Chicago, Burlington & Quincy Railroad v. Railroad Commission

152 Wis. 654 | Wis. | 1913

Lead Opinion

ViNJE, J.

It will be observed from the foregoing statement of facts that tbe Railroad Commission based its order upon tbe statute (sec. 1801, Stats.) and not upon an exercise of discretion or judgment on its part that tbe service was inadequate. Indeed, it states that were it not for tbe statute depriving it of tbe exercise of discretion it would come to a contrary conclusion and refuse to make tbe order requiring additional trains to be stopped at Cochrane. Tbe trial court, however, finds that the passenger service at Cochrane was not adequate or reasonable, and that tbe order of tbe Railroad Commission was a reasonable exercise of tbe powers vested in it. So we have a situation where tbe Railroad Commission disaffirms tbe exercise of discretion in making tbe order, and tbe trial court affirms it on tbe ground tbat it was made pursuant to a reasonable exercise of tbe powers vested in it, and tbat upon the facts found by tbe trial court tbe order was right. Tbe question, therefore, presents itself, Can tbe circuit court for Dane county, in which jurisdiction to test tbe validity of orders made by tbe Railroad Gommission is vested, make an administrative order based upon tbe original exercise of its own discretion ? Tbe provisions of tbe statute authorizing tbe action to review orders made by tbe Railroad Commission, in so far as they speak definitely, must control. Sec. 1797 — 16, Stats., reads:

“Any railroad or other party in interest being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or service, may commence an action in tbe circuit court against tbe commission as defendant to vacate and set aside any such order on tbe ground tbat tbe rate or rates, fares, charges, classifications, joint rate or rates, fixed in such order, is unlawful, or'that any such regulation, practice or service, fixed in such order, is unreasonable, in which action tbe complaint shall be served with tbe summons.”

It will be noticed tbat tbe statutory power of tbe circuit court is limited to that of vacating and setting aside an order made by tbe Railroad Gommission or refusing to do so; and tbat tbe order can be attacked only on two grounds: one, tbat tbe rate or rates, fares, charges, classifications, joint rate or rates fixed in such order is unlawful; and tbe other, tbat any such regulation, practice, or service fixed in such order is unreasonable. Tbe statute therefore delegates only judicial functions to tbe court by empowering it to pass upon tbe lawfulness or reasonableness of tbe Railroad Commission's order. ■To clothe a tribunal with tbe power to adjudge whether or not an order made by another body is reasonable is quite different and distinct from investing such tribunal with tbe power to make a reasonable order in tbe first instance. Tbe one is a delegation of judicial power, tbe other of administrative power. Tbe circuit court for Dane county can exercise no administrative functions and none.were attempted to be delegated to it by tbe statute referred to. That tbe legislature intended tbe circuit court only to review orders made by tbe Railroad Commission and not to make new ones based upon evidence taken in court is made still clearer by secs. 1797 — 16 (b), 1797 — 16 (c), and 1797 — 16 (d), wbicb provide for sending tbe case back to tbe Railroad Commission for reconsideration and refinding if new or additional evidence is adduced. In tbe instant case, therefore, since tbe Railroad Commission did not make an order based upon its discretion, but one based upon tbe statute, tbe only question presented by tbe action was tbe lawfulness of tbe order, which of course raised tbe question of the constitutionality of see. 1801. And that question is tbe only one tbe appeal presents upon tbe merits. Tbe material part of the section reads as follows:

“Every corporation operating a railroad shall maintain a station at every village, whether incorporated or not, having a postoffice and containing two hundred inhabitants or more, through or within one eighth of a mile of wbicb its . line or road runs, and shall provide tbe necessary arrangements, receive and discharge freight and passengers, and shall stop at least one passenger train each day each way at such station, if trains are run on such road to that extent; and, if four or more passenger trains are run each way daily, at least two passenger trains each day each, way shall be stopped at each and every such station.”

