liberal grant of power. It is sufficient to embrace that power which the Railroad Commission exercised in these premises, which is approved by the Circuit decree.

The exceptions are overruled. The Circuit decree is affirmed. Let it be reported.

MESSRS. JUSTICES STABLER, and G. DEWEY OXNER and MR. ACTING ASSOCIATE JUSTICE A.L. GASTON, concur.

MR. JUSTICE CARTER concurs in result.