State v. Chi., M. & St. P. R. Co.

Decision Date18 February 1913
Citation140 N.W. 70,152 Wis. 341
CourtWisconsin Supreme Court
PartiesSTATE v. CHICAGO, M. & ST. P. R. CO.


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

Action by the State against the Chicago, Milwaukee & St. Paul Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed and remanded, with directions.

On August 17, 1911, James P. Hall, a passenger on the defendant's railroad lines between Madison and Star Lake, Wis., after he had boarded defendant's train at Portage, Wis., engaged the lower berth of section 11 in the sleeping car “Waubeno” for the night of that day, and the berth was occupied by him between Portage and Star Lake in this state. The upper berth of section 11 was not engaged or occupied, but was let down and kept down during the night by the porter. The state alleges a violation of the provisions of chapter 272 of the Laws of 1911, an act relating to sleeping car berths, and brings this action to recover the penalty prescribed therein. The answer admits the allegations of the complaint, except that the defendant became indebted to the state for the violation of the provisions of chapter 272, Laws of 1911. It appears from the answer that the defendant operates about 145 sleeping cars on its system of more than 7,000 miles of railway in the several states of the Union in which it operates, and that only two sleeping car routes, requiring four of these sleeping cars, run between points and on lines which are wholly within the state of Wisconsin. It is alleged that these four sleeping cars are parts of trains which are engaged in interstate traffic, and which carry in other sleeping cars of the trains both state and interstate passengers, and that the commingling of state and interstate traffic is an economic necessity. It is also alleged that the alleged cause of action arose when the sleeping car “Waubeno” traveled on its route between Chicago, Ill., and Star Lake, Wis.; that it carried state and interstate passengers; that between Chicago, Ill., and New Lisbon, Wis., it was part of a train engaged in interstate traffic; that all sleeping cars in the United States have upper and lower berths as sleeping car units; that all sleeping cars engaged in interstate traffic are subject to the jurisdiction of the Interstate Commerce Commission, under the so-called interstate commerce act, approved February 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), and as amended June 18, 1910, c. 309, 36 Stat. 539, which Commission has full power to regulate the use and operation of such sleeping cars, and that this Commission has regulated the price of sleeping car units, has specifically fixed the prices of upper and lower berths, and has made no regulation requiring that upper berths, which are not in use or engaged, shall be kept closed.

All of the allegations of the answer, except parts of the allegations contained in the two following paragraphs, were admitted by a stipulation filed before evidence was taken: “That compliance with said chapter 272, Laws of 1911, would convenience the occupant of the particular lower berth only, and would not in any manner or to any extent benefit or convenience, or add to the comfort, or promote the health or safety, of the occupants of the other berths of the car, either lower or upper; that compliance with said chapter would inconvenience and injuriously affect passengers occupying lower berths; that the defendant carries many thousands of passengers annually in its sleepers operated in Wisconsin, state and interstate, more than one-half of which passengers occupy lower berths, while at the same time the upper berths are occupied, without discomfort or sickness beingcaused thereby, other than the discomfort which necessarily inheres in the use of a sleeping car berth; that if such discomfort is to some extent lessened by raising the upper berth, so that the occupant of the lower berth may have the use of the entire section, he may, under the rules and regulations of the defendant, procure the same by paying the lawful charge therefor, which in the instant case mentioned in the complaint was $1.20; that sleeping cars constructed as are the sleeping cars of this defendant, as hereinbefore described, are operated in every state and territory of the United States, and have been for more than a quarter of a century last past; that none of the states or territories has by law or otherwise made it unlawful for the owners of such sleeping cars to operate them with upper berths, nor has any state or territory, by law or otherwise, prohibited, in any manner, the use of such upper berths by passengers who desired to use the same.” There was some dispute as to the scope of the stipulation; but there is no dispute that all of the allegations of the answer which are disputed are contained in the two paragraphs quoted.

