156 Wis. 47 | Wis. | 1914
Lead Opinion
The appellant commenced this action against the respondent' as authorized by sec. 1797 — 16, Stats., to review an order of the respondent Commission bearing date November 23, 1912, requiring appellant to establish a rate of 1.7 cents per 100 pounds for the transportation of ice from Silver Springs, Wisconsin, to Milwaukee, Wisconsin, instead of the rate of two cents per 100 pounds theretofore existing, and awarding plaintiff reparation upon all shipments moved between said point's from January 16, 1911, to September 30, 1911, at the rate of three tenths of one cent for each 100 pounds transported.
The Railroad Rate Commission Act of this state has a number of features distinguishing it from the federal Interstate
By see. 1797 — 37ro the Commission is, in addition to the ordinary power to fix rates, also given the power, upon the complaint of any person aggrieved that a rate or charge exacted is erroneous, illegal, unusual, or exorbitant, to hear this complaint and decide upon the merits thereof in the manner provided by sec. 1797- — 12; that is, upon notice and hearing. If the rate or charge made is found to be erroneous, illegal, unusual, or exorbitant, the Commission shall find what in its judgment would have, teen a reasonable rate or charge for the service complained of. If this reasonable rate is less than the amount exacted, the carrier shall have the right to refund to the person making such charges the amount so found to be excessive. For very obvious reasons the Commission is not given power to enforce this refund. Its power of decision is only gwsi-judicial. But the party aggrieved may, after the findings of the Commission, maintain an action in the courts to recover the amount of such excessive charge as found by the Commission, and in the trial of this action the findings of the Commission are declared to be pmma facie evidence of the truth of the facts found by it.
The .proceeding in question was apparently taken by the Commission under the authority of secs. 1797 — 12 to 1797— 37m, and no objection is made and none can be made to this joinder in one proceeding. The statutory action against the Commission for review authorized by sec. 1797 — 16 is one to vacate and set aside any order of the Commission fixing
It is not required that the rate or charge be both erroneous, illegal, unusual, and exorbitant, but if it comes within either of these descriptive words the Commission shall find what in its judgment would have teen a reasonable rate or charge for the service complained of. Every rate or charge which is not reasonable and just under sec. 1191 — 3 may be found to be erroneous or illegal under sec. 1191 — 37m. Hence there is nothing in the complaint which shows absence ol jurisdiction on the part of the Commission to make the order complained of, unless it be an entire absence of evidence to support the findings or order of the Commission, or resting the order upon evidence taken in the absence of and without notice to the appellant. Doubtless the Commission is not required to proceed in this as in other respects with the strict formalities which obtain in courts of common-law and equity jurisdiction. But the statute contemplates a hearing and the taking of evidence in the matter of fixing rates. This is apparent from sec. 1197 — -12, which provides for notice and hearing, for the attendance of witnesses; of sec. 1797 — 13, which provides for administering oaths, issuing subpoenas, requiring production of documentary evidence, taking depositions, presence óf a stenographer who is to make a transcript in long hand of the evidence and proceedings; and sub. (b)
No evidence was offered in the circuit court, except that the plaintiff offered a certified copy of the proceedings be
¡¿''What are just and reasonable rates is a question akin to questions of the reasonable value of services or the reasonable value of property which has no fixed market value. In the investigations of such questions great latitude of evidence is necessarily permitted, and one of the recognized bases of opinion or judgment in such matters is a comparison with the price paid or charged for other similar services or property. Stolze v. Manitowoc T. Co. 100 Wis. 208, 75 N. W. 987; Milwaukee & M. R. Co. v. Eble, 3 Pin. 334. See cases collected
“Tbe commission considered evidence and made findings relating to rates wbicb tbe carrier insists bad been compelled by competition, and were not a proper standard by wbicb to measure those here involved. The value of such evidence necessarily varies according to tbe circumstances, but tbe weight to be given it is peculiarly for tbe body experienced in sucb matters and familiar with tbe complexities, intricacies, and history of rate-making in each section of the country. So, too, the fact that a commodity rate is low may cast some light on tbe reasonableness of the higher rate on tbe class from wbicb that commodity was taken or to wbicb it might legally be restored. It is true that tbe old low locals, Mobile (west) to New Orleans, were maintained, while those from New Orleans (east) to Mobile were raised, is not conclusive against tbe reasonableness of new tariff put in force in 1907. But it was a fact tending to support tbe conclusion unless tbe difference was shown to have been warranted by proper rate-making. Of tbe sufficiency of tbe explanation, including the extent of tbe difference in empty car movement, tbe commission was authorized to judge. It also bad before it tbe company’s financial statement and general tariff sheets.”
