Menasha Woodenware Co. v. Railroad Commission

Winslow, C. J. The most serious contention made by the appellants in these cases is that the so-called spur track — 25 — in question is not really a spur track but is in fact an extension of the Kingston branch of the Northwestern line. We are quite unable to see how this contention can be successfully maintained. An extension of the line of a railroad becomes, when built, a part of the railroad system which the company must operate as a common carrier, serving the public thereby on equal terms; a spur track, on the other hand, though a part of the railroad system, is, in its essence, a facility for one shipper or for several shippers, who contribute to its construction, it being understood that it is open to all industries which may be practically served by it, who will contribute such equitable share of the original cost as the Commission may determine. In its very nature it cannot serve the public in the complete manner that an extension does, because it is not intended for passenger service and it only reaches the property of one industry, or perhaps several; but its use is none the less public on the part of the one industry or the several industries which it serves, because thereby the one industry or the several industries are enabled to be reached by the public and to be served by the common carrier to the fullest extent. The service of any particular spur is denied to no industry which it is reasonably feasible for the spur to serve, provided the industry pay its equitable share of the cost; in other words, all concerns which can possibly have any occasion to use the track in their business transactions with the public are given the right to use it on the same equitable terms. This must be held public use in a true sense, although not a public use of precisely the same quality as that which pertains to an extension of the main line of a railroad. Union L. Co. v. Railroad Comm. 144 Wis. 523, 129 N. W. 605. It necessarily follows that a refusal on the part of the Railroad Commission to grant a certificate of convenience and necessity for the building of an extension (under sec. 1797- — 44, Stats.) does not prevent the Commission from making an order requiring the building of a spur track (un — 26 — der sec. 1797 — 11m, Stats.) over tbe same route or a part thereof. Different considerations apply to tbe two cases; in fact an extension may not be desirable because a spur is tbe only appropriate thing under tbe circumstances. In tbe present case tbe Commission decided that tbe building of a spur and not an extension was tbe proper thing under tbe circumstances, and tbe question presented is simply whether a, situation was presented which authorized tbe Commission to order tbe construction of a spur track under tbe provisions of sec. 1797 — 11m, Stats. That section requires tbe building and operation of a spur track when tbe spur is (1) 'not more than three miles in length and is (2) “practically indispensable to tbe 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 (3) its construction and operation is not usually unsafe and dangerous, and (4) is not unreasonably harmful to public interest.” No certificate of convenience and necessity is required for the building of a spur track. The Commission, by a majority of its members, found the existence of all of the above mentioned essential conditions,- and hence made tbe order complained of. In these actions brought to vacate that order, under sec. 1797 — 16, Stats., the court does not try these questions of fact like a court of first instance; it only determines whether the order of the Commission is “unlawful or unreasonable,” and upon this question the burden of proof is upon the plaintiff to show the fact by clear and satisfactory evidence. As well said by the late Mr. Justice TimliN in the case of Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905, “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 — 27 — order being found 'by tbe court to be such that reasonable men might well differ with respect to its correctness cannot be said to be unreasonable.” See, also, Citizens Tel. Co. v. Railroad Comm. 157 Wis. 498, 146 N. W. 798. Applying this test, it seems quite certain to us that no case has been made for the vacation of the order' in question. It cannot be said that the conclusions of the Commission are unlawful or outside of the field of reason. It stands admitted that the proposed spur does not exceed three miles in length. It is claimed, however, that there is no industry or enterprise, within the meaning of the statute, to be served by the spur, and that even if there were the building of the spur is not “practically indispensable” to its successful operation. We see no good reason for holding that a logging industry pure and simple, not connected with a mill, is not an “industry or enterprise” within the meaning of the statute. Here, however, we have a lumber mill at Oconto, owned by the Oconto Company, with a stock of standing timber fifty or sixty miles away owned by it and purchased for the express purpose of furnishing material for the operation of the min for the next fifteen or twenty years. Under the testimony it seems clear to us that the cutting of the timber, the shipping of the logs to the mill, and the manufacture of them into lumber are all component parts of one “industry or enterprise.” To hold otherwise would be to convict ourselves of ignorance of the laws of modern business. It will be noticed that the statute does not require that the spur track terminate at any mill, or building, or yard: it may be anywhere; all that is necessary is that it be practically indispensable to the “successful operation” of the industry. So here, the spur is not at the mill, nor does it connect with any yard, but it reaches the land of the Oconto Company at a point where that company can make connection with it by means of its logging railroad