well as to make the connections men-, reasonably adequate passenger service for The Commission, expressing its view of more." We are brought, therefore, to a the case presented, said: "Independent of consideration of the statute and its measany statutory provision on the subject, we ure. trains, and clearly excludes accommodation should feel constrained to hold that the The statute includes, necessarily, the su- In reviewing the decision we may start with certain principles as established: (1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing-that is, the local conditions being ade The railroad company thereupon filed a petition in the circuit court of Dane county to set aside the order of the Con.mission. The petition set forth the interstate char-quately met-the obligation of the railroad acter of its road, attacked the validity of the law and the order of the Commission, and represented their effect to be, if carried out, to stop two of its limited trains at thirteen additional stations in the state, and that such requirement would be an unwarrantable interference with interstate commerce, The circuit court found that the passenger service at Cochrane was not adequate or reasonable, and that the order of the Commission was a reasonable exercise of the power vested in the Commission, and entered a judgment dismissing the petition of the railroad company. is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement. Gladson v. Minnesota, 166 U. S. 427, 41 L. ed. 1064, 17 Sup. Ct. Rep. 627; Lake Shore & M. S. The supreme court of the state affirmed R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, the judgment. 152 Wis. 654, 140 N. W. 296. 19 Sup. Ct. Rep. 465; Atlantic Coast Line The court, however, disagreed with the cir- R. Co. v. North Carolina Corp. Commission, cuit court in the view that the Commission 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. had exercised its discretion. The supreme 585, 11 Ann. Cas. 398; Missouri P. R. Co. court decided that such power was not vest-v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 ed in the Commission nor exercised by it, Sup. Ct. Rep. 330; Cleveland, C. C. & St. and further decided that the trial court L. R. Co. v. Illinois, 177 U. S. 514, 44 L. could not make an "order based upon the ed. 868, 20 Sup. Ct. Rep. 722; Mississippi original exercise of its own discretion," and R. Commission v. Illinois C. R. Co. 203 U. that the only jurisdiction conferred upon it S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; was "to pass upon the lawfulness or reason-Atlantic Coast Line R. Co. v. Wharton, 207 ableness of the Railroad Commission's or-U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. der." And it was said: "In the instant case, therefore, since the Railroad Commission did not make an order based upon its discretion, but one based upon the statute, the only question presented by the action was the lawfulness of the order, which, of course, raised the question of the constitutionality of § 1801 [Stat. 1911]. And that question Is the only one the appeal presents upon the merits." In other words, as we understand it, the statute expressed the legislative judgment of what facilities were necessary under the conditions described by the statute, and left no discretion to the Commission or the courts, but "deemed it best," to quote the court, "to exercise its own judgment as to what should be considered 121. Bearing these propositions in mind, let us consider the test of the statute. The statute expresses, it is said, the legislative judg ment of the conditions of its application, and would seem to preclude a consideration of anything else. In other words, the test of the adequacy or inadequacy of the local facilities is determined by the statute, and their sufficiency as so determined becomes the question in the case. What, then, is the test? Every village having 200 inhabitants or more and a postoffice, and within one eighth of a mile of a railroad, must be given by such railroad the accommodation of one passenger train each way, each day, if trains be run to that extent, and at least two trains if four or more passenger trains be run. of its business is interstate, and that the trains assigned to intrastate business are not self-sustaining. The revenue at Cochrane from the passenger traffic for the year which $985.87 was from intrastate and $765.76 from interstate business. And yet for the local traffic, already insufficient to defray the expense of its service, there are required under the fixed and resistless test of the statute two additional trains, the expense of which will be $84,000 a year. And in mentioning the expense we do not wish to intimate that expense is determining, but only to be considered. A railroad cannot escape a duty by pleading the expense of its performance. The test, on first impression, is certainly quite artificial. The effect of it is that the number of trains is not necessarily deter-ending July, 1911, was only $1,751.63, of mined by the local needs of a village, but, it may be, by the needs of other places; not by the demands of local travel, but, it may be, by the demands of interstate travel, and automatically to be increased as interstate travel increases. This is pointedly so in the case at bar for the railroad runs only interstate trains. It, however, is said that the population of a village is not only a fair index of its business, but also of its tributary population, and that the number of passenger trains run daily measures the amount of passenger business done, and, in a degree, the ability of the railroad to furnish additional facilities to the station without financial loss or without undue interference with through traffic. And it is urged that the statute contemplates an increase of facilities to the interstate business of