It was accordingly there held that a rate made upon sucb facts was not unsupported by evidence. Where there is no fixed market value, this method of ascertaining tbe value, tbe quantum valebant, by comparison with other similar things in wbicb tbe element of value is known, or is better known, is primitive, old, and well established. It is subject to many infirmities and uncertainties like all attempts to explain or establish that illusive mental concept represented by tbe word “value” or that represented by tbe word “reasonable.” Tbe rates with which we compare may be themselves too .low or high, or tbe analogy may be imperfect and there may be only an apparent but' no real similarity to tbe case- in band. But
But' the principal contention of appellant is that the order' of the Commission fixing the rates and declaring the complainant entitled to reparation or refund was made in part upon evidence not produced before the Commission at the hearing nor brought to the attention of the appellant, hence that due process of law was denied to the appellant within the rule of the case last cited. The findings and order of the Commission are made at the foot of an opinion in which the Commission, after the manner of courts, sets forth in apparent explanation or justification of its decision the grounds upon which the same rest's. The appellant points to the following sentences as indicating that the Commission considered such extraneous evidence:
“But in this as in most eases, the principal basis for computing the reasonable rate is the cost' of the service to the carrier, and this cost has been ascertained in the present case by the methods often explained in decisions of this Commission. Considering the fact that the commodity involved is of comparatively low value in proportion to its weight, is transported in regular movements and is subject to little risk in transit, and considering also the rather heavy loading of ice and the fact that no extra equipment of any kind is necessary in handling it, it is apparent that this commodity is entitled to a comparatively low rate. While the rate must necessarily*60 be sufficient to cover the actual expense of t'be service, the traffic is of a kind that should not be expected to contribute as much in the way of interest upon the railway company’s investment as does the average traffic on the line. An application of the principles just stated to the circumstances of this case seems to warrant the conclusion that the present rate of two cents per 100 pounds is a little higher than the petitioner should be required to pay. At the same time, the cost figures at hand do not at this time justify the Commission in fixing the rate as low as 1.5 per 100 pounds, the figure at which it was placed by the railway company up to about 1905. When the movement and terminal expenses of the railway company upon this traffic are properly adjusted to take account of the length of the haul and the other conditions peculiar to this traffic, it is found that a rate of 1.7 cents per 100 pounds is about fair as between the shipper and the carrier, and the establishment of such rate will be ordered.”
This falls very short of saying that the Commission acted without evidence or acted upon evidence of extrinsic facts or circumstances not legally before the Commission at the hearing. On the contrary, the statement is that the cost figures were at hand, and one of the bases, in fact the principal basis, for computing a reasonable rate was the cost of the service to the carrier, which cost had been ascertained by methods often explained in decisions of the Commission. Decisions here referred to are public records entitled to judicial notice (sec. 1797 — 37n) and are doubtless Buell v. C., M. & St. P. R. Co. 1 Wis. R. R. Comm. Rep. 324 (see pp. 340 et seq.); Pulp & Paper Mfrs. v. C. & N. W. R. Co. 2 Wis. R. R. Comm. Rep. 168; Ringle v. C., M. & St. P. R. Co. 7 Wis. R. R. Comm. Rep. 170. These show the complexity of the questions investigated, the methods of arriving at cost, and the bases of computation.
The railroad companies are required to report annually to the state board of assessments and in considerable detail (sec. 1215 — 5, Stats.), and this report constitutes a public docu
With reference to judicial notice see Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290; Caha v. U. S. 152 U. S. 211, 222, 14 Sup. Ct. 513, and cases cited; New York Indians v. U. S. 170 U. S. 1, 18 Sup. Ct. 531; Knight v. U. S. L. Asso. 142 U. S. 161, 12 Sup. Ct. 258; Gardner v. The Collector, 6 Wall. 499; State v. Swift, 69 Ind. 505; Larson v. First Nat. Bank, 66 Neb. 595, 92 N. W. 729; Central of Ga. R. Co. v. Butler M. & G. Co. 8 Ga. App. 1, 68 S. E. 775; Gordon, R. & Co. v. Tweedy, 74 Ala. 232; Scheffler v. M. & St. L. R. Co. 32 Minn. 518, 21 N. W. 711; McHenry v. Yokum, 27 Ill. 160. It is urged by the appellant that the words in the decision of the Commission aboye referred to must be taken
It must be held that tbe ruling of tbe Commission was based in tbe instant case on these two kinds of evidence, analyzed and illuminated by tbe expert knowledge and experience of tbe Commission members, and on nothing else. '
By the Court. — Tbe judgment of tbe circuit court is affirmed.
