144 Wis. 523 | Wis. | 1911
Lead Opinion
The trial court expressly stated in its decision that it did not pass upon the constitutionality of sec. 1191— 11m, Stats. (Laws of 1909, ch. 481), inasmuch as it held the railroad company had valid easements across the lands over which the spur track was to be built and hence it was not necessary for it to invoke the power of eminent domain granted by the statute. Counsel for defendants suggest that this court may likewise dispose of the case without passing upon the constitutionality of said section. It appears, however, that the proceedings were in terms instituted pursuant thereto and that the Railroad Commission acted under it. That being so, it is not perceived how its acts thereunder can he valid if the statute itself is unconstitutional. Indeed, the trial court by its judgment dismissing the action sustained the validity of the proceedings and in effect held it constitutional. The fact that the Railroad Commission was not required to exercise all the powers conferred upon it by the statute did not obviate the necessity of passing upon its constitutionality, since the powers it did exercise were derived therefrom. So the case directly involved the constitutionality of sec. 1Y97 — 11m. That section reads as follows:
“1. Every .railroad shall acquire the necessary rights of way for, and shall construct, connect, maintain and operate a reasonably adequate and suitable spur track, whenever such spur track does not necessarily exceed two miles in length, is practically indispensable to the successful operation of any existing or proposed mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock or other industry or enterprise, and its construction and operation is not unusually unsafe and dangerous, and is not unreasonably harmful to public interest.
“2. Such railroad may require the person or persons, firm, corporation or association primarily to be served thereby, to*531 pay the legitimate cost, and expense of acquiring, by condemnation or purchase, the necessary rights of way for such spur track, and of constructing the same, as shall he determined in separate items by the commission, in which case the total estimated cost thereof shall be deposited with the railroad before the railroad shall be required to incur any expense whatever therefor; provided, however, that when any such person, firm, corporation or association, shall be required by the commission to deposit with the railroad, the total estimated cost, as herein provided, such person, firm, corporation or association, may offer or cause to be offered, a proposition in writing to such railroad, to construct such spur track, such proposition to be accompanied by a surety company bond, running to such railroad, and conditioned upon the construction of such spur track in a good and workmanlike manner, according to the plans and specifications provided by such railroad, and approved by the commission, and deposit with such railroad the estimated cost of the necessary right of way for such spur track; and whenever such proposition and security company bond shall be offered the person, firm, corporation or association primarily to be served thereby, shall not he required to deposit as herein provided, as the total estimated cost of such construction, an amount in excess of the estimated cost of the right of way, and the total amount stated in such written proposition. Provided further that before the railroad shall be required to incur any expense whatever in the construction of said spur track, the person, firm, corporation or association primarily to be served thereby, shall give the railroad a bond to be approved by the commission as to form, amount and surety, securing the railroad against loss on account of any expense incurred beyond the amount so deposited with the railroad.
“3. Whenever such spur track is so connected with the main line, as herein provided, at the expense of the owner of such proposed or existing mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock, or other industry or enterprise, and any person, firm, corporation, or association shall desire a connection with such spur track, application therefor shall be made to the commission, and such person, firm, corporation or association shall be required to pay to the person, firm, corpora*532 tion or association that shall have paid or contributed to the primary cost and expense of acquiring the right of way for such original spur track, and of constructing the same, an equitable proportion thereof, to be determined by the commission, upon such application and notice, to the persons, 'firms, corporations or associations that have paid or contributed toward the original cost and expense of acquiring the right of way and constructing the same.”
