Wabash, Chester & Western Railroad v. Commerce Commission ex rel. Jefferson Southwestern Railroad

Mr. Justice Dunn delivered the opinion of the court: The Jefferson Southwestern Railroad Company was incorporated in the State of Illinois on April 6, 1922, with a capital stock of one million dollars, for the purpose of constructing a railroad from a point in or near section 15, township 4, south, range 2, east, in Jefferson county, Illinois, to a point in or near the city of Mt. Vernon, in the same county. It immediately made application to the Illinois Commerce Commission stating its desire to construct and operate a railroad for carrying freight and passengers from Mt. Vernon to section 15 and thence three and one-half miles westerly to the Chicago, Burlington and Quincy railroad and to transact a general railroad business, and praying for a certificate of public convenience and necessity for that purpose. The Wabash, Chester and Western Railway Company and other railroad companies appeared in opposition to the petition, but after a hearing the certificate prayed for was granted, and the Wabash, Chester and Western Railway Company having appealed from this order to the circuit court of Jefferson county, that court at its October term, 1922, affirmed the order of the commission. The Wabash, Chester and Western Railway Company has appealed from the judgment of the circuit court. The territory through which the proposed railroad will run lies between the two forks of the Big Muddy river and at certain seasons of the year is rendered inaccessible by high water from these streams. The population is not dense and the traffic derived from agricultural products will not be great. While the railroad would be of some convenience to those living near it the number affected would be small, and the present needs of the farming community do not demand the construction of the railroad. Its construction would not be proposed were it not for the existence of a field of coal which it is proposed to develop and the population and industries which it is presumed will follow such development. The promoters of the construction of the railroad are the owners of the Illinois Coal and Coke Corporation, which controls nearly thirteen thousand acres of coal land in Jefferson county southwest of Mt. Vernon, which is the county seat and the northern terminus of the proposed railroad. It is the intention of this corporation to develop a mine in section 15 about eleven miles from Mt. Vernon, with a daily capacity of from 6000 to 7500 tons, and it is prepared to begin immediately the sinking of a shaft, with the expectation of reaching this production within two years. It is estimated that it will require seventy-five years to exhaust the coal now under the control of the coal corporation. In connection with the development of the coal mine a town will also be established, which it is expected will have a population of five thousand within three or four years after the completion of the railroad. At Mt. Vernon the railroad will connect directly with the Chicago and Eastern Illinois railroad, and, by means of switching arrangements, with the appellant’s railroad and with those of the Louisville and Nashville and the Southern railroad companies. At its other terminus the road will connect with the Chicago, Burlington and Quincy railroad. The coal property of the Illinois Coal and Coke Corporation is situated in the south part of Jefferson county. The Chicago and Eastern Illinois railroad extends through the county from north to south and through the city of Mt. Vernon and is about four miles east of the place where it is proposed to locate the mine shaft and the town. The Chicago, Burlington and Quincy railroad extends through the county north and south and is about four miles west of the place where it is proposed to locate the mine shaft and the town. The Wabash, Chester and Western railway extends southwest from Mt. Vernon in the same general direction as the proposed railroad from Mt. Vernon to the proposed mine and crosses the Chicago, Burlington and Quincy railroad at Waltonville, about three miles north of the junction of the latter railroad with the proposed railroad. The greatest distance between the proposed railroad and the Wabash, Chester and Western railway is four miles and the average distance is two miles. Mt. Vernon is a city of about ten thousand population. Its principal industries are a car factory, shoe factory, candy factory, creameries, branch packing houses, and its estimated coal consumption is from 100,000 tons to 125,000 tons annually. This coal comes from various sources, some of it requiring a haul of forty-seven miles. Here, besides the appellant’s railroad, are three trunk lines, affording service in every direction. At the other terminus of the proposed line is the Chicago, Burlington and Quincy railroad, — another trunk line. Five hundred thousand dollars of the $700,000 of capital stock authorized by the Commerce Commission has'been subscribed, — about $175,000 by stockholders of the coal corporation and the rest through the efforts of its president. Evidence "was introduced to show the probable revenue of the railroad company during the first four years of development. The operating expenses of the first two years were proposed to be capitalized but an estimate of them for the next two years was presented, and on the evidence submitted it was claimed that the return on the investment in 1925 would be equal to six per cent and at the time of full development fifteen per cent. There is evidence which fairly tends to show that the proposed railroad could be operated at a profit and earn a fair return on its cost, and on the other hand there is evidence tending to cast doubt on this proposition. At the hearing before the commission attorneys for the Chicago and Eastern Illinois, the Chicago, Burlington and Quincy and the Wabash, Chester and Western Railroad Companies expressed the willingness of their companies to build spurs to the proposed mine and introduced evidence to show that the coal could be transported more quickly and cheaply by such spurs than by the proposed railroad. They also introduced evidence to show that most of the large mines now operated in Illinois are not located on independent short railroads and that such railroads are generally unprofitable in Illinois. The motive which actuated the promoters of this railroad was naturally their own profit. A railroad is essential to the operation of a coal mine, and they regarded an independent railroad as more convenient and advantageous to their interest than a spur-track or spur-tracks from neighboring railroads. Their convenience