The court below disposed of the case upon the ground that no emergency existed for making the order under sec. 1797 — 28, Stats., which provides:
“The commission shall have power, when deemed by it necessary to prevent injury to the business or interests of the people or railroads of this state in consequence of interstate rate wars, or in case of any other emergency to be judged of by the commission, to temporarily alter, amend, or, with the consent of the railroad company concerned, suspend any existing passenger rates, freight rates, schedules and orders on any railroad or part of railroad in this state.- Such rates so made by the commission shall apply on one or more of the railroads in this state or any portion thereof as may be directed by the commission, and shall take effect at such time and remain in force for such length of time as may be prescribed by the commission.”
Five members of this court are of opinion that upon the *552facts disclosed by the record no emergency existed within the meaning of the statute for making the order under sec. 1797 — 28, while two members hold that such an emergency did exist.
Starting with the proposition that no emergency existed, therefore the order was not valid as an emergency order under sec. 1797 — 28, the question arises whether the order was valid as a general rate order under sec. 1797 — 12.
The order upon its face is in substance the same as a general rate order made under sec. 1797 — 12, except it contains the word “emergency.” The Commission seems to have understood that the application was not only for emergency relief but for a general order as well. In its report it is said:
“The petition seems to have asked both emergency relief and the treatment of the case as in due course. We concluded in our opinion of September 12, 1918, that a case demanding emergency relief was presented, a conclusion which has been emphasized by operating results. On the other hand, we believe that it was desirable from a public standpoint to retain complete jurisdiction over the street railway rates in La Crosse, treating the present rates as emergency rates, and defer a final order fixing street-car fares in that city until a return of something like normal conditions.”
An order under sec. 1797 — —12 may be in form substantially the same as an order under sec. 1797 — 28 with the exception of the word “emergency.”
The order and report of the Commission seem to indicate that the Commission intended to give relief for a situation not necessarily permanent. The order provided that the Company be “authorized to suspend the schedule of rates at present in effect on its La Crosse street railway system and substitute therefor” the schedule prescribed in the order.
The petition was broad enough to cover emergency rates and general rates. Ten days’ notice of hearing was given and the matter-heard in accordance with the provisions of sec. 1797 — 12. All-parties interested were represented and testimony taken at great length. The Commission had the *553matter under advisement for about a month. While the order was designated an emergency order, it is quite plain from the notice given and all the proceedings had, as well as the form of the order itself, that the Commission•; intended to cover a situation which, while it might not be of long duration, still the order would be sufficient and proper as an order in due course. The proceeding for review of the order of the Commission is statutory, and unless it be established that the order is either unlawful or unreasonable it cannot be disturbed.
In the instant case the petition was broad enough to cover a proceeding for either emergency relief or relief in due course under sec. 1797 — 12. It is clear from the record that the Commission had jurisdiction to proceed, and that all parties interested were before the court and a full and exhaustive hearing had, and the hearing covered all issues in the matter, and the procedure was the same as in other cases where a general rate hearing is had before the Commission. There was ample credible evidence in the record to show that the income was not sufficient to pay a reasonable return on the investment after allowing three per cent, depreciation. It is unnecessary to go into a discussion of the facts and figures in the record, which are very voluminous and which appear to have been carefully considered by the Commission.
Treating the order as an order in due course under sec. 1797 — 12, it cannot be said that it was either unlawful or unreasonable. While, as before observed, the majority of the court is of opinion that an emergency, within the meaning of sec. 1797 — 28, did not exist, the whole court is agreed that the order is valid as an order in due course under sec. 1797 — 12. Under the well established rule, in order to justify the court below in disturbing the order it must be established by clear and satisfactory evidence that the order complained of was unlawful or unreasonable, and it has been held by this court that the words “clear and satisfactory evidence” used in the statute must be applied in the same sense *554as they are in describing the proof necessary to establish fraud or mistake in a written instrument. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905. It is equally plain from the record that the order cannot be held unlawful.
The court below disposed of the case on the ground that no emergency existed under the statute and did not consider the question whether the order was good as an order in due course under sec. 1797 — 12, and the question arises whether the case should be remanded to the court below with instructions to pass upon the question. The court is of opinion that this is unnecessary, since the whole matter was considered and fully litigated on all questions, and upon the record the order of the Commission should have been affirmed by the court below as an order 'in due course.
By the Court. — The judgment of the court below, is reversed, and the cause remanded with directions to enter judgment affirming the order of the Railroad Commission.