Minneapolis, St. Paul & Sault Ste. Marie Railway Co. v. Railroad Commission of Wisconsin

136 Wis. 146 | Wis. | 1908

Lead Opinion

TimliN, J.

On September 15, 1906, the Railroad Commission of Wisconsin, upon complaint made by and in behalf of a number of persons residing in the town of Garfield, Polk county, and after hearing said complainants and the railway company, made an order that the Minneapolis, St. Pcml & Sault Ste. Marie Railway Company erect and construct at a point on its line between the stations of Nye and Deronda, which point was formerly known as Dwight’s Siding or Spur, a platform suitable for the loading and unloading of cream and other merchandise shipped by express; that such platform should be constructed so as to be accessible to teams, and of the kind and dimensions usually and customarily furnished at small stations where no depot is maintained, and should be sufficient to enable passengers to get on and off trains with safety. The railway company was further ordered to stop its local passenger trains numbered 84 and 85, as shown on its time-card of August 10, 1906, at the point above designated for the purpose of receiving and discharging passengers and express packages". Except in the season during which cream is shipped, the trains are required to stop only upon signal or request by prospective or actual passengers. According to appellant’s time-card of August 10, 1906, Nye is 61.8 miles and Deronda 69.6 miles eastwardly from -Minneapolis, and each about ten miles nearer to St. Paul. Local passenger train No. 84, east bound, arrives at Nye at 10:54 a. m. and at Deronda at 11:10 a. m., daily except Sunday. Local passenger train No. 85, west bound, arrives at Deronda at 2:47 p. m. and at Nye at 3:06 p. m., daily except Sunday. Nye and Deronda are 7.8 miles apart. The new stopping place, called Dwight, is about midway between the stations and in or about the center of an agricultural and dairying community consisting of sixty-four families of 294 persons, and this area, two by three miles in extent, is naturally tributary to Dwight for railroad purposes. The probable contribution to railroad traffic from Dwight will be six cans of cream daily in summer and three cans three times a week in winter, together with some shipments of butter and eggs and an occasional passenger, all of which would at current rates pay the railroad company a small profit over and above the expense caused by this extra stop at Dwight There are five flag stations in the first 114 miles eastwardly from Minneapolis at which trains numbered 84 and 85 stop. These trains carry no freight, but do carry express packages in a sort of combination car. The railway company formerly maintained a spur at Dwight. The order does not prevent the trains numbered 84 and 85 from making their ordinary and usual connections, and tbe stop is attended witb no danger on account of tbe proximity of tbe trains in question to other trains on tbe same road at tbat bonr. There is a good road from Dwight to Deronda, where there is a small village or hamlet. At Dwight there is a general store, a church, and a schoolhouse. There are other evidential matters, but the foregoing are the principal facts.

The railway company brought an action under sec. 16, ch. 362, Laws of 1905, in the circuit court for Dane county against the Railroad Commission to vacate and set aside the order in question, and after trial and hearing the circuit court made findings of fact and conclusions of law to the effect that the order of the Commission was not unreasonable, and rendered judgment refusing to vacate this order. This court is asked to review and reverse on its merits the judgment of the circuit court. After the case was presented to this court upon briefs and arguments on January 28, 1908, a reargument was ordered. The following questions, but in different order, were suggested for reargument:

(1) Is it within the legislative power to confer upon courts authority to review the reasonableness of rules or orders of the Railroad Commission?

(2) "What is the scope of review by courts of the orders of the Railroad Commission of Wisconsin contemplated in the action provided for by sec. 16, ch. 362, Laws of 1905 ?

(3) "What is the true construction of the word “unreasonable” in that section?

The able counsel who presented the case on the first argument have been assisted upon the reargument by other able and distinguished members of the bar, and we gratefully acknowledge that the thorough presentation of the questions involved from varying viewpoints and with much legal learning and acumen has been of great service to this court. We have also given the subject painstaking investigation and careful consideration.

Ch. 362, Laws of 1905, is the first attempt in this state to regulate tbe rates and service of railroads by or through a commission, although much experimental legislation of this kind has come into existence by the enactment of federal statutes and by the enactment of statutes and the adoption and amendment of constitutions in many of the states during the last twenty-one years. The exact legal relation of the railroad to the state and its citizens presents many grave and difficult legal problems. It was unknown to the ancient jurists. Restrictions of written constitutions and of our dual system of federal and state control of commerce, the vastness of the interests affected, the multitude of detail, and the many-sided legal and economic nature of the questions ordinarily presented, are responsible for much of this difficulty; the extraordinary development of the carrying trade in modem times for more. Consequently the law on this subject, statute and unwritten, is more or less in a state of transition at the present time.

