An order of a railroad commission requiring a railroad company
to expend money and use its property in a specified manner is not a
mere administrative order, but is a taking of property; to be
valid, there must be more than mere notice and opportunity to be
heard; the order itself must be justified by public necessity and
not unreasonable or arbitrary.
The hearing which must precede an order taking property must not
be a mere form, but one which gives the owner the right to secure
and present material evidence; but a state statute which gives the
privilege of introducing such evidence, affords compulsory process,
and gives the right of cross-examination does not deny due process
by not affording sufficient opportunity to be heard.
The hearing is sufficient if the person whose property is to be
taken is put on notice as to the order to be made and given
opportunity to show that it is unjust or unreasonable.
An opportunity given to test, by review in the courts, the
lawfulness of an order made by a commission does not deny due
process because, on such review, new evidence (other than newly
discovered or necessary on account of surprise or mistake) is not
allowed, and because the court must act on the evidence already
taken, if the court is not bound by the findings, and the party
affected had the right on the original hearing to introduce
evidence as to all material points.
Where the party whose property has been taken has not been
deprived of a right to be heard, the question is whether, as a
matter of law, the facts proved a public necessity justifying the
taking.
A state, acting through an administrative body, may require
railroad companies to make track connections,
Wisconsin &c.
R. Co. v. Jacobson, 179 U. S. 287, but
such body cannot compel a company to
Page 224 U. S. 511
build branch lines, connect roads lying at a distance from each
other, or make connections at every point regardless of necessity;
each case depends on the special circumstances involved.
In a proceeding brought to compel a carrier to furnish
facilities not included in its absolute duties, the question of
expense is of controlling importance.
In this case, the record does not disclose any public necessity
justifying the order of the State Railroad Commission of Washington
to require track connections to be made at eight points.
The burden is on a State Railroad Commission to show that public
necessity requires track connections, and the Commission is charged
with notice that the reasonableness of its order is to be
determined at the hearings before it.
While the statute of the Washington authorizing the State
Railroad Commission to order additional trackage is not
unconstitutional as denying due process of law, the orders in this
case were not justified by public necessity, and therefore deprived
the railroad company of its property without due process of
law.
52 Wash. 17 reversed.
A statute of the State of Washington authorizes the Railroad
Commission, upon complaint made, or on inquiry upon its own motion
"after a full hearing . . . to order that additional trackage or
sidings be constructed . . . and that additional connections be
made."
In pursuance of this act, and by direction of the Commission,
the Attorney General filed a complaint against the Oregon Railroad
& Navigation Company, chartered under the laws of Oregon, the
Northern Pacific Railway Company and the Spokane & Inland
Railroad, praying for an order requiring them to connect their
tracks at Pullman, Colfax, Garfield, Oakesdale, Rosalia, Waverly,
Thorton, Farmington, Connell, and Palouse. The complaint averred
that four of these towns were important shipping points, and that
at all of them there was a demand that cars should be transferred
from one line to the
Page 224 U. S. 512
other, and a public necessity that track connection should be
made between the roads at all these points. The Oregon Company
filed an answer in which it denied that the towns named were
important shipping points; denied that there was, or had ever been,
any public demand for the interchange of business at any of the
places, or that there was any public necessity for the
connection.
At the hearing, evidence was introduced showing that the Spokane
& Inland was an electric road not yet completed; that all the
roads had the same gauge; that in three of the towns they crossed
at grade; that in the others the tracks were generally on the same
level, and separated by distances varying from a few feet up to 600
feet; that the connecting tracks would generally be on the right of
way of the carriers, though in some instances it would be necessary
to acquire other property by purchase or condemnation. There was
evidence as to the price of switches and the cost per lineal foot
of laying a track with two necessary connecting switches.
The principal witness on behalf of the state was an inspector of
the Commission, who testified that the three roads were
competitors, and ran from Spokane through each of the towns named
in the complaint; that wheat was the principal product of the
country, and that it was shipped to Spokane or Portland, reached by
each of the roads or their connections; that the main business of
the towns named in the complaint was with Spokane, and that the
business between local stations was small. From his testimony and a
map, it appears that, with the exception of Connell, all of the
towns named lay in a strip about fifty miles long and fifteen miles
wide, one road on each side, with the Spokane running about half
way between the other two; that the roads were generally parallel
to each other, but by curves and branch lines reached these towns.