and thus trans — 28 — port its logs from tbe camp to tbe mill at a saving of $2.10 per thousand feet over any other means of carriage. Now, if there was evidence from which reasonable minds could come to the conclusion that this saving was “practically indispensable” to the successful operation of the Oconto Corm-pany’s business, then the finding of the Commission cannot be reversed even though all reasonable minds would not agree on the proposition. That there was considerable such evidence there can be no doubt. “Practically indispensable” does not mean so essential that the industry would go into bankruptcy without it. The statute aims to provide the means for the doing of successful business, not merely for keeping .the concern out of bankruptcy. A business which just makes enough money to pay expenses and keep up its plant is not a successful business in any correct sense. The Commission well says in its decision in this case that “ ‘successful operation’ presupposes efficient and economical operation relieved from undue burdens.” It means also operation yielding a reasonable profit as a reward of efficient and economical operation. † There was considerable discussion in the present case as to how much of a saving (if any) the Oconto Company would make by transporting its logs over the Northwestern line instead of over the Wisconsin & Northern, even conceding that the freight rate would be $2.10 per thousand less. It was said that if the logs are to be got out over the Northwestern road, as the fact is, there must necessarily be some greater expense incurred by the Oconto Company, not merely in the building of the spur track itself, but in the building of longer lines of logging track. The amount of the additional expense thus made necessary is not capable of very definite ascertainment, but it is certain that it would come nowhere near the saving of freight on 160,000,000 feet of logs. There would-still be a net saving of a considerable sum; a sum which might well spell the difference between a successful — 29 — and an unsuccessful business or enterprise. The holding of the Commission on this question cannot be disturbed. ■ It is not claimed that construction and operation of the proposed spur would be usually unsafe and dangerous, hence the only remaining question is whether it would be unreasonably harmful to the public interest. Upon this point the opinion of the Commission is as follows: “It is claimed that if this spur track is built and the Oconto Company is not forced to ship its logs over the Wisconsin & Northern Railroad, there is a possibility that the authorized branch of the Wisconsin & Northern Railroad will not be constructed by that road. Taking this as a presumption, it is testified that some other timber owners may thus be required to sustain the burden of a longer haul to the Wisconsin £ Northern Railroad than would be necessary were this branch constructed, casting upon them a burden roughly estimated at perhaps $2 per thousand feet and said to be unreasonably burdensome. Be this as it may, the interests of these timber owners and loggers are private, as is that of the Oconto Company. In fact, the most definite and specific injury of a somewhat public nature that might possibly result from our action in this proceeding, as shown by the evidence, would be to deprive the city of Oconto of a substantial established industry. Nor do we believe that the public will be benefited if that industry is crippled to the extent of $2 per thousand feet, in order that some other timber man or men will be benefited to an equal amount. And finally and flatly, we must say that there is no evidence in the case tending to convince us that the agricultural possibilities of this region will be discouraged and set back by the building of this spur track for the handling of logs to Oconto and a presumed consequential loss of traffic to the Wisconsin & Northern Railroad. “Nor are we impressed with the argument that mill owners connected with the Wisconsin & Northern Railroad have by law acquired the right, when they located on the line of the Wisconsin & Northern Railroad, to demand and expect the opportunity of bidding in the open market for the logs — 30 — of the Oconto Company. Nor can they reasonably expect or demand that unusual burdens will be placed upon the operating conditions of the Oconto Company, in order that the timber of that company may be forced into the open selling market along the Wisconsin & Northern Railroad. While these claims have been insistently urged upon us by the intervener, both, in the testimony and briefs, we do not believe that it was the intent of those that framed the spur-track law that the law should be used for any such purpose.” It is doubtless true that, if this spur be constructed, the Wisconsin & Northern Company will lose the carriage of millions of feet of logs which would otherwise necessarily be transported over its 'line of road. This is a fact to be carefully considered, but is not at all controlling. If the situation is such that reasonable minds can say, as the Commission said, there are countervailing considerations on the other side, such as the question of the continued successful operation of a great industry .employing many men, which outweigh any injury suffered by the public as a result of the decrease in the revenues of the Wisconsin & Northern Railroad, then the order in question was clearly not unlawful or unreasonable. The conclusions reached on the merits render it unnecessary to decide the question whether the Wisconsin & Northern Railway Company is a party in interest entitled to maintain an action under the provisions of sec. 1191 — 16, Stats: By the Court. — Judgment affirmed in each case. The Oconto Company and the Chicago & Northwestern Railway Company to recover their costs in each case, taxing but one attorney fee, however, in each case; the Railroad Commission to recover no costs.