State ex rel. N. Pac. Ry. Co. v. R.R. Comm'n of Wis.

• Decision Date: 09 June 1909
• Citation: 140 Wis. 145,121 N.W. 919
• Parties: STATE EX REL. NORTHERN PAC. RY. CO. v. RAILROAD COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 145

121 N.W. 919

STATE EX REL. NORTHERN PAC. RY. CO.

v.RAILROAD COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

June 3, 1909.

Dissenting Opinion June 4, 1909.

Concurring Opinion June 9, 1909.

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

Certiorari by the State, on the relation of the Northern Pacific Railway Company, against the Railroad Commission of Wisconsin and others. Judgment for defendants, and relator appeals. Modified and affirmed.

Winslow, C. J., and Barnes, J., dissenting.

This is a certiorari proceeding brought by the relator, Northern Pacific Railway Company, to set aside and declare invalid an order made by the Railroad Commission of Wisconsin. The matter was heard in the circuit court for Dane county upon a petition, writ of certiorari, and return thereto, and judgment was entered by the court below affirming the order of the Railroad Commission, from which judgment this appeal was taken. It appears from the record before us that more than 20 years ago the Northern Pacific Railroad Company, the predecessor of the Northern Pacific Railway Company, relator herein, acquired for its main line from Ashland, Wis., to Duluth, Minn., and from Ashland to the Pacific Coast a right of way across the northwest quarter of section 2, township 42 north, of range 14 west, and also a right of way for a spur on Connor's Point, both in the city of Superior, Wis. Tracks were constructed on these rights of way, and have ever since been maintained as a part of the system of railways owned by relator and its predecessor. When these rights of way were acquired and the tracks constructed, subdivision 6 of section 1828 of the Statutes of 1898 of Wisconsin, defining the powers of railroad corporations and relating to the crossing of tracks of railroads, provided: “To cross, intersect, join and unite its railroad with any railroad heretofore or hereafter constructed, at any point on its route and upon the grounds of such railroad corporation with the necessary turnouts, sidings and switches and other conveniences in furtherance of the objects of its connections. And every corporation whose railroad is or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor or the points and manner of such crossings and connections the same shall be ascertained by commissioners to be appointed by the court, as is provided in this chapter in respect to acquiring title to real estate. But no corporation which shall have obtained the right of way and constructed its road at the point of intersection before the application for the appointment of commissioners may be made shall be required to alter the grade or change the location of its road, or be required to bear any part of the expense of making and maintaining such crossing or of such proceeding.” In 1907 the Legislature of Wisconsin passed chapter 454, p. 445, Laws 1907, which contained the following provision: “Sec. 1797-56. Every crossing of the track of a steam railroad hereafter made by the track of another steam railroad, and every crossing of the track of an electric or street railway surface road hereafter made at points outside the limits of incorporated cities by the tracks of a steam railroad and every crossing of the track of a steam railroad or of any other electric or street railway surface road hereafter made at points outside the limits of incorporated cities by the track of an electric or street railway surface road shall be above, below, or at grade of the tracks proposed to be crossed as the Railroad Commission shall determine after hearing the parties upon reasonable notice prescribed by said commission. In such determination, said Railroad Commission shall prescribe the kind and character of the protective appliances, if any, to be installed, operated and maintained at such crossings, and they shall also fix the proportion of the expense of originally constructing, operating and maintaining such crossing and of any protective appliances prescribed by them and the proportion of the expense of operating and maintaining the same which shall be paid by the owners of said tracks respectively. In case said commissioners shall not in the first instance require protective appliances to be installed at grade crossings made under this section, they shall after reasonable notice to and hearing of the parties, have power on application of either party interested in maintaining and operating said crossing, or on their own motion to require protective appliances to be installed, operated and maintained at such grade crossings, and to fix the basis upon which the parties using such crossings shall bear and pay the cost and expense of constructing, operating and maintaining the same.”

