
    State, Appellant, vs. Chicago, Milwaukee & St. Paul Railway Company, Respondent.
    
      January 10
    
    February 18, 1913.
    
    
      Railroads: Sleeping-cars: Regulation: Keeping upper berths closed: Statutes: Construction: Constitutional law: Police power: Interstate commerce: Taking property without compensation.
    
    1. Sleeping-car service incident to passenger traffic on railroads is a public service which, with the property devoted thereto,- may he regulated and controlled in promotion of the public welfare, subject to constitutional limitations.
    2. Ch. 272, Laws of 1911 (see. 1636p, Stats.), — providing that “whenever a person shall engage and occupy a lower berth in a sleeping-car and the upper berth in the same section shall at the same time be neither engaged nor occupied, the upper berth shall not be let down but shall remain closed until engaged or occupied,” — is a general law, designed to contribute to the general welfare of all the people.
    3. The interests of the public being involved and the effect of the regulation in question being to contribute to the comfort and convenience of the traveling public and thereby to promote their health and the general welfare, such regulation is a proper exercise of the legislative power.
    4. The act may and should be construed as applicable to intrastate traffic only.
    
      5. So construed, it affects only indirectly and incidentally the interstate commerce carried on in sleeping-cars used for both intrastate and interstate business, and is not invalid on that ground, there being no specific federal regulations with which it conflicts, either in the Interstate Commerce Act or in the regulations made by the interstate commerce commission.
    6. The act does not deprive the owner of the sleeping-cars of his property without just compensation, nor is it repugnant to any other constitutional guaranty.
    Appeal from a judgment of tbe circuit court for Dane county: E. Ray SteveNs, Circuit Judge.
    
      Reversed.
    
    On August 17, 1911, James T. Hall, a passenger on tbe defendant’s railroad lines between Madison and Star Labe, Wisconsin, after be bad boarded defendant’s train at Portage, Wisconsin, engaged tbe lower bertb of section 11 in tbe sleeping-car “Waubeno” for tbe nigbt of that day, and tbe berth was occupied by him between Portage and Star Lake in this state. Tbe upper bertb of section 11 was not engaged or occupied, but was let down and kept down during tbe nigbt by tbe porter. Tbe state alleges a violation of tbe provisions of eb. 272 of tbe Laws of 1911 (sec. 1636p, Stats.), an act relating to sleeping-car berths, and brings this action to recover tbe penalty prescribed therein.
    Tbe answer admits tbe allegations of tbe complaint, except that tbe defendant became indebted to tbe state for tbe violation of tbe provisions of cb. 272, Laws of 1911. It appears from tbe answer that tbe defendant operates about 145 sleeping-cars on its system of more than 7,000 miles of railway in tbe several states of tbe Union in which it operates, and that only two sleeping-car routes, requiring four of these sleeping-cars, run between points and on lines which are wholly within tbe state of Wisconsin. It is alleged that these four sleeping-cars are parts of trains which are engaged in interstate traffic and which carry in other sleeping-cars of tbe trains both state and interstate passengers, and that tbe commingling of state and interstate traffic is an economic necessity. It is also alleged that the alleged cause of action arose when the sleeping-car “Waubeno” traveled on its rente between Chicago, Illinois, and Star Lake, Wisconsin; that it carried state and interstate passengers; that between Chicago, Illinois, and New Lisbon, Wisconsin, it was part of a train engaged in interstate traffic; that all sleeping-cars in the United States have upper and lower berths as sleeping-car units; that all sleeping-cars engaged in interstate traffic are subject to the jurisdiction of the interstate commerce commission, under the so-called Interstate Commerce Act, approved February 4, 1881, and as amended June 18, 1910, which commission has full power to regulate the use and operation of such sleeping-cars; and that this commission has regulated the price of sleeping-car units, has specifically fixed the prices of upper and lower berths, and has made no regulation requiring that upper berths which are not in use or engaged shall be kept closed. ,
    All of the allegations of the answer, except parts of the allegations contained in the two following paragraphs, were admitted by a stipulation filed before evidence was taken:
    “That compliance with said ch. 272, Laws of 1911, would convenience the occupant of the particular lower berth only, and would not in any manner or to any extent benefit or convenience, or add to the comfort, or promote the health or safety, of the occupants of the other berths of the car, either lower or upper; .that compliance with said chapter would inconvenience and injuriously affect passengers occupying lower berths; that the defendant carries many thousands of passengers annually in its sleepers operated in Wisconsin, state and interstate, more than one half of which passengers •occupy lower berths, while at the same time the upper berths axe occupied, without discomfort or sickness being caused thereby, other than the discomfort which necessarily inheres in the use of a sleeping-car berth; that if such discomfort is to some extent lessened by raising the upper berth so that the occupant of the lower berth may have the use of the entire section, he may, under the rules and regulations of the defendant, procure tbe same by paying the lawful charge therefor, which in the instant case mentioned in the complaint was $1.20.
    “That sleeping-cars constructed as are the sleeping-cars of this defendant, as hereinbefore described, are operated in every state and territory of the United States, and have been for more than- a quarter of a century last past; that none of the states or territories has by law or otherwise made it unlawful for the owners of such sleeping-cars to operate them with upper berths, nor has any state or territory by law or otherwise prohibited, in any manner, the use of such upper-berths by passengers who desired to use the same.”
    There was some dispute as to the scope of the stipulation,, but there is no dispute that -all of the allegations of the answer which are disputed are contained in the two paragraphs quoted.
    Evidence was introduced to the effect that the air of a sleeping-car is purer than the air of the ordinary passenger coach; that fresh air is admitted to a sleeping-car through the openings about the doors and windows and, when the outside temperature permits, through the opening of windows into the lower berths; that foul air is taken from sleeping-cars through ventilators in the top of the cars; that free circulation of air in sleeping-cars is conducive to health; that circulation of the air in sleeping-cars is obtained by fans placed at either end of the ears, which force a current of air along the aisle; and that the opening of the upper berths has but little effect upon the circulation of the air in the lower berth when the lower berth is made up and ready for occupancy.
    After making its case on the admissions of the answer, the state objected to the introduction of any evidence by the defense; and after the evidence had been received the state moved to strike out such testimony, on the ground that the-allegations of the answer failed to state facts sufficient to. constitute a defense. This motion was denied.
    