In answer to specific inquiries, he gave the route a car would take
if shipped from named stations on one
Page 224 U. S. 513
line to named stations on another, under present conditions, and
said that, if the connections were made and cars took that route,
the distance would be shortened, and that, if wheat, cattle, or
other property was thus shipped to and from such stations, there
would be a saving in time and distance. He testified that he had no
knowledge as to the amount of business done at any of the towns
named, or that such shipments had been offered or would be made. He
and the other witnesses on behalf of the Commission testified that
every purpose would be served if there was a connection between the
various roads at one of the points named, some of them thinking
Garfield the best point and others that it should be at Oakesdale,
from which, it was said, the tracks radiated like the spokes of a
wheel. It appeared that the Oregon already connected with the
Northern Pacific at Garfield. The inspector and other witnesses
were not asked specifically as to all points, but, in answer to
inquiries, testified, without contradiction, that there was no
necessity for connecting the tracks at Farmington, Thornton,
Colfax, Waverly, nor at Garfield or Oakesdale except as indicated
above.
The witnesses for the carrier testified that a connection at
Garfield would accommodate all transfers that might be offered;
that there had been no demand at any of the towns for such
transfers in the past, and that there was no necessity for making
them.
Only one shipper was called as a witness. He testified that a
connection at Oakesdale would serve all purposes, but gave no
information as to the amount of his freight business, nor the
saving that would result to him or others if the connection was put
in. No merchants or shippers from any of the towns named in the
complaint or referred to in the evidence were called. There was no
proof as to the volume of business at any of these places, nor as
to the amount of freight that would be routed over these track
connections if they were constructed. Nor was there any
Page 224 U. S. 514
testimony as to the probable revenue that would be derived from
the use of the track connections, or of the saving in freight or
otherwise that would result to shippers. The inspector of the
Commission testified that these connections would develop very
little business.
After the conclusion of the evidence, the Commission dismissed
the complaint as to Rosalia and Palouse, where the crossings were
not at grade, and made an order in which it found that the roads
crossed at grade at two points and ran in close proximity to each
other through all the other places; that there was a public
necessity for track connection, the cost of which at each point was
stated, varying from $316 to $1,460, and aggregating about $7,000.
It thereupon ordered that the companies should agree among
themselves as to the particular places in said towns where the
tracks should be laid and how the expense should be divided, in
default of which the Commission would make a supplemental order
designating the particular places where the connections should be
made and the proportion in which the expense should be borne by
each company.
The Oregon Company, being dissatisfied with this order, filed in
the Superior Court of Thurston County a petition for review,
alleging the unconstitutionality of the statute under which the
order had been made and also attacking its reasonableness on the
ground that
"there was no evidence showing or tending to show that there was
any public demand or public necessity for such track connection, or
for the interchange of freight at either of said points in carload
lots . . . or that any public convenience would be subserved,"
but, on the contrary, that the only evidence offered tended to
show that there was no public necessity, and that it would be
obliged to acquire additional property, and to incur large expense
to make the connection, without any public necessity, and be
thereby deprived of its property without compensation
Page 224 U. S. 515
and without due process of law, in violation of the Constitution
of the United States.
This method of attacking the order by petition for review was in
compliance with the provisions of the Washington statute which
declared that
"the order of the Commission shall, of its own force, take
effect and become operative twenty days after notice thereof has
been given. . . . And any railroad or express company affected by
the order of the Commission, and deeming it to be contrary to the
law, may institute proceedings in the superior court . . . and have
such order reviewed and its reasonableness and lawfulness inquired
into and determined. Pending such review, if the court having
jurisdiction shall be of the opinion that the order or requirement
of the Commission is unreasonable or unlawful, it may suspend the
same . . . pending such litigation. . . . Said action of review
shall be taken by the said railroad or express company within
twenty days after notice of said order, and if said action of
review is not taken within said time, then in all litigation
thereafter arising between the State of Washington and said
railroad or express company, or private parties and said railroad
or express company, the said order shall be deemed final and
conclusive. If, however, said action in review is instituted within
said time, the said railroad or express company shall have the
right of appeal or to prosecute by other appropriate proceedings,
from the judgment of the superior court to the Supreme Court of the
State of Washington, as in civil actions. . . . The action in
review of such order, whether by writ of review or appeal or
otherwise, shall be heard by the court without intervention of a
jury, and shall be heard and determined upon the evidence and
exhibits introduced before the Commission and certified to by it. .
. ."
