§ 355. Findings and Conclusion of Commission Final on. The findings and conclusions of the Commission on questions of fact shall be final and shall Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 165, 116 N. W. 915.

The court is not investigating for the purpose of establishing a fixed point. The question whether the order is within the field of reason or outside of its boundaries is the only question before the court. This is quite a different question from that which was before the Commission on the fixing of the order. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 165, 116 N. W. 915.

Courts reviewing an order or mandate of the Railroad Commission are not to determine whether the rate or service fixed by the Commission is just and reasonable, but to determine whether the "order" is unreasonable or unjust; and if the court finds that such order is such a one that reasonable men might well differ as to its correctness, the court cannot say that it is unreasonable. See Minneapolis, St. P. & St. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915. Reasonableness of rates fixed by Commission being questioned, evidence showing what carriers in other states charge is not admissible, where there is no showing that conditions are similar. Hooper v. Chicago, M. & St. P. R. Co., 91 Iowa, 639, 60 N. W. 487.

Full judicial review of the action of the Commission is contemplated by the act of December 23, 1911, the court to try questions of law and fact the same as they are tried by the Commission, giving such weight, however, to the decision of the Commission on all matters of fact that it shall stand, unless shown to be wrong by "clear and satisfactory" evidence. See Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission (conc. op. Marshall & Bashford, JJ.), 136 Wis. 146, 116 N. W. 915.

Rates fixed held to be unreasonable, court will not fix rates deemed by it to be reasonable; this duty devolves upon the board or body by law charged with the duty of fixing proper rates. Osbourne v. San Diego L. & T. Co., 178 U. S. 22, 20 Sup. Ct. 860, 44 L. ed. 961.

In considering the reasonableness of the rate fixed by the Railroad Commission, courts are justified in taking into consideration what is known as "commercially necessary"; that is to say, the application of the principle when fixing rates which are forced upon common carriers by various conditions and circumstances and are not common practice among railroad companies-a business policy which actuates and influences the carriers to disregard as to a strict comparison and strict equality as to bulk, or weight or value as well as to the distance of the carriage. State ex rel. Railroad & Warehouse Commission v. Minneapolis & St. L. R. Co., 80 Minn. 191, 83 N. W. 60.

Estimating the cost of operating a railroad per ton of freight per mile of carriage for purpose of determining reasonableness of a tariff of rates fixed by the state Railroad Commission, it is error to take into

not be subject to review; such questions of fact shall include ultimate facts and the findings and conclusions of the Commission on reasonableness and discrimination."2

consideration the amount of earnings which has been appropriated and paid out as dividends on stock shares of such railroad company. State ex rel. Railroad & Warehouse Commission v. Minneapolis & St. L. R. Co., 80 Minn. 191, 83 N. W. 60.

On appeal to the supreme court, the scope of review is the same as in case of an appeal from a judgment in an action tried by the court. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission (conc. op. Marshall & Bashford, JJ.), 136 Wis. 146, 116 N. W. 915.

On review of order of Railroad Commission inquiry is not whether rate, regulation, or service fixed by such Commission is just and reasonable, but whether the "order" of such Commission is unreasonable or unlawful. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 165, 116 N. W. 915.

Provisions of Wisconsin Railroad Commission Act which are similar to those of section 32 of the Oregon Railroad Commission Act construed as to the scope of the judicial review in Minneapolis, St. Paul & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905. 72 Section 67, p. 56.

Considering degree of proof required and viewpoint of investigation by the supreme court, and that the court is dealing with a question of fact, or a mixed question of fact and law, great weight is necessary to be given to the orders of the Commission. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 167, 116 N. W. 915. See Morgan's La. & T. R. & S. S. Co. v. Railroad Commission, 109 La. 247, 33 So. 214.

Degree of proof required in an action to set aside an order of the Railroad Commission, the viewpoint of investigation by the court, and the circumstances that the court is dealing with a question of fact, or with a mixed question of fact and law, required that great weight necessarily be given to the order of the Commission, and that a very strong case must be made by the complainant in order to establish its unreasonableness. See Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

Distinction between the terms "unreasonable" and "unlawful" was raised but not determined in the case of Minneapolis, St. P. & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

Provision making prima facie presumption in favor of findings of fact of Railroad Commission, such findings will not be disturbed by the court when supported by evidence. St. Louis & S. F. R. Co. v. Williams, 25 Okl. 662, 107 Pac. 428.

The provision of section 11 of the Kansas Act creating the Board of Railroad Commissioners (Laws 1905, c. 340), making certain orders of

$ 356. Right to Appear at.-The Commission and each party to the action or proceeding before the

such board conclusive after the lapse of thirty days after promulgation, is a rule of evidence and not a limitation upon the rights of a complaining party to offer evidence in defense of an action in mandamus, to compel obedience to such order. State ex rel. Taylor v. MissouriPac. R. Co., 76 Kan. 467, 92 Pac. 606.