It is not seriously contended by either side but that tbe statute, if valid, applies as well to interstate passenger trains as to domestic trains. If it does not apply to interstate trains then it does not apply to tbe plaintiff at all, for it runs no domestic passenger train in Wisconsin. Tbe local train stopping at Cochrane is spoken of by counsel for plaintiff as though it were a domestic train. Rut the evidence shows that it runs from Savanna, Illinois, through. Wisconsin, to Minneapolis, Minnesota, and from there back to Savanna, Illinois. It is none the less an interstate train because it is a local or unlimited train. The speed of a train or its infrequency of stopping furnishes no absolute criterion of an interstate character. A train is an interstate one if it runs from one state into another and is engaged in traffic between the two, irrespective of its speed or the number of stops it makes. It is quite evident that the legislature must have intended to include interstate trains as coming within the purview of the statute, else its enactment would have been a mere idle ceremony. It is doubtful if there be a single station in the state of less than 5,000 inhabitants which has passing through it four or more domestic trains each way daily, and there certainly are few, if any, of any size that have that many domestic trains daily each way. So it seems clear that interstate trains were intended to be included within the terms of the statute. There is certainly nothing in its language to indicate any limitation as to the character of the passenger train, and we must hold that there is none. It is also clear that accommodation freight trains are excluded. They are not passenger trains in the ordinary sense of the term. Their time of arrival and departure is quite uncertain; they furnish no means of carrying anything but hand baggage, and their passenger service can in no sense be said to be adequate or reasonable. People ex rel. Cantrell v. St. L. & T. H. R. Co. 176 Ill. 512, 52 N. E. 292; Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 280, 281, 30 Sup. Ct. 330.

Construing the statute, therefore, as including interstate trains and excluding accommodation freight trains, we face this question: Is it constitutional ? The major part of plaintiff’s brief is devoted to showing that the passenger service is adequate at Cochrane and that it would be placing an unreasonable burden upon it to require an additional local train or to require one of its limited trains to stop there. We are concerned only indirectly with, the conditions shown by the evidence in the instant case. Snch conditions are important, but only as an index of conditions presumably existing in similar localities throughout the state and as bearing in general upon the constitutionality of the act in question.

It is claimed that the statute is unreasonable and void, and that the order made is confiscatory in that it operates to take plaintiff’s property without due process of law and creates an unwarranted burden upon interstate commerce; that it is purely arbitrary, as it takes no account whatever of any general or particular conditions; and that if four trains are run daily each way, then two each way must be stopped daily, regardless of whether or not the necessities or convenience of the people of the village require it.

By ch. 362, Laws of 1905, the legislature conferred upon the Railroad Commission the power to regulate rates, services, etc., of railway companies. This act, impliedly at least, repealed the provisions of sec. 1801, Stats. (1898), as it then stood. By ch. 483, Laws of 1911, sec. 1801 was re-enacted with certain amendments and made to read as above quoted. In the meantime the Railroad Commission by a series of orders made in cases similar to the one at bar had held that passenger service like that given Cochrane was reasonably adequate. See Tate v. C., B. & Q. R. Co. 2 Wis. R. R. Comm. Rep. 348; Kemp v. C., B. & Q. R. Co. 3 Wis. R. R. Comm. Rep. 350; Maiden Rock v. C., B. & Q. R. Co. 4 Wis. R. R. Comm. Rep. 311; Dyer v. C., M. & St. P. R. Co. 2 Wis. R. R. Comm. Rep. 621; and Schmidt v. G. N. R. Co. 4 Wis. R. R. Comm. Rep. 121. Erom such rulings and legislation it must be inferred that the legislature deemed it best to exercise its own judgment as to what should be considered reasonably adequate passenger service for stations containing a population of 200 or more. That it was within its power to legislate specifically upon this subject after having delegated to the Railroad Commission the general powers found in cb. 362, Laws of 1905, and the acts amendatory thereof, cannot be questioned. By conferring the powers mentioned upon the Railroad Commission the legislature did not part with the right to exercise such powers itself whenever it saw fit. The legislature cannot exhaust or diminish its own powers by conferring the right upon subordinate commissions or bodies to exercise administrative functions. The quantum of legislative power remains the same. It is non-delegable.