      Tbe court made tlie following findings of fact and stated the conclusions of law as follows:
    “1. That on August 17, 1911, James T. Hall was a passenger from Portage, Wisconsin, to Star Lake, Wisconsin, on a sleeping-car owned and operated by the defendant; that he engaged, paid for and occupied a lower berth on said sleeping-car ; that the upper berth of said section was not engaged or occupied; that he demanded that the upper berth of the said section remain closed, pursuant to the provisions of ch. 212, Laws of 1911; that defendant, acting through its agents and servants, refused to close the same, but left the same down through the entire night.
    “2. That the closing of upper berths in sleeping-cars has very little effect upon the circulation of air in such sleeping-cars when all lower berths are made up and ready for occupancy.
    “3. That the lowering of upper berths does not endanger the lives, health or safety of persons occupying lower berths in sleeping-cars.
    “4. That the closing of the upper berth will be a convenience to the person occupying the berth below the same and will add to the comfort of such person alone and not to that of the public generally.
    “5. That the defendant has a right to charge for the use of the space occupied by the upper berth and that such right is the property of the defendant.
    
      “Conclusions of law.
    
    “1. That ch. 272 of the Laws of 1911 is not a valid exercise of the police power.
    
      “2. That ch. 272 of the Laws of 1911 is not a valid exercise of the reserve power to alter or amend the charter of the defendant.
    “3. That ch. 272 of the Laws of 1911 is void and of no effect, because it takes defendant’s property without just compensation and without due process of law.
    “4. That judgment be entered dismissing plaintiff’s complaint.”
    This is an appeal from the judgment dismissing the complaint.
    
      Eor tbe appellant there was a brief signed by L. H. Bancroft, attorney general, and Bussell Jacicson, deputy attorney general, and oral argument by Mr. Jacicson.
    
    Eor the respondent there was a brief by Burton Hanson, C. H. Van Alstine, and H. J. Killilea, and oral argument by Mr. Van Alstine.
    
    They contended that the' act in question, if an attempted exercise of the police power, is an unreasonable and arbitrary exercise of that power and violates secs. 9, 13, art. I, Const. State v. Bedmon, 134 Wis. 89, 110, 111, 114 N. W. 137; Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct. 499, 501; New Yorlc ex rel. Silz v. Hesierberg, 211 U. S. 31, 39, 29 Sup. Ot. 10; Mutual L. Co. v. Martell, 222 U. S. 225, 233, 32 Sup. Ot. 74; Chicago, B. & Q. B. Co. v. Illinois ex rel. Drainage Comm’rs, 200 U. S. 561, 592, 593, 26 Sup. Ct. 341; Lalce Shore & M. S. B. Co. v. Ohio, 173 U. S. 285, 292, 19 Sup. Ct. 465; Oilman v. Philadelphia, 3 Wall. 713, 729; Cormolly v. Union S. P. Co. 184 U. S. 540, 22 Sup. Ct. 431; Asbell v. Kansas, 209 U. S. 251, 256, 28 Sup. Ct. 485; Mugler v. Kansas, 123 U. S. 623, 661, 8 Sup. Ct. 273; Western Union T. Co. v. Kansas ex rel. Coleman, 216 U. S. 1, 30 Sup. Ct. 190. They also argued that the act violates amendm. XIV, Const, of U. S.; that it does not constitute an amendment to the charter of respondent; that passengers who occupy lower berths while the uppers remain unoccupied do not constitute a class for the purpose of legislation ; and that the act violates sec. 8, art. I, Const, of U. S., and the Interstate Commerce Act.
   SiebboKeb, J.