After creating the Commission, to consist of three persons, one of whom shall have a general knowledge of railroad law and the others a general understanding of matters relating to railroad transportation, it is provided that such officers shall be and remain disinterested upon pain of forfeiture of office, and that no member of the Commission shall hold any other office or any position of profit or pursue any other business, but shall devote his whole time to the duties of his office. These qualifications required for the office and these safeguards to insure the impartial exercise of its functions and the great power vested in the Commission by this act and by later statutes evince an intention of the legislature to create an office of great dignity and great responsibility. The Commission has the charge and determination of interests vast in amount, delicate and complicated in their legal and economic relations, affecting the happiness and prosperity of all the people of the state, and involving the consideration and protection of private rights of the most sacred character. Experience tends to show that public officers, as well as private citizens, are apt to rise in character and dignity to meet great responsibilities, but to shift responsibility where opportunity of shifting is easily afforded and thereby to deteriorate in efficiency and in character. Besides this, the work of the Commission requires much expert knowledge of the difficult subject of transportation and rates, the consideration and application of economic as well as legal principles, and an intimacy with local and state traffic conditions. Consequently, unless required to do so by the mandate of law, the circuit courts should interfere as little as they may with the determinations and the work of the Railroad Commission. But courts, too, are bounden to duty, and cannot throw off at will that which is imposed upon them by law fairly construed and properly understood.

The statute in question defines the term “railroad” as used therein, and provides that every railroad is required to furnish reasonably adequate service and facilities, and that the charges made for any service rendered or to be rendered in the transportation of passengers or property, or for any service in connection therewith, or for the receiving, switching, delivering, storing, or handling of such property, shall be reasonable and just, and every unjust or unreasonable charge for such service is prohibited and declared to be unlawful. In the absence of any action by the Railroad Commission the railroad may fix rates, but not above the maximum therein provided. Upon complaint of any person or on its own initiative the Railroad Commission may proceed to hear and investigate, and if it be found that the rate or rates, fares, charges, or classifications, or any joint rate, or any regulation, practice, or service, be unreasonable, or unjustly discriminatory, or the service be found inadequate, the Railroad Commission shall have power to fix and order substituted therefor such rate or rates, fares, charges, or classifications as it shall have determined to be just and reasonable, which shall be charged, imposed, and followed in the future, and shall also have power to make such orders respecting such regulation, practice, or service as it shall have determined to be reasonable, which shall be observed and followed in the future (secs. 12 and 14). All rates, fares, charges, classifications, and joint rates fixed by the Commission shall be in force and shall be prima facie reasonable until finally found otherwise as therein provided. Sec. 16 of the act in question permits the railroad or any other party in interest to obtain a review of the orders of the Commission by bringing an action in the proper circuit court against the Commission to vacate and set aside its order on the ground that the rate or rates, fares, charges, classification, or joint rates fixed by such order are unlawful, or that any regulation, practice, or service fixed by such order is unreasonable. This action is to be tried and determined like other civil actions, except that, if new evidence is introduced at such trial, the circuit court, unless the parties stipulate otherwise, must remand the cause back to the Railroad Commission for further action. Either party may appeal from the judgment of the circuit court to the supreme court. The act also provides:

“In all trials under this section the burden of proof shall be upon the plaintiff to show by clear and satisfactory evidence that the order of the Commission complained of is unlawful or unreasonable, as the case may be.”

Other provisions of the act need not be noticed here, except to say that the Commission is given power by subd. “a” of sec. 14, after hearing, to rescind, alter, or amend any of its orders, and by sec. 28 to fix emergency rates and suspend existing rates.

Whether it is within the power of the legislature to confer upon courts authority to review the reasonableness of rules or orders of tire Railroad Commission depends upon the fun■damental nature of these rules or orders. If sucb rules and1 orders are purely legislative and violate no constitutional law or paramount federal statute, it would be incorrect to say that their reasonableness could be the subject of judicial review, because that would give the judicial branch of government a supervisory control over legislation, largely discretionary, and limited only by the judicial opinion of what is reasonable. It is argued that the power to fix rates is a legislative power, and can never be anything else whether the rates are fixed by the legislature or by a commission or by the action of the legislature and commission jointly; that the legislative power is by the constitution vested in the senate and assembly, and cannot be delegated except in instances expressly provided for in the constitution. But when we add to this that because of the multitude of detail, the intricacy of the subject, the expert knowledge required, the numerous separate investigations of interrelated questions of fact which are necessary, and the necessity for frequent changes and adjustments in rates or service, a legislative body, the members of which are chosen for short terms from the body of the people, would find it an actual rather than a legal impossibility to fix just and reasonable rates, it becomes apparent that this position tends to the conclusion that by the adoption of its constitution, which vested the whole legislative power in the senate and assembly and forbade its delegation, the state was shorn of some of its usual and necessary powers of sovereignty and became impotent to exercise the power of regulation. Rate regulation of railroads by direct action of the legislature has been tried and found impracticable and its attempt generally abandoned. The business of the carrier has in these modem times so grown and expanded and become such a large factor in the complicated social and economic life of the country that the old modes of regulation by direct action of the legislative body are no longer adequate and, indeed, no longer possible. But the old authority and tbe old principles remain and are not to-be abrogated by implication.

It was said in Railroad Co. v. Peniston, 18 Wall. 5, 31, speaking of tbe federal constitution: “Its limitations and its implied prohibitions must not be extended so far as to destroy tbe necessary power of tbe states or prevent tbeir efficient exercise.” Much less should those state officials upon whom rests the duty of interpreting the state constitution derive from the words of that constitution implications which impair the authority of tbe state to exercise the just and ordinary powers usually possessed by governments, and which implications would recognize within the state persons or corporations not subject to or capable of ordinary regulation by the state, and presuppose that by the adoption of the constitution the state so manacled itself as to be helpless to exercise old and well-known governmental powers or to apply such powers to new problems or new conditions. Such construction would make the mere implications of the constitution greater than the constitution itself, and would lose sight of the main and paramount purpose of the creation of the state and the adoption of its constitution. A constitution so construed would last only so long as it took to bring about an amendment or a new constitution, made possibly in the beat of conflict, and therefore in all probability less wise and equitable than the old constitution properly construed. This is called by counsel tbe doctrine of expediency, but we think it the doctrine of common sense that forbids implications from an instrument which tend to render nugatory or to destroy that instrument. '

The constitution of tbe United States gives Congress power to make all laws necessary and proper for carrying into execution tbe powers by that instrument vested in the government of tbe United States or in any department or officer thereof. The legislature of the state of Wisconsin needs no snob enabling provision. It possesses that power. But it was said in Boske v. Comingore, 117 U. S. 459, 468, 20 Sup. Ct. 705:

“Congress bas a large discretion as to tbe means to be employed in tbe execution of a power conferred upon it, and is not,restricted to 'those alone without which tbe power would be nugatory; ’ for ‘all means which are appropriate, which are plainly adapted’ to the end authorized to be attained, ‘which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.’ ‘Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.’ McCulloch v. Maryland, 4 Wheat. 316, 415, 421, 423. In the more recent ease of Logan v. U. S. 144 U. S. 263, 283, 293, 12 Sup. Ct. 622, 626, this court, referring to the above constitutional provision, said that, ‘in the exercise of this general power of legislation, -Congress may use any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished, and are consistent with the letter and spirit of the constitution.’ Again: ‘Every right created by, arising under, or dependent upon the constitution of the United States may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative power conferred upon it by the constitution, may in its discretion deem most eligible and best adapted to attain the object.’ ”

So statutes declaring that railroad rates and service shall be reasonable, and creating a commission with power to investigate existing rates and service, and to fix and determine what rates and what service are reasonable, the statute then providing that the rates and service so fixed shall be in force, have been generally upheld as a valid exercise of the legisr lative power. Railroad Comm. Cases, 116 U. S. 307, 6 Sup. Ct. 334, 338, 1191; Reagan v. Farmers’ L. & T. Co. 154 U. S. 362, 14 Sup. Ct 1047; Georgia R. Co. v. Smith, 70 Ga. 694; Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247; Hopper v. Chicago, M. & St. P. R. Co. 91 Iowa, 639, 60 N. W. 487; State ex rel. Railroad &. W. Comm. v. M. & St. L. R. Co. 80 Minn. 191, 83 N. W. 60; Railroad Comm. v. H. & T. C. R. Co. 90 Tex. 340, 38 S. W. 750. Tbe division of governmental powers into executive, legislative, and judicial, while of great importance in tbe creation or organization of a state and from tbe viewpoint of institutional law and otherwise, is not an exact classification. No sncb exact delimitation of governmental powers is possible. In tbe process of enacting a law there is frequently necessary the preliminary determination of a fact or group of facts by tbe legislature, and it is well settled that the legislature may declare the general rule of law to be in force and take effect upon tbe subsequent establishment of tbe facts necessary to make it operative or to call for its application ; as tbe bankruptcy law of the United States with reference to legislative action regarding exemption laws existing or to be thereafter enacted (Hanover Nat. Bank v. Moyseg, 186 U. S. 181, 22 Sup. Ct. 857) ; or tbe law may be made to take effect conditionally, depending upon tbe action of tbe legislature of another state fixing the amount to be exacted (Phoenix Ins. Co. v. Welch, 29 Kan. 672; sec. 1221, Stats. 1898, and cases in note) ; or it may be conditioned upon tbe legislative act of a city council (Adams v. Beloit, 105 Wis. 363, 81 N. W. 869) ; or upon action of tbe executive (In re Griner, 16 Wis. 423; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495); or upon judicial action involving tbe determination of questions of fact (In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033, and cases cited in opinion; Nash v. Fries, 129 Wis. 120, 108 N. W. 210); or upon administrative action (State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347, and cases cited in opinion) ; or upon a declaration of fact or the creation of a condition by vote of tbe electors of a municipality (State ex rel. Faber v. Hinkel, 131 Wis. 103, 111 N. W. 217). In. short, as said, by Eedhcelb, O. J., in State v. Parker, 26 Vt. 357:

“It makes no essential difference what is the nature of the contingency, so it be an equal and a fair one, a moral and a legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one.”