It will be observed from the first subdivision of the section that four facts must co-exist before a railroad can be compelled to acquire a right of way, construct, maintain, and operate a spur track, namely: (1) the spur track must not exceed two miles in length; (2) it must be practically indispensable to the successful operation of the existing or proposed plant, industry, or enterprise; (3) its construction and operation must not be unusually unsafe and dangerous; and (4) it must not be unreasonably harmful to public interest. The legislature has delegated to the Railroad Commission the power to determine whether or not these four facts co-exist. If the Commission finds that they do, then, upon the statute being complied with, the railroad is required to build the track, otherwise not. The exercise of such power by the Railroad Convmission is not the exercise of legislative power and may therefore be delegated to it. State ex rel. M., St. P. & S. S. M. R. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. 846; Wayman v. Southard, 10 Wheat. 1; State ex rel. Kenosha G. & E. Co. v. Kenosha E. R. Co. 145 Wis. 337, 129 N. W. 600.
Plaintiffs challenge the constitutionality of the statute on. the ground that the side tracks provided for are private, and that land taken for right of way for such side tracks is taken for a private and not for a public use, contrary to the provisions of sec. 13, art. I, of the constitution of this state, and contrary to the provisions of the XIVth amendment to the constitution of the United States. If it be conceded that the side tracks are private, then the objections raised by plaint
Such track when built becomes a portion of the trackage of the railroad. The fact that its initial cost is borne by the party primarily to be served, with provisions for subsequent equitable division of such cost, does not make it a private track nor change the nature of its use. Over it the products of the industry find their way into the markets of the world, and every consumer is dire.ctly interested in the lessened cost of such products resulting from the building ^nd operation thereof. That these products are supplied by a single owner, or by a limited number of owners, affects the extent and not the nature of its use — the track is none the less a part of the avenue through which the commodities reach the public. Subject to the equitable division of initial cost, the track is at the service of the public as much as any other, and it constitutes an integral part of the railroad system. The duty
Plaintiffs contend further that the statute is unconstitutional because the last clause of subd. 1 contemplates that a spur track may be built even though the sum total of its effect is somewhat harmful to public interest. We think no such construction should be given to the clause. Every railroad track is in many ways harmful to public interest. The operation of trains thereon results in frightening horses on public highways; in accidents on railway crossings; in setting fire-
It is also argued by the plaintiffs that the statute nowhere indicates an intent'to confer upon the Railroad Commission the power to order the construction of a side track when it is not necessary to obtain a right of way therefor. Hence, they claim,' if the trial court correctly held that no right of way had to be acquired in this case, then the Railroad Commission had no authority to act, since it can do so only in cases when it is necessary to acquire a right of way. This argument is evidently based upon the erroneous assumption that when the legislature has delegated several powers to the Railroad Commission it cannot act in any case relative thereto unless it exercises all the powers thus delegated. The statute is not susceptible of such a construction. The Railroad Commission may exercise only such powers as the statute requires in the particular case, be they many or few. If no right of way has to be acquired, obviously the Railroad Commission has no duties to perform relative thereto or the cost thereof; but it can and should proceed to discharge the other duties imposed upon it by the statute.
The Chicago & Northwestern Railway Company was not a
By reference to tbe accompanying map and statement of facts it will be seen tba.t tbe Eden Company first petitioned for tbe extension of track C, and that after a bearing, of wbicb tbe plaintiffs bad no notice and in wbicb tbey did not participate, tbe application was granted. Plaintiffs were then allowed to intervene, and, upon a bearing, tbe first order of tbe Railroad Commission was vacated, and a track beginning on tbe main spur between tbe points marked X and Y, tbence between tbe track marked C and tbe Union Company’s office building to and upon tbe petitioner’s land, was ordered constructed. Tbis order inadvertently failed to provide for tbe payment of tbe cost of sucb track by tbe petitioner, and tbe Railroad Commission> upon its attention being called to tbe fact by tbe railway company, vacated tbe order, and, without notice to any of tbe parties, made a third order requiring tbe railway company to extend track D to tbe kiln shed of tbe petitioner. Tbe validity of tbis last order is in question. Plaintiffs earnestly contend that tbis court should declare it unreasonable because it orders tbe extension of their loading track and therefore causes almost irreparable loss and hardship to their business. Had tbe order been made upon notice and witb opportunity for tbe parties to be beard, it is doubtful if, under tbe rule laid down in Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905, tbis court would interfere witb tbe exercise of tbe Railroad Commission’s discretion in determining that track I) should be extended, though it seems from an inspection of tbe map that tbe selection of such track would be needlessly
The order also provided that the track should be built within thirty days. In view of the fact that condemnation-proceedings may be necessary, that is not a reasonable time within which to complete the track. We express no opinion as to what route should be selected, and nothing herein said relative thereto is intended in any way to limit the full and free scope of the judgment of the Railroad Commission upon that question. After a hearing it will no doubt fix upon a route that will best subserve the interests of all parties, and allow the railway company a reasonable time, in view of the situation as it may then appear, within which to construct the track.
