173 Wis. 400 | Wis. | 1921
The following opinion was filed December 14, 1920:
Defendant’s contention that the court has no jurisdiction of the action because it necessarily prevents the enforcement of an order of the railroad commission is not tenable. It is the function of the railroad commission to establish reasonable street-car rates. It is not concerned with the question of whether or not the street car company has the requisite franchise to operate its cars. That is purely a judicial question. The granting of the franchise is a legislative act, which neither the railroad commission nor the courts can interfere with. Whether defendant needs a further franchise than.it has to carry on its business -within the limits of Milwaukee is the main question for determination in this case, and it is a judicial question within the jurisdiction of the trial court.
Defendant also claims that the city in its governmental capacity has no power to maintain this action, because it is said the city has no rights or duties with respect to the unlawful exercise of franchise, since such right rests solely with the state to be asserted in an action of quo, zuarranto. That is true. But this is not an action to annul a franchise. The city is charged with the duty of maintaining streets for lawful. travel, and as an incident of that duty it has- the right, to inquire if a certain kind of travel is lawful, and-if not to have it prohibited by injunction. It claims defendant has no franchise for interurban traffic and that it is carrying-on such traffic on the streets of the city. Streets are dedicated for latvful travel, and a city has the right to see that the purpose of the dedication is not departed from by the unlawful use of streets.
As the owner of a large number of lots abutting upon streets on which defendant’s tracks are laid, the city in its
In view of what has been held it cannot be said that the city’s case is without equity if it can establish an unlawful use of its streets either as to its governmental or proprietary capacity. The fact that it has for a considerable period of time, upwards of twenty years the court found, acquiesced in such use, if any, does not estop it from now asserting its claim. Wilbur L. Co. v. Milwaukee L., H. & T. Co. 134 Wis. 352, 114 N. W. 813; Schuster v. Milwaukee E. R. & L. Co. 142 Wis. 578, 126 N. W. 26. In its proprietary capacity it could not resort to condemnation in the absence of a franchise for interurban traffic. Beloit, D. L. & J. R. Co. v. Macloon, 136 Wis. 218, 116 N. W. 897. The use of the streets by the defendant without a franchise, where one is needed, constitutes a continuing trespass. Ibid. As against the city in its governmental capacity, or as against the public, the continuing trespass, if any, has not ripened into a right,
Before we consider the question of whether or not the defendant has made a use of the city’s streets not warranted by its franchise, it is desirable to state briefly what our court has held upon this and related questions. It has held:
(a) That city streets are subject to ordinary surface
None of the cases define what constitutes passenger street railway service nor what constitutes passenger interurban railway service, though it is apparent that the additional burden must grow out of some difference in the service. In Schuster v. Milwaukee E. R. & L. Co. 142 Wis. 578, 126 N. W. 26, it was found that the interurban cars were larger than street cars; that they usually ran at a greater speed and often in trains of two or. more and stopped after reaching the city limits to discharge only interurban passengers, and had a terminal station for the discharge of most of their passengers. This constituted a substantial difference from ordinary street-car service, especially as to the discharge of passengers. In Beloit, D. L. & J. R. Co. v. Macloon, supra, the interurban road had not secured from the city council' a right to use the street for interurban railway purposes but only for urban street railway purposes, and it was held that it could not condemn for interurban
Law is the rule of reason applied to existing conditions. Obviously, when conditions change there must be a corresponding change in the law, else it would cease to be a rule of reason and would become a mere arbitrary static rule. Law indicating, as it does, the just relations that obtain under given conditions, can be static only so long.as the conditions to which it applies remain static. It does, not prevent new conditions from arising, for if it did, and could, progress would be arrested. On the contrary, it aims to adjust relations to conditions as they exist when rights or obligations are claimed under them, and in proportion as it does that equitably it performs its true function. Whenever it arrests or clogs true progress it ceases to function truly. To do justice, then, under existing conditions, is its paramount office — all else, even the most venerable prece
In the development of. every industry important changes take place from time to time. This is true of street-car and interurban service as-well as of other industries. Changes have taken place in the size of rails used, in the power employed, in the size and weight of cars, in the rate of speed, in the frequency of stops,, and in many other respects. First we had animal power, then cable cars, and now electric cars. We find much less difference within city limits between the ordinary interurban and street railway service than we did a few decades ago. The California court points this out, saying: ■
“There has recently come into existence a certain class of railroads, known as interurban roads, which are a sort o.f hybrid, having in some respects the characteristics of the ordinary railroad, and in others those of the street railroad. Within the limits of the cities which they enter they usually pass along the streets, and perform the ordinary functions of street railroads, stopping where desired to let passengers • on or off, and serving the public need for local street travel. Outside the cities, on their way from one city or town to another, they frequently travel upon a roadway obtained from private persons, not upon a public road, and stop, as' in case of ordinary railroads, only at stations established by them for that purpose.” San Francisco & S. M. E. Co. v. Scott, 142 Cal. 222, 75 Pac. 575.