The legislature may delegate any power not legislative which it may itself rightfully exercise. Wayman v. Southard, 10 Wheat. 1. This power to ascertain facts is such a power as may be delegated.

The cases heretofore cited with reference to the constitutionality of laws creating a railroad board or commission and authorizing the latter to ascertain and fix reasonable rates, which rates, thus ascertained, would be thenceforth in force, rest on these rules of law. Consequently there can be no objection if the legislature, instead of making the law wholly conditional and contingent upon the ascertainment and declaration of reasonable rates by the commission, add the further contingency that the investigation and order of the commission be subject to review by the courts, and the rates so fixed by the commission upheld as not unreasonable by judicial determination. But neither the commission nor the court can be vested with discretion to determine whether the precedent law declared by the legislature shall or shall not go into effect in particular cases. In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033; Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738. This law (ch. 362, Laws of 1905) establishes, and thenceforth assumes, the existence of rates, charges, classifications, and services discoverable by investigation, but undisclosed, which are exactly reasonable and just. It commits to’the Eailroad Commission the duty to ascertain and disclose that particular rate, charge, classification, or service. The law intends that there is only one rate, charge, or service that is reasonable and just. When the order of tbe Commission is set aside by tbe court it is because tbis reasonable and just rate, charge, classification, or service bas not yet been correctly ascertained. Wben tbe order of tbe Commission bas been rescinded or changed by tbe Commission because of changed conditions it is because there is a new reasonable rate to be ascertained and disclosed applicable to such new conditions and fixed by force of law immediately wben tbe new conditions come into existence. But the theory and tbe mandate of tbe laAV is that tbis point always exists under any combination of conditions and is always discoverable although not always discovered. Until it is discovered and made known tbe former rates and service prevail. Tbe order of tbe Commission is prima facie evidence that tbe rate, charge, or service found and fixed by it is tbe particular rate, charge, or service declared by tbe legislature in general terms to be lawful and to be in force. If it were conceded that tbe Commission bad power or discretion to fix one of several rates, either of which would be just and reasonable, it would be bard to say that tbis was not a delegation of pure legislative power to the Commission. But tbe theory of tbis law is to delegate to tbe Commission tbe power to ascertain facts and to make mere administrative regulations.

If tbis court or tbe circuit court were by tbe statute in question authorized to investigate tbe subject anew, to put itself in tbe place of tbe Commission and search for tbis reasonable and just rate, with power to substitute its own judgment of what is reasonable and just for tbe judgment of tbe commissioners, tbe statute might be subject to grave criticism. But the courts are not by tbis statute so authorized. Tbe authority given to tbe circuit court is not to search for or disclose or declare tbis “reasonable and just” rate or service, but merely to determine whether tbe order of tbe Commission is “unreasonable” — quite a different thing. We think the legislature was within its power in conferring upon the courts such authority to inquire whether or not the order of the Commission was unreasonable and to vacate the order if so found. In doing so the courts are required to exercise no legislative power, to ascertain and disclose no rates, to declare no rule or no law unreasonable, but merely to exercise judicial power to ascertain and determine whether the Commission has so far failed in its search for this lawful, just, and reasonable rate as to have found instead, and declared, that which is unreasonable. The result of the reversal of the order of the Commission is not to establish this fact or ascertain this point of reasonableness, but to leave it undisclosed, leaving the former rates to stand or requiring the commissioners to try over again to find it. In reviewing the order of the Eailroad Commission the inquiry is not whether the rate, regulation, or service fixed by the Commission is just and reasonable, but whether the order of the Commission is unreasonable or unlawful. The nature of the inquiry is changed at this point, and the court is not investigating for the purpose of establishing a fixed point. Whether or not the order is within the field of reasonableness, or outside of its boundaries, is the question for the court. It is quite a different question from that which was before the Commission in this respect. The order being found by the court to be such that reasonable men might well differ with respect to its correctness cannot be said to be unreasonable. From this aspect it is within the domain of reason, not outside of its boundaries. This is the viewpoint •of the reviewing court. Doubtless the court may, for the purpose of comparison and to aid it in ascertaining how far the order diverges from a reasonable standard, take evidence of and consider such criterion. But this is only for comparison. The court cannot legally adjudicate or declare this statutory standard.

