Wabash, Chester & Western Railroad v. Commerce Commission ex rel. Jefferson Southwestern Railroad

Mr. Justice Thompson,

dissenting:

It is with regret that I find myself at variance with the majority of the court on this important question, but I consider the points involved to be so vital that I feel constrained to set out my views at some length.

The first proposition decided by the. court is one that will affect every case arising under the Public Utilities act. It is said that the right to review the finding of the Commerce Commission is limited to the questions whether the commission acted within the scope of its authority, whether its finding is without foundation in the evidence, and whether a constitutional right has been infringed. With this I do not agree. Section 68 of the Public Utilities act allows an appeal to the circuit court for the purpose of having the reasonableness or lawfulness of the decision of the Commerce Commission considered and determined. The court must consider the case on the evidence heard by the commission and has authority to confirm or set aside the commission’s decision. Due process of law requires submission of the questions involved to a judicial tribunal for determination upon its own independent judgment as to both law and facts, according to the settled rules governing judicial action and decision. (Commerce Com. v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. ante, p. 165.) All doubts as to the propriety of means or methods used in the exercise of the powers clearly conferred upon the commission should in the interest of the administration of the law be resolved in favor of its action, and where the facts are controverted and the decision depends upon credit to be given contradictory testimony, the courts will give great weight to the finding of the commission, which is qualified by experience and special study to weigh the facts and circumstances applicable to cases within its jurisdiction. It is, however, the duty of the courts, in reviewing the decision of the commission, to weigh and consider the evidence, and if it is found that the order of the commission is against the manifest weight of the evidence it should be set aside. It is not enough that there is some evidence in the record which, if it stood uncontradicted, would justify the order. To be sure, it is not intended that the courts shall assume the duties of the commission and try anew matters within its jurisdiction, but that does not relieve the courts from performing a function delegated to them by the constitution. The Commerce Commission has no arbitrary powers, and if, in view of the evidence, its order is not reasonable it is the duty of the court to set it aside. West Suburban Transportation Co. v. Chicago and West Towns Railway Co. (ante, p. 87.)

All efforts to explain the meaning of “public convenience and necessity” do not make the meaning more clear than the words themselves. I have searched in vain to find a better definition. No one contends that it is necessary to show that a public utility is absolutely indispensable before a public convenience and necessity is shown. In construing similar language in other statutes it has been held that the word “necessary” means that there is a strong and urgent need. (Wisconsin Telephone Co. v. Railroad Com. 162 Wis. 383, L. R. A. 1916E, 748; Brooks v. Chicago, Wilmington and Vermilion Coal Co. 234 Ill. 372; Aurora and Geneva Railway Co. v. Harvey, 178 id. 477; Chalcraft v. Louisville, Evansville and St. Louis Railroad Co. 113 id. 86.) The convenience or necessity, to be public, must concern the public as distinguished from an individual or any number of individuals. (West Suburban Transportation Co. v. Chicago and West Towns Railway Co. supra; Public Utilities Com. v. Toledo, St. Louis and Western Railroad Co. 286 Ill. 582.) Public necessity does not exist unless the inconvenience would be so great as to amount to an unreasonable burden on the community. There must be an urgent, immediate public need. A mere balance of convenience, a mere advantage which would otherwise be lost, is not enough.

As I read this record, the finding of the commission is not only against the manifest weight of the evidence but is without any substantial foundation in the evidence. Without any consideration of the evidence of the objectors, the evidence of the petitioner shows that a public convenience ■ and necessity does not exist. The proposed road is to be' fourteen and one-half miles long and is to connect with the Chicago and Eastern Illinois railroad at Mt. Vernon and with the Chicago, Burlington and Quincy railroad about three miles south of Waltonville. For all practical purposes it parallels three existing railroads and serves no point which is now more than four miles from a railroad. But a few hundred people will live nearer a railroad after the new road is built. Jefferson county is approximately twenty-four miles square and has a population of less than 30,-000, one-third of which is in Mt. Vernon, the county seat. Three trunk line railroads, — the Chicago and Eastern Illinois, the Louisville and Nashville, and the Southern, — cross at Mt. Vernon, giving the territory railroad service north, east, south and west. The Wabash, Chester and Western railroad runs from Mt. Vernon to Chester. The Chicago, Burlington and Quincy railroad traverses the western half of Jefferson county, and the Illinois Central railroad runs along its west boundary. These roads cross or connect with every railroad of importance in the State of Illinois. The accompanying map describes the territory much more clearly than words:

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The dotted area designates the coal lands which it is proposed to develop, and the broken line designates the railroad which the commission has held public convenience and necessity demandTf It can be seen at a glance that a spur four miles long will give the new mine exactly the same-railroad connection with the Eastern Illinois as it is to get-by the independent line eleven miles long. If this mine is-developed, spur tracks will be built from the existing raib roads, and the mine will be given exactly the same service as is given similar mines all over southern, Illinois. The proof shows, without contradiction, that short lines of this type are not profitable. It also shows that the coal from this mine can be more rapidly and more cheaply placed on' the market over spurs of existing lines than by a joint ar-' rangement with existing trunk lines and the independent road which the coal operators propose to build. This new railroad will be dependent upon one industry, and that an industry which is already greatly over-developed. The road now owns no engines or cars, and it expects to get most of its cars from existing railroads. It is manifest to anyone reading this record that the sole purpose in building this railroad is to secure an advantage in freight rates. An originating line is entitled to a division of the carrying charge, and through negotiation with trunk line railroads the promoters of this new coal field can gain an advantage over their competitors by getting favorable division of through freight rates and an absorption of switching charges. If government regulation of railroads can be justified at all, it is by preventing the very thing this order permits.

There is no gainsaying the fact that the railroad is being built to serve the private needs of the coal company. Without question the new road would be convenient for those commercially interested, but that is neither a public convenience nor a public necessity. In order to give some color to the claim that the public is interested, it is argued that the mine, when fully developed, will employ 800 or goo men, and that they, with their families, will make a city of 4000 or 5000 people. In the face of the pendency of this case on appeal in this court the promoters of this town site advertised lots for sale three months ago, and in their advertisement they said the new railroad was being built and the mine was being developed. This city is only a figment of the promoters, and a mere glance at the map shows that the city will never be a reality. Another effort to show that the public is interested in the construction of this new road was made by introducing testimony to the effect that the two forks of the Big Muddy river, which flow along the eastern and western boundaries of the territory, frequently overflow and that the farmers residing in the territory can not cross to the existing railroads. Strange to say, none of these marooned farmers were called as witnesses, and so none of them testified that this railroad was needed or that it would be any more convenient for them than the existing railroads. It does not take an expert to know that the development of another coal mine will not serve the interests of the public. There is now an over-development of the coal industry in the United States and producing mines in Illinois have much larger capacity than the demand requires. To develop this new mine will simply add to the national investment in coal mines and the public will pay an income on this inflated investment. Every time a public utility is built capital is invested, and that capital will demand a return. The public must pay this return, and if the utility is not needed the added burden is not justified. By building short spurs from existing railroads these coal lands can be adequately served, and it can be done with less than one-fifth as much addition to the national investment in railroads as by building an independent line. The Commerce Commission makes it clear that it considered only the private convenience of the promoters. In its order it says: “The arrangement proposed by the petitioner will be a matter of great convenience to the Illinois Coal and Coke Corporation. It is not necessary to show that there is a great necessity for the construction of the proposed railroad.”

While I have great respect for the judgment of my associates on this question, I feel that the order entered in this case is contrary to the spirit as well as the letter of the Public Utilities act.