Monroe v. R.R. Comm'n of Wis.

• Citation: 174 N.W. 450,170 Wis. 180
• Parties: MONROE ET AL. v. RAILROAD COMMISSION OF WISCONSIN.
• Decision Date: 04 November 1919
• Court: United States State Supreme Court of Wisconsin

170 Wis. 180

174 N.W. 450

MONROE ET AL.

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

Nov. 4, 1919.

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

Action by R. J. Monroe and another against the Railroad Commission of Wisconsin. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Reversed and remanded, with directions.

Vinje, J., dissenting.

Prior to the commencement of this action the plaintiff had been operating motor vehicles for the carriage of passengers for hire in the city of Racine, Wis., under the provisions of chapter 546, Laws of 1915, being sections 1797--62 et seq. Having given the required bond and made due application for and obtained the certificate provided for in said law from the defendant, plaintiffs respectively paid the license fee required under the ordinance of said city, and obtained from its mayor and common council licenses to so operate.

Four routes appear to have been designated by said Railroad Commission for the operation of such motor vehicles in the city of Racine on the printed form of applications of the respective plaintiffs, and one of such routes numbered (1), and the territory four blocks east, west, north, and south, was selected by plaintiffs, respectively, as being the general route or territory over which it was proposed to operate such motor vehicles.

The Milwaukee Light, Heat & Traction Company, operating a street railway system in the said city of Racine, made application to the defendant commission, requesting that an investigation be made and an order issued authorizing an increase in the fares for street railway service in the said city on the ground that the prevailing rates of fare were inadequate to care for the increased operating costs; and, further, that a large number of automobiles carrying passengers for hire, commonly known as jitneys, operated in the city of Racine, and that the service afforded by the same was not adequate or systematized, and that the said jitneys are substantially unregulated and untaxed, and that the revenues of said street railway system have been substantially lessened in consequence of such operation.

During the pendency of the hearing of such application the commission on its own motion determined to make further investigation relating to the routes and service prescribed for bonded carriers or jitneys in the said city, with a view of possible change and restricting of the routes in the city of Racine over which said bonded carriers or jitneys may operate, and thereupon gave notice that a hearing would be had before the commission to further investigate said matters and all questions relating to the operation of bonded carriers or jitneys in the city of Racine, both as to routes and service, and fixed a time and place for such hearing.

Objection was made on behalf of the plaintiffs and others similarly situated to the jurisdiction of the Railroad Commission to take such proceedings or make any order in the premises with relation to the operation of such motor vehicles.

December 28, 1918, an order was made by said Railroad Commission as follows:

“In the Matter of the Application of the Milwaukee Light, Heat & Traction Company, for a Revision of the Rates of Fare on Its Street Railway System in the City of Racine.

In the Matter of the Investigation on Motion of the Commission of Routes and Service of Bonded Carriers or Jitneys Within the City of Racine.

An order was entered in the above-entitled matter on September 9, 1918, with respect to street railway rates in Racine, jurisdiction being retained with respect to the routes and service of bonded carriers or jitneys. The commission has kept in touch with the local situation since that time, and has made some further study of the routes and service of the bonded carriers.

At the present time there are no operators on routes Nos. 2, 3, and 4 and service on these routes has at no time been satisfactorily developed. It appears advisable, therefore, to discontinue these routes, and they are hereby canceled.

There are at present ten operators on route No. 1. In view of the popularity of this route, no change appears to be advisable. However, until there is further development of other possible routes which would be serviceable to the community, we deem it to be in the interest of the public to restrict the number of operators on route No. 1 to ten.

A new route is hereby approved and designated as route No. 2. The route is as follows: (Description omitted).

Until the above-described route is developed and occupied by at least ten operators, no further applications for route 1 will be granted, except to fill vacancies caused by the withdrawal of present operators on that route. New routes will be designated from time to time should conditions warrant, and if necessity therefor arises further restrictions will be established. Jurisdiction in this proceeding is retained for this purpose.”

Thereupon the plaintiffs commenced this action on their own behalf, and on behalf of others similarly situated to have said order set aside, vacated and declared null and void. The defendants demurred to such complaint, and, upon the demurrer being sustained, the plaintiffs appealed.

J. Elmer Lahr, of Milwaukee, for appellants.

John J. Blaine, Atty. Gen., and J. F. Baker, Asst. Atty. Gen., for respondent.

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

[1] The question involved in this appeal is whether there is a general supervisory power of control by the Railroad Commission after it has once acted, in issuing the required certificate over the motor vehicles operating in passenger transportation, commonly known as jitneys.

The text or substance of chapter 546 of the Laws of 1915, creating sections 1797--62 to 1797--68 of the Statutes, so far as deemed necessary for this case, are as follows:

Section 1797--62 provides that the operator of any such motor vehicle “is hereby declared to be a common carrier, and is hereby required to furnish reasonable and adequate service at just and reasonable rates, and is hereby required to operate over such general routes or within such territory, and during such hours as may be reasonably required for the accommodation of the public in accordance with the following provisions.”

Section 1797--63 provides that no such vehicle shall be operated until there shall have been filed with and accepted by the Railroad Commission of Wisconsin a good and sufficient bond in amounts specified for all damages that may be recovered against the operator of such vehicle by reason of the negligent use and operation of such vehicle. And in case such bond so filed should become inoperative, such vehicle shall not be operated until a bond meeting the requirements...