Unless the plaintiff is able to show by clear and satisfactory evidence that the order of the Commission complained of is unlawful or unreasonable, as tbe case may be, tbe order must stand. Tbe words “clear and satisfactory evidence” are significant, because at the time of tbe enactment of this statute they were used in tbe law of this state to describe a degree of proof greater than a preponderance of evidence and such as was necessary in order to establish fraud by that party to an action upon whom tbe burden of proof rested. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 258, 91 N. W. 666; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188; Dallman v. Clasen, 116 Wis. 113, 117, 92 N. W. 565; Harrigan v. Gilchrist, 121 Wis. 127, 313, 99 N. W. 909. Tbe same rule obtains when the party to an action seeks to prove mistake in a written instrument. Parker v. Hull, 71 Wis. 368, 37 N. W. 351. “Clear, convincing, and satisfactory” was tbe expression used in Linde v. Gudden, 109 Wis. 326, 85 N. W. 323, in an action in which it was sought to deny t£e execution of a deed duly acknowledged. Like words are used in St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, at page 667 (15 Sup. Ct. 484, at page 491), to describe tbe de'gree of proof necessary to overthrow a rate fixed by tbe legislature. We must bold that in tbe statute before tbe court tbe legislature used tbe words “clear and satisfactory” in this sense, and intended they should describe that degree of proof necessary to establish fraud or prove mistake in a written instrument. We are not able to uphold tbe contention of tbe learned attorney general, made in bis first brief, to tbe effect that this court cannot review tbe order of tbe commissioners unless tbe order is confiscatory in its character and effect, and that unlawful and unreasonable in this statute mean confiscatory, because it seems to us that this statute authorizing a review by tbe court is valid and imposes upon tbe court duties which it may not disregard. Indeed, tbe constitution of tbe state seems to forbid any other interpretation. Art. 'VII, sec. 8. This court therefore maintains its right and duty to review tbe orders of tbe Commission to the extent authorized by this statute as here construed. By the construction here given to the law, considering the degree of proof required and the viewpoint of the investigation hy the court and that the court is dealing with a question of fact, or a mixed question of fact and law (Morgan’s La. & T. R. & S. S. Co. v. Railroad Comm. 109 La. 247, 33 South. 214), great weight is necessarily given to the orders of the Commission.

There seems no valid ground of distinction, so far as the instant case is concerned, between unlawful orders and unreasonable orders of the Commission. An unreasonable order is an unlawful order. What significance may be found in the future under different circumstances in the apparently antithetic use of these terms it is not for us to here decide. Confiscatory orders are ordinarily, but not always, unlawful or unreasonable. In order to be fairly termed confiscatory the order must deprive the railroad of a fair return upon the value of its property, not merely reduce former rates or charges. Cases may also arise, no doubt, in which an order may be unreasonable which falls short of being confiscatory or in which the Commission clearly misapplied some rule of law; but in the review of questions of fact it must, under the rules here found, require a very strong case to establish unreasonableness by evidence clear and satisfactory to the circuit court. Like the United States supreme court, we accord to the orders of the Railroad Commission the weight due to the decisions of a tribunal authorized by law and informed by experience. Ill. Cent. R. Co. v. Interstate Commerce Comm. 206 U. S. 441, 27 Sup. Ct. 700. But we go further than this, and add the requirement of that particular degree of proof specified in the statute, and we consider the subject matter and scope of the judicial investigation above referred -to. We thus leave upon the Railroad Commission the great responsibility which we believe the legislature intended to impose. In determining whether or not tbe order of tbe Commission is unreasonable, it must also be considered that every unnecessary burden imposed upon tbe railroad impairs its net receipts and diminishes that margin, if there be one, between tbe amount sufficient to assure a fair return on tbe value of its property, plus tbe amount of its fixed charges and operating expenses, and its gross receipts. In this margin tbe public and tbe railroad are interested, because it is only when this exists that betterments in construction or improvements in service not imperative or indispensable, or reduction in rates, will ordinarily be voluntarily made by tbe railroad or can ordinarily be ordered or enforced by tbe Commission. We are not now speaking of those extreme cases where tbe public duty must be discharged whatever the financial consequences to tbe railroad. Covington & L. T. R. Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, and cases in Rose’s Notes; 3 Cook, Corp. (4th ed.) §§ 900, 901, and cases in notes. But in ordinary cases to waste this margin is to waste tbe fund in which tbe whole public is interested. This should never be done for tbe benefit of tbe few as against tbe interests of many. It is also to foe considered that this margin ought not ordinarily to be exhausted or swept away by orders or requirements of tbe Railroad Commission as fast as accumulated, because human nature or railroad nature is such that no one will long economize on operating or other expenses if bis economy only furnishes a larger basis for further exactions. Tbe rights of tbe public and tbe rights of tbe railroad under this new law must be ascertained and developed by the Railroad Commission slowly and laboriously, moving from precedent to precedent as new instances arise, after tbe manner of the common-law courts. As was said in Bates v. Relyea, 23 Wend. 336, 341:

“They [these instances] must, from tbe nature of our legal system, be tbe same to tbe science of law as a convincing series of experiments is to any other branch of inductive philosophy.”

Patience on tbe part of tbe public and on tbe part of tbe carrier, and time, will be necessary. Tbe notion that commissions of tbis kind should be closely restricted by tbe courts and tbat justice in our day can be bad only in courts is not conducive to tbe best results. Justice dwells witb us as witb tbe fathers, it is not exclusively tbe attribute of any office or class, it responds more readily to confidence tban to criticism, and there is no reason why tbe members of tbe great Eailroad Commission of tbis state should not develop and establish a system of rules and precedents as wise and beneficent within their sphere of action as those established by tbe early common-law judges. We find tbe statute well framed to bring tbis about.