The trial court held that ch. 272, Laws of 1911 (sec. 1636p, Stats.), providing that “whenever a person shall engage and occupy a lower berth in a sleeping-car, and the upper berth in the same section shall at the same time be neither engaged nor occupied, the upper berth shall not be let down, but shall remain closed until engaged or occupied,” is invalid, because it is an infringement on defendant’s liberty and right of property, secured by constitutional guaranties. The other parts of the act provide penalties for violation of the foregoing section. The subject embraced in this legislation, namely, regulation of sleeping-car service, is a business that has become an incident to the passenger traffic of the railroad service of this country, and, from its nature and relation to the people generally, it is a public service. Nevin v. Pullman P. C. Co. 106 Ill. 222. The right to provide reasonable regulation of a public service is fully recognized and well established in the law, and the property devoted to such business becomes impressed with a public interest and is subject to control by the state for the common good, in promotion of the general welfare. Madison v. Madison G. & E. Co. 129 Wis. 249, 108 N. W. 65, and cases there cited. This power of regulation by the state, however, is always restricted by the constitutional limitation, imposed on legislative action, for the protection of inherent rights to life, liberty, and property, and if such rights are impaired by a legislative act it is invalid and must be so treated by the courts. State v. Redmon, 134 Wis. 89, 114 N. W. 137. Since, then, this legislation pertains to a public service, the purpose and object of the regulation must be considered from the viewpoints of the rights of the public to control the property devoted to this business in promotion of the public interest, and the rights of the defendant to be secure against invasion of any of its property rights as secured to it by the constitutions of the state and nation.

It is urged that the act is invalid because it is clearly and beyond doubt a flagrant violation of defendant’s liberty to conduct its business in its accustomed way, and because it arbitrarily interferes with its property rights, in that the regulation provided is in no way promotive of the public welfare, as to its health, comfort, or convenience. As declared in Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” It is strenuously urged that the act does not operate on the public generally. This claim is not tenable. The act in its terms is general in its application and embraces all persons. It includes in its scope all of the public coming within its operation and applies to all parties engaged in the conduct of a sleeping-car business. It is, however, asserted that the act applies to so few persons as compared with the great mass of mankind that the effect of its provisions is to confer a special privilege on a comparatively small class of individuals. This misconceives the object and result of the regulation. If we find the law promotive of the comfort and convenience of the public and that it applies to every one who may apply for the service, then it is a general law designed to contribute to the general welfare of all the people. To make'a law general it is not requisite that all members of the public come directly and immediately in contact with the regulation provided; it is sufficient if every one is compelled to comply therewith whenever they place themselves within the field of its operation.

But it is argued that the regulation in no way promotes the general welfare, because compliance therewith does not affect the public health nor afford the traveling public conveniences or comforts in any substantial degree. The trial court held that the evidence showed that the public convenience and comfort as a result of compliance with the act would affect the traveling public in but a slight degree, and therefore the regulation did not promote the public welfare, and that its enforcement would operate so oppressively on the defendant as to deprive it of its liberty in the conduct of .the business, and would invade its property rights to such an extent as to result in a taking of its property without just compensation and without due process of law. The court’s view of the evidence was evidently the result of the court’s erroneous idea of what, in the legal sense, is essential to present an occasion or exigency involving the general welfare. It is common knowledge that practices and conditions in the conduct of the railway passenger traffic of the country, which, in a superficial view, seem, in their effect, of slight importance to travelers, do in reality materially and substantially ■affect their comfort and convenience and thus tend to affect their health. They therefore furnish a ground for controlling the conduct of such business in the interest of the comfort and convenience of the public. In the light of such common knowledge, the evidence in the case tends to show that the effects of this regulation do contribute to the comfort and convenience of the traveling public and thereby contribute to promote their health and the general welfare. All the facts and circumstances disclose that the interests of the public are involved and that the regulation, prescribed for conducting this particular part of the sleeping-car business, is an essential factor in furthering the public interests, and hence such regulation is a proper one for the exertion of legislative activity. In Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, the court, speaking of the authority of the state to prescribe regulations designed merely to promote the public convenience, declared:

“There are, however, numerous decisions by this court to the effect that the states may legislate with reference simply to the public convenience, subject of course to the condition that such legislation be not inconsistent with the national constitution, nor with any act of Congress passed in pursuance of that instrument, nor in derogation of any right granted or secured by it.”

