Union Lime Co. v. Railroad Commission

129 N.W. 605, 144 Wis. 523, 1911 Wisc. LEXIS 288

• Court: Wisconsin Supreme Court
• Decided: January 10, 1911
• Status: Published

Opinions

Vistje, J.

The trial court expressly stated in its decision that it did not pass upon the constitutionality of sec. 1191— 11m, Stats. (Laws of 1909, ch. 481), inasmuch as it held the railroad company had valid easements across the lands over which the spur track was to be built and hence it was not necessary for it to invoke the power of eminent domain granted by the statute. Counsel for defendants suggest that this court may likewise dispose of the case without passing upon the constitutionality of said section. It appears, however, that the proceedings were in terms instituted pursuant thereto and that the Railroad Commission acted under it. That being so, it is not perceived how its acts thereunder can he valid if the statute itself is unconstitutional. Indeed, the trial court by its judgment dismissing the action sustained the validity of the proceedings and in effect held it constitutional. The fact that the Railroad Commission was not required to exercise all the powers conferred upon it by the statute did not obviate the necessity of passing upon its constitutionality, since the powers it did exercise were derived therefrom. So the case directly involved the constitutionality of sec. 1Y97 — 11m. That section reads as follows:

“1. Every .railroad shall acquire the necessary rights of way for, and shall construct, connect, maintain and operate a reasonably adequate and suitable spur track, whenever such spur track does not necessarily exceed two miles in length, is practically indispensable to the 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 its construction and operation is not unusually unsafe and dangerous, and is not unreasonably harmful to public interest.

“2. Such railroad may require the person or persons, firm, corporation or association primarily to be served thereby, to pay the legitimate cost, and expense of acquiring, by condemnation or purchase, the necessary rights of way for such spur track, and of constructing the same, as shall he determined in separate items by the commission, in which case the total estimated cost thereof shall be deposited with the railroad before the railroad shall be required to incur any expense whatever therefor; provided, however, that when any such person, firm, corporation or association, shall be required by the commission to deposit with the railroad, the total estimated cost, as herein provided, such person, firm, corporation or association, may offer or cause to be offered, a proposition in writing to such railroad, to construct such spur track, such proposition to be accompanied by a surety company bond, running to such railroad, and conditioned upon the construction of such spur track in a good and workmanlike manner, according to the plans and specifications provided by such railroad, and approved by the commission, and deposit with such railroad the estimated cost of the necessary right of way for such spur track; and whenever such proposition and security company bond shall be offered the person, firm, corporation or association primarily to be served thereby, shall not he required to deposit as herein provided, as the total estimated cost of such construction, an amount in excess of the estimated cost of the right of way, and the total amount stated in such written proposition. Provided further that before the railroad shall be required to incur any expense whatever in the construction of said spur track, the person, firm, corporation or association primarily to be served thereby, shall give the railroad a bond to be approved by the commission as to form, amount and surety, securing the railroad against loss on account of any expense incurred beyond the amount so deposited with the railroad.

“3. Whenever such spur track is so connected with the main line, as herein provided, at the expense of the owner of such proposed or existing mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock, or other industry or enterprise, and any person, firm, corporation, or association shall desire a connection with such spur track, application therefor shall be made to the commission, and such person, firm, corporation or association shall be required to pay to the person, firm, corporation or association that shall have paid or contributed to the primary cost and expense of acquiring the right of way for such original spur track, and of constructing the same, an equitable proportion thereof, to be determined by the commission, upon such application and notice, to the persons, 'firms, corporations or associations that have paid or contributed toward the original cost and expense of acquiring the right of way and constructing the same.”

It will be observed from the first subdivision of the section that four facts must co-exist before a railroad can be compelled to acquire a right of way, construct, maintain, and operate a spur track, namely: (1) the spur track must not exceed two miles in length; (2) it must be practically indispensable to the successful operation of the existing or proposed plant, industry, or enterprise; (3) its construction and operation must not be unusually unsafe and dangerous; and (4) it must not be unreasonably harmful to public interest. The legislature has delegated to the Railroad Commission the power to determine whether or not these four facts co-exist. If the Commission finds that they do, then, upon the statute being complied with, the railroad is required to build the track, otherwise not. The exercise of such power by the Railroad Convmission is not the exercise of legislative power and may therefore be delegated to it. State ex rel. M., St. P. & S. S. M. R. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. 846; Wayman v. Southard, 10 Wheat. 1; State ex rel. Kenosha G. & E. Co. v. Kenosha E. R. Co. 145 Wis. 337, 129 N. W. 600.

