Village of Cobb v. Public Service Commission

• Citation: 107 N.W.2d 595,12 Wis.2d 441
• Parties: VILLAGE OF COBB et al., Appellants, v. PUBLIC SERVICE COMMISSION of Wisconsin, Respondent.
• Decision Date: 07 February 1961
• Court: United States State Supreme Court of Wisconsin

Page 595

107 N.W.2d 595

12 Wis.2d 441

VILLAGE OF COBB et al., Appellants, v. PUBLIC SERVICE COMMISSION of Wisconsin, Respondent.

Supreme Court of Wisconsin.

Feb. 7, 1961.

Roberts, Boardman, Suhr, Bjork & Curry, Henry A. Field, Jr., Madison, for appellants.

William E. Torkelson, Chief Counsel, Pub.Serv.Comm., Madison, Wickham, Borgelt, Skogstad & Powell, Roger S. Bessey, Milwaukee, for respondent.

DIETERICH, Justice.

The first issue raised by appellants is that the commission failed to comply with the notice requirements of sec. 192.56, Stats. In support thereof the following reasons are stated: (1) The application must be considered on the basis of the individual communities affected and not, as in the instant case, on a single application involving numerous communities; (2) every continued or adjourned hearing before the commission must be treated as a new case and the posting of a statutory notice in 'five conspicuous places' should again be carried out; (3) the commission failed to post statutory notices at the central agency communities, and (4) hearings should have been held near the affected communities and not compel witnesses, as in this case, to travel in excess of 75 miles.

We believe that these contentions are clearly out of harmony with the fundamental purposes of the statute and with the decisions of this court.

The provision of sec. 195.01(10), Stats., 'The commission may hold sessions at any place for the convenience of the parties,' does not deprive the commission of exercising its discretion as to the time and place it may select to hold its hearings. In the instant case there was no need to have a separate hearing in each community affected. It necessarily follows that the notice was sufficient.

Sec. 192.56, Stats., requires notices by posting of the time and place of hearing in five conspicuous places in the town or village where it is sought either to abandon any station in any town or village, or to remove the depot therefrom, or to withdraw agency service therefrom.

Notice of the railroad's application and of hearings scheduled on the application were posted in the 100 proposed associate station communities, and in four communities from which a complete removal of agency service was sought. No notice was posted at the 81 proposed central station communities. The notice which was posted included only those hearings scheduled for Madison on May 26, 27, 28 and 29, 1958. These hearings were held as scheduled. On June 19, 1958, a letter was sent by the commission to the parties of record with a notification of hearings at Fond du Lac, Green Bay, Rhinelander, Spooner, Eau Claire, Tomah, Platteville and again at Madison. Hearings were held as scheduled. There was no posting of notice as to these hearings. On July 23, 1958, the commission mailed letters 'To Whom it may Concern' including a notice of hearing in Madison on August 5, 1958. Hearing was held on that date and also on August 6, 1958. There was no posting of notice as to these hearings.

There were approximately 118 witnesses who appeared in opposition to the central agency plan. These witnesses appeared from or in behalf of approximately 50 of the 100 proposed associate station communities involved in the plan. Among the appearances were village of Cobb, village of Johnson Creek, village of Sharon, village of Dalton, village of Bonduel, city of Galesville, village of Almond and village of Verona.

We are thus brought to some fundamental considerations governing the authority of the commission. The commission has broad powers and a wide extent of administrative discretion, with the exercise of which, upon evidence, and within its statutory limits, the courts do not interfere. The important and salutary functions of the commission to enforce public rights are not to be denied or impaired, but the commission, exercising a delegated regulatory authority which does not have the freedom of ownership, operates in a field limited by constitutional rights and legislative requirements. The legal standards governing the action of the commission in the subject under consideration necessitates a fair hearing as a fundamental requirement.