The bill of exceptions recites that, on the hearing in the
superior court, the Oregon Company offered competent
Page 224 U. S. 516
and noncumulative testimony in support of its contention on the
issues between it and the Commission which, if received, would have
tended to show that there was no public necessity for such track
connections at either of the places, that no public convenience
would be served by making them, and that the cost, instead of
aggregating $7,500, would be $21,000 (the amount at each place
being specified), besides the expense of acquiring additional land
and franchises needed for the construction and operation of the
tracks. The court rejected all this evidence on the ground that,
under the statute, the petition for review must be determined on
the testimony which had been submitted to the Commission. After
argument, the petition was dismissed and the Oregon Company
excepted. All of the evidence introduced before the Commission, and
attached as an exhibit to its answer, was duly incorporated in the
bill of exceptions, which also contains a recital that the
photographs and maps identified by one of the witnesses had not
been forwarded by the Commission, nor were they considered by the
court. There was, however, no motion by the defendant for an order
requiring such omitted papers to be sent up so as to complete the
record. Neither did it appear that any motion was made before the
Commission to require a more definite statement of the location of
the proposed tracks.
The judgment dismissing the petition was affirmed by the supreme
court of the state. 52 Wash. 17. It held that the statute was
valid; that it gave the defendant every opportunity to make its
defense and granted an adequate judicial review by which to test
the validity of the order. In answer to the contention that the
evidence showed that the order was unreasonable and amounted to a
taking of property without public necessity, the court merely
said:
"As to the public necessity for the track connections, we are
not prepared to say that the
Page 224 U. S. 517
finding of the Commission in that respect was not justified by
the testimony."
The cause was brought here by writ of error, in which it is
contended that the Washington statute failed to furnish an adequate
hearing or opportunity for judicial review, especially in
prohibiting the submission to the court of competent evidence as to
the unreasonableness of the order, and further, there was no
evidence of a public necessity, and that the order was void as
taking property without due process of law.
Page 224 U. S. 523
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
1. The Commission's order requiring the Oregon Company to make
track connection was not a mere administrative regulation, but it
was a taking of property, since it compelled the defendant to
expend money, and prevented it from using for other purposes the
land on which the tracks were to be laid. Its validity could not be
sustained
Page 224 U. S. 524
merely because of the fact that the carrier had been given an
opportunity to be heard, but was to be tested by considering
whether, in view of all the facts, the taking was arbitrary and
unreasonable, or was justified by the public necessities which the
carrier could lawfully be compelled to meet. For the guaranty of
the Constitution extends to the protection of fundamental rights --
to the substance of the order as well as to the notice and hearing
which precede it.
"The mere form of the proceeding instituted against the owner,
even if he be admitted to defend, cannot convert the process used
into due process of law, if the necessary result be to deprive him
of his property without compensation."
Chicago &c. Ry. v. Chicago, 166
U. S. 236;
Missouri Pacific Ry. v. Nebraska,
164 U. S. 416.
So that, where the taking is under an administrative regulation,
the defendant must not be denied the right to show that, as matter
of law, the order was so arbitrary, unjust, or unreasonable as to
amount to a deprivation of property in violation of the Fourteenth
Amendment.
Chicago &c. R. Co. v. Minnesota,
134 U. S. 418;
Smyth v. Ames, 169 U. S. 466;
Chicago &c. R. Co. v. Tompkins, 176
U. S. 173.
2. This was recognized by the supreme court of the state, which
held that this constitutional right was not denied, but that the
statute furnished, first, an adequate opportunity to be heard
before the Commission, and then provided for a judicial review by
authorizing the company to test the validity of the order in the
superior court. Both of these rulings are assigned as error by the
Oregon Company. It complains that the statute did not afford it the
means of making a defense before the Commission, and yet required
it to attack the reasonableness of the order on such evidence as it
might have been able to produce before the administrative body. If
this were true, the defendant's position would be correct, for the
hearing which must precede the taking of property is not a mere
Page 224 U. S. 525
form. The carrier must have the right to secure and present
evidence material to the issue under investigation. It must be
given the opportunity by proof and argument to controvert the claim
asserted against it before a tribunal bound not only to listen, but
to give legal effect to what has been established. But, as
construed by the state court, all these rights were amply secured
by the statute, which declared that the Commission, "after a full
hearing," might require track connection. On such investigation,
the company could have objected to the sufficiency of the complaint
and obtained an order requiring it to be made more specific as to
the exact location of the proposed tracks. The defendant was given
the benefit of compulsory process to secure and present evidence in
its behalf. There was a provision to require the attendance of
witnesses, the production of documents, and for the taking of
testimony by deposition. It also had the right to cross-examine
witnesses produced on the part of the Commission, and the privilege
of offering evidence on every matter material to the
investigation.