Before considering the question of the constitutionality of the statute, either on the ground that it is unreasonable as applied to domestic traffic or that it is repugnant to the interstate commerce clause of the federal constitution, it may be well to advert to a few well settled principles governing the right of a state to regulate railroad passenger service within its borders. The authorities are practically unanimous in declaring that the primary duty of a railroad is to furnish reasonably adequate local service, both domestic and interstate. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465; Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722; Minneapolis & St. L. R. Co. v. Minnesota, 193 U. S. 53, 24 Sup. Ct. 396; Mississippi R. R. Comm. v. Ill. Cent. R. Co. 203 U. S. 335, 27 Sup. Ct. 90. When this primary duty is met the road may then provide special facilities for the accommodation of through or interstate traffic, and any attempt on the part of a state to regulate such special service will be held void if it interferes with interstate commerce. Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722. The rule is thus stated by Mr. Justice Day in Herndon v. C., R. I. & P. R. Co. 218 U. S. 135, 156, 30 Sup. Ct. 633:

“Where a railroad company has already provided ample facilities for the adequate accommodation of the traveling public such as may be proper and reasonable at any given point, and operates interstate commerce trains, carrying passengers through, the same places, at which such interstate trains do not stop, a state regulation which requires the stopping of such interstate trains, in addition to ample facilities already provided, to the detriment and hindrance of interstate traffic, is an unlawful regulation and a burden upon interstate commerce.”

The difficulty, however, lies not in determining what legal principle is applicable to a given situation, but in deciding the fact as to what constitutes reasonably adequate service.

The right of a state to demand reasonably adequate interstate as well as domestic service has been established beyond question. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465; Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722; Mississippi R. R. Comm. v. Ill. Cent. R. Co. 203 U. S. 335, 27 Sup. Ct. 90; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121. In the Lake Shore Case, supra, the court, speaking of the validity of a statute of Ohio regulating the stoppage of trains, said:

“Certainly, the state of Ohio did not endow the plaintiff in error with the rights of a corporation for the purpose simply of subserving the convenience of passengers traveling through the state between points outside of its territory. ... It was for the state to take into consideration all the circumstances affecting passenger travel within its limits, and as far as practicable make such regulations as were just to all who might pass over the road in question. It was entitled, of course, to provide for the convenience of persons desiring to travel from one point to another in the state on domestic trains. Rut it was not bound to ignore the convenience of those who desired to travel from places in the state to places beyond its limits, or the convenience of those outside of the state who wished to come into it. Its statute is in aid of interstate commerce of that character. It was not compelled to look only to the convenience of those who desired to pass through the state without stopping.” Pages 301, 302.

In Atlantic Coast Line R. Co. v. Wharton, supra, it was held that the effect of an order made by state authority as a direct regulation of interstate commerce may be tested by tbe local facilities existing at tbe station or stations at wbicb tbe interstate commerce train bas been commanded to stop.

In determining whether or not reasonably adequate service is furnished regard may be bad to public convenience as well as public necessity. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465; Atlantic Coast Line R. Co. v. North Carolina Corp. Comm. 206 U. S. 1, 27 Sup. Ct. 585; State v. C., M. & St. P. R. Co., ante, p. 341, 140 N. W. 70. “The power of tbe state,” says tbe court in tbe Lake Shore Case, supra, “by appropriate legislation to provide for tbe public convenience stands upon tbe same ground precisely as its power by appropriate legislation to protect tbe public health, tbe public morals, or tbe public safety. Whether legislation of either kind is inconsistent with any other power granted to the general government is to be determined by the same rules.” Page 300. In State v. C., M. & St. P. R. Co., supra, our own court says:

“It is common knowledge that practices and conditions in tbe conduct of the railway passenger traffic of tbe country wbicb, in a superficial view, seem, in their effect, of slight importance to travelers, do in reality materially and substantially affect their comfort and convenience and thus tend to affect their health. They therefore furnish a ground for controlling tbe conduct of such business in tbe interest of tbe comfort and convenience of tbe public.”