Plaintiffs challenge the constitutionality of the statute on. the ground that the side tracks provided for are private, and that land taken for right of way for such side tracks is taken for a private and not for a public use, contrary to the provisions of sec. 13, art. I, of the constitution of this state, and contrary to the provisions of the XIVth amendment to the constitution of the United States. If it be conceded that the side tracks are private, then the objections raised by plaintiffs must be deemed well taken. But tbe case of Chicago & N. W. R. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849, negatives such a concession. It was there held that the taking of land for a side track under sec. 1831a, Stats. (1898), was a taking for a public use even though the side track ran to a single industry and the owners thereof were to bear a largo part of the expense. That section authorized a railroad company, in its discretion, to acquire right of way by condemnation for a spur track not exceeding five miles in length to any industry therein mentioned, without any restrictions as to its being practically indispensable to the successful operation thereof, or unusually unsafe and dangerous, or unreasonably harmful to public interest. If it was a valid- exercise of legislative power to authorize a railroad company, in its judgment, to condemn a right of way for a spur track five miles in length without any restrictions as to public safety or interest, it must certainly be held to he so to authorize the Railroad Commission to order a spur track two miles in length to be built under the safeguards to public interests provided by sec. 1191 — 11m, Stats. (Laws of 1909, ch. 481).

Such track when built becomes a portion of the trackage of the railroad. The fact that its initial cost is borne by the party primarily to be served, with provisions for subsequent equitable division of such cost, does not make it a private track nor change the nature of its use. Over it the products of the industry find their way into the markets of the world, and every consumer is dire.ctly interested in the lessened cost of such products resulting from the building ^nd operation thereof. That these products are supplied by a single owner, or by a limited number of owners, affects the extent and not the nature of its use — the track is none the less a part of the avenue through which the commodities reach the public. Subject to the equitable division of initial cost, the track is at the service of the public as much as any other, and it constitutes an integral part of the railroad system. The duty to maintain and operate it rests upon the railroad. Except that it is relieved of the initial cost of right of way and construction, the track stands in the same relation to it that any other portion of its track does. The owner of the industry obtains no interest in or control over it beyond that of being served by it equally with any one else who may desire to use it. And this is the crucial test as to whether or not the track is a private or public one. If it is open to the use of any one who may desire, upon equal or equitable terms, and is subject to state control under general laws, it is a public track, irrespective of the degree of the probability of any one else using it, or the extent of such use. Chicago & N. W. R. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849; Ulmer v. Lime Rock R. Co. 98 Me. 579, 57 Atl. 1001. That such tracks are to be open to the use of the public generally is clearly evidenced by the statute, for it speaks of the industry primarily to be served and makes provision for others securing the same service by sharing in the initial cost, thus evincing a clear intent to subject the track, upon equitable terms, to the use of any one who may require it. Its operation, too, is subject to state control under general laws, and neither the railroad nor the owner of the industry can in any respect interfere with such control. The reasons for holding the provisions of sec. 1831a, Stats. (1898), constitutional apply more strongly to the provisions of sec. 1797 — 11m, and they are so clearly set forth in the case referred to that a more extended discussion of the-subject'here is not deemed necessary.

Plaintiffs contend further that the statute is unconstitutional because the last clause of subd. 1 contemplates that a spur track may be built even though the sum total of its effect is somewhat harmful to public interest. We think no such construction should be given to the clause. Every railroad track is in many ways harmful to public interest. The operation of trains thereon results in frightening horses on public highways; in accidents on railway crossings; in setting fire-to adjacent property; in creating smoke and noise, more or less of a nuisance in every village and city, as well as in marring tbe beauty of scenery through which it passes. In these and other respects every railroad may be said to be harmful to the public interest. The legislature, mindful of these facts, wisely conferred upon the Railroad Commission the right to determine when any or all of these or other facts were unreasonably harmful to the public interest, and provided that when in the judgment of the Railroad Commission they were so, the spur track should not be constructed. In other words, the legislature left it to the Railroad Commission to determine when the public benefits so far outweighed any harm to public interest as to render it advisable to construct the spur track. Certainly no just criticism can attach to provisions so considerate of public welfare.

It is also argued by the plaintiffs that the statute nowhere indicates an intent'to confer upon the Railroad Commission the power to order the construction of a side track when it is not necessary to obtain a right of way therefor. Hence, they claim,' if the trial court correctly held that no right of way had to be acquired in this case, then the Railroad Commission had no authority to act, since it can do so only in cases when it is necessary to acquire a right of way. This argument is evidently based upon the erroneous assumption that when the legislature has delegated several powers to the Railroad Commission it cannot act in any case relative thereto unless it exercises all the powers thus delegated. The statute is not susceptible of such a construction. The Railroad Commission may exercise only such powers as the statute requires in the particular case, be they many or few. If no right of way has to be acquired, obviously the Railroad Commission has no duties to perform relative thereto or the cost thereof; but it can and should proceed to discharge the other duties imposed upon it by the statute.