3. The defendant insists, however, that no matter how complete
the right to be heard before the Commission, the statute, having
denied all other opportunity for testing the validity of the order
in the state courts, furnished an utterly inadequate judicial
review because, as the carrier could not anticipate what decision
would be made, it was unjust to require it to produce evidence to
show in advance the unreasonableness of an order the terms of which
were not known. From this it argues that the statute was
unconstitutional insofar as it prevented the court from receiving
competent and noncumulative testimony tending to prove that there
was no public necessity for making the track connection, and that
the order was void.
This position would be true if the defendant had not been put on
notice as to what order was asked for, and
Page 224 U. S. 526
then given ample opportunity to show that it would be unjust or
unreasonable to grant it. In this case and under the statute, it
was given such notice. The complaint alleged that some of the towns
were important shipping points, and that at all of them there was a
public necessity that the roads should be connected. The defendant
denied each of these allegations. The hearing, both on the law and
the facts, was necessarily limited to that issue. There could have
been no valid order which was broader than that claim. The
defendant was charged with notice that, if the allegations of the
complaint as to necessity were established, the order could then be
lawfully granted unless there was also proof that the cost, in
comparison with the receipts, or other fact, made it unjust to
require the connections to be made. The carrier was therefore given
the right both to meet the charge of public necessity and also to
establish any fact which would make it unjust to pass the order for
which the complainant prayed. The act further provided that, after
the administrative body had acted, the carrier should have the
right to test the lawfulness and reasonableness of the regulation
in the superior court, where every error in rejecting or excluding
evidence, or otherwise, could be corrected. On that trial, the
court was not bound by the finding of fact, but, like the
Commission, it was obliged to weigh and consider the testimony, and
to give full effect to what was established by the evidence, since
it acted judicially,
"under an imperative obligation, with a sense of official
responsibility for impartial and right decision, which is imputed
to the discharge of official duties."
Kentucky Railroad Tax Cases, 115
U. S. 334.
4. Having been given full opportunity to be heard on the issues
made by the complaint and answer and as to the reasonableness of
the proposed order, and having adopted the statutory method of
review, this company cannot complain. It had the right to offer all
competent
Page 224 U. S. 527
testimony before the Commission, which, in view of the form of
proceedings authorized by the statute, acted in this respect
somewhat like a master in chancery who has been required to take
testimony and report his findings of fact and conclusions of law.
The court would test its correctness by the evidence submitted to
the master. Nor would there be any impairment of the right to a
judicial review because additional testimony could not be submitted
to the chancellor. The statute enlarges what this Court has
recognized to be proper practice in equity cases attacking such
regulations. There, the hearing is
de novo, and there is
no prohibition in equity against offering all competent evidence to
prove that the order was unreasonable. But in
Cincinnati, N. O.
& Tex. Pac. R. Co. v. Interstate Commerce Commission,
162 U. S. 184,
162 U. S. 196,
it was said:
"We think this a proper occasion to express disapproval of such
a method of procedure on the part of the railroad company as should
lead them to withhold the larger part of their evidence from the
Commission, and first adduce it in the circuit court. . . . The
theory of the act evidently is, as shown by the provision, that the
findings of the Commission shall be regarded as
prima
facie evidence that the facts of the case are to be disclosed
before the Commission."
See also Texas & Pacific R. Co. v. Interstate Commerce
Commission, 162 U. S. 238,
162 U. S. 239;
Missouri &c. Ry. v. Interstate Commerce Commission,
164 F. 649.
There is no claim here that the evidence rejected by the
superior court was newly discovered, or that its materiality could
not have been anticipated, or that for any reason the defendant had
been prevented from submitting to the Commission the testimony it
offered in court to show that the cost would be $21,000, instead of
$7,500. Nor was there any allegation of surprise, mistake, or other
extraordinary fact requiring the admission of such evidence in
order to preserve the right guaranteed by the Constitution. There
is therefore no call for a decision as
Page 224 U. S. 528
to whether, under those circumstances, such evidence should be
admitted or the case remanded so that the Commission might consider
material and probably controlling testimony which the carrier,
without fault on its part, had failed to submit on the first
hearing.
5. If, then, the defendant had notice and was given the right to
show that the order asked for, if granted, would be unreasonable,
it has not in this case been deprived of the right to a hearing.