the villages as well as to their local business, and a comparison of receipts from the respective businesses at Cochrane and other villages shows, it is said, that the railroad receipts from interstate passenger business is over one third that of its total passenger receipts, and therefore it is not accurate to say that the additional service required is at the expense of interstate traffic. The record, however, contains no complaint of insufficient interstate facilities. The complaint which induced the proceeding before the Railroad Commission was of the deficiency of local facilities. Residents of Cochrane and its vicinity, it was charged, were unable to go north or south from that village by rail and return the same day, and to display the extent of the asserted inconvenience the population tributary to Cochrane was represented to be 3,000. And this was adverted to by the supreme court as typical of the condition at other villages, though the court recognized that "the statute must stand or fall upon its main scope and upon its general application to villages throughout the state, and not upon its particular application to Cochrane." If But it is said that increased accommodation may bring an increase of revenue. we may so suppose, may we further suppose that the increased receipts will defray the increased expense? It is by such generalities and inferences that the statute is attempted to be supported, and we are asked to accept their vagueness as against the actual situation. The complaint is, as we have seen, that persons residing at Cochrane cannot go north or south by rail and return the same day. Such condition might be corrected by an alteration of schedules, or, if that present difficulties on account of the length of the road or the necessities of the traffic, by the stopping of one train either on signal or regularly; and such accommodation has been ordered and held sufficient in cases cited by the Commission, as we shall presently see. But the imperative requirement of the Wisconsin statute precludes such accommodation or any accommodation short of its own measure of two additional trains a day each way, though the local needs may be satisfied with less. Of course, there would be some convenience at times in two extra trains,-indeed, in more than two,-and they may be desired; but desire is not a test of requirement, nor is convenience, absolutely considered. There is a traffic to be considered which does not originate at Cochrane, and its convenience cannot be put out of view. Besides, as said by Timlin, J., in his disWe have seen what the "main scope" of senting opinion, "Convenience' is an elasthe statute is, but to the actual population tic term, and no doubt it would be more of every village must be added, it is said, a convenient to have a train stop every hour tributary population as the cause and justi- at this village, and it would be confessedly fication of the statute. We may assume inconvenient if no trains at all stopped such outlying population, but we cannot as- there. Between these extremes there is, no sume definite transportation needs and a doubt, a broad field of legislative discrecertain and invariable measure of accommo- tion." This court has also felt and exdation for them. This must be established pressed the difficulty of giving an exact defiin each instance. In the present case it nition to "adequate and reasonable facilappears that the railroad runs through a ities." "It is a relative expression," it was sparsely settled country, that 90 per cent said, "and has to be considered as calling for such facilities as might be fairly de- In State ex rel. Great Northern R. Co. manded, regard being had, among other v. Railroad Commission, 60 Wash. 218, 110 things, to the size of the place, the extent Pac. 1075, an order required an additional of the demand for transportation, the cost passenger train from a town of 5,000 or of furnishing the additional accommodations 6,000 people, and having a business by the asked for, and to all other facts which would railroad, of $20,000 per month for freight have a bearing upon the question of con- and about $800 for passengers, to connect venience and cost." Atlantic Coast Line R. at another place. The railroad attempted Co. v. Wharton, 207 U. S. p. 335, 52 L. ed. to remove the complaint of want of ade231. 28 Sup. Ct. Rep. 121. quate facilities by an additional service between the places, but not that required by the order. It was decided that the additional facility was not sufficient and that the order was reasonable, the railroad not showing that the service "ordered by the Commission would be unreasonably burdensome upon the railway company by being operated at a loss." There was no question of interference with interstate commerce. These, then, are the factors, and we do not put out of view the difficulties which in fest the case, but, considering them all and the deference due to state legislation, we are constrained to hold the Wisconsin statute invalid. It does not determine service by the volume of the business of the villages of the state, but by the requirements of business elsewhere, and limits such require ments and, it may be, prevents them, by the imposition of conditions which preclude their fulfilment. This is illustrated by the facts of the pending case. The interstate trains of the railroad are required by the necessities of its interstate business. It is in competition with shorter roads, and the speed of its trains, which cannot be safely increased, and their schedule time, are a necessity in this competition. This conformable. And the same judgment was declared ity to conditions must be strained or em barrassed, and, it may be, prevented, in order to give greater facilities than one train a day each way to villages having a post office and 200 inhabitants, not