Opinion
December 10, 1915.
Alfred A. Gardner [ Louis J. Carruthers with him on the brief], for the relator. George S. Coleman [ Edward M. Deegan with him on the brief], for the Public Service Commission.
Augustus Van Wyck, for the intervenors Adikes.
Section 27 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480), under which the application which resulted in the order under review was made, provides as follows:
"§ 27. Switch and side-track connections; powers of commissions. 1. A railroad corporation, upon the application of any shipper tendering traffic for transportation, shall construct, maintain and operate upon reasonable terms a switch connection or connections with a lateral line of railroad or private side-track owned, operated or controlled by such shipper, and shall, upon the application of any shipper, provide upon its own property a side-track and switch connection with its line of railroad, whenever such side-track and switch connection is reasonably practicable, can be put in with safety and the business therefor is sufficient to justify the same.
"2. If any railroad corporation shall fail to install or operate any such switch connection with a lateral line of railroad or any such side-track and switch connection as aforesaid, after written application therefor has been made to it, any corporation or person interested may present the facts to the commission having jurisdiction by written petition, and the commission shall investigate the matter stated in such petition, and give such hearing thereon as it may deem necessary or proper. If the commission be of opinion that it is safe and practicable to have a connection, substantially as prayed for, established or maintained, and that the business to be done thereon justifies the construction and maintenance thereof, it shall make an order directing the construction and establishment thereof, specifying the reasonable compensation to be paid for the construction, establishment and maintenance thereof, and may in like manner upon the application of the railroad corporation order the discontinuance of such switch connection."
It will be seen from the statement of facts and the order of the Public Service Commission that the siding in question was regarded as an existing "lateral line of railroad or private sidetrack." The order of the Public Service Commission indicates that the Commission regarded the construction which it has directed the relator to make as a switch connection; but it is manifest that it has ordered the relator to do more than to make a switch connection with the existing lateral line of railroad or private side track, for it has ordered it to do all the construction work, not merely on its own land, but also across the junction of the streets and on the property of the petitioners, and to obtain any permit, license or grant that may be required therefor. We find no authority in the statute for the order in so far as the relator is directed to make application for a permit for the construction of the siding over the public streets, the fee of which is not shown to be owned by it, or on the property of the petitioners. Authorities are cited from other jurisdictions in which it has been held that it is competent for the Legislature to require a railroad to make applications for permits to construct sidings across public streets, and to require it to construct sidings, not only across public streets but on private property; but the statutory provisions before the courts for construction in those cases were much broader than those of our statute. (See Chicago Northwestern R. Co. v. Union Lime Co., 152 Wis. 633; 129 N.W. Rep. 609; affd., sub nom. Union Lime Co. v. Chicago Northwestern R. Co., 233 U.S. 211; State v. Chicago, M. St. P. Ry. Co., 115 Minn. 51.) The learned counsel for the Public Service Commission, appreciating that the express provisions of section 27 of the Public Service Commissions Law do not authorize the Commission to require the railroad company to do anything beyond the line of its own property, attempts to sustain the action of the Commission under a general provision of section 4 of the Public Service Commissions Law, which reads as follows: "There shall be a public service commission for each district, and each commission shall possess the powers and duties hereinafter specified, and also all powers necessary or proper to enable it to carry out the purposes of this chapter." We are of opinion, however, that said section 27, construed in the light of said section 4, does not show that the Legislature intended to empower the Commission to require the railroad company to do anything that could not be done on its own property. The order must, therefore, be modified by limiting the construction work to be performed by the relator to making the switch connection on its own property with the siding when constructed according to the plan to the line of the property of the relator.
It is further contended by the relator that it is impracticable and unreasonable to require it to maintain a connection with this siding and to furnish the petitioners service thereon. On that point considerable evidence was introduced by the relator and by the petitioners, and a question of fact was thereby presented on which the Commission had the benefit of a view by one of the Commissioners, pursuant to section 11 of the Public Service Commissions Law. We have considered the evidence, and are of opinion that we would not be warranted in reversing the determination of the Commission that it is feasible and practicable to maintain the switch connection and that the public interests require it.
