Madison Railways Co. v. Railroad Commission

The following opinion was filed April 8, 1924: Doerfler, J. Unless relieved by the city from the expense of paving within the track zone, the cost of construction and operation of the extension would impair the earnings of the company so as to prevent an adequate or fair return. Such is the finding of the Commission. The precise question, therefore, presented and which we are called upon to determine is whether the Commission has the power to malee such a conditional order. The Railroad Commission is an administrative body, created by the statutes, possessing neither legislative nor judicial functions. To it is delegated the power to investigate and determine certain existing facts, and when it has exercised its power the results contemplated by the statute follow. Upon this theory the constitutionality of the statutes creating the Railroad Commission has been sustained (Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905); and it was made clear by the decision that any act granting legislative or judicial power to an administrative body must necessarily be invalid. In Eau Claire v. Wis.-Minn. L. & P. Co. 178 Wis. 207, 215, 189 N. W. 476, it is said: “It is obvious that the Commission has no power except such as is expressly or by inference conferred upon it.” And in Monroe v. Railroad Comm. 170 Wis. 180, 187, 174 N. W. 450, it is held that, “The Railroad Commission being a tribunal of purely stat [167] utory creation, its power and jurisdiction must be found within the four corners of the statutes creating it.” The power to order the extension, with the service involved, is derived from the provisions of sec. 193.10, Stats. 1923, which reads as follows: “Any street railway corporation operating within any municipality shall extend its lines and furnish service thereon whenever, after complaint made as provided. in section 195.04 and public hearing after notice to all parties interested, the railroad commission shall have found and declared that public convenience and necessity require such extension and such additional service and that the construction and operation of such extension will not impair the earnings of the said corporation so as to prevent an adequate or fair return, and provided that any such order shall be subject to judicial review in like manner as now provided by law with respect to other orders of the railroad commission, and such corporation may extend its railway to any point within any town adjoining the municipality from which it derived its franchise, and for such purposes may, with the written consent of a majority of the supervisors of such town, lay and operate its railway upon, across and along any highway, but not so as to obstruct common public travel thereon.” It is argued by the learned attorney general that the Commission has the power to make this conditional order; that any order for an extension and additional service in many cases must be in the nature of a conditional order,'for the reason that, before the order can be effective, permission and authority in many instances must first be obtained from the city to use the streets involved in the extension for street-railway purposes, and that if the order can be made conditional in that respect no reason exists why it cannot validly be made conditional in other respects, and particularly with respect to the contemplated relief from the cost entailed in constructing the pavement within the track zone and the maintenance thereof. [168] The argument of the attorney general is plausible but not persuasive. In construing sec. 1863, Stats., now known as sec. 193.10, this court has said in State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 169 Wis. 183, 190, 172 N. W. 230: “Sec. 1863 must be construed to mean that a street railway corporation operating within a municipality is bound to construct its street railway upon such streets as the municipality in question may theretofore or thereafter have designated by the giving of a franchise or otherwise, if public convenience and necessity require such extension. If a municipality so circumstanced has not granted and refuses to grant a franchise for an extension under existing law, the street railway company cannot extend its lines, and all orders of the railroad commission for the extension of lines must be subject to the provision that a franchise, permit, or license therefor has been given or be first obtained from the proper municipality.” The portion of the decision just quoted recognizes the power of the municipality to refuse or grant, where by franchise, permit, or license the city has not theretofore authorized the extension. Sec. 193.10, defining and limiting the authority of the Railroad Commission in matters like those here involved, was passed with regard to the existing law which recognizes the powers of the municipality, and therefore the conditional order with respect to the municipal permit or license being first obtained is fully warranted as a necessary inference resulting from such existing law. But it is clear that the legislature did not intend to authorize the Railroad Commission to enter the field of speculation on a mere question of fact, dependent upon whether or not a municipality, corporation, or an individual might or might not make certain concessions with respect to such fact. The Commission is a purely fact-finding body (Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905) and it is confined to existing facts, not facts merely con [169] jectural with respect to the future. If the order of the Commission can be made conditional upon the proposed concession in the order, then numerous other conditions may be included, and, in fact, no limit could be set with respect to the number. For instance', the order might be made dependent upon whether or not a materialman would reduce the price of material below the market price, or whether a contractor would be willing to do the work at a price below that of the cost of construction. In substance the Commission found that if the city would relieve the plaintiff from the cost of constructing the pavement within the track zone, aggregating approximately $23,000, and of the maintenance of such pavement, the construction and operation of the extension would not impair the earnings of the plaintiff so as to prevent an adequate or fair return, which clearly implies that if the municipality refuses to grant this concession and the railway company be obliged to make this expenditure, the cost of the proposed extension would prevent an adequate and fair return. The Commission has therefore recognized the obligation of the railway company to pay for the cost and maintenance of the paving, and that with such cost the railway company’s earnings would not yield a fair and adequate return. Such finding is clearly in favor of the plaintiff, and with such findings the extension canno't be ordered. The foregoing being decisive of the matter under consideration, it becomes unnecessary to treat the other assignments of error in appellant’s brief. By the Coiurt. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with the prayer in plaintiff’s complaint, and for further proceedings according to law. A motipn for a rehearing was denied, without costs, on June 3, 1924.