That a state regulation may indirectly or in a slight degree affect or interfere with interstate commerce does not render it void if that is not its purpose and if it bas another legitimate object. Diamond G. Co. v. U. S. G. Co. 187 U. S. 611, 23 Sup. Ct. 206; McDermott v. State, 143 Wis. 18, 126 N. W. 888; Independent Tug Line v. Lake Superior L. & B. Co. 146 Wis. 121, 131 N. W. 408; State v. C., M. & St. P. R. Co. 152 Wis. 341, 140 N. W. 70.

Tbe principles above referred to may be summarized as follows: (a) Every station is entitled to reasonably adequate domestic and interstate service; (b) state regulations wbicb go no further than to require such service are neither unreasonable nor unduly restrictive of interstate commerce; (c) a state has the right to demand reasonably adequate interstate service as well as domestic service at any station within its borders; (d) in determining what is reasonably adequate service due regard may be had to the convenience of the public; and (e) a slight.or indirect interference with interstate commerce does not render a state regulation void provided it is not made for such purpose but for another legitimate object.

Turning now to the application of these principles to specific cases, we find that a statute of Ohio which required that “each company shall cause three each way, of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at a station, city or village containing over three thousand inhabitants, for a time sufficient to receive and let off passengers,” was sustained as not unreasonably interfering with interstate commerce or'unreasonable on any other ground. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465.

In Atlantic Coast Line R. Co. v. North Carolina Corp. Comm. 206 U. S. 1, 27 Sup. Ct. 585, an order of a state railroad commission requiring the plaintiff to make daily connections at Selma with the Southern Eailway was upheld, though the evidence showed a compliance therewith would result in a financial loss to plaintiff and require it to run an additional train. A state statute requiring the stoppage of all regular passenger trains running wholly within the state, at its stations at all county seats, long enough to receive and discharge passengers with safety, is valid, though such trains may carry interstate passengers who are to connect with interstate trains, and also cany the mails of the United States. Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. 627. In St. Louis & S. F. R. Co. v. Troy, 25 Okla. 749, 108 Pac. 753, the supreme court of Oklahoma held that an order of the railroad commission requiring plaintiff to stop two passenger trains each way at tbe station of Troy, containing about 300 inhabitants, with one general store and two small stores, was not unreasonable. Substantially to the same effect is Missouri, K. & T. R. Co. v. Witcher, 25 Okla. 586, 106 Pac. 852. Orders of a railroad commission requiring an additional train each way to stop daily at the stations of Blue Creek and Arden, each containing about 200 people, was upheld by the supreme court of Washington in State ex rel. G. N. R. Co. v. Railroad Comm. 60 Wash. 218, 110 Pac. 1075, chiefly on the ground that public convenience required their stoppage in order that the residents thereof might be enabled to go to the county seat to transact business and return the same day. In Atchison, T. & S. F. R. Co. v. State, 28 Okla. 476, 114 Pac. 721, it appeared that two of plaintiff’s passenger trains met at Belva, a station containing about thirty people, but with a thickly settled community around it. An order requiring an additional train each way daily to stop on flag signal was sustained.

In Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, it appeared that eleven trains daily stopped regularly at a small station which was a junction point with a short branch road. It was held that a state order requiring the stoppage on signal of two of its fast mail trains was unreasonable. And where four trains a day each way stopped at a station containing about 4,500 people, a state statute which required the stoppage at that place of a through interstate passenger and mail train was held invalid. St. Louis, I. M. & S. R. Co. v. State, 85 Ark. 284, 107 S. W. 989. Likewise, where three south-bound trains stopped at a county seat of about 1,200 inhabitants, an order of the state railroad commission requiring the stopping of two additional south-bound interstate mail and passenger trains was held unreasonable. Mississippi R. R. Comm. v. Ill. Cent. R. Co. 203 U. S. 335, 27 Sup. Ct. 90. And a state statute which required a through interstate passenger and mail train to turn aside from its direct route and run to a county seat three and one-half miles distant and back again, was held unconstitutional, it being admitted that the railway company otherwise furnished the county seat adequate passenger service. Ill. Cent. R. Co. v. Illinois, 163 U. S. 142, 16 Sup. Ct. 1096. In Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722, a statute of Illinois which required all regular passenger trains to stop a sufficient length of time at county seats to receive and discharge passengers with safety was held unconstitutional as applied to a county seat at which four regular passenger trains each way daily stopped. It was sought to require the stopping of an interstate limited special in addition to the four passenger trains stopping regularly. In distinguishing this case from the case of Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, the court says:

“This case is readily distinguishable from the one under consideration in the fact that the Ohio statute required only that three regular passenger trains should stop at every station containing three thousand inhabitants, leaving the company at liberty to run as many through passenger trains exceeding three per day as it chose, without restriction as to stoppage at particular stations. In other words, it left open the loophole which the statute of Illinois has effectually closed.” Page 520.

In Herndon v. C., R. I. & P. R. Co. 218 U. S. 135, 30 Sup. Ct. 633, it was held that a statute of Missouri which required all passenger trains to stop at all junctions within the state was unreasonable and void as applied to the junction of Lathrop, which had a population of about 1,000 and had two passenger trains each way stopping daily. It was there sought to secure the stoppage of an interstate limited train. See note to this case in 54 Law. Ed. 970.

Viewing the statute in question in the light of the principles of law relevant thereto and their application to particular states of fact as disclosed by the adjudicated cases, we must determine whether it falls within or without the legislative field. That the legislature may prescribe reasonable regulations as to the stoppage of trains is admitted. Such admission, however, includes within it the further admission that within the field of its discretion the legislature is supreme,, and its determination must control unless clearly unreasonable or unless it contravenes some specific or implied constitutional provision, state or federal. It is not for the court to square the act with its own judgment and declare it void if it fails to measure up to such standard. The court’s duty is to sustain the statute unless it can be said that in its enactment the legislature exceeded its powers.

It will be observed that as a basis for a minimum passenger service the population of a station and the number of passenger trains passing it each way daily are made the main tests. That such tests are germane to the subject of the act can scarcely be doubted. The population of a station is usually not only a fair index of the amount of business the station itself will furnish, but also of that of the population tributary thereto, while the number of passenger trains run daily past a station measures the amount of passenger business done over the road and, in a degree, its ability to furnish additional facilities to the station without financial loss or without undue interference with through traffic. The furnishing of adequate mail facilities for the residents of the village and of the surrounding country was also in the legislative mind, as is evidenced by the provision that the station must have a postoffice in order to enjoy the service provided for in the act. So it must be deemed that a proper basis of classification is made by the statute.

The evidence shows that while in the instant case the population of Cochrane is only 260, yet almost 3,000 people are served by the railway at that point, and that is so despite the fact that the road runs along the western margin of the state with the Mississippi between it and Minnesota, thus cutting off, as the fact is, practically all passenger business from tbe west. . It is fair, therefore, to presume that inland stations of no greater population would have tributary to them a greater number of people to be served at them than Coch-rane has. When this fact is borne in mind, the placing of the population as low as 200 does not appear so unreasonable. Besides, the statute affects only one train if three or less are run daily. If four or more are run daily each way it affects only two. It leaves the road free to run unhampered as many more trains per day as it may desire. It therefore falls within the rule of Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, and not within that of Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722; or that of Herndon v. C., R. I. & P. R. Co. 218 U. S. 135, 30 Sup. Ct. 633.

