(dissenting). Peeling that the construction and effect given to the statutes under consideration under the facts in this case work an injustice and give to the spur-track statute, sec. 1797 — llm> a more far-reaching effect and *31ma. ¿ce it of far higher rank in the line of statutes controlling and regulating railroads than its real purpose and language warrant, compels me to register this dissent.
.In 1905 the legislature created the Railroad Commission, ' vesting it with power and jurisdiction to control many features of railroad business. In June and July, 1901, by chs. ,, 454 and 499 of the session laws of-that-year, a further radical change was made in the public policy of this state. By the first of these chapters further- provisions were made for the regulating of the construction1 and operation of railways -.By the new sections 1791 — -39 to 1797 — 60. By the other '-chapter, creating secs. 1797m — 1-to-1797m—108, jurisdic-tion was given to that Commission ' to regulate and control public utilities such as street railways, telephones, electric light and gas companies.
The effect of’this new policy was to determine and declare that thereafter corporations which require the support and patronage of the public and which require at times the use-of the strong arm of the state under the power of eminent domain in the taking of private property for such corporate use, should all thereafter be required to subordinate their private ends and purposes to the public good and be under ' public control and regulation. Thereafter substantially all future rights that might be sought to.be acquired by railroads or.by public utilities were, under the provisions of those chapters, required to first have from the Railroad Commission a ' certificate that public convenience required and necessity demanded the granting of such future right. Either such certificate of public convenience and necessity when issued to a railroad corporation under ch. 454, Laws 1907, or to a public utility under ch. 499 of the same year, gave, created, or confirmed something of value, an interest of some kind entitled to be secured or defended by the judicial power of the state, or it was quite an idle and vain ceremony and its possession added nothing to or detracted nothing from the *32former position of tbe one to whom the Railroad Commission granted it. I take it it would not seriously be contended that it meant something as to public utilities and nothing as to railroads, or vice versa.
As to public utilities it has already been held that it has substance; and that it does give or create what may be called a monopoly, with the odious meaning theretofore attached to that term removed (Calumet S. Co. v. Chilton, 148 Wis. 334, 358, 359, 135 N. W. 131), a privilege (McKinley Tel. Co. v. Cumberland Tel. Co. 152 Wis. 359, 363, 140 N. W. 38; Wis. T., L., H. & P. Co. v. Menasha, 151 Wis. 1, 145 N. W. 231; La Crosse v. La Crosse Q. & K. Co. 145 Wis. 408, 130 N. W. 530). It may at least be considered as a protected privilege, subject to control and regulation but also to recognition and protection by the state until abandoned or taken away in the manner prescribed by law. No reasons suggest themselves why the privilege granted to the Wiscon'sin <& Northern as against the similar application denied to the Northwestern in the extension proceedings in 1916 should not be considered a somewhat similar protected privilege. By sec. 1191 — 49, Stats., the refusal of the application of the Chicago & Northwestern became absolute for a period of two years from the date of such refusal, October 26, 1916. By sec. 1791 — 50, Stats., either the Northwestern or the Oconto Company -might have had a review in the circuit court of either or both of such extension proceedings. No such review was attempted. The Wisconsin & Northern acted upon the result of such proceedings, incurred expense and liability thereunder by commencing to build the Hol-lister branch. Practically all that was considered of then value to either the Northwestern or the Wisconsin & Northern or the Oconto Company under the testimony in the extension proceedings is by this decision swept away from the one held to be entitled to it in 1916 and landed in the lap of the other then contestant.
*33' While present or future passenger traffic may be a consideration in some cases of applications .for extensions and possibly never in spur tracks, yet in the case at bar passenger traffic was not the consideration before the Railroad Commission in 1916; it is undisputed that tbe then Elings-■ton branch of sixteen miles was.devoted practically to no other business than permitting the use of the tracks to the Oconto Company for shipping its logs, as freight traffic thereon; nor did either railroad in the extension proceedings lay any .'’stress upon possible passenger earnings on either proposed extension. The same questions in substance, essence, and. practical effect, if mere nomenclature be disregarded, ' were before the Railroad Commission in 1917 that were before them in 1916 and should be held valid and binding for at least the two-year period fixed by sec. 1797 — 49.