The Chicago & Northwestern Railway Company was not a party to this action and yet tire trial court adjudicated upon the validity of certain easements held by it, and the Railroad Commission did likewise — the railway company, however, being a party to the proceedings before it. The statute requires that the Railroad Commission shall make a preliminary estimate of the cost of the right of way and the cost of ■construction, and shall require the total amount of such estimate to be deposited by the person primarily to be served, unless he shall deposit a bond for construction, in which case only the estimated cost of the right of way need be deposited. In either case, in addition thereto, a bond to indemnify the railroad against any expense above that estimated must be given. In order to determine the amount of such deposit a preliminary inquiry into the question of the title and value of the land to be acquired must be made. But the statute does not contemplate that the Railroad Commission should pass upon the question of title. If it orders the track to be built, it becomes the duty of the railroad to secure the right of way hy purchase, condemnation, or otherwise, if a right of way must be secured. ■ Such a duty may be imposed upon the railroad. Wis., M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 Lawy. Ed. 194. Should the Railroad Commission be in doubt as to whether or not a right of way must be acquired, it can protect the railroad by requiring a sufficient bond to be given to indemnify it fully in case it has to be acquired. But it has no jurisdiction to pass upon a question of disputed title even if all the proper parties are before it. That is purely a judicial question and must be determined by a court having jurisdiction thereof; and the trial court, in the action to test the validity of the order of the Railroad Commission, should not, in the absence of the railway company, have passed upon the question of disputed title. Even if the railway company had been a party to that action the issue of title to the proposed right of way would have been an Issue between the owner thereof or those claiming title thereto and tbe railroad or tbe person primarily to be served; and, under tbe rule laid down in Superior v. Douglas Co. Tel. Co. 141 Wis. 363, 122 N. W. 1023, sucb issue could not be joined witb tbe action against tbe Railroad Commission. Tbe trial court, therefore, erroneously passed upon tbe validity of tbe easements beld by tbe railroad and its judgment tbereon must be set aside.

By reference to tbe accompanying map and statement of facts it will be seen tba.t tbe Eden Company first petitioned for tbe extension of track C, and that after a bearing, of wbicb tbe plaintiffs bad no notice and in wbicb tbey did not participate, tbe application was granted. Plaintiffs were then allowed to intervene, and, upon a bearing, tbe first order of tbe Railroad Commission was vacated, and a track beginning on tbe main spur between tbe points marked X and Y, tbence between tbe track marked C and tbe Union Company’s office building to and upon tbe petitioner’s land, was ordered constructed. Tbis order inadvertently failed to provide for tbe payment of tbe cost of sucb track by tbe petitioner, and tbe Railroad Commission> upon its attention being called to tbe fact by tbe railway company, vacated tbe order, and, without notice to any of tbe parties, made a third order requiring tbe railway company to extend track D to tbe kiln shed of tbe petitioner. Tbe validity of tbis last order is in question. Plaintiffs earnestly contend that tbis court should declare it unreasonable because it orders tbe extension of their loading track and therefore causes almost irreparable loss and hardship to their business. Had tbe order been made upon notice and witb opportunity for tbe parties to be beard, it is doubtful if, under tbe rule laid down in Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905, tbis court would interfere witb tbe exercise of tbe Railroad Commission’s discretion in determining that track I) should be extended, though it seems from an inspection of tbe map that tbe selection of such track would be needlessly injurious to plaintiffs. In this, however, we may he in -error. But it appears from the record before us that the order was made without any opportunity given to any party interested therein or affected thereby to be heard, and for that reason it must be set aside. True, a hearing had previously been given as to an entirely different route, in which all parties participated, but that is not equivalent to a hearing upon the route finally selected by the Railroad Commission. It seems to us that a consideration of the extension of track C or the building of an independent track starting between the points X and Y is so unrelated with and foreign to a consideration of the extension of track D that it cannot be regarded as any hearing at all upon the latter question.

The order also provided that the track should be built within thirty days. In view of the fact that condemnation-proceedings may be necessary, that is not a reasonable time within which to complete the track. We express no opinion as to what route should be selected, and nothing herein said relative thereto is intended in any way to limit the full and free scope of the judgment of the Railroad Commission upon that question. After a hearing it will no doubt fix upon a route that will best subserve the interests of all parties, and allow the railway company a reasonable time, in view of the situation as it may then appear, within which to construct the track.

By the Court. — The judgment of the circuit court is reversed, and cause remanded for further proceedings according to law.