Chi., B. & Q. R. Co. v. R.R. Comm'n of Wis.

• Citation: 152 Wis. 654,140 N.W. 296
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 13 March 1913
• Parties: CHICAGO, B. & Q. R. CO. v. RAILROAD COMMISSION OF WISCONSIN.

152 Wis. 654

140 N.W. 296

CHICAGO, B. & Q. R. CO.

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

March 11, 1913.

Dissenting Opinion March 13, 1913.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Chicago, Burlington & Quincy Railroad Company against the Railroad Commission of Wisconsin. Judgment for defendant, and plaintiff appeals. Affirmed.

Action to determine the validity of an order of the Wisconsin Railroad Commission requiring the plaintiff railway company to stop two of its passenger trains each way daily at the station of Cochrane, Wis., pursuant to the provisions of section 1801, Stats. 1911. One Schlosstein, a resident of Cochrane, filed a petition with the Railroad Commission, alleging that the passenger service at said station was inadequate, and praying for an order compelling plaintiff to stop two of its passenger trains each way daily at said station as required by the statute. Thereupon, after due notice, a hearing was had before the Railroad Commission, from which it appeared that the passenger service at Cochrane was as follows: North-bound train No. 91, a freight, carrying passengers, daily, except Sunday, due at 10:17 a. m.; passenger train No. 53, north-bound, daily, due at 10:58 a. m.; south-bound passenger train No. 54, daily, due at 9:09 a. m.; and freight train No. 92, south-bound, carrying passengers, daily, except Sunday, due at 1:10 a. m. It is admitted that Cochrane has a post office. Further facts shown by the hearing are thus stated in the decision of the Railroad Commission: “Cochrane is an incorporated village of about 260 inhabitants. It has four general stores, two saloons, two lumber yards and planing mills. The village of Buffalo, having a population of about 250, lies a short distance west of Cochrane. Alma, the county seat of Buffalo county, having a population of 1,000, is situated 8.3 miles north of Cochrane. Fountain City, having a population of approximately 1,000, lies about eight miles south of Buffalo. All of the limited trains on respondent's line stop at Alma. Two passenger trains each way daily stop at Fountain City. The respondent's road is located on the east bank of the Mississippi river, and runs through a territory that is sparsely settled. About 90 per cent. of all the passenger traffic over this line consists of people going from Chicago to St. Paul and points in Minnesota, the Dakotas, and the entire Northwest and Canada. Two trains are run each way daily between Chicago and Portland and Seattle. One train leaves Chicago in the morning, and from St. Paul runs over the Northern Pacific line to the Northwest. Another train leaves Chicago in the evening, and from St. Paul goes over the Great Northern line to the Northwest. There are two corresponding trains east bound. There is also a train each way daily between Chicago and Minneapolis, known as the Minnesota Limited, which serves the traffic to Minneapolis and St. Paul on the other hand, and to Chicago and St. Louis on the other. In addition to these interstate trains, there is a local train each way running between Savanna and Minneapolis, which takes care of the traffic in the state of Wisconsin. The west-bound train from Chicago to the Northwest by way of the Northern Pacific line from St. Paul is known as train No. 51, and is composed of standard Pullman and tourist cars. The number of cars in the train is 12. The corresponding east-bound train is known as train No. 53, and contains the same number of cars. Similar trains routed over the Great Northern line from St. Paul to and from the Northwest are known as trains 49 and 52, respectively. Trains 47 and 48 are each known as the Minnesota Limited, and each is composed of one observation car, three standard sleeping cars, one St. Louis standard sleeping car, two Chicago coaches, one combined mail and baggage car, and two baggage cars. Train No. 58 consists of two sleeping cars, and from five to eight baggage and express cars. All of these interstate trains are heavy, and run at a maximum speed of 50 miles per hour in order to make connection with trains for the East at Chicago and with trains for the West at St. Paul. As the distance between Chicago and St. Paul over respondent's line is 33 miles greater than that over the line of the Chicago & Northwestern Railway Company, and 27 miles greater than that over the line of the Chicago, Milwaukee & St. Paul Railway Company, it becomes necessary for the respondent to operate its trains at a high rate of speed in order to meet the schedule time of its competitors' trains between such points as well as to make the connections mentioned.”