That being so, it leaves for consideration the contention that, as
a matter of law, the order, on the facts proved, was so
unreasonable as to amount to a taking of property without due
process of law. This necessitates an examination of the evidence,
not for the purpose of passing on conflicts in the testimony or of
deciding upon pure questions of fact, but, as said in
Kansas
City Railway Co. v. Albers Commission Co., 223
U. S. 591, from an inspection of the
"entire record including the evidence, if properly incorporated
therein, to determine whether what purports to be a finding upon
questions of fact is so involved with and dependent upon such
questions of law as to be in substance and effect a decision of the
latter."
Cedar Rapids Gas Light Co. v. Cedar Rapids,
223 U. S. 655;
Graham v. Gill, 223 U. S. 643.
Here, the question presented is whether, as matter of law, the
facts proved show the existence of such a public necessity as
authorizes a taking of property.
6. Since the decision in
Wisconsin &c. R. Co. v.
Jacobson, 179 U. S. 287,
there can be no doubt of the power of a state, acting through an
administrative body, to require railroad companies to make track
connection. But manifestly that does not mean that a Commission may
compel them to build branch lines so as to connect roads lying at a
distance from each other, nor does it mean that they may be
required to make connections at every point where their tracks come
close together in city, town, and country, regardless of the amount
of business to be done
Page 224 U. S. 529
or the number of persons who may utilize the connection if
built. The question in each case must be determined in the light of
all the facts, and with a just regard to the advantage to be
derived by the public and the expense to be incurred by the
carrier. For, while the question of expense must always be
considered (
Chicago &c. R. Co. v. Tompkins,
176 U. S.
174), the weight to be given that fact depends somewhat
on the character of the facilities sought. If the order involves
the use of property needed in the discharge of those duties which
the carrier is bound to perform, then, upon proof of the necessity,
the order will be granted even though "the furnishing of such
necessary facilities may occasion an incidental pecuniary loss."
But even then, the matter of expense is "an important criterion to
be taken into view in determining the reasonableness of the order."
Atlantic Coast Line R. Co. v. North Carolina Commission,
206 U. S. 27;
Missouri Pacific Ry. v. Kansas, 216 U.
S. 262. Where, however, the proceeding is brought to
compel a carrier to furnish a facility not included within its
absolute duties, the question of expense is of more controlling
importance. In determining the reasonableness of such an order, the
court must consider all the facts -- the places and persons
interested, the volume of business to be affected, the saving in
time and expense to the shipper, as against the cost and loss to
the carrier. On a consideration of such and similar facts, the
question of public necessity and the reasonableness of the order
must be determined. This was done in
Wisconsin R. Co. v.
Jacobson, in which, for the first time, it was decided that a
state commission might compel two competing interstate roads to
connect their tracks.
It appeared on an examination of the facts in that case that on
one of the lines there was an immense supply of wood for which
there was a great demand at points on the other, where there was
none, and that, if the connecting track was installed, there would
be a saving in time and
Page 224 U. S. 530
freight on this large volume of business. It also appeared that
many cattle were raised on one line for which there were important
markets on the other, and that, without the track connection, these
cattle would have to be hauled over a much longer route, with a
resulting loss in weight and value. The advantage to the public was
so great that the order requiring the track connection was
sustained in spite of the fact that one of the roads was thereby
deprived of the revenue which it would otherwise have received for
the longer haul.
But the Court said that
"in so deciding, we do not at all mean to hold that under no
circumstances could a judgment enforcing track connection between
two railroad corporations be a violation of the constitutional
rights of one or the other, or possibly of both, such corporations.
It would depend upon the facts surrounding the cases in regard to
which the judgment was given. The reasonableness of the judgment
with reference to the facts concerning each case must be a
material, if not a controlling, factor upon the question of its
validity. A statute or a regulation provided for therein is
frequently valid, or the reverse, according as the fact may be,
whether it is a reasonable or an unreasonable exercise of
legislative power over the subject matter involved. And, in many
cases, questions of degree are the controlling ones by which to
determine the validity or the reverse of legislative action."