Evidence was introduced to the effect that the air of a sleeping car is purer than the air of the ordinary passenger coach; that fresh air is admitted to a sleeping car through the openings about the doors and windows and, when the outside temperature permits, through the opening of windows into the lower berths; that foul air is taken from sleeping cars through ventilators in the top of the cars; that free circulation of air in sleeping cars is conducive to health; that circulation of the air in sleeping cars is obtained by fans placed at either end of the cars, which force a current of air along the aisle; and that the opening of the upper berths has but little effect upon the circulation of the air in the lower berth, when the lower berth is made up and ready for occupancy. After making its case on the admissions of the answer, the state objected to the introduction of any evidence by the defense; and, after the evidence had been received, the state moved to strike out such testimony, on the ground that the allegations of the answer failed to state facts sufficient to constitute a defense. This motion was denied.

The court made the following findings of fact, and stated the conclusions of law as follows:

(1) That on August 17, 1911, James P. Hall was a passenger from Portage, Wis., to Star Lake, Wis., on a sleeping car owned and operated by the defendant; that he engaged, paid for, and occupied a lower berth on said sleeping car; that the upper berth of said section was not engaged or occupied; that he demanded that the upper berth of the said section remain closed, pursuant to the provisions of chapter 272, Laws of 1911; that defendant, acting through its agents and servants, refused to close the same, but left the same down through the entire night.

(2) That the closing of upper berths in sleeping cars has very little effect upon the circulation of air in such sleeping cars when all lower berths are made up and ready for occupancy.

(3) That the lowering of upper berths does not endanger the lives, health, or safety of persons occupying lower berths in sleeping cars.

(4) That the closing of the upper berth will be a convenience to the person occupying the berth below the same, and will add to the comfort of such person alone, and not to that of the public generally.

(5) That the defendant has a right to charge for the use of the space occupied by the upper berth, and that such right is the property of the defendant.”

“Conclusions of Law.”

(1) That chapter 272 of the Laws of 1911 is not a valid exercise of the police power.

(2) That chapter 272 of the Laws of 1911 is not a valid exercise of the reserve power to alter or amend the charter of the defendant.

(3) That chapter 272 of the Laws of 1911 is void and of no effect, because it takes defendant's property without just compensation and without due process of law.

(4) That judgment be entered dismissing plaintiff's complaint.”

This is an appeal from the judgment dismissing the complaint.

L. H. Bancroft, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for the State.

Burton Hanson, of Chicago, Ill., and C. H. Van Alstine and H. J. Killilea both of Milwaukee, for respondent.

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

[1] The trial court held that chapter 272, Laws of 1911, providing that “whenever a person shall engage and occupy a lower berth in a sleeping car, and the upper berth in the same section shall at the same time be neither engaged nor occupied, the upper berth shall not be let down, but shall remain closed until engaged or occupied,” was invalid, because it is an...

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3 cases
  • Chi., B. & Q. R. Co. v. R.R. Comm'n of Wis.
    • United States
    • Wisconsin Supreme Court
    • 13 Marzo 1913
    ...43 L. Ed. 702;Atlantic Coast Line R. Co. v. N. C. C. C., 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933, 11 Ann. Cas. 398;State v. C., M. & St. P. Ry. Co., 140 N. W. 70, decided February 18, 1913. “The power of the state,” says the court in the Lake Shore Case, supra, “by appropriate legislati......
  • Chicago, Milwaukee St Paul Railroad Company v. State of Wisconsin
    • United States
    • U.S. Supreme Court
    • 21 Junio 1915
    ...not entitled to recover the penalty, and dismissed the complaint. The case was then taken to the supreme court of Wisconsin, which (152 Wis. 348, 140 N. W. 70, Ann. Cas. 1914C, 478) said that the trial court held that the evidence showed a compliance with the act would affect the convenienc......
  • Diamon v. Iron River Lumber Co.
    • United States
    • Wisconsin Supreme Court
    • 18 Febrero 1913

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