It appeared that the petitioner's chief complaint was that it was impossible for residents of Cochrane and vicinity to go to any point either north or south by train to transact business of any consequence and return on the same day, and that the railroad company's objection to stopping any more trains was because all its other trains were heavy interstate limited trains, which were run in competition with like trains upon other roads, and that, if it was required to stop such trains at all stations having a population of 200, it would be impossible to continue them in service as limited trains. The Railroad Commission stated in its decision that, independent of any statutory provisions on the subject, it would feel constrained to hold that the existing passenger service afforded the village of Cochrane was adequate under the circumstances, and that, therefore, interstate trains could not be required to stop at that station. But that, since the statute fixed the quantum of passenger service for every station coming within the classification made, it deprived the Railroad Commission of any discretion in the matter, and the order was made accordingly.

To review the order of the Railroad Commission the present action was brought pursuant to the provisions of section 1797m64, Stats. 1911. The trial court, in addition to facts already recited, found “that the passenger service afforded Cochrane when the order in question was made was not adequate or reasonable; that the said order was a reasonable exercise of the powers vested in the defendant Commission.” As conclusions of law the court held the order valid, and entered judgment dismissing plaintiff's complaint upon the merits, from which judgment plaintiff appealed.

Timlin and Kerwin, JJ., dissenting.

Woodward & Lees, of La Crosse, for appellant.

Walter C. Owen, Atty. Gen., Russell Jackson, Deputy Atty. Gen., and Byron H. Stebbins, First Asst. Atty. Gen., for respondent.

VINJE, J. (after stating the facts as above).

It will be observed from the foregoing statement of facts that the Railroad Commission based its order upon the statute (section 1801, Stats. 1911), and not upon an exercise of discretion or judgment on its part that the service was inadequate. Indeed, it states that, were it not for the statute depriving it of the exercise of discretion, it would come to a contrary conclusion, and refuse to make the order requiring additional trains to be stopped at Cochrane. The trial court, however, finds that the passenger service at Cochrane was not adequate or reasonable, and that the order of the Railroad Commission was a reasonable exercise of the powers vested in it. So we have a situation where the Railroad Commission disaffirms the exercise of discretion in making the order and the trial court affirms it on the ground that it was made pursuant to a reasonable exercise of the powers vested in it, and that upon the facts found by the trial court the order was right.

[1] The question, therefore, presents itself, Can the circuit court for Dane county, in which jurisdiction to test the validity of orders made by the Railroad Commission is vested, make an administrative order based upon the original exercise of its own discretion? The provisions of the statute authorizing the action to review orders made by the Railroad Commission, in so far as they speak definitely, must control. Section 1797--16, Stats. 1911, reads: “Any railroad or other party in interest being dissatisfied with any order of the Commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or service, may commence an action in the circuit court against the Commission as defendant to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates, fixed in such order, is unlawful, or that any such regulation, practice or service, fixed in such order, is unreasonable, in which action the complaint shall be served with the summons.” It will be noticed that the statutory power of the circuit court is limited to that of vacating and setting aside an order made by the Railroad Commission or refusing to do so, and that the order can be attacked only on two grounds: One, that the rate or rates, fares, charges, classifications, joint rate, or rates fixed in such order is unlawful; and the other, that any such regulation, practice, or service fixed in such order is unreasonable. The statute, therefore, delegates only judicial functions to the court by empowering it to pass upon the lawfulness or reasonableness of the Railroad Commission's order. To clothe a tribunal with the power to adjudge whether or not an order made by another body is reasonable is quite different and distinct from investing such tribunal with the power to make a reasonable order in the first instance. The one is a delegation of judicial power, the other of administrative power. The circuit court of Dane county can exercise no administrative functions, and none were attempted to be delegated to it by the statute referred to. That the Legislature intended the circuit court only to review orders made by the Railroad Commission, and not to make new ones based upon evidence taken in court, is made...