and advantage were not, however, alone sufficient to justify the granting by the Commerce Commission of a certificate of public convenience and necessity. By their petition, therefore, they presented to the commission the question whether public convenience and necessity required the construction of such railroad. The commission having found that public convenience and necessity require the construction of the railroad and having granted the certificate prayed for, the question presented by this appeal is whether the facts which have been recited fairly tend to sustain the order. Chicago Motor Bus Co. v. Chicago Stage Co. 287 Ill. 320. The right to review the findings of the Commerce Commission in a proceeding such as this is limited to the questions whether the commission acted within the scope of its authority, whether the finding is without any foundation in the evidence, or whether a constitutional right has been infringed by such finding. (Chicago, Milwaukee and St. Paul Railway Co. v. Public Utilities Com. 268 Ill. 49; Interstate Commerce Com. v. Union Pacific Railroad Co. 222 U. S. 541.) Orders of the commission are entitled to great weight, and can be set aside only if arbitrary or unreasonable or in clear violation of a rule of law. Courts should review or interfere with them only so far as necessary to keep them within their jurisdiction and protect constitutional rights. (People v. McCall, 219 N. Y. 84.) The law does not authorize the court to put itself in the place of the commission, try the question anew and substitute its judgment for that of the commission. The court should not usurp legislative or administrative functions by setting aside a legislative or administrative order on its own conception of the wisdom of it. (State v. Great Northern Railway Co. 130 Minn. 57.) The courts will not interfere with an order of the commission when it does not appear from the record that the order is unlawful or unreasonable. Settle v. Public Utilities Com. 94 Ohio St. 417. The Illinois Coal and Coke Corporation proposes to sink, a shaft as soon as transportation facilities are available and bring into operation a large coal mine producing 6000 tons or more a day of an excellent quality of bituminous coal. Perhaps it is questionable whether the development of such a mine is a matter of public convenience and necessity. In some communities it is regarded so, and we are not prepared to say that the Commerce Commission had no substantial evidence on which to find it so. The question whether the transportation facilities furnished by two stub-tracks were adequate to the requirements' of the mine, of the mine workers and of the population of the town expected to grow up there and of the industries which would probably be established, was a question to be determined by the commission from a consideration of all the circumstances. When the statute requires a certificate of public convenience and necessity as a prerequisite to the construction or extension of any public utility, the word “necessity” is not used in its lexicographical sense of “indispensably requisite.” If it were, no certificate of public convenience and necessity could ever be granted. The first telephone was not a public necessity under such a definition, nor was the first electric light. Even the construction of a water- • . t> works system in a village is seldom necessary though highly desirable. However, any improvement which is highly important to the public convenience and desirable for the public welfare may be regarded as necessary. If it is of sufficient importance to warrant the expense of making it, it is a public necessity. (Park and Boulevard Comrs. v. Moesta, 91 Mich. 149.) A thing which is expedient is a necessity. (Warden v. Madisonville, Henderson and Evansville Railroad Co. 128 Ky. 563.) Inconvenience may be so great as to amount to necessity. (Lawton v. Rives, 2 McCord L. 445.) A strong or urgent reason why a thing should be done creates a necessity for doing it. (Todd v. Flournoy, 56 Ala. 99.) The word connotes different degrees of necessity. It sometimes means indispensable; at others needful, requisite or conducive. It is relative rather than absolute. No definition can be given that would fit all statutes. The meaning must be ascertained by reference to the context and to the objects and purposes of the statute in which it is found. (Wisconsin Telephone Co. v. Railroad Com. 162 Wis. 383.) The Commerce Commission has a right to, and should, look to the future as well as to the present situation. Public utilities are expected to provide for the public necessities not only to-day but to anticipate for all future developments reasonably to be foreseen. The necessity to be provided for is not only the existing urgent need but the need to be expected in the future, so far as it may be anticipated from the development of the community, the growth of industry, the increase in wealth and population and all the elements to be expected in the progress of a community. The petition presented a case within the jurisdiction of the commission to determine. On the question of public necessity there was evidence tending to show that the project of the development of the mine and the construction of the railroad, which were inseparably connected, could be profitably carried out and was therefore expedient so far as the question of expense was concerned. No constitutional right of appellant or others was invaded. The appellant’s business was not interfered with in any way, but the object of the owners of the mine was not to injure railroads already constructed or compete with them for their established traffic, but was to make an important development of new business and additional traffic. The commission having found that from those circumstances a case of public necessity for the construction of the railroad arose, its finding cannot be regarded as without evidence fairly tending to sustain it. Our attention has been called to the order of the Interstate Commerce Commission denying the prayer of the Jefferson Southwestern Railroad Company to engage in interstate commerce. We cannot review that decision nor can we give it any weight in the determination of this case. The fact that two administrative bodies having somewhat similar functions have arrived at different conclusion's upon somewhat similar records cannot be given any weight. The question before us is whether the decision of the Illinois Commerce Commission has any support in the record. The fact that another body arrived at a different conclusion on a similar record cannot affect that question. The judgment of the circuit court is affirmed. Judgment affirmed.