Under the passenger train schedule in force at Cochrane, it renders it practically impossible for its residents to go either north or south to near-by towns, transact business, and return the same day. This situation affects their convenience, and, as has been shown, that is a consideration of some importance in determining the reasonable adequacy of service. True, as has been observed before, the statute must stand or fall upon its main scope and upon its general application to villages throughout the state, and not upon its particular application to the village of Cochrane. But the fact remains that where only one train a day each way stops at a station, its residents are quité likely to be more or less hampered in the convenient transaction of business with neighboring towns along the line either on the one side or the other, or both.

It is urged that if plaintiff should be required to stop one of its limited interstate trains it would have to do so at the expense of interstate commerce. This contention is true only in part. The evidence discloses that plaintiff’s receipts from domestic passenger business at Cochrane for the year 1911 were $985.87 and from interstate business $765.76. At fourteen stations in Wisconsin, including Cochrane, varying in population from 200 to 535, for tbe same year its receipts from domestic passenger business were $16,179.08 and from interstate business $11,375.38. It will thus be seen that even from such small stations plaintiff’s receipts from interstate passenger business is over one third that of its total passenger receipts. When, therefore, additional service is required, it is not accurate to say that it is at the expense of interstate traffic. Such additional service benefits interstate as well as domestic travel, and the state has the right and is in duty bound to see that both are adequately provided. The fact must not be overlooked that travel from a point in this state to a point in another state, or from a point outside the state to a point within it, is just as much interstate travel as is travel through the state between points outside its boundaries. Each kind of interstate as well as domestic travel is entitled to reasonably adequate service, and none is entitled to more at the expense of the other. The interstate passenger traffic at these small stations being a substantial part of their passenger business, the state has the right to make reasonable regulations to promote it and to further the necessities and convenience of interstate passengers.

It will be noticed that neither the statute nor the order of the Railroad Oommission requires the plaintiff to stop one of its limited interstate trains. The plaintiff has the option to do that or to put on an extra train each way daily which shall stop at Cochrane. To do the former it is claimed would seriously interfere with its through traffic, as competition is keen and time is of the essence of such traffic. This no doubt is true. But since the primary duty of a carrier is to give reasonably adequate service to stations along its line, and since the legislature has within the field of its discretion fixed the minimum of such service at a quantum which cannot judicially be declared unreasonable, or held to unduly interfere with interstate commerce, the objection becomes untenable.

The evidence shows that to put on an extra local train each way daily would cost about $7,000 per month and that the estimated receipts would not equal the expense. It is not shown, however, that the whole passenger revenue of the road in this state is not ample to meet the additional expense with a fair margin of profit. But even if that were not so, if the service required is a reasonable one it is no answer to say that it would have to be performed at a financial loss. In Atlantic Coast Line R. Co. v. North Carolina Corp. Comm. 206 U. S. 1, 26, 27 Sup. Ct. 585, the court says: “Because as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident some pecuniary loss from rendering such service may result.” This is reaffirmed in Mo. Pac. R. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330. In determining what is reasonably adequate service the paramount factor is public need and convenience, modified no doubt by many other considerations, such as the size of the station, the extent of the demand for transportation, as well as the reasonable cost of giving' additional service.

Upon the whole it must be held that the statute in question has suitable relation to the public need and convenience, is founded upon an appropriate basis of classification, and cannot judicially be declared to require more than reasonably adequate passenger service for the stations embraced within its terms. The judgment of the circuit court must therefore be affirmed on the ground that the order made by the Bail-road Commission was a lawful order.

By the Court. — Judgment affirmed.;

KeRWXN, J., dissents.

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Dissenting Opinion

TiMLiN, J.

