182 Wis. 498 | Wis. | 1924
This action is brought to set aside an order of the Railroad Commission authorizing defendant Milwaukee Northern Railway Company to install one-man
Counsel for the city contends that under the special charter and the Home Rule Act (ch. 678 of the Laws of 1913 and sec. 1862, Stats., now sec. 193.01) the city possessed broad and comprehensive powers and had jurisdiction to pass the ordinance above referred to. We think this position is quite invulnerable but beside the question, as it fails to affect or reach the real issue herein presented, which comprises, first, the right of the Railroad Commission to act in the premises, and second, the effect which should be given to the Commission’s act upon proceedings properly instituted ; in other words, the question whether the ordér of the Commission suspends or supersedes the ordinance of the common council of the city. In Monroe v. Railroad Comm. 170 Wis. 180, 174 N. W. 450, thé court said:
“The Railroad Commission being a tribunal of purely statutory creation, its power and jurisdiction must be found within the four corners of the statutes creating it.”
“This section shall be construed to permit any railroad to make complaint with like effect as though made by any person, firm, corporation or association, mercantile, agricultural or manufacturing society, body politic or municipal organization.”
An examination of secs. 1797 — 1 to 1797 — 38, and particularly secs. 1797 — 12 and 1797 — 14, is clearly convincing of the power and jurisdiction of the Railroad Commission in the premises. The power delegated to the Railroad Commission is not legislative, but has béen held, upon numerous occasions, purely administrative. If the legislature had attempted to delegate legislative power to' the Commission, its, act would be clearly unconstitutional as an unlawful
“The power to fix rates and tolls to be charged by public utilities is one of the attributes of sovereignty. With us this great power is vested in the legislature, and when the legislature speaks upon the subject its voice is controlling and supreme, unless, indeed, some constitutional guaranty is invaded.” Milwaukee E. R. & L. Co. v. Railroad Comm. 153 Wis. 592, 605, 606, 142 N. W. 491; Madison v. Madison G. & E. Co. 129 Wis. 249, 108 N. W. 65.
What is said in the Milwaukee E. R. & L. Co. Case, supra, as to rates and tolls is likewise true’ with respect to service.
It will thus appear that, within the proper constitutional limitations, the supreme power to create and maintain a proper standard for service vests primarily in the legislature, and the legislature cannot divest itself of this power by delegating it, in part or in whole, to a municipality. It constitutes the original source of power; in other words, is the very fountain-head of the power, and such power continues under all circumstances. The legislature being the creator of the municipal powers, its creature cannot, at any time, possess powers superior to it. Upon this doctrine the solution of the question herein involved must fundamentally rest. It was therefore held in Vanderwerker v. Superior, 179 Wis. 638, 192 N. W. 60, that “the legislative control, either directly or through its designated administrative body,
This practically disposes of the main contention of the city attorney; however, it is also contended that if no standard is fixed by the law, but the fixing of such standard is left entirely to the discretion of the Commission, it is an unlawful delegation of legislative authority. As has already been said, sec. 1797 — 3 creates the legislative standard, and the Commission, pursuant to its administrative authority and from the facts found, declared the standard with respect to the reasonableness and adequacy of the service, and such declaration becomes the standard of the legislature and there is, therefore, no delegation to the Commission by the legislature of legislative authority. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905.
It appearing that the Commission, upon proper proceedings, made and entered the order aboye referred to, we cannot judicially say that the service provided for by such order is, in itself, unreasonable or inadequate.
We therefore hold that the order of the circuit court sustaining the demurrers of the defendants must be affirmed.
By the Court. — Order affirmed.