excuse any corporation or person from complying with and obeying any order or decision, or any requirement of any order or decision of the Commission theretofore made, or operate in any manner to stay or postpone the enforcement thereof, except in such cases and upon such terms as the Commission may by order direct."

§ 348. Abrogation, Change or Modification of Order on.-If, after such rehearing and a consideration of all the facts, including those arising since the making of the order or decision, the Commission shall be of the opinion that the original order or decision or any part thereof is in any respect unjust or unwarranted, or should be changed, the Commission may abrogate, change or modify the same."

§ 349. Orders After Rehearing - Effect of Original Order.-An order or decision made after such rehearing abrogating, changing or modifying the original order or decision shall have the same force and effect as an original order or decision, but shall not affect any right or the enforcement of any right arising from or by virtue of the original order or decision unless so ordered by the Commission."

§ 350. Review-Application for Writ of-When to be Made. Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the supreme court of this state for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the orig

64 Ib.

65 Ib.

inal order or decision or the order or decision on rehearing inquired into and determined.""

67 Section 67, p. 55.

Rate fixed and affirmed on rehearing may be reviewed on appeal, although the time provided has expired, where such rate continues until changed, or where some question of law is involved, the decision of which may affect the future action of the authority or board charged with the duty of fixing rates. See Boise City Irr. & L. Co. v. Clark, 131 Fed. 415, 65 C. C. A. 406.

Inquiry by the court as to the reasonableness of a schedule of rates or other regulation, whether made by the legislature or through a Commission, is purely a judicial inquiry, and the legislature may expressly consign the power upon the courts. State ex rel. Taylor v. MissouriPac. R. Co., 76 Kan. 467, 485, 92 Pac. 606; citing Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; St. L. & S. F. R. Co. v. Gill, 165 U. S. 49, 15 Sup. Ct. 484, 39 L. ed. 567.

The provision of the statute providing for the contingency of a review of the order of the Commission fixing the rate or service, and upheld as not unreasonable or set aside as unreasonable, is within the power of the legislature. See Minneapolis, St. P. & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

For relief against an unlawful order of the Commission, a party affected is entitled to sue in any court, state or federal, having jurisdiction, and the penalties imposed by section 53 as above enumerated applied to the single offense of a refusal or failure to obey the order of the Railroad Commission, not to a repetition of offenses from day to day or at intervals as long as the carrier continues in the refusal to obey the order of the Commission. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957, 989, distinguishing Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. ed. 714, 13 L. R. A., N. S., 932.

Courts reviewing the orders and mandates of the Railroad Commission are not required to exercise any legislative power. They are not to ascertain and disclose rates or to declare a rule of law unreasonable; they are merely to exercise judicial power in determining whether the "order" of the Commission is reasonable or unreasonable; if reasonable, to confirm it; if unreasonable, to set it aside, leaving the Commission free to make further investigations and take further action. The conferring of such authority upon courts of law is well within the legislative power. See Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

Courts cannot be empowered by statute to review or set aside as unreasonable acts of the legislature which are not in conflict with state or federal constitutions or with some supreme federal law. See Minne

§ 351.

Writ of, Returnable When-Direction of. Such writ shall be made returnable not later than thirty days after the date of the issuance thereof, and

apolis, St. P. & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

Courts should not interfere with the determination and order of the Railroad Commission except in those cases where they are clearly required to do so. See Minneapolis, St. P. & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

In an action to review the order of the Commission as unlawful or unreasonable, the burden is upon the plaintiff to show such fact by "clear and satisfactory" evidence. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 165, 116 N. W. 915.

The Wisconsin Railroad Commission Act of September 15, 1906, provides that "in all trials under this section the burden of proof shall be upon the plaintiff to show by clear and satisfactory evidence that the order of the Commission complained of is unlawful or unreasonable, as the case may be." Procedure under this provision discussed and determined in Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

"Clear and satisfactory" evidence, as used in the Wisconsin Railroad Commission Act of October 15, 1906, is significant, for the reason that at the time of the enactment of that statute the phrase was used in the law of that state to describe a degree of proof greater than a preponderance of evidence, and such as was necessary in order to establish fraud on proving a mistake in a written instrument. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 166, 116 N. W. 915. See Bannon v. Insurance Company of North America, 115 Wis. 250, 258, 91 N. W. 666; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188; Dallman v. Clasen, 116 Wis. 113, 117, 92 N. W. 565; Harrigan v. Gilchrist, 121 Wis. 127, 313, 99 N. W. 909; Parker v. Hull, 71 Wis. 368, 37 N. W. 351, 5 Am. St. Rep. 224.