Witb reference to tbe order appealed from, were tbis court sitting as a railroad commission it would not have made tbe order in question, because, while tbe order is no doubt of great convenience to tbe dwellers about Dwight, their interest seems to us to be overbalanced by tbe larger interest of tbe general public. But tbis is far from saying tbat we find tbe order to be unreasonable or tbat it appears to us by clear and satisfactory evidence tbat tbe order is unreasonable. Competent and reasonable men might differ with regard to tbe propriety or witb regard to tbe justice and reasonableness of tbe order before tbe court. It neither affects the interests of tbe general public nor tbe interests of tbe railroad to any great extent. It is undoubtedly within tbe power of tbe Eailroad Commission to make such an order. No errors of law appear to have been committed. We believe tbe circuit court was right in affirming tbe order of tbe Commission, and there is no preponderance of evidence against the findings of tbat court, giving tbe order of tbe Commission there in evidence tbe force and effect to which it is entitled by statute.

By the Gowrt. — Tbe judgment of the circuit court is affirmed.

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Concurrence Opinion

MARSHALL, J.

(concurring). Although,, as said by the court, in effect, the Commission may have gone too far, that does not appear with sufficient clearness to warrant disturbing the approving judgment of the circuit court. The Commission evidently considered the matter with great care, fully appreciating that both sides of the controversy were entitled to consideration. .1 concur in the decision and in all said in the able opinion for the court by Mr. Justice TlMLiN giving the Commission its proper and distinguished dignity in our governmental system. A code definitely established under the law on the high plane suggested will effect the purpose of regulation: that of preventing injustice upon the one side, and of protecting private property rights upon the other.

I write to state, in a few words, views upon some questions discussed by the court, not suggesting, however, that they differ from those voiced in the opinion.

The words “unlawful” and “unreasonable” were not used in the regulation act as synonymous respecting all situations. Just what the scope of each is, as I view the matter, I will not now undertake to say. That may well be left open for future study and definement.

The legislative scheme embodied in the act, as I understand was conceded upon the argument, is not to take control of railroad property and business from the proprietors, but to supervise the same so as to prevent extortion and injustice and secure fairly adequate service. It contemplates, as I think, that so long as a rate for service is not extortionate or service afforded is fairly adequate the proprietors shall not be interfered with. So, in every hearing upon complaint, the initial and jurisdictional question is whether, in the given case, the conduct of the proprietors is unreasonable. It were better, if it is not necessary, that such jurisdictional fact be shown affirmatively to have been found.

Further, it would seem that in case of the Commission dealing with inadequate service it should require such additional service as to remove tbe element of injustice, affording, in tbe whole, tbe minimum of wbat is reasonable, leaving proprietors free and opportunity to give additional service. In case of tbe Commission dealing witb extortionate rates for service it should remove the element of injustice by reducing tbe rates sufficiently to measure tbe excess, leaving tbe proprietors free and opportunity to make further reductions.

Tbe boundaries of reason as applied to service or rates encompass a broad field. Tbe law does not contemplate that tbe Commission shall make, a selection within that field. Otherwise it would be subject to condemnation as a delegation of legislative power. "While it is true that there is but one reasonable rate or degree of service which it is contemplated tbe Commission shall seek for and name, I do not think that there is only one such rate or degree in a given case which is reasonable in the general sense. There may be many, but the Commission is confined to one, otherwise it would in selecting the proper one exercise legislative power. So the one degree or rate, so far as the Commission is concerned, considering that it is merely to prevent extortion and injustice and compel the giving of service which is fair, is the minimum service or maximum rate.

I think the law contemplates a full judicial review by the circuit court of the action of the Commission when properly challenged, the court to try questions of law and fact the same as the Commission, giving such weight, however, to the decision of the latter on all matters of fact that it shall stand unless shown to be wrong by clear and satisfactory evidence, and, in case of an appeal to this court, that the scope of review shall be the same as in case of any appeal from a judgment in an action tried by the court.

If the regulation system shall be firmly established along the lines indicated it will be upon a logical basis, which cannot be said of such systems generally. The Commission which has charge of the matter here, backed by opportunity for support by a broad judicial review, subject to the deference which, as indicated, should be given to its decisions, can soon work out a plain course of administration, giving to our commonwealth a distinguished position in the field of safe, adequate, rational regulation..

Basheord, J. I concur in the foregoing opinion of Mr. Justice MARSHALL.

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Dissenting Opinion

Dodge, J.

(dissenting)'. The opinion filed on behalf of the court in this case contains so much with which I heartily concur that I am perforce driven to a statement of certain personal views inconsistent with some parts thereof as I apprehend their meaning.