(dissenting). I am unable to assent to the correctness of the majority opinion in this cause. By statutes now known as secs. 1797 — 1 to 1797 — 38 a comprehensive plan of railroad regulation for this state is established. The Railroad Commission, an administrative board or body, is empowered to ascertain, declare, and enforce reasonable rates and adequate service, etc. This is done by order made upon complaint (sec. 1797 — 14 et seq.) and applies to all railroads in the state. Sucb order is reviewed in the circuit court by action against the Commission under secs. 1797 — 15, 1797— 16, et seq. If any railroad shall fail, neglect, or refuse to obey any lawful requirement or order made by the Commission, or any judgment or decree made by any court upon its application, for every such violation, failure, or refusal such railroad shall forfeit and pay into the state treasury a sum of not less than $100 nor more than $10,000 for each offense. Sec. 1797 — 27. While these statutes were in force, ch. 483, Laws of 1911, was enacted. This last purports to amend sec. 1801 of the Statutes. It provides:

“Every corporation operating a railroad shall maintain a station at every village, whether incorporated or not, having a postoffice and containing two hundred inhabitants or more, through or within one eighth of a mile of which its line or road runs, and shall provide the necessary arrangements, receive and discharge freight and passengers, and shall stop at least one passenger train each day each way at such station, if trains are run on such road to that extent; and, if four or more passenger trains are run each way daily, at least two passenger trains each day each way shall be stopped at each and every such station. Every such corporation neglecting .or refusing fully to comply with this section, after demand therefor by any resident of such village, shall forfeit not less than twenty-five nor more than fifty dollars for each and every day such neglect or refusal shall continue, one half to the use of the person prosecuting therefor.”

By this statute the legislature undertook to take from the authority of the Railroad Commission the power to decide upon the adequacy of existing service and itself fixed a positive or arbitrary rule relative to the service. It also provided for the enforcement of this duty by a qui tarn action for a forfeiture of not less than $25 nor more than $50 per day. In the instant case the Railroad Commission, while finding that adequate service to the village of Cochrane did not require it, nevertheless undertook, by order made upon complaint, evidence, and hearing, to re-impose the duty on the railroad company which was already imposed thereon by the statute last quoted. I do not think the Railroad Commission had any jurisdiction so to do. Under this order of the Commission the railroad company is liable to a penalty for disobedience thereof amounting tq not less than $100 nor more than $10,000 for each offense. Under ch. 483, supra, it was liable to a penalty of not less than $25 nor more than $50 for each and every day that it omitted to stop two passenger trains each day each way. Penalties cannot be multiplied or enlarged in this way. If the penalty is not enlarged, then there is no penalty for disobedience of the order and the order is an idle form of words. If the penalty fixed by ch. 483 still applies to infractions of that statute and controls notwithstanding the order of the Commission, then the order is void because unenforceable.

Again, the order of the Commission relates to a specified village (Cochrane), while ch. 483, supra, relates to each and every village along the line of the road in Wisconsin answering the calls of the statute. If the Railroad Commission had no jurisdiction to decide that the service complained of was adequate, it follows that it had no jurisdiction to decide that such service was inadequate. No jurisdiction is conferred upon that body to entertain a complaint and proceedings for the purpose of supplementing the legislative declaration of duty by an unenforceable declaration on the part of the Compassion.

Next, when the matter reached the circuit court that court undertook not simply to review the order of the Railroad Commission with respect to the reasonableness or unreasonableness of such order, but assumed the administrative duty of deciding in the-first instance that the service formerly rendered was inadequate, and affirmed the order of the Railroad Commission upon a ground never passed upon by that administrative body. Clearly, I think the circuit court had no jurisdiction so to do. No such power is conferred upon the circuit court by statute, and surely judicial power at common law does not include it.

If either of these positions is correct, I think we should reverse the order of the circuit court and the order of the Commission as made without jurisdiction, and not overlook these fundamental errors and treat the case as if it were here upon a writ of error to a judgment of conviction in the qui tarn action authorized by ch. 483, supra.

Next, it appears without dispute that the appellant is and has been supplying the village in question with one passenger train each way each day and with one mixed or accommodation train each way each day. Further, it appears without dispute that the appellant is not within ch. 483, supra, at all, and therefore not liable on account of intrastate trains because it does not run the requisite number of such trains. It does, however, run four interstate passenger trains each day each way, so that the effect of the statute in the instant ease is to require the defendant to stop its interstate passenger trains each way at this diminutive village and at all villages of at least this population on its line of road in the state of Wisconsin.