By the Court. — The judgment of the circuit court is reversed, and cause remanded for further proceedings according to law.
Concurrence Opinion
I concur in this opinion and append this note merely to call attention to the fact that the decision in the instant case is incompatible with and in effect overrules the majority opinion and vindicates the dissenting opinion of MaRShaul, J., in In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033. The same is true, I think, of the decision in
Dissenting Opinion
(dissenting). It is by no means clear that the-railway company had a right of way to the west line of the southwest quarter of the southeast quarter of section 6. About thirty years had elapsed since the conveyances were made and the spur tracks had never been extended across this-description. The landowner was entitled to its day in court to litigate the right of the railway company to claim an easement across its premises. The question was a purely judicial one, and, it being apparent that a substantial controversy existed, the Commission should not have undertaken to decide-it, but should have required a bond or deposit to cover the cost of securing the right of way. The initial mistake led to-still another in fixing an unreasonably short time within which the railway company should complete the spur. However, I do not think that the order of the Railroad Commission should be disturbed or that the judgment should be reversed because such order did not require a bond to be executed or a deposit to be made to indemnify the railway company for cost of right of way or because of the shortness of' the time within which the railway company was required to^ perform. These are matters which affect the railway company only, and it is finding no fault whatever with the order. The appellants are not concerned because the order is faulty in the respects mentioned, and the railway company should be able to take care of itself without the interposition of a. friendly champion.
The majority of the court think that the order is unreasonable because it provided for the extension of the spur track designated D without giving the appellants an opportunity to be heard. I am unable to agree to this conclusion. Track D runs parallel with the lime kilns and as close thereto as practicable, and is used for the storage of cars while being-
In reference to the use to which switch tracks O and D were put, Mr. McConnell, the superintendent of the Union Lime Company, testified before the Commission as follows:
“Tracks C and D are used for storing cars while they are being loaded. Could load ten cars on the two tracks, one on each track opposite each of the five kilns. Q. In loading these ■cars, how is it arranged so as to load cars on track C ? A. We place a wheeling plank from the car down on track D to the car on track C and wheel across. Q. Does it occur in the prosecution of your business there that it is necessary to have cars placed on both of these tracks C and D for loading lime ? A. Yes, sir. Q. How frequently does that occur? A. Every day in the year.”