Supreme court acts as a judicial tribunal in disposing of matters of dispute between railroad and Commission, not as a mere administrative board supervisory of the acts of the Railroad Commission. Morgan's La. & T. R. & S. S. Co. v. Railroad Commission, 109 La. 247, 33 So. 24.

"No rate is irrevocably fixed by the state until the matter has been laid before the body having the last word." Prentis v. Atlantic Coast Line, 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150.

Compare Smyth v. Ames, 167 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819. Review by supreme court was said not to be conferred by the Wisconsin Act unless the order of Commission complained of was confiscatory in its character and effect. This contention was denied by the supreme court, which held that "unlawful and unreasonable" in the

shall direct the Commission to certify its record in the case to the court."

§ 352.

Hearing on Return Day-Continuance. On the return day, the cause shall be heard by the supreme court, unless for a good reason shown the same be continued."

§ 353. New Evidence not Allowed-To be Heard upon the Record.-No new or additional evidence may be introduced in the supreme court, but the cause shall be heard on the record of the Commission as certified to by it."

§ 354.

Extent of Review.-The review shall not be extended further than to determine whether the Commission has regularly pursued its authority, including a determination of whether the order or de

statute meant "confiscatory," and that the statute authorizing a review by the court was valid and imposes upon the court duties which it may not disregard. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 166, 116 N. W. 915. (Wisconsin Constitu

tion, article VIII, section 6, seems to forbid any interpretation except that given by the court.)

Order of Commission being separable and a part of it without error, while the balance is erroneous, the part without error will be sustained and the erroneous part reversed or set aside. St. Louis & S. F. R. Co. v. Williams, 25 Okl. 662, 107 Pac. 428.

Where the rates established by the Commission are not unreasonable, there can be no taking of the carrier's property without due process of law. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957, 990. 68 Section 67, p. 55.

69 Ib.

70 Ib., p. 56.

As to judicial notice taken regarding conditions within the state on appeal from order of Railroad Commission directing train service or roads, see St. Louis & S. F. R. Co. v. Williams, 25 Okl. 662, 107 Pac. 428.

Court may, doubtless, for purpose of comparison and to aid it in ascertaining how far the order diverges from a reasonable standard, take evidence of and consider criteria offered; but this is for the purpose of comparison only. The court cannot regulate, adjudicate or declare the statutory standard. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 165, 116 N. W. 915.

cision under review violates any right of the petitioner under the constitution of the United States or of the state of California."1

71 Section 67, p. 56.

Final tribunal and arbiter is not the judiciary but the legislature. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247.

Legislature has power to declare what is a reasonable compensation and to fix reasonable maximum rates of carriage, but in the absence of statutory regulation upon the subject, the courts must decide what is a reasonable rate. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 375, 37 N. E. 247.

The legislature having power to fix what is a reasonable rate, the courts must decide for the railroad companies, when controversies arise, what is a reasonable rate. Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 195, 24 L. ed. 95.

Court to judge of reasonableness of freight charged. Guard v. Colland, 6 M. & S. 70; Lowder v. Heirons, 2 Moo. 102; Baxendale v. G. W. R. Co., 5 C. B., N. S., 330.

Statute or order of Railroad Commission fixing rates of transportation is not to be interfered with, except upon clear and satisfactory evidence showing that it is unjust and unreasonable. In Matter of Auburn &

W. R. Co., 37 App. Div. 162, 55 N. Y. Supp. 895.

When legislature declares that certain charges shall be reasonable or allowed, the common-law rule to that effect can prevail, and leave the matter there. Resort may be had to the court to inquire judicially whether the charges are reasonable. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247.

Courts are not by the statute authorized to investigate the subject anew, to put itself in the place of the Commission and search for reasonable and just rates with power to substitute its own judgment of what is reasonable and just for the judgment of the commissioners. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 164, 116 N. W. 915.

Court is not given authority to search for or disclose or declare the "reasonable and just" rates or service provided for by the act, but merely to determine whether the order of the Commission is "unreasonable"-quite a different thing. The conferring of such power upon the courts was clearly within the authority of the legislature. In performing the functions required of them the courts are not to, and do not, exercise legislative power, do not ascertain and disclose rates, do not declare any rules or any law unreasonable, but merely exercise judicial power to ascertain and determine whether the Commission has so far failed in its search for different lawful, just and reasonable rates, not to find and declare that which is unreasonable.