The purpose of dedicating streets and highways for public use is to permit travel thereover. The means by which travel is effected is secondary, the purpose is primary. La Crosse City R. Co. v. Higbee, 107 Wis. 389, 83 N. W. 701. The means may change from time to time, dependent upon man’s inventive genius. Not so long ago animal power was the exclusive means of travel whether- 'used to propel the animai alone, as in walking, or in transporting passengers by means of an animal-drawn vehicle. Naturally, therefore, it was
The growth of large cities has taxed the inventiveness of man to the utmost to solve the question of passenger transportation therein, and especially in their congested business centers. We now have surface, elevated, and subway tracks. We have local, limited, or express cars. They run singly, or moré often in trains of considerable length. We thus see that man’s necessities and his ability to meet those necessities have materially changed street travel as to method though the street purpose remains the same. The use of the streets is open to all who wish to travel thereon whether for business or pleasure, whether residents or nonresidents. It is to the interest of a city to make its streets convenient for the easy travel thereon of all who live within or visit it.
In view of the foregoing considerations, we hold that urban surface street-car passenger service is the transportation of passengers in suitable cars orrer the streets of a city operated so as to permit them to enter and leave the cars at reasonable intervals. The initial point from which the car or passenger comes or the point to which they are destined is immaterial. The criterion is the character of the service rendered bj1' the car while on the city streets. If that is an ordinary or reasonable street-car service as to fitness of car, rate of speed, and frequency of stops for passengers to enter and leave, then while on the city streets such service is street-car service though the car may come from or enter interurban service on the same trip. In
We further hold that, as to a given city, interurban railway passenger traffic is the transportation between it and other cities or municipalities of passengers without thereby rendering reasonable or the prescribed street-car service in such cityr. In interurban service the streets of the city are used for a purpose foreign to their dedication by being transformed into a right of way for a commercial railroad which does not render reasonable street service. Hence the additional burden upon abutting lands.
From the foregoing it follows that the operation upon an urban surface street railwajr by the owner of the franchise therefor of cars reasonably suitable for street-car service, and which give street-car service in such manner as the railroad commission may prescribe, or, in the absence of regulations by the commission, give reasonable street-car service, does not subject the adjacent property within the city limits to an additional servitude, though such cars may start from or be destined for points outside the city limits or be used in strictly interurban service outside of the city limits; and the operation of such cars within the city limits does not require any franchise additional to the urban surface street-car franchise.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.
The following opinion was filed March 8, 1921:
Our attention is called to the fact that defendant’s Milwaukee-Waukesha line had a franchise for carrying freight east as far as Twenty-second avenue, which was formerly the city limits of Milwaukee. They have since been extended further west. In the opinion it was stated that we saw no reason for disturbing the trial court’s conclusion (c), which was that the city is entitled to an injunction restraining the carriage of freight across the city limits as found in finding number 2. In view of the change in the city limits this conclusion will be construed to authorize the defendant to carry freight on its Milwaukee-Waukesha line as far east as Twenty-second avenue, the former city limits.
A motion for a rehearing was denied, without costs, on March'8,-1921.