This court stated in Borgnis v. Falk Co., 1911, 147 Wis. 327, 133 N.W. 209, 220, 37 L.R.A.,N.S., 489, which applicable here:

'* * * the commission is an administrative board merely. It is common knowledge that such boards are frequently given power to investigate and determine facts without notice to the parties of each successive step in the proceedings. The proceedings before such boards are not expected to be as formal and cumbrous as the proceedings of courts; indeed, the greater flexibility which such bodies must possess if they are to discharge their duties seems to demand greater freedom of action. If notice, either actual or constructive, of the commencement of the proceedings before such a body be required to be given to the parties interested and they be given full and free opportunity to be heard and present evidence, it is generally held sufficient even though notice of intermediate steps in the proceeding be not required or given.'

Sec. 195.03(5), Stats., provides:

'Technicalities Disregarded. A substantial compliance with the requirements of the statutes shall be sufficient to give effect to all rules, orders, acts and regulations of the commission and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto.'

In the absence of any showing of prejudice and the parties complaining having actual knowledge of and participated in the proceedings, as in this case, they will not be heard to complain of the failure to give notice. Florida Citrus Comm. v. United States, D.C., 144 F.Supp. 521, affirmed 352 U.S. 1021, 77 S.Ct. 589, 1 L.Ed.2d 595.

The trial court found and we agree that the commission afforded a full and fair hearing to all parties who might have been interested in the subject matter of the application; that the statutes were complied with and all notices were given as required that no notice to the central agency communities was necessary; witnesses were not seriously inconvenienced by having to travel up to 85 miles, and all witnesses who appeared were heard.

The second issue presented by appellants is that the commission acted in excess of its statutory authority, that its findings and decision are unsupported by substantial evidence, and that the findings of fact and order based thereon are arbitrary and capricious.

Sec. 227.20, Stats., provides:

'Scope of review. (1) * * * 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) In excess of the statutory authority or jurisdiction of the agency, or affected by other error of law; or

'(c) Made or promulgated upon unlawful procedure; or

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

'(e) Arbitrary or capricious.'

The record reveals that in 1957, the Chicago and North Western Railway Company sustained a net loss in its operations of $416,000. In the first two months of 1958, the loss sustained was $1,797,000. The working capital of the railway company decreased over $20,000,000 from 1947 to 1958. Operations by the Chicago and North Western Railway Company in Wisconsin produced a loss of $1,949,000 in 1957. The company's shortage of funds has seriously affected basic heavy maintenance, the use of the new Clinton car shop to manufacture and repair badly needed freight cars, and other vital programs for rehabilitation of the railroad.

The record further reveals that the agent at Cobb in 1957 spent an average of one hour and three minutes per day doing railway work, and the agent at Livingston expended an average of 23 minutes per day; that Johnson Creek has about one revenue car per working day, and that the average station work load per working day was 20 minutes for the Chicago and North Western Railway, 25 minutes for other activities, and 45 minutes in total. In 1957, the agent at Sharon was on duty an average of 11 hours for each revenue car received or forwarded. The work load for railway company transactions totaled an average of only 29 minutes per working day. Other activities totaled an average of one hour and seven minutes. At Dalton the agent in 1957 was on duty for an average of 15 hours for each single revenue car received or forwarded. The work load data submitted in the proceedings showed that the agent at Dalton in 1957 had an average work load per day of only 48 minutes, including all work done for the railway company and otherwise. Combined with the work load for the proposed central agency of Friesland, the total time spent for an average working day for both stations would be one hour and 39 minutes. In 1957, the Bonduel agent was paid for an average of 12 hours for each revenue car received or forwarded. The total work load time was one hour and 25 minutes, of which 28 minutes was devoted to railway company work. At Galesville the agent spent an average of four hours per revenue car. The total time spent by the agent, when the average work load for both Galesville and Trempealeau is combined, is two hours and 46 minutes. At Almond there were 321 carloads of revenue freight during the entire year of 1957, constituting an average of one for every six hours of the agent's time. The agent spent 53 minutes as an average station work load per working day for railroad business, and 39 minutes were spent for other activities. The Verona agent spent an average in 1957 of one hour and eight minutes per working day doing railroad work, and one hour and 15 minutes doing other work.

The findings of the commission disclose that:

'* * * Agency stations are now an average of 9.7 miles...