After the passage of the foregoing act, the Wisconsin & Northern Minnesota Railway Company was organized under the laws of Wisconsin, and obtained from the Railroad Commission of Wisconsin a certificate of convenience and necessity for the construction of a line from the city of Superior across the double tracks of the relator known as the “Newton Avenue Line” and across the track of the relator located on Connor's Point. Thereafter it filed its plans and specifications for the construction of its proposed railroad, showing grade crossings of the relator's tracks. A hearing was had before the Railroad Commission, and the commission on May 26, 1908, made an order whereby it was determined and directed that the crossings be at grade; that the expense of constructing the crossings be paid by the Wisconsin & Northern Minnesota Railway Company; that, after the construction of the crossings, each company bear one-half of the expense of maintaining and operating them; that an interlocking, derailing, and signal system be put in at the crossing of the double tracks; and that each company bear one-half of the expense of constructing, maintaining, and operating such system. The relator opposed a grade crossing. The evidence shows that, before the passage of chapter 454, Laws 1907, in grade crossings, it was customary for the junior road to pay the entire cost of construction, operating, and maintaining the crossing and interlocking system. The position of the appellant here is that the order of the Railroad Commission, affirmed by the court below, charging any part of the expense of maintaining the crossing or any part of the expense of the construction or maintenance of the interlocking, derailing, and signal system, is without authority of law and void, and that, if chapter 454, Laws 1907, be construed as authorizing the order of the commission, it deprives the relator of its property without due process of law, contrary to the provisions of section 1 of the fourteenth amendment to the Constitution of the United States, and of section 13 of article 1 of the Constitution of Wisconsin, and that, if said chapter be constitutional and applies to the crossing of railroads constructed prior to its enactment, then there is no evidence to support the order of the Railroad Commission so far as that order directs the relator to bear any part of the cost of operating or maintaining the crossings or the construction or maintenance of the interlocking system; that the applicant, Wisconsin & Northern Minnesota Railway Company, never obtained any authority to enter upon or cross the tracks or rights of way of the relator.

Three cases are brought before us here by certiorari, and argued together, namely, the instant case, State ex rel. Great Northern Railway Company, Relator and Appellant, v. Railroad Commission of Wisconsin et al., Respondents, 121 N. W. 932, and State ex rel. Lake Superior Terminal & Transfer Railway Company, Relator and Appellant, v. Railroad Commission of Wisconsin et al., Respondents, 121 N. W. 932. The contentions in each of these cases are substantially the same. The decision therefore in this case will be decisive of the other two.

Louis Hanitch and C. W. Bunn (Charles Donnelly, of counsel), for appellant.

F. L. Gilbert, Atty. Gen., and Luse, Powell & Luse (Alfred H. Bright, of counsel), for respondents.

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

It is contended on the part of each relator, but especially by the Great Northern Railway Company and the Lake Superior Terminal & Transfer Company, that the proceedings to obtain a certificate of convenience and necessity were premature, because the point of crossing should have been first determined and the right to cross obtained before such certificate were granted. This contention involves the construction of the acts of the Legislature set out in the statement of facts. Subdivision 6, § 1828, St. 1898, provides that, if the corporations cannot agree upon the amount of compensation to be made “or the points and manner of such crossings and connections, the same shall be ascertained by commissioners to be appointed by the court, as is provided in this chapter in respect to acquiring title to real estate.” It is insisted that this provision is still in force, and that the point of crossing must be so determined by commissioners appointed by the court, and not by the Railroad Commission. Section 1797-56, St. 1898, as added by Laws 1907, p. 445, c. 454, provides that “every crossing of the track of a steam railroad hereafter made by the track of another steam railroad * * * shall be above, below, or at grade of the tracks proposed to be crossed as the Railroad Commission shall determine.” And it further provides that in such determination the Railroad Commission shall prescribe the kind and character of the protective appliances, if any, to be installed, operated, and maintained at such crossings. Section 1797-40 provides for the application for certificate of convenience and...