The appellant enters the state of Wisconsin at a point where the southern boundary line of said state touches the Mississippi river and runs thence along the easterly bank of the Mississippi river to the city of Prescott in Pierce county, Wisconsin, where it crosses the St. Oroix river and enters the state of Minnesota, a total of 223.13 miles in length within this state. Along this line there are seven villages of more than 200 and less than 300 inhabitants each; five villages of more than 300 and less than 400 inhabitants each; and twenty-one stations all together. Alma, having a population of 1,000 and the next station on appellant’s line north of Cochrane, is eight and three-tenths miles distant therefrom. Fountain City, with a population of 1,000, is on appellant’s line about eight miles south of Cochrane. All of appellant’s limited interstate trains stop at Alma and two passenger trains each way each day stop at Fountain City. This is an important consideration with reference to the adequacy of train service in so far as the rural population near Cochrane is considered. The total revenue from the sale of passenger tickets at the station in question for the year ending June 13, 1911, is $1,751.63, of which $985.87 was from the sale of intrastate tickets and $765.76 from the sale of interstate tickets. The appellant must either stop its interstate limited trains or put on an extra passenger train in order to comply with ch. 483, supra. To put on an extra train will require an outlay of $84,000 per year, which it appears must cause the appellant a great pecuniary loss.

I think the true way in which to uphold state authority over interstate railroads is to be just and reasonable in its exercise. Grasping for* more than this, the state is apt to lose the little it has. The decision of the Commission that the former service was adequate, while it cannot be given controlling weight, is, however, significant. I do not think that public convenience requires either the stopping of these interstate trains or this pecuniary sacrifice. Convenience is an elastic term, and no doubt it would be more convenient to have a train stop every hour at this village and it would be confessedly inconvenient if no trains at all stopped there. Between these extremes there is no doubt a broad field of legislative discretion. There is a degree of inconvenience to which the carrier may not subject the dwellers along its line, even for the purpose of paying its operating expenses and making up a fair return on its investment. But that does not help much, because these conveniences shade off by imperceptible degrees into conditions where to tbe man of moderate desires their supply becomes luxury and their denial no long-er a denial of the ordinary conveniences of life. But it also follows that unlimited legislative power in this direction would support legislative confiscation. Two hundred inhabitants, allowing for the ordinary percentage of infants, sick, and incapacitated, would ordinarily represent a very small number of persons able to travel or disposed to travel on a railroad. The statute must be tested by its general requirements, not only as regards the village of Cochrane, with a population of 260, but the other little villages along this line. I think from the standpoint of convenience a village of 200 or 260 people that has one passenger train each way per day, together with a mixed freight or accommodation train, is not badly served. The hours of arrival and departure of these several trains must be adjusted with reference to the length of the run and the number of stations, and these hours will necessarily be more convenient at some stations than at others, but that is unavoidable. I consider the case to be within the rule of and governed by Herndon v. C., R. I. & P. R. Co. 218 U. S. 135, 30 Sup. Ct. 633, and cases cited, and for this reason also the order appealed from should be reversed. This statute regulating the use of appellant’s property is in the nature of a police regulation, and it appears to me to be an unnecessary and unreasonable interference with interstate commerce and therefore invalid. I also think that the basis of regulation is improper and unlawful, and that the necessities or conveniences of a village cannot be measured by the number of interstate trains which pass through or by it. State v. Redmon, 134 Wis. 89, 114 N. W. 137. The requirement must be based upon necessity or convenience of the public. I also think the proceedings above herein described and the penalties imposed by statute, conflicting and contradictory as they must appear on account of tbe unusual procedure adopted in tbis case, should warrant the reversal of the judgment appealed from because of such interference. Considering each failure to stop each train each way as an offense, the penalties must be enormous when multiplied by the number of days multiplied by the number of small stations on this line.