This witness further testified on cross-examination that it was a matter of necessity to use track. C for loading lime. He also testified that it was “more convenient to have cars opposite each other than it is to have to wheel clear across the shed and load the car on the first track.” The attorney for the Eden Company endeavored on cross-examination to secure an admission to the effect that it would be as convenient for loading to store all the cars on track D, and move them along
Thus it will he seen from the evidence of the principal witness for the appellants that tracks O and D were equally necessary for loading purposes throughout the year, and this is the testimony which the Commission had before it when it concluded to order an extension of track D rather than of track C. There were good reasons for doing this. If one or the other of the tracks were extended, it made no difference to the appellants which should he selected. Track D approached nearer the Eden Company’s premises than did 0. So it would he cheaper for that company to have track D extended, and besides, it might well he that the railway company owned the right of way to the Eden Company’s premises along the line of track D, so that condemnation proceedings with their concomitant expenses and delays would he unnecessary. The fact that the petition asked for the extension of track C did not obligate the Commission to extend such track or else refuse to order any extension. Pleadings before the Commission are informal. The Commission is not a judicial body that is bound by strict rules of procedure. It deals with substance rather than nonessentials. It acted within its jurisdiction in making this order, and such an order is made prima facie lawful and reasonable by statute (sec. 15, ch. 362, Laws of 1905). It must stand until it is declared unreasonable by a court of competent jurisdiction in a suit brought by the aggrieved party (sec. 16, ch. 362, Laws of 1905). What the petitioner wanted primarily was the extension of a spur track onto its premises at a reasonable cost. Which track was extended was immaterial to it so long as the expense was not too burdensome. The matters of running the spur track from the main line and of extending the wood track A and the loading tracks D and 0 and of tapping the main spur track between the switch leading to track 0 and the main line
This brings us to a consideration of the evidence offered in court. Very little evidence was given on the trial upon the question we have been considering. Mr. Robertson, the president of the Union Lime Company, said it would be a greater damage to his company to have track D extended than to extend track C, for the reason that “this that we call our lime track is constantly in use and cars have necessarily to be pulled in and out on that track. The track marked I) is in more constant use than the track marked 0. The extension of either of the -tracks marked 0 and D would cause very much greater interference with our business and damage to our property than the construction of a track commencing at some point on the existing track between the points marked X and Y on Exhibit 10, because these tracks marked O and D are our loading tracks, both used for loading.” The points X and Y referred to were betweep tracks G and D and the main line. The foregoing embodies every shred of new testimony offered on the trial concerning the damage that would result from the extension of track D rather than track 0. The evidence taken before the Commission was before the court. Mr. Robertson was one of the general officers of the company, which operated a large number of kilns at various places, and resided in Milwaukee. Mr. McConnell was the superintendent in charge of the Lden quarries. In giving his evidence before the Commission Mr. Robertson did not assume to be familiar with the details of carrying on the business at Eden, but referred his inquisitors to Mr. McOonnell.
The Commission having jurisdiction to make the order, it was, as before stated, prima facie reasonable until declared unreasonable by the courts. The appellants could not disregard it, but were obliged to pursue the course which they did; ■that is, to bring an action to set the order aside because it was unreasonable. It was incumbent on them to show clearly ■and satisfactorily by the evidence offered that it was unreasonable. They assumed this burden. They offered in evidence the testimony of McConnell taken before the Commis-. ■sion, and also had Mr. Robertson testify. The evidence of McConnell, the man familiar with the everyday work at the kilns, showed that it was wholly immaterial to the appellants which of the two tracks was extended, if one had to be extended. The testimony of the witness not so familiar with the method •of carrying on the work at the plant was to the effect that it would be more inconvenient to have track D extended than track C, because it was used more. This is the whole case of the appellants on this point, aside from the evidence tending to show what damages the appellants would suffer if their loading tracks were interfered with. On this state of the evidence the trial court refused to hold the order of the Commission unreasonable, and on such evidence this court reverses the trial court and the Commission. I do not desire to make further comment than to say that I cannot agree with the eon--clusion reached by this court, and that I deem it a misfortune to have the work of this important Commission hampered by what looks to me to be an unreasonable interpretation of the
So it seems to nie that the case should be disposed of on its-merits and that the court should either hold that any order-providing for the extension of track D would be unreasonable and unlawful and could not be sustained, or that the record does not affirmatively show that the order under attack was unreasonable. I think the appellants were given an opportunity to be heard and were heard in reference to the extension of track D. If this were not so, they were fully advised of the proposed extension of track C and were fully-heard in reference thereto, and on their own showing on the trial it was immaterial which of the two parallel tracks located a few feet from each other was extended. As I view the case the judgment should be affirmed.