It is also contended by the relator that this switch connection is sought for a private purpose, and that in so far as the Legislature has attempted to authorize or require it, the statute is unconstitutional. This contention is mainly based on Union Lime Co. v. Chicago Northwestern R. Co. ( 233 U.S. 211), in which it was claimed that a statute of the State of Wisconsin requiring a railroad company to construct and maintain a spur track on the application of an owner of a private industry was unconstitutional. The question arose on the objection of a property owner, whose land the railroad company sought to condemn to enable it to comply with the order of the Commission. The court sustained the statute on the theory that it was not a private use, for, although the construction was required to be made in the first instance to serve the business of a single individual, the statute provided that others might from time to time become entitled to use the spur track on paying a proportionate share of the cost of construction, which in the first instance was required to be borne by the original applicant. There are observations in the opinion indicating that private property could not be taken in invitum for the construction of a private siding, but that is not the point decided by the court, for it was found that the spur track was for a public use. The question presented here under the statute, confined by our construction to the lands of the relator, is not whether private property may be taken for a private siding, but whether a railroad chartered under the laws of this State which is continuing to furnish switch connections to some shippers along its line and where our statute in effect forbids it to discriminate between shippers (Pub. Serv. Com. Law, § 35) may be compelled by the Legislature to continue the service to the petitioners which it voluntarily inaugurated, by requiring it to maintain a switch connection with their siding. The authority of the lawmaking body of the State or Nation to compel public service corporations to make connections between their lines, even when this involves the exercise of the right of eminent domain, has been sustained by the courts. ( Matter of Stillwater M. St. R. Co., 171 N.Y. 589; Hudson Valley R. Co. v. B. M. Railroad, 106 App. Div. 375; Interstate Commerce Commission v. D.L. W.R.R., 216 U.S. 531; Grand Trunk Railway v. Michigan R.R. Comm., 231 id. 457; Michigan Central R.R. v. Michigan R.R. Comm., 236 id. 615.) It has been held that it is competent for the Legislature under which a railroad is incorporated to regulate and prescribe the facilities it shall furnish for public service including the furnishing of switch connections with private mines and manufacturing plants. ( Brooklyn Heights R.R. Co. v. Steers, 213 N.Y. 76; Clarke v. Blackmar, 47 id. 150; City of Detroit v. Mich. Central R. Co., 156 Mich. 121; State v. Chicago, M. St. P. Ry. Co., 115 Minn. 51; Corporation Commission v. Seaboard Air Line Railway Co. ( Industrial Siding Case), 140 N.C. 239; Hocking Valley R. Co. v. New York Coal Co., 217 Fed. Rep. 727. See, also, Olanta Coal Min. Co. v. Beach Creek R. Co., 144 Fed. Rep. 150.) In City of Detroit v. Mich. Central R. Co. ( supra) the court said: "Aside from constitutional or statutory requirements, the relation between manufacturers and railroad companies as to the construction and maintenance of side tracks rests entirely in contract. But for the interests and rights of the third party interested, the relation between shipper and carrier would rest entirely in the hands of those two parties, and be governed entirely by the contracts which they might choose to make, but the third party, the public, is interested, and therefore has certain rights which it may enforce through the Government. Among these is the right to regulate and prescribe, to some extent, the facilities which railroad corporations must furnish for the transportation of the products and produce of the country. Among these is the right to compel switch connections with the plants of manufacturers whenever, as stated by the learned counsel for the Car Foundry Company, `such connection is reasonably practicable, and can be put in with safety, and the manufacturer will furnish sufficient business to warrant it.' Hence Act No. 312, Pub. Acts 1907, § 6a, and 34 U.S. Stat. p. 584. * * * These acts only provide that, if the parties more directly concerned cannot make satisfactory arrangements for such connections, the railroad commissions may be appealed to and the railroad companies compelled to install such tracks upon reasonable terms and conditions, and also maintain them. Chicago, etc., R. Co. v. Suffern, 129 Ill. 274. " Although, so far as appears, the business conducted by the petitioners is their own, still, in their relations with the railroad company, they are transacting a very extensive business, for they are buying and storing the products of others, and shipping them over the railroad of the relator, and it appears that those shipments aggregate between 400 and 500 carloads a year, and it is conceded by the relator that they are among the largest shippers on its railroad. So far as appears, no right has been acquired by others for the use of this siding, but for aught that appears, the siding may be extended. The present contention of the relator is diametrically opposed to its contention in opposition to the application for mandamus to compel it to remove the siding, for at that time it took the position that this was a public use. It must be left to the petitioners, however, to obtain any permit from the public authorities for the construction of the siding, in accordance with the plan approved by the Public Service Commission, to the line of the railroad property and to elevate the siding to the line of the railroad property, at their own expense. As a basis, however, for obtaining any consent that may be required of the public authorities it was, I think, within the jurisdiction of the Public Service Commission to entertain the application and to determine in advance that the relator should be required to make the switch connection.
It follows that the order should be annulled, without costs, and the matter remitted to the Public Service Commission with authority to make an order limiting the construction required to be made by the relator to the construction of the switch connection and side track to the line of its property to connect with the siding of the petitioners when constructed to the line of the relator's property in accordance with the plan approved by the Commission; and in its discretion to require the relator to maintain the connection with the siding as it now exists until the siding is elevated in accordance with the plan approved by the Commission.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order annulled, without costs, and matter remitted to the Public Service Commission as stated in opinion. Order to be settled on notice.