Chicago, M., St. P. & P. Ry. Co. v. Public Service Commission

• Decision Date: 05 October 1954
• Citation: 267 Wis. 402,66 N.W.2d 351
• Parties: CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RY. CO., Appellant, v. PUBLIC SERVICE COMMISSION, Respondent.
• Court: Wisconsin Supreme Court

Page 351

66 N.W.2d 351

267 Wis. 402

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RY. CO., Appellant, v. PUBLIC SERVICE COMMISSION, Respondent.

Supreme Court of Wisconsin.

Oct. 5, 1954.

The appellant, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, also referred to as the 'Milwaukee Road', a common carrier of passengers and freight, on February 13, 1953, petitioned the circuit court of Dane county for review of an order of the Public Service Commission of Wisconsin pursuant to provisions of ch. 227, Stats. Judgment was entered in that court on December 13, 1953, affirming the commission's order. It is from said judgment that the appeal was taken.

The railroad company operates a passenger and freight service line between New Lisbon (on the south) and Woodruff (on the north), the distance between those stations being 170 miles. Wausau is a station on the line located 74 miles south of Woodruff. Passenger trains 200 and 201 are operated between New Lisbon and Woodruff. Their standard equipment consists of Diesel locomotive, a mail and express car, two de luxe type coaches of recent design and a cafe parlor car. New Lisbon is on the main line of the 'Milwaukee Road' running from Chicago and Milwaukee to St. Paul and Minneapolis and beyond. The railroad company by its petition sought authority to discontinue the operation of these passenger trains on the line north of Wausau to Woodruff during the period September 15 to May 15, each year, and to substitute bus service therefor. The service of two other trains, 217 and 256, would have remained on this part of the line after the proposed substitution by bus of the trains in question. The stations included in the proposal and their order of location on the line are: Wausau, Brokaw, Merrill, Irma, Tomahawk, Heafford Jct., Harshaw, Goodnow, Hazelhurst, Rantz, Kawaga, Minocqua and Woodruff.

The record indicates that the railroad company first discontinued the operation of passenger trains 200 and 201 north of Wausau on January 15, 1951. However, such service was reinstated about May 15, 1951, after proceedings before the commission, wherein it was found and directed that resumption of the service was required so as to provide reasonably adequate service to the public. Review proceedings as to said order were instituted, but later dismissed. No issue as to the propriety of the order of that dismissal is presented on this appeal.

The application by the railroad company in the instant matter was filed with the commission on March 6, 1952. Hearings were held at Merrill on May 28 and July 8, 1952, at which evidence was presented on behalf of the carrier and also on behalf of the public. Records of experience as to traffic, revenue, expense, etc., in relationship to the seven-month period October 1, 1951 to April 30, 1952, were introduced. Proceedings of the former hearing, with records of operation presented there, were stipulated in evidence. On October 24, 1952, the commission found that the proposed discontinuance of trains 200 and 201 north of Wausau with substitution of bus service during the seven winter months, October to April, inclusive, is not consistent with the rendition of reasonably adequate service to the public. The commission denied the petition of the carrier. Rehearing, pursuant to application, was granted, and thereafter the commission affirmed its order of October 24, 1952. Further facts appear in the opinion.

Bender, Trump, McIntyre, Trimborn & Godfrey, Milwaukee, Rodger S. Trump, Milwaukee, of counsel, for appellant.

Vernon W. Thomson, Atty. Gen., and William E. Torkelson, Chief Counsel, Public Service Commission, Madison, for respondent.

Wurster & Curtis, Merrill, for communities of Merrill, Tomahawk & Minocqua.

STEINLE, Justice.

The appellant railroad company seeks a reversal of the commission's order for the reasons: (1) that it is unsupported by substantial evidence in view of the entire record; (2) because the findings, inferences and conclusions of the commission are contrary to the railroad's constitutional rights and privileges and (3) further because they are arbitrary and capricious.

Sec. 227.20(1, 2), Stats., provides:

'(1) The review shall be conducted by the court without a jury and shall be confined to the record, * * *. The court may affirm the decision of the agency, or may reverse or modify it if the substantial rights of the appellant have been prejudiced as a result of the administrative findings, inferences, conclusions or decisions being:

'(a) Contrary to constitutional rights or privileges; or

'(b) * * *

'(c) * * *

'(d) Unsupported by substantial evidence in view of the entire record as submitted; or

'(e) Arbitrary or capricious.

'(2) Upon such review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it. * * *'

Appellant contends that the patronage of the passenger trains in question has decreased and the loss of operations has increased to an extent where it should no longer be compelled to furnish service in the area, except as proposed by it.

The respondent maintains that the railroad company has a duty to furnish reasonably adequate service to the public and that its proposal here would not accomplish such end; that the public need for the present service outweighs the railroad's loss; that there is no showing that the operating loss between Wausau and Woodruff would materially affect the over-all operation of the railroad. It maintains further that the findings are supported by substantial evidence. It denies that the findings and conclusions are arbitrary and capricious and argues that there is no constitutional question involved.

In Gateway City Transfer Co. v. Public Service Commission, 1948, 253 Wis. 397, 34 N.W.2d 238, and Motor Transport Co. v. Public Service Commission, 1953, 263 Wis. 31, 56 N.W.2d 548, this court construed the term 'substantial evidence in view of the entire record' as such appears in sec. 227.20(1)(d), supra. We have adopted the view that substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We have agreed with the interpretation stated in Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 71 S.Ct. 456, 465, 95 L.Ed. 456, that the substantiality of evidence must take into account whatever in the record fairly detracts from its weight. We have also accepted the view as expressed in the opinion of that case that:

'To be sure, the requirement for canvassing 'the whole record' in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the [administrative board] as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.'

The commission determined that the company's proposal is not consistent with the furnishing of reasonably adequate transportation service to the public; that the public need for the present train service outweighs the loss to the railroad company; that there is no showing that the operating loss resulting from the present train service between Wausau and Woodruff sought to be discontinued materially affects the over-all operations of the railroad.

In reviewing the commission's order with respect to the first point of the railroad company's challenge, it is incumbent upon the court to examine the entire record to ascertain whether there is substantial evidence to support the fact findings and ultimate conclusions upon which the commission's order is predicated.

It appears from records furnished by the railroad company and included in evidence before the commission that in the seven-month period October 1, 1951 to April 30, 1952, trains 200 and 201 carried on some or all of the run between Wausau and Woodruff an average of 29 passengers per trip, or a total of 12,339 passengers, resulting in an average of 13.9 passenger-miles a train mile. For the comparable period in 1949-1950, the records indicated an average use by 38.6 passengers per trip or a total of 14,043. The railroad company points to the decline of patronage in the compared periods. The respondent insists that the patronage is still substantial despite the decrease.

The record indicates that a large portion of the traffic on trains 200 and 201 during said seven-month period made connections with main line trains at New Lisbon. The average number of passengers on said train between New Lisbon and Wausau was 50, between Wausau and Merrill was 27, and north of Merrill 12.4. On southbound train 200, of 6,931 passengers carried in the seven-month period, 4,190 were through passengers originating north of Wausau at stations beyond Wausau. On northbound train 201, of 5,408 passengers carried in the same period, 3,976 were passengers originating south of Wausau going to points north of Wausau. Southbound passengers carried to points up to and including Wausau were 2,741, and northbound passengers carried from Wausau and points north were 1,432. The total of all these passengers is 12,339.

The railroad company presented evidence that...