Tbe court is content to dispose of tbis case upon the ground that tbe Railroad Commission bad before it, including what it might properly have taken judicial notice of, evidence supporting its decision. My opinion enables me to concur, subject to further study, when my brethren shall see fit to take up and decide tbe more important questions which tbe parties came here to have answered.
I think, as said upon another occasion, — Income Tax Cases. 148 Wis. 456, 134 N. W. 673, 135 N. W. 164, — that
I think the old method of deciding as little as actually necessary to the particular case, so that litigants must needs resort, again and again, to the court in order to settle an entire controversy, should be laid aside, especially in these cases having to do with the validity and scope of new and rather novel legislation. The court — instead of proceeding with that overcaution, as it seems to me though sanctioned by precedent — which increases judicial and professional labor in the end, gives rise to false ideas of the cause therefor, prolongs uncertainty, and saps private and public resources— should grapple with an entire controversy with all its major and material germane features, and rest from its labor only by the rendition of a broad, fully rounded out, efficient judgment in such cases of great public importance as this. The need therefor is such that this court should wash its hands as completely as practicable of even appearance of needless delay in giving such tribunals as the Railroad Commission and the parties who have to deal therewith all the aid which the judicial function enables it to give.
I appreciate that my associates are just as anxious as I am to deal as fully with matters presented here for decision
The overshadowing matter of difference which led to this litigation, — the one which has, doubtless, particularly vexed the Railroad Commission and the parties required to appear before it, ever since the system of regulation administered by such a commission was created, — is whether the rights of parties can jurisdictionally and constitutionally be determined by it without all the essentials of a common-law hearing, — the incidents of reasonable notice and opportunity to be present, knowledge of the matter to be investigated, reasonable opportunity to produce witnesses, knowledge of all the adverse evidence to be considered, and opportunity to oppose it with evidence. Does the Commission exceed its jurisdiction and so incapacitate itself from rendering a valid decision by grounding its action on evidence gathered, ex parte, by its employees or its own members and not known to the contestants ? Must it proceed in the manner indicated as ju-risdictionally requisite in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, and as is generally required of a quasi-judicial tribunal, keeping and preserving a record of all the evidentiary bases of its decision, so that it may be attacked directly for jurisdictional error, or impeached collaterally as void for such error ? I would meet these questions now and solve all uncertainties, once for all, so far as this court could accomplish that much desired result. I may well repeat, in effect, what I said in the Income Tax Cases. The field untouched by the decision was as fully covered by eminent counsel as it is liable to ever be, all interest's call loudly for its chosen .instrumentality for such work to grapple with that now presented with urgent appeal for the task to be performed, While it is according to precedent to minimize the
Erom what I have here said, I appreciate that my concurrence with the result reached by the court rests largely on my apprehension that' the Railroad Commission, in administering the legislative system for public utility regulation, is not fenced about by the common requirements of hearings by qmjsi-judicial tribunals, except in so far as they have been wrought into the written law; but I forego discussion of the subject, preferring to let such discussion wait upon some future occasion therefor.
Concurrence Opinion
The following opinion was filed March 11, 1914:
(concurring). I am in entire accord with the opinion of the court, and I add this brief memorandum simply to emphasize my approval of the scope of the decision. We have had many new laws covering many new and untried fields of legislation spread upon our statute books during the last few years. By these laws business operations of the greatest' importance, involving the most complicated public and private rights, are to be controlled and regulated by new methods and by new tribunals. The ordinary finite mind is not wise enough to look ahead and unerringly apprehend in advance the precise effect of all the provisions of this new legislation, and lay down rules of construction which shall infallibly operate to produce the desired results. That which appears beforehand to be an entirely reasonable and unobjectionable rule may afterward, in the light of actual experience, be demonstrated to be unwise and even absurd. The course of wisdom under such circumstances is to pro