The provision of the act of December 23, 1911, placing the burden of proof upon the plaintiff to show by clear and satisfactory evidence that the order of the Commission is unlawful or unreasonable, does not, by the words "clear and satisfactory," intend to describe a degree of proof; clearly amount is mere preponderance of evidence, and such as required to establish fraud or prove mistake in a written instrument. Minneapolis, St. P. & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

Reasonableness and justice of rates, etc., fixed by Railroad Commission is to be determined by the same rules as if it were an issue in other classes of suit, except as to the conclusion of the character of the evidence required. Railroad Commission v. Houston & T. C. R. Co., 90 Tex. 340, 353, 38 S. W. 750.

Test of unreasonableness of regulation adopted by the Railroad Commission is not a consideration of the question whether such regulation amounts to a taking of property without proper compensation. Such a test is applicable only in the determining of the constitutionality of the law. Railroad Commission v. Houston & T. C. R. Co., 90 Tex. 340, 353, 38 S. W. 750.

In determining the reasonableness of the rates fixed by the Railroad Commission, a court cannot assume that the cost of reproduction of a line of railroad, or that the present line of railroad, as compared with the original cost of construction, is the amount of stock and bonds outstanding, or that it is what the road cost up to the time of trial. State ex rel. Railroad & Warehouse Commission v. M. & St. L. R. Co., 80 Minn. 191, 83 N. W. 60.

See

Prima facie evidence of reasonableness of rates fixed by the Railroad Commission and the evidence necessary to overcome the same. Steenerson v. G. N. R. Co., 69 Minn. 353, 72 N. W. 713; State ex rel. Railroad & Warehouse Commission v. M. & St. L. R. Co., 80 Minn. 191, 83 N. W. 60; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819.

Railroad Commission, under the Illinois Act, has authority to make schedule for changes, which are prima facie evidence of the reasonableness of the rates to be charged by carriers by rail, and the courts, in a suit against the carrier, cannot inquire and determine what is a reasonable rate. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247.

Commission shall have the right to appear in the review proceeding."

§ 357.

Judgment of Supreme Court.-Upon the hearing the supreme court shall enter judgment either affirming or setting aside the order or decision of the Commission."

§ 358. - Provisions of Code of Civil Procedure as to Writs of Review Govern.-The provisions of the Code of Civil Procedure of this state relating to writs of review shall, so far as applicable and not in conflict with the provisions of this act, apply to proceedings instituted in the supreme court under the provisions of this section."

78 Section 67, p. 56.

74 Ib.

Order of Commission need not be confiscatory in its character and effect in order to render it unlawful and unreasonable within the meaning of the statute. Minneapolis, St. P. & Ste. Marie R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

Reviewing order of Commission requiring certain service from a railroad company or other carrier, the court must ascertain that the Commission by the order complained of fixed the minimum service which, in its opinion, would be reasonable; and if the court finds, upon full consideration of the evidence, giving due weight to the decision of the Commission, that a less service would be reasonable, the court should hold the order to be unlawful, because an erroneous decision of a concrete question of fact. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission (dis. op. Dodge, J.), 136 Wis. 146, 116 N. W. 915.

See State ex rel. Tompkins v. Chicago, M. & St. P. R. Co., 11 S. D. 282, 77 N. W. 104, where it was held that judgment could not be ren dered and entered on the pleading alone where the defendant had appeared and made answer denying allegations of petition, but that it was incumbent on plaintiff to submit testimony sufficient to establish the allegations of the petition.

75 Section 67, p. 56.

The difference in procedure under the Interstate Commerce Act and under the state Railroad Commission or Public Utilities Commission Acts, consists chiefly in this: that under the Commerce Act the carriers must sue to overcome a prima facie case, while under the state acts the Commission itself must sue to impose its order, and the carrier

§ 359. Jurisdiction on.-No court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the Commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain or interfere with the Commission in the performance of its official duties."

must overcome the prima facie case by its defense. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957.

A further distinction is to be noted in this: the Commerce Act enforces its behests and the findings and orders of the Commission by the imposition of fines and penalties, while under the state acts the Commission must resort more generally to the circuit court by remedial action or suit for the enforcement of the law's mandate and its own recommendations and orders. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957.

76 Section 67, p. 56.

An appeal from Commission confers appellate jurisdiction upon the supreme court in all actions before the Corporation Commission wherein it is sought to regulate the management and operation of transportation companies. But the supreme court has no jurisdiction in case against Corporation Commission "on order for opening streets"; the court saying that it does not follow that an appeal lies in all actions over which the Commission may have jurisdiction. Atchison, T. & S. F. R. Co. v. State, 27 Okl. 820, 115 Pac. 1101.

Court cannot be invested with discretion to determine whether the precedent law declared by the legislature shall or shall not go into effect in particular cases. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 163, 116 N. W. 915. See In re North Milwaukee, 93 Wis. 616, 67 N. W. 133, 33 L. R. A. 638; Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N. W. 738, 31 L. R. A. 112.

The court acts judicially in determining the matter of rates finally, not in a legislative capacity, so that in the court's action there is not a competition of legislative and judicial functions in one person or body. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957, 976.

The intendment of the act is that the Commission shall exercise the administrative power necessary to make the legislative act of fixing rates effective and with respect to the administration of the law, while the judiciary exercises the judicial power by passing upon the reasonableness of the rates fixed by the Commission, when that reasonableness is questioned. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957, 976, distinguishing Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. ed. 970.

Whether it is within the power of the legislature to confer upon courts authority to review the reason of rules or orders of the Railroad