This is a proceeding in mandamus to compel plaintiff in error to build and maintain a station house on the line of its road at the village of Emmons, in compliance with an order of the Railroad & Warehouse Commission of the state of Minnesota.
The order of the commission was made upon petition and upon hearing after due notice to plaintiff in error. The writ was granted by the district court of Freeborn county, where the proceedings were commenced.
The railroad company in its answer attacks the statute under which the commission acted as follows:
'This respondent says further, that chapter 270, General Laws 1901, approved April 13, 1901, which was enacted by the legislature of said state at its thirty-second session, which arbitrarily requires railroad carriers to provide freight and passenger rooms and depots at all villages and boroughs upon their respective roads, without regard to the necessity therefor and without regard to the location or situation of such village or boroughs, or to existing conditions, is unjust, unreasonable, contrary to public policy, and void.
'It denies to the respondent the right to reasonably manage or control its own business; it takes its property without its consent.
'It takes the property of this respondent arbitrarily and unnecessarily, for public use, without just compensation, and is, therefore, violative of the 5th Amendment to the Constitution of the United States.
'It deprives the respondent of its property without due process of law, and denies it the equal protection of the laws, and thus violates the 14th Amendment to the Constitution of the United States.'
The supreme court of the state affirmed the judgment of the district court, the members of the court equally dividing on the facts.
This is the second attempt of the village of Emmons to secure a depot. The first was unsuccessful (76 Minn. 469, 79 N. W. 510, 'wherein the facts are stated'), the supreme court observed; and it further observed, passing on the case at bar:
'Mr. Associate Justice Lovely having been of counsel for the village in the former proceeding, was disqualified from sitting at the hearing of this appeal, and the cause was necessarily argued and submitted to the four remaining members of the court. We assume that Laws 1901, chapter 270, which, in express terms, requires railway companies to build and maintain depots or station houses in all villages through which their roads may pass, is in itself valid legislation, and not open to the objection that it is not within the legislative power to enact such a law. With this assumption no dispute has arisen over a construction of the act, to the effect that all incorporated villages within this state located on railway lines are prima facie entitled to depots. The commissioners have the power to order the erection and maintenance of depot buildings unless it is made to appear that such an order would be so unreasonable in its terms as to actually result in depriving the company proceeded against of its property without due process of law. The change made by the statute of 1901 simply affects or shifts the burden of proof; for, prior to its enactment, the burden was on the municipality to establish the reasonableness and necessity of a depot therein, while now a railway company appearing before the commissioners, or trying its case on appeal to the district court, bears the burden of showing that such a requirement is not called for, and that the building and maintenance of a depot in the village is unnecessary and unreasonable.
'But, while agreeing as to this interpretation of the law, we fail to reach the same conclusion in respect to the facts. We do not question the correctness of the conclusion reached when considering the former appeal. But two members of the court, Chief Justice Start and Associate Justice Brown, are of the opinion that, from the evidence, it appears that there has since been a substantial growth in the village,-a growth which makes an altogether different showing,-and that the company did not overcome the prima facie case arising by virtue of the statute, and therefore that the judgment appealed from should be affirmed. Associate Justices Collins and Lewis are unable to agree to this. Their conclusion is that the testimony fails to show that there has been a real or substantial change in the village, its needs or necessities, that the situation is practically as it was when the former proceeding was considered, and that the prima facie case made by the village has been wholly overcome by the defendant company.
'With this difference of opinion the judgment appealed from must be, and hereby is, affirmed.' [87 Minn. 195, 91 N. W. 465.]