necessarily because they are not properly served, but seemingly to give them a larger division of service. Another order of the Commission in the same case was reviewed. It required a passenger train to stop on flag at a certain spur, the railway company to elect which of its trains it would stop. The court said that in view of the population centered there and the very slight service required of the railway company, the order could not be pronounced by the courts to be unreason of other orders requiring a northbound train at one place and a southbound train at another to stop on flag. Against these last orders there was a charge that they would tend to lengthen the running time of the trains, which were through trains (it did not appear that they were interstate), and that other towns would deThe supreme court conceded that it was mand similar service, and thus result in “no doubt true” that to require the railroad preventing the making of connections, and to stop one of its limited interstate trains thereby inconvenience the public. To which would seriously interfere with its through it was replied that the evidence did not show traffic, as competition "was keen and time that the stopping would result in breaking was of the essence of such trafic." The the then connections, and that it would be court, however, said that neither the stat-time enough to consider the effect of other ute nor the order of the Railroad Commis- stops when they should be ordered. sion requires the railroad to stop one of its limited trains, but it has the option of doing that or of putting on an extra train; and Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465, is cited to sustain the alternative. Undoubtedly the alternative can be required, but only if the local facilities be inadequate. In other words, to justify the requirement the local conditions must justify the extra facility. Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 528, 56 L. ed. 863, 869, 32 Sup. Ct. Rep. 535. The alternative imposed as a condition of retaining interstate trains simply because of their number would be a burden upon interstate commerce, as we have already pointed out. And this is recognized by the cases cited by defendant in error. In Atchison, T. & S. F. R. Co. v. State, 28 Okla. 476, 114 Pac. 721, an order of the Railroad Commission of the state required a passenger train to stop on flag at a station called Belva. That village had a population of 30, but the country around it was thickly settled and persons could reach the county seat only by means of the railroad. The conditions were in some respects like those in the case at bar. The court said that the evidence in support of and against the order consisted of generalities and conclusions rather than of facts necessary to enable the court to determine the reasonableness and justness of the order, but the court, yielding to the presumption due to the action of the Commission, and there being no evidence that the trains were fast ones, or that the stopping of them would interfere with their schedule or connections with urged on the supreme court, and we may other trains, sustained the order. And the court; gave consideration to the fact that the trains were required to stop only when there were passengers desirous of entering or leaving them, and that no pecuniary loss would be entailed on the railway, or its interstate connections hampered. In Missouri, K. & T. R. Co. v. Witcher, 25 Okla. 586, 106 Pac. 852, trains were required to stop on flag. The order was sustained, it not appearing that there would be any pecuniary loss to the railway, or that the order would "unreasonably prevent or hamper the interstate connections contemplated." Gulf, C. & S. F. R. Co. v. State, Tex. Civ. App., 169 S. W. 385, was an action for penalties imposed by a statute of the state upon any railroad failing to obey an order of the Commission of the state. The order required the railway company to stop two numbered trains at the town of Meridian, a county seat. It had a population of 1,500. The defense of the company was an attack on the order as an unlawful and direct interference with interstate commerce, the trains being interstate trains, and the local facilities, it was asserted, being adequate. The case was considered in view of the established principles which we have stated and the order was sustained, the court deciding that the local facilities were inadequate, and the order not a direct interference with interstate commerce. Gladson v. Minnesota, 166 U. S. 427, 41 L. ed. 1064, 17 Sup. Ct. Rep. 627, sustained a statute which required every railroad corporation to stop all regular passenger trains running wholly within the state at all county seats long enough to take on and discharge passengers. The applicable principles were discussed and it was said that an order which entailed but a trifling expense and a few minutes of time was a reasonable exercise of the police power, and could not be considered as a taking of property without due process of law, or an unconstitutional interference with interstate commerce. The other cases cited, not being closely applicable, need no comment. In those we have reviewed, it will be observed, the orders were made after investigation by administrative officers, and the facilities required were adjusted to the local needs, not by an arbitrary formula prescribed in excess of such needs. It is contended by defendant in error that the statute is valid as an amendment to the charter of the Chicago, Burlington, & Northern Railway Company, a Wisconsin corporation, and plaintiff in error's predecessor. This contention seems not to have been therefore decline to consider it; and, besides, we would be very averse to deciding that, without explicit declaration, every general law of the state applicable to corporations is enacted as an amendment to their charters. If the supreme court of the state had so thought, it would have accepted that short way to the decision of the case, and not have occupied itself with other and more complex questions. It is one thing to decide that corporations are subject to the police power of the state, and quite another to hold that every general law is an amendment to their charters. See Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118. Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion. UNITED STATES (§ 70*)-CONTRACTS-EXTRA 1. The extra expense over what would have been necessary had the character of the materials to be penetrated and excavated been such as was represented by the government boring sheets should be allowed to the contractors for the construction of locks and dams for the United States in an alluvial stream where, the time not being sufficient for the contractors to make their own borings, they relied upon the government borings, which the specifications falsely stated represented "as far as known" the material to be excavated, although such specifications further provided that bidders must inform and satisfy themselves as to the nature of the material. [Ed. Note. For other cases, see United States, due to the angle of repose fixed by the gov- 2. The cost of the increased excavation *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ment of the government officers would necessarily be exercised throughout the work, and they were specially informed as to what angle of repose would be selected. [Ed. Note.-- For other cases, see United States, Cent. Dig. 53; Dec. Dig. § 70.*] UNITED STATES (70) CONTRACTS-LIA- 3. The United States is not liable to the contractors for a public work for every mistaken exercise of judgment by its officer to whom is given direction of the work, and whose decision, honestly exercised, the contract makes final. [Ed. Note. For other cases, see United States, 4. Contractors for buried concrete forms, voluntarily made by the contractors for the purpose of recovering the forms for re-use. [Ed. Note. For other cases, see United States, Cent Dig. 1 ; Dec. Dig. § 70."] UNITED STATES (§ 70°)-CONTRACTS-EXTRA WORK --COFFERDAMS. 5. The cost of constructing cofferdams made necessary by flood conditions cannot be allowed to the contractors for the con struction of dams and locks for the United States under the "extra work" paragraph of the specifications, where, by other paragraphs of the specifications, all cofferdams necessary for the protection of permanent work were to be built by the contractors at their own expense. [Ed. Note.--For other cases, see United States. Cent Prik 53, Dec. Dig. § 74®] PPEAL from the Court of Claims to review a judgment allowing a portion of the claims against the United States growing out of a contract for the construction of a public work. Reversed and remanded for further proceedings. See same case below, 48 Ct. Cl. 293. The work was completed and accepted in November, 1903. The items of damage were: delay in permitting commencement of the work; for construction of wagon roads; greater expense of excavation and pile driving, due to misrepresentation of the materials in the specifications and drawings; increase in excavation, due to the "angle of repose" fixed by the officer in charge; extra work in the construction of additional cofferdams, and other items. The court rendered judgment for claimants upon two items, based on findings 2 and 3, to wit, $9,391.57 for "delays in permitting the commencement of work" and $100 for "construction of wagon roads," making a total of $9,491.57. This appeal was then prosecuted, and three errors are assigned (1) in refusing to allow for the extra expense due to the increased difficulty in pile driving and excavation on account of misrepresentation of the materials to be penetrated and excavated: (2) in refusing to allow $45,000 for excavation of material caused by defect in the "angle of repose," and in refusing to allow the further sum of $1.183 for excavation of material under which certain concrete forms were buried; and (3) in refusing to allow the cost of cofferdams built on the order of the officer in charge. We shall take these items up in their order. (1) This item is based on a charge of erroneous and deceptive borings and misrep resentations in the specifications and drawings. By paragraph 48 of the specifications it is, among other things, provided: "The material to be excavated, as far as known [italics ours] is showing by borings, drawings of which may be seen at this office, but bidders must inform and satisfy themselves. as to the nature of the material." It is upon this paragraph the contention turns. The allegations of the petition of claimants are to the effect that, invited by the above provision, claimants examined the drawings and they "showed gravel, sand, and clay of various descriptions, and Assistant Attorney General Thompson showed no other materials.” for appellee. That the material actually to be excavat ed "consisted largely of stumps below the Mr. Justice McKenna delivered the surface of the earth, buried logs, of cementopinion of the court: ed sand and gravel (none of the sand or Action for damages in the sum of $207,- gravel being described in the said drawings 304 50 brought by appellants against the as cemented), and of sandstone conglomerUnited States, growing out of a contractate," and that such materials were far more with the United States on the 19th of Feb- diflicult and expensive to penetrate and exruary, 1900, for the construction of three | cavate than ordinary sand and gravel such locks and dams on the Warrior river in Ala- as was described in the drawings. bama. That the existence of the more difficult *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |