Monroe v. Railroad Commission

Eschweiler, J. The question involved in this appeal is whether there is a general supervisory power of control by the Railroad Commission after it has once acted, in issuing the required certificate, over the motor vehicles operating in passenger transportation, commonly known as jitneys. The text or substance of ch. 546, Laws 1915, creating secs. 1797 — 62 to 1797 — 68 of the Statutes, so far as deemed necessary for this case, is as follows: Sec. 1797 — 62, Stats., provides that the operator of any such motor vehicle “is hereby declared to be a commbn carrier, and is hereby required to furnish reasonable and adequate service at just and reasonable rates, and is hereby required to operate over such general routes or within such territory, and during such hours as may be reasonably required for the accommodation of the public in accordance with the following provisions.” Sec. 1797 — 63 provides that no such vehicle shall be operated until there shall have been filed with and accepted’ by the Railroad Commission of Wisconsin a good and sufficient bond in amounts specified for all damages that may be recovered against the operator of such vehicle by reason of the negligent use and operation of such vehicle. And in case such bond so filed should become inoperative, such vehicle shall not be operated until a bond meeting the requirements shall have been filed. “Sec. 1797 — 64. Such bond shall be accompanied by an [184] application for the acceptance thereof by the railroad commission, which application shall state the name and residence of the applicant, the general route, or the territory, over which it is proposed to operate the motor vehicle described in such bond, the proposed hours of such operation and the rate of fare to be charged for carriage therein. “If the railroad commission shall determine that such bond complies with the provisions of section 1797 — 63 and that the rates specified in the application'accompanying the same are reasonable for such character of service, and that th£ proposed general route, or territory to be covered, and the hours of such- operation are reasonably adapted to the accommodation of the public, it shall, regardless of any other service now furnished, accept such bond and shall thereupon issue to such applicant a certificate setting forth the fact that the applicant has in respect to the vehicle described therein complied with ,the provisions of section 1797 — 63 and section 1797 — 64. “Section 1797 — 65. Every order and determination of the railroad- commission under the provisions of-section 1797 — 64 shall be subject to review in the manner provided by section 1797m — 65 to section 1797m — 71.” “Section 1797 — 67. Any person, .firm or corporation operating any motor vehicle described in section 1797 — 62 who shall fail to comply with the provisions of section 1797 — 63 and section 1797 — 64 and section 1797 — 66, shall transport in any such vehicle a larger number of passengers than the number specified in such bond as the carrying capacity of such' vehicle, shall charge a rate of fare other than that specified in the application accompanying such bond, or shall fail to operate such vehicle upon the general route, or within the territory, and during the hours set forth in such application, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than ten dollars nor more than one hundred dollars for each offense and in default thereof may be committed to the county jail for not less than ten nor more than ninety days. •“Section 1797 — 68. Every city, village ojr town within or through which any motor vehicle described in section 1797- — 62 shall be operated may require that local consent for the operation thereof be procured and .as a condition of [185] such consent may require reasonable compensation for the repair and maintenance of pavements and bridges, and compensation for the regulation of street traffic, and for any other expense occasioned by the operation of such motor vehicle.” The following situation presents itself: (1) There is no express language either in the chapter here involved or the law establishing the Railroad Commission which provides for any such subsequent supervision and control. (2) The obligation imposed by sec. 1797 — 62, Stats., declaring such motor vehicles to be common carriers and requiring the operators thereof to furnish reasonable and adequate service at just and reasonable rates and to operate within such territory and during such hours as may be reasonably required for the accommodation of the public, would indicate that it refers to a continuing service and operation which necessarily, from the nature of .guch service and the constantly changing conditions, requires modification from time to time. (3) That unless such power as was exercised by the Commission in the instant case is within its jurisdiction there is no other board, commission, or tribunal, except the coürts, by which supervisory control could be exercised or the questions as to whether the rates and service -are reasonably adequate for the accommodation of the public be determined. (4) That by sec. 1797 — 68, Stats., above quoted, the .several municipalities in which such service is proposed may give or withhold local consent for their operation, and as a condition to such consent may require a reasonable compensation. That the hours of operation, the territory to be traversed, and the rates of fare to be charged are all conditions that necessarily are subject to change-from time to time and need constant supervision and change, and that the- power to determine like questions involved has already been vested by [186] the legislature in the Railroad Commission as to similar questions arising in the much broader fields' of general railroad transportation, urban and interurban street railway-service, and of the public utilities of the state, are very persuasive in favor of the conclusion reached by the court below that such power is in the Railroad Commission. But the consideration of other matters involved compels-us to reach the opposite conclusion. The advent .of such operation of automobiles in the field of common carriers of passengers on the streets of the various municipalities in this state produced a number of bills presented in both houses of the legislature of 1915. They were finally all referred to a joint committee with members from both houses, and public hearings had, and, after rejection of a number of the proposed bills and suggested amendments thereto, the chapter as now found in the sections above quoted was finally reported to the two houses as substitute amendment No. 2 S. to Bill No¿ 464 S., and adopted. Among the provisions so presented, considered, and subsequently rejected were the following: (a) In event of the proposed change of routing by the jitneys,'a supplemental certificate to such effect was to be issued by the Railroad Commission; (b) that in case any such jitney should, without ten days’ prior notice thereof to the Railroad Commission, at any time abandon its regular schedule, any deficiency thereby caused should not be considered in proceedings involving the sufficiency of street railway service in the same municipality; (c) for the subsequent cancellation by the Railroad Commission of such certificate, after notice and application 'therefor, and then a return of the insurance policy; (d) that before any ordinance should be granted by a city or village for permission to use the streets of such municipality for such service, such certificate should be first submitted to and approved by fhe Railroad Commission as an amendment to sec. 940b, Stats.; (e) a proposed amendment to sec. 1797 — 2, Stats., to provide that all motor ve187 hides for the carriage of persons for hire for the purpose of affording a means of local street or highway transportation should be within the term “railroad.” (Manifestly’ to bring the vehicles in question here under the general control and regulation of the Railroad Commission.) It is therefore evident that the legislature, considered and rejected provisions which would have quite plainly and expressly given to the Railroad Commission such power as was attempted to be exercised by it in the present instance. By sec. 1797 — 67, Stats., above quoted, express provision has been made declaring certain violations of the act to be misdemeanors and providing for their punishment, but no provision is to be found declaring that a violation of rules, regulations, or provisions made or declared by the Railroad Commission subsequent to the issuing of the original certificate shall be so punished. On the other hand, any railroad by sec. 1797 — 27, Stats., or public utility by sec. 1797 — 95, Stats., is subject to a penalty for violating or neglecting or refusing to obey any lawful requirement or order made by the Commission or any judgment made by any court upon its application for any such violation, neglect, or refusal. We should have, therefore, if defendant’s construction of the statute were adopted, the somewhat anomalous situation of an operator of such vehicle being subject under sec. 1797 — 67 to a conviction as for a misdemeanor and a consequent fine for violation of the conditions of the original certificate issued by the Commission, and yet not- subject to any penalty whatsoever, so far as can be found in this act, for violating any subsequent change of any old or of any new order that might be made by the Commission. The Railroad Commission being a tribunal of purely statutory creation, its power and jurisdiction must be found within the, four corners of the statute^ creating it, and we can find within our statutes no such power or jurisdiction as was attempted to be exercised in the present case, and it fol [188] lows therefrom that the demurrer to plaintiffs’ complaint should have been overruled. By the Court. — Order reversed, and cause remanded with directions to the circuit court to overrule defendant’s demurrer and for further proceedings according to law. Vinje, J., dissents.