There are the necessary identities of persons, capacities, subject matter, and ends to'be attained found in the proceeding under the extension statutes in the fall of 1916 and these proceedings in the spring of 1917, which would therefore make the former proceedings res adjvdicata. Rohr v. Witt-mann, 147 Wis. 195, 202, 132 N. W. 1107; McMillan v. Barber A. P. Co. 151 Wis. 48, 50, 138 N. W. 94; Baker v. Becker, 153 Wis. 369, 383, 141 N. W. 304; Zohrlaut v. Mengelberf 158 Wis. 392, 148 N. W. 314, 149 N. W. 280. Or even if the identities were not 'all there to meet the broadest application of the rule just cited, yet the substantial issue as to whether, in view even of the increased cost to the Oconto Company in shipping over the Wisconsin & Northern rather than the Northwestern, which of the two railroads should be given the privilege of access to the logging territory in these townships, was determined adversely to the Norihiuestern’s application. ..There is no new showing here, and the prior determination on that squarely defined issue should be held binding. Rowell v. Smith, 123 Wis. 510, 516, 102 N. W. 1.
*34A lengthy citation is given in the majority opinion from the decision of the Railroad Commission on the question of what it considered to be and the view it took as to the question of public interest involved in this spur-track proceeding. A comparison with the written decision made in the extension proceedings by the same Commission, although there has been some change in the membership, discloses that the same questions were discussed, and particularly as to what effect the denying of the application of the Chicago & Northwestern would have upon the Oconto Company by way of increased freight rates. Upon the same situation and possible future effects upon the same parties, the Commission in 1916 came to the diametrically opposite conclusion to that arrived at by the Commission in 1917. Both the Northwestern and the Oconto Company could have had a review of such conclusion of the Commission in 1916 if either had so chosen. They failed to do so, and I can see no good reason why they should not be bound thereby.
The question of public interest was before the Commission in both proceedings and was expressly passed upon by that tribunal in each proceeding; it was required to be considered under the statute as to extensions in determining whether the certificate of public convenience should be given or withheld and under the spur-track statute by the words “not unreasonably harmful to public interest,” which words were added to sec. 1797 — 11m by ch. 481, Laws 1909. The addition of these words makes it clear that some consideration must be given the rights of all who might be affected under the spur-track proceeding just as much as under the extension statute.
I see no warrant in the statutes for holding that the Oconto Company has a higher standing or more rights in asking to have rails laid down over a third person’s property by the exercise of the state’s right of eminent domain when it is designated as a spur track or when the same rails are to be *35laid and space taken for wbat is called an extension. If anything, it is more in accord with the present-day view to say thát the private interest of any private enterprise is subordinate to and lower .than the rights represented by the public ' interest.
Furthermore, the Oconto Company cannot claim the right to have this spur track laid over a third person’s property by the right of eminent domain if it' is for its private purpose and interest. It is only because such a spur track becomes and is declared to be for a public purpose that the right of eminent domain thereunder can be asserted. This was the precise ground on which the case decided by this court of Chicago & N. W. R. Co. v. Union L. Co. 152 Wis. 633, 140 N. W. 346, was affirmed in the same case on appeal to the United States supreme court in Union L. Co. v. C. & N. W. R. Co. 233 U. S. 211, 34 Sup. Ct. 522. It is the distinct holding of this court in other cases that as a private enterprise such an applicant as the Oconto-Company cannot have the right of eminent domain exercised solely in its behalf. Wallman v. R. Connor Co. 115 Wis. 617, 620, 92 N. W. 374; Chicago & N. W. R. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849.
That the application for the relief in 1916 was under one section of the railroad law and that in 1917 under another, but both in substance and reality upon the same facts and to attain the same ends, no more affects the substantial rights to be now determined than did the shifting from' state law to federal law in the case of Curtice v. C. & N. W. R. Co. 162 Wis. 421, 156 N. W. 484, the second appeal of which, again raising the same question, is decided herewith (166 Wis. 594, 166 N. W. 444).
If the substance and results to be attained under the two statutes, as the facts are disclosed in this case, are not identical and similar, although it seems to me they are identical and similar, then it must necessarily.'follow that they are *36dissimilar and necessarily inconsistent. If so, we have a situation where the Oconto Company and the Northwestern in tbe spring of 1916 bad two separate, independent, and inconsistent remedies by which they might obtain the same result, namely, shipments from towns 32 and 33 over the Northwestern in preference to the Wisconsin & Northern. The Oconto Company and the Northwestern elected to choose at that time the remedy under the extension statute, and upon a full hearing the matter was determined against them by that Commission, and that order became binding upon them for two years. They elected to take no proceedings to review the same and ought not now be permitted to proceed under this different remedy to obtain the same identical result, in substance and essence, that they were denied the preceding year. McDonald v. Marhesan C. Co. 142 Wis. 251, 125 N. W. 444; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Crook v. First Nat. Bank, 83 Wis. 31, 52 N. W. 1131; 15 Cyc. 259.
For these reasons I think the proceedings below should be dismissed.
OweN, J., took no part.