City of Milwaukee v. R.R. Comm'n of Wis.

• Decision Date: 11 January 1916
• Citation: 162 Wis. 127,155 N.W. 948
• Parties: CITY OF MILWAUKEE v. RAILROAD COMMISSION OF WISCONSIN.
• Court: Wisconsin Supreme Court

162 Wis. 127

155 N.W. 948

CITY OF MILWAUKEE

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

Jan. 11, 1916.

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

Action by the City of Milwaukee against the Railroad Commission of Wisconsin to set aside such part of an order of the commission as assessed 25 per cent. of the cost of depressing a railroad track, to obviate grade crossings, against the city. From an order sustaining a general demurrer to the complaint, the city appeals. Order affirmed.

Upon the petition of the city of Milwaukee the railroad commission ordered the Chicago, Milwaukee & St. Paul Railway Company to depress its main track, switch tracks, and side tracks, at and between certain street crossings in said city, being a distance of nearly two miles, so that the grade of the tracks should be separated from the grade of the streets, the tracks being carried in a subway and the streets being carried on bridges across said subway, and further ordered the city to pay 25 per cent. of the cost of the work, the railway company 70 per cent., and the Milwaukee Electric Railway & Light Company 5 per cent. The order was made because, in the judgment of the commission, public safety required the abolition of grade crossings. The city brings this action to set aside that part of the order assessing 25 per cent. of the cost of the work against the city of Milwaukee, and, from an order sustaining a general demurrer to the complaint, the city appeals.Daniel W. Hoan, City Atty., of Milwaukee, for appellant.

Walter C. Owen, Atty. Gen., and Walter Drew, Deputy Atty. Gen., for respondent.

C. H. Van Alstine, of Milwaukee, amicus curiæ.

WINSLOW, C. J. (after stating the facts as above).

[1][2] The order of the railroad commission in question here was made pursuant to the provisions of section 1797--12e, Statutes 1913, which authorizes that commission, upon the petition of the governing body of any city, town, or village, to order alterations made in any railroad crossings over a highway, or the substitute of a crossing not at grade, where public safety requires such alteration or substitution, and to fix the proportions of the cost thereof to be paid by the railroad company or companies and the municipality or municipalities in interest. This is the same statute which was sustained and enforced in the case of Polk v. Railroad Commission, 154 Wis. 523, 143 N. W. 191, and we regard the decision there made as decisive of the present case.

The cases are alike in all essential particulars. While no constitutional objection was urged by counsel in that case, the question was carefully considered by the court, and, after hearing the argument in the present case, we see no reason to retract or qualify in any way the statement there made that “the Legislature in the exercise of its police power had a perfect right to enact the law.”

The time has gone by when it can be successfully claimed that such a law unlawfully delegates legislative power to an administrative body. The...