I approach the construction of this very important legislation with the assumption that its purpose was to confer upon the Commission powers and duties which could be delegated to it by the legislature and that the decisions authorized to be made by the Commission referred to in sec. 16 of the act (Laws of 1905, ch. 362) were such as to be capable of judicial review.

To accomplish the first purpose the delegation must not include any essential and peculiar function of legislation. All such power is confided by the constitution to the immediate representatives of the people, with no permission to pass it over to boards or individuals not so chosen. The very essential and distinguishing characteristic of legislative action is choosing between different policies on grounds of expediency, and, when choice is made, in declaring for the future a rule of conduct embodying that policy. There is nothing essentially legislative in'ascertaining tire existence of a fact or a condition as a basis for such considerations of policy. That is a mental process, common to all the branches of government, executive and judicial as well as legislative. Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738; In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033; Adams v. Beloit, 105 Wis. 363, 81 N. W. 869; Nash v. Fries, 129 Wis. 120, 108 N. W. 210; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495.

Confronting the question of prescribing services to be rendered and rates to be charged by railways, obviously there arise almost innumerable considerations of policy. Should liberal returns on investment be offered to invite construction and resulting development of agriculture or other hinds of business ? Should low rates be made on raw products to promote their sale and shipment at high prices, or is it better policy to impose high rates on the raw products to promote their consumption or manufacture into finished articles at or near home? These are the simplest of illustrations of the multitude of complicated questions of general policy to be decided. The choice of policy in the face of such com siderations is legislative and we must presume is not intended to be delegated to the Commission, for the constitution forbids.

Primarily, of course, the owner of a railroad, whether individual or corporation, has the right to conduct his business as he chooses, subject, however, to the limitation, both by common law and by statute, that his charges shall be reasonable. State v. Milwaukee E. R. & L. Co., post, p. 179, 116 N. W. 900; Interstate C. Comm. v. C. G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493. The word “reasonable” in this rule of law is used in its ordinary and usual acceptation, such that its antithesis is “unreasonable.” Any rate which is not unreasonable is reasonable and permissible, and the question whether any given rate is unreasonable is to be determined by a process exactly similar to that pursued by courts, which, however, may be exercised by any one or by any official. Independently of statutes the courts can ascertain whether or not such rate be unreasonable. Madison v. Madison G. & E. Co. 129 Wis. 249, 108 N. W. 65. Obviously in this mental process tbe conclusion is reached by ascertaining tbe highest rate which can be considered reasonable. Only when an existing rate exceeds that is it unreasonable. When this point is fixed, however, there is in the nature of things ordinarily a more or less extended field within which rates may vary below that limit of reasonableness until the point is reached which even the legislature cannot impose because so low as to be noncompensatory, or, in the language of the decisions, confiscatory.

The legislature perhaps has full power to forego consideration or decision whether rates charged by a railroad company are unreasonable and may at once arbitrarily impose such rate as they may think promotive of public good, so long as it does not result in depriving the carrier of compensation for its service. State v. Redmon, 134 Wis. 89, 114 N. W. 131. But under present constitutions it cannot delegate that power to a commission or to a court. By the statute now under consideration the legislature empowered the Commission first to ascertain whether a rate selected and charged by the railroad is unreasonable, and this is the same function exactly as might have been committed to the courts, indeed which the courts already have by common law upon .their judicial power being invoked in a suit brought by any one injured by the unreasonable rates. Madison v. Madison G. & E. Go., supra. It is an entirely proper subject of delegation, for it is the ascertainment of a fact or condition; vastly complicated, it may be, but still ultimately a conclusion of fact. I think it clear that the law does not authorize any further action by the Commission until or unless the fact is established that the railroad has committed a breach of its duty by charging an unreasonable rate or furnishing a not reasonably adequate service. The law evidently contemplates, and to be valid must contemplate, that, when this fact of unreasonableness exists, the Commission shall de•clare the reasonable rate; and right here is my point of divergence from wbat I understand to be tbe view expressed in tbe opinion of tbe court. I think that tbe two words — “unreasonable” as applied to tbe rate charged by tbe railroad ■company and “reasonable” as applied to tbe duty of tbe 'Commission to ascertain and declare one — are exactly antithetic expressions, and that tbe fields relatively described by them are coterminous, namely, tbe field of unreasonableness ■of a rate terminates where reasonableness begins and that tbe function of tbe Commission is to ascertain this exact line ■of demarkation. They are not merely to declare that the rate charged by tbe railroad is unreasonable, but they are to ■define that rate, excess over which is unreasonable. That, •of course, in tbe matter of rates, means tbe highest rate consistent with reason. Eor example, when tbe three-cent passenger rate in this state was attacked, tbe duty of the Commission was to proceed to consider, first, whether it was so unreasonable, and, second, bow far it transcended that which would be reasonable. Presumably their mental action in fixing a rate at two and one-half cents was in response to this •duty, and their order established, by a judicial and not legislative process, that anything in excess of two and onefialf ■cents would be unreasonable. So considered, the statute became effective and declared that two and one-half cents should be charged. But this in no way precluded the distinctly legislative act subsequently performed by the legislature of declaring that public policy required the rate to be two cents, subject only to the right of courts to ascertain whether the lower rate would result in confiscation. Unless this is the duty imposed upon the Commission, their act is in no sense the ascertainment of a fact and cannot be reviewed by a court de novo. If the Commission, recognizing and deciding that two and one-half cents would be within the limits of reasonableness, had then determined that from ■considerations of public policy two cents only should be charged, they would have done that wbicb no court could review and which the constitution requires shall be done only by the legislature.

