Milwaukee Electric Railway & Light Co. v. Milwaukee County

The following opinion was filed’December 8, 1925: Crownhart, J. Two questions present themselves to this court for consideration, the answers to which will be decisive of this appeal, to wit: (1) Under, the law applicable, is it within the province of the Railroad Commission to consider the rights and interests of all the people affected by the proposed routes, including the subject of zoning and park-planning proposed by Milwaukee County, or is the Commission limited, in its consideration, to the public that [100] are or will be directly interested in the subject of transportation? (2) The Commission having taken all the testimony offered by the objectors to the proposed routes, including all the subjects suggested and held to be pertinent by the circuit court, on the original hearings, was it necessary for the Commission, under, the order remanding the proceeding to the Commission for further proceedings, to give notice of further hearings and to hold further hearings, if so desired by the parties ? I. Sec. 191.10, Stats., provides: “Upon the conclusion of the hearings of said application as above provided, said commission shall carefully consider all the.evidence submitted, and if the said commission, or a majority of them, shall find that the proposed railroad would be a public convenience and that a necessity requires the construction of said proposed railroad, the said railroad commission shall forthwith grant and issue to the applicant a certificate that public convenience and a necessity require the construction of said railroad as proposed. ...” Sec. 191.11 provides: “If upon the conclusion of said hearing of said application said commissioners or a majority of them shall find and determine that said proposed railroad is not a necessity or is not required by public convenience either because already existing railroads-or other, means of transportation' adequately provide for the necessities and requirements of the public, or for any other reason, then said railroad commission shall refuse to grant said certificate. ...” We are to consider the meaning of the term “public convenience and necessity” as used in these two sections. The statutes were passed in 1907, and were largely taken from the New York act on the same subject. In re Wis. & N. M. R. Co. 2 Wis. R. R. Comm. Rep. 362, 375. In speaking of the New York act, the court of appeals of that state, in [101] People ex rel. N. Y. C. & H. R. R. Co. v. Public Service Comm. 227 N. Y. 248, 125 N. E. 438, said: “The object was to permit the railroad commissioners to prevent wasteful competition and public disaster by the construction of roads through localities which already were adequately served, rather than to require them to determine the precise line along which roads should run.” The convenience and necessity provisions of the federal Transportation Act of 1920 have received a similar construction. In Thunder Bay L. Co. v. D. & M. R. Co. 294 Fed. 958, the court said: “The commission is interested in the public necessity and convenience in connection with the construction of the road in the territory to be served. It is interested in the public; it is not interested in the minutiae of the particular lands to be acquired for the right of way nor the rights of the individual owners thereof.” We think that is the construction to be given to our act. At the time the act was passed there were no zoning or planning laws on our statutes, and that subject had received little or no consideration at that time. The rights of the individual owners of land affected by railroad construction were deemed to be adequately compensated under condemnation proceedings. It is true that the statute provides that if the “said proposed railroad is not a necessity or is not required by public convenience either because already existing railroads or other means of transportation adequately provide for the necessities and requirements of the public, or for any other reason, then said railroad commission shall refuse to grant said certificate.” But it is clear that the phrase “for any other reason” relates back to the phrase “that said proposed railroad is not a necessity or is not required by public convenience.” The necessity and convenience contemplated by the statute have reference to transportation and the public interest therein. Manifestly, the [102] inconvenience of individuals along the proposed right of way could not affect the general subject of convenience and necessity for. transportation facilities for the general public, and the Commission is not authorized to deny a certificate where the convenience and necessity of transportation exists in the interest of the public. This being SO', the evidence as to zoning, county planning, and other similar matters was immaterial, and the Commission was not required to consider it. It would therefore follow that the certificate of the Commission was not properly set aside and reversed by the circuit court, in the first instance, and no further hearing was therefore required before the Commission. II. If we were to assume that the court properly set aside the first certificate of convenience and necessity, we think that the Railroad Commission was not required to give any notice of further hearings or to hold any further hearings. All the evidence proposed by the objectors, had been taken without limitation. Nothing was to be gained by further hearing. Arguments had been submitted to the Railroad Commission by counsel for the objectors., basing their objection to. the certificate on the evidence they had adduced before the Commission, and no further argument would have been helpful to' the Commission in rendering its decision. The Commission, following strictly the terms of the mandate of the circuit court, reconsidered the evidence before it, and basing- their judgment on such evidence, interpreted in the light of the legal principles laid down by the circuit court, found that convenience and necessity required the issuance of the certificate, and issued the certificate accordingly. It should be remembered that this was not a common-law proceeding. The Commission exercised purely statutory jurisdiction and was required only to give the notice provided by statute. This it did. [103] On this appeal we consider the first order of the circuit court an intermediate order in the proceeding, and hence before us for review on this appeal. Sec. 3070, now sec. 274.34, Stats. The Commission fairly and fully complied with the law and the order of the court, and its second certificate of convenience and necessity should have been affirmed. By the Court. — The two orders of the circuit court are reversed, with directions to affirm the action of the Railroad Commission in granting the certificate of convenience and necessity applied for by the applicant herein. A motion for a rehearing was denied, with $25 costs, on February 9, 1926.