See on the same subject, the opinion in Atlantic Coast Line R. Co. v. North Carolina Corp. Comm. 206 U. S. 1, 27 Sup. Ct. 585; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418.

It remains, however, to consider whether this statute is inconsistent with any right guaranteed to the defendant by the national or state constitutions. The terms of the act are broad enough in their scope to embrace all the berths of all sleeping-cars in service within the boundaries of the state. The act, however, must be applied to such cars as the legislature obviously intended should come within its provisions. It is clear that the berths of a car engaged and occupied by persons who are traveling as interstate travelers cannot be included, since that would be repugnant to the federal constitution, which commits regulation of interstate traffic to Congress, but, if the act can reasonably be interpreted and so applied as to exclude such traffic, it must be presumed that the legislature had no intention to have it apply to traffic beyond their power to regulate. Since the provisions of the act, in their ordinary significance, can be made applicable to intrastate traffic only, it must be considered, under the circumstances, that the legislature intended that it should be so applied. Applying the law to intrastate traffic, is it an interference with interstate commerce which is carried on in the cars doing both an intrastate and interstate business ? The fact that it may affect in some slight degree the conduct of interstate business in such cars does not make the regulation objectionable on that ground. There are no specific federal regulations touching this matter which conflict with those of the state, and hence there is nothing to prevent full compliance with the state’s requirement. Under such circumstances, the effect of the state regulation can, at most, do no more than incidentally affect the interstate commerce carried on by the defendant, and therefore the objections raised against the law on this ground are not sustained. McDermott v. State, 143 Wis. 18, 126 N. W. 888, and cases there cited, and those cited above.

It is contended that the law seeks to regulate a business which is controlled by the so-called Interstate Commerce Act and tbat tbe interstate commerce commission bas assumed jurisdiction in tbe matter, as is evidenced by its regulation of interstate rates for berths in sleeping-cars. Rut does tbis action of Congress and of tbe federal commission under it show tbat tbe state regulation infringes in any way upon tbe federal regulation? As we bave seen, there is nothing required by tbe state law tbat is repugnant to tbe control thus exercised by Congress, nor is there any direct interference with interstate traffic under operation of tbe federal law. Tbe control exercised by these two authorities can therefore be separately carried out without undue obstruction or interference, and hence tbe action of Congress in tbe matter does not preclude tbe state from exerting its authority under tbe police power. We are persuaded tbat tbe statute is not in conflict with tbe so-called Interstate Commerce Act in its regulation of intrastate traffic; State v. C., M. & St. P. R. Co. 136 Wis. 407, 117 N. W. 686.

It is also averred tbat tbe enforcement of tbe state law will deprive tbe defendant of its property without just compensation, in tbat compliance therewith compels tbe defendant to devote tbe space occupied by a lowered upper berth to tbe uses of a public purpose without compensation. True, as claimed, tbe defendant bas tbe right to charge for tbe use of tbe upper berth and tbe space it occupies at tbe rate fixed by tbe interstate commerce commission. It is argued tbat tbe act is a material interference with defendant’s freedom to use tbat space and tbe berth in its accustomed way and is a tabing of its property for a public purpose without compensation. We discover no such injurious consequences from compliance with tbe. requirements of tbis law. Tbe law permits tbe berths to be occupied and used when any person desires them and thus tbe defendant is secured against loss for services it may be able, to furnish tbe public. Tbe only act required of it out of its accustomed way of using tbe space and berth is to keep tbe upper berth closed until it is engaged for occupancy by some one. If compliance with, this command imposes extra burdens, they are not of such an unusual nature as to be oppressive; and if it involves additional cost in the conduct of the business, then the defendant can readily be secured against such loss by having the rate adjusted to meet this burden. It must be held that defendant is in no way deprived of the use of its property for a public purpose without just compensation. Applying the act to intrastate -transactions appertaining to a service within legislative control, we find the legislative power of the state has been properly exerted to regulate the conduct of this business, and that it is not repugnant to any of the constitutional guaranties of the state and the nation, nor in conflict with any law of Congress on the subject. Erom these premises it necessarily follows that the circuit court erred in dismissing the complaint. The state is entitled to judgment for recovery of the penalty upon the grounds stated.

By the Court. — The judgment appealed from is reversed, and the cause remanded to the circuit court with directions to award the plaintiff judgment for the amount of the penalty and for costs, as indicated in the foregoing opinion.  