7. The complaint in this case was framed in recognition of this
principle, and alleged that several of the towns were important
shipping points, and that at all of them there was a public demand
and a public necessity for track connection between the lines of
the several roads. As there is no presumption that connection
should be made merely because the roads are in proximity to each
other, the burden was on the Commission. If no evidence whatever
had been offered, the order could not have been granted, or,
Page 224 U. S. 531
if granted, would necessarily have been set aside by the court
on the hearing of the petition for review, because there was no
proof of the fact on which only the order could issue taking the
defendant's property. The same result must have followed if the
testimony that was so submitted to the Commission was insufficient
to establish the existence of the public necessity alleged to
exist. For even if, under the statute, the burden was cast on the
defendant when the petition for review came on to be heard, the
company could, in view of the limited character of the proceedings
permitted, successfully carry that burden by showing to the court
that there was before the Commission a lack of evidence to prove
the existence of a public necessity. That it was bound to sustain
the allegations of the complaint seems to have been recognized by
that body, and witnesses in its behalf were examined as to the cost
of laying the track, and also on the subject of the public demand
and necessity. It was testified, however, without contradiction,
that there was no necessity for connection at Waverly, Thornton,
Farmington, or Colfax. They were not asked specifically as to the
connections at all of the other towns, though there was proof of
the general proposition that, if the connections were laid, it
would shorten the haul between given points in case goods were
routed over these tracks. But, as to the essential elements of a
public necessity, there was nothing at all comparable to what was
established in the
Jacobson case.
There, the evidence of necessity was clear and convincing, it
being shown that a large value of cattle prevented if the two roads
great saving in rates effected and loss in value of cattle
prevented if he two roads were united by a switch track. Here there
is no evidence of inadequate service, no proof of public complaint
or of a public demand, and no testimony that any freight had been
offered in the past for shipment between the points named, or that
any such freight would be offered in the future, nor was there
Page 224 U. S. 532
any evidence whatever as to the volume of freight that would use
these tracks, or that the saving in freight and time to the shipper
would justify the admitted expense to the carrier, whether that
expense be $7,500, as found by the Commission, or $21,000, as
claimed by the carrier.
Neither do the undisputed facts establish what appeared in
Minnesota & St.L. Ry. Co. v. Minnesota, 193 U. S.
53, where, under the statute, the order was
prima
facie binding insofar as it required the company to build
stations in towns and villages. The Court found that this
prima
facie case had not been overcome, and that at the town named
there was no station; that, in view of the increase in population
since a prior refusal to grant the order,
"it was necessary for the accommodation of the citizens of the
town and vicinity, the public at large, and the public necessity
required that the company should build and maintain a station
house."
But here there was no evidence whatever warranting a finding
that there was any public necessity for the track connections.
8. The chairman of the Commission dissented as to so much of the
order as required connections to be made at Thornton, Waverly,
Farmington, and Pullman on the ground that there was no evidence of
any public necessity therefor at those points, and it would involve
expense which would ultimately have to be paid by the people. And
it is practically conceded here that the proof was insufficient,
the Attorney General in his brief filed in this case saying
that
"it must be admitted that the testimony introduced before the
Commission as to the character of the traffic and the nature of the
traffic movement in the territory served by the lines of railway is
not of a very satisfactory or definite character."
He argues, however, that there is nothing to show that the
Commission acted arbitrarily, and that the carriers ought to have
produced their records for the purpose of showing that there was no
need for physical connection at the place where the
Page 224 U. S. 533
Commission was seeking to have been installed. That might have
been true if the evidence was peculiarly within their knowledge, or
if the company had been permitted to file a bill in equity
attacking a final order in the usual and ordinary manner without
being restricted by statute as to the evidence that might be
considered by the court. In this case, the witnesses for the
railroad confirmed what had been stated by those for the
Commission, and testified that there had been no demand for track
connections, and that there was no necessity to put them in. The
company was not permitted to offer additional testimony for the
purpose of establishing its defense, since the statute declared
that the validity of the order was to be determined by the court on
what had been proved before the Commission. The burden was on the
Commission to establish the allegations in the complaint. That
body, as well as the carrier, was charged with notice that the
reasonableness of the order was to be determined by what appeared
at the hearing before it. The insufficiency of the evidence
submitted to the Commission could not, under this statute, be
supplied on the judicial review by a presumption arising from the
failure of the carrier to disprove what had not been
established.
A careful examination of this record fails to show what, if any,
business would be routed over these connections, or what saving
would come to the public if they were constructed. There is nothing
by which to compare the advantage to the public with the expense to
the defendant, and nothing to show that, within the meaning of the
law, there is such public necessity as to justify an order taking
property from the company. The judgment is therefore reversed
without prejudice to the power of the Commission to institute new
proceedings.