Now in this case, in proceeding to review the order of the-Commission, I think the court must start with the assumption that they have performed this duty and decided that in-their opinion the service required of the railroad company by the order assailed marks the minimum limit of that service which they find to be reasonable, and upon that assumption review of their decision is an entirely judicial function which can legitimately be performed by the courts, and if' the court finds, after consideration of all evidence,, giving, due deference to the perhaps superior expert knowledge of the members of the Commission, that a less service would be-within the field of reason, the order should be held unlawful, because an erroneous decision of a concrete question of fact. If, however, we must start with the assumption merely that the Railroad Commission have kept within the field of reasonableness, and in exercise of their judgment upon questions of general policy and expediency have merely selected-some .point within that field, then the court is given no practical or efficient review of the Commission’s real decision;, for the court can only inquire, as is said in the opinion,, whether the service ordered or the rate fixed is unreasonable-in the sense that it is outside the field of reason.

I find in the opinion of the court the following:

“This law establishes, and thenceforth assumes, the existence of rates, charges, classifications, and services discoverable by investigation, but undisclosed, which are exactly reasonable and just. . . . The law intends that there is only one rate, charge, or service that is reasonable and just. . . ^ But the theory and mandate of the law is that this point always exists under any combination of conditions, and is always discoverable although not always discovered. Until it is discovered and made known the former rates and service-prevail. The order of the Commission is prima facie evi-denee that the rate, charge, or service found and fixed by it is the particular rate, charge, or service declared by the legislature in general terms to be lawful and to be in forcq.”

In this to my mind lurks solecism. If it be a fact, as seems to me unquestionable, that there is no fixed point of reasonableness, that there is almost invariably a broad field-wherein any one of several-points would be reasonable, the legislature cannot by mandate or ipse dixit change that fact. Courts cannot by act of legislature be deprived of their judicial knowledge of those facts which in the course of nature exist. They must take note of the fact that the sun rises in the east, notwithstanding legislative fiat to the contrary and notwithstanding power may in terms be conferred upon some tribunal to establish the opposite. Where, as seems to me undeniable, the existence of any fixed point in this field of reasonableness, other than the two extremes, can be ascertained only by exercise of choice based on policy or expediency, the courts cannot shut their eyes to the fact that a delegation of authority to find and declare that point is a delegation of authority to exercise legislative choice. Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738. The court’s opinion seems to me to concede that the duty of the Commission in selecting and declaring a specific rate or service involves something more than mere discovery of a fact, for it proceeds to assert the inability of courts to review such act of the Commission. It is there said that the court can only inquire whether the point fixed by the Commission is “within the field of reasonableness,” thus implying that more than one such point might have been selected within such field. If the fiat of the legislature can, as said, be effective to create some one definite and fixed rate which is reasonable to exclusion of all others, and that such exact point can be ascertained by processes not legislative, why cannot such fact be ascertained by the court as well as the Commission ? If, as said, there is then only one reasonable rate or service, any variation from that ideal is of course legislatively unreasonable, and tbe court, if convinced by the proof that the ideal is something different from the Commission’s order, obviously must adjudge that order unlawful.

I think, therefore, that this law should be so construed as to indicate to the Commission a duty to find the reasonable rate which is antithetic to the unreasonable one which the law condemns, and that point of reasonableness is the maximum rate or minimum service consistent with reason. So construed and conscientiously applied, I fully agree in the constitutionality of the law and in the hope of high value to the public of the services of an able and expert commission. If that be the construction, I find no longer any difficulty with the purpose of protection against injustice to the railroad companies afforded by a judicial review de novo of the very fact which the Commission finds and decides. This construction recognizes the reserved right in the legislature, performing its constitutional duty, to impose other rates than this maximum reasonable one, and preserves to the people and to the railroad companies the assurance that the resolution of questions of expediency and public policy shall rest with the representatives of the people responsible directly to them at the ballot box.

My dissent from the judgment announced is upon the ground that I cannot convince myself that the service rendered by the railroad company at the time of the complaint to the Commission was other than reasonably adequate. I deem this a jurisdictional fact essential under the statute to the Commission’s authority to prescribe any service or rate. Interstate Commerce Comm. v. C. G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493. Neither the Commission nor the court below has made any finding upon that subject. Since my view cannot prevail in the case, I deem it wholly unnecessary to discuss the evidence and considerations bearing upon the reasonable adequacy of that service.