ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This was a petition to the Supreme Court of Michigan by the Railroad Commission of that State for a writ of mandamus to enforce obedience to an order of the commission directing the Detroit & Mackinac Railway Company to relay one-half mile of rails removed by it from a fivemile logging spur, called Tubbs Branch, and to resume service thereon. The railroad company answered, and, after a hearing, the court granted the writ subject to a condition presently to be stated. 178 Michigan, 230.
The commission's action was invoked by a complaint presented by the Fletcher Paper Company, of which the railway company had due notice. Before the commission the railway company insisted that the logging spur was not a part of its railroad system and that its use had been only that of a private convenience; but the commission concluded from the pleadings and evidence that the fact was otherwise and made the order with the purpose of correcting what it deemed an unreasonable and unjust discrimination and an inadequate service within the meaning of the local statute, 3 Howell's Ann. Stat., 2nd ed., §§ 6526, 6537, 6545.Thereupon the railway company filed a bill in equity in the Circuit Court of Wayne County praying that the order be vacated and asking that its enforcement be temporarily and permanently enjoined. In the bill the railway company repeated its insistence
that the logging spur was not a part of its railroad system but only a private convenience, and charged that an adequate hearing was denied by the commission in that the issues were determined upon the evidence presented by the paper company and in contravention of an understanding, assented to by the commission, that if an objection of the railway company in the nature of a plea of res judicata should be overruled, as it afterwards was, the company would be afforded a further opportunity to present evidence in opposition to that of the paper company. The bill invoked the due process of law clause of the Fourteenth Amendment. Apparently the prayer for a temporary injunction was not insisted upon.
It was during the pendency of that suit that the mandamus proceeding was begun and carried to judgment in the Supreme Court. In this proceeding the railway company again asserted that the logging spur was only a private convenience and not a part of the railroad system used by it as a common carrier and that the commission had denied it an adequate opportunity to be heard upon that question, and further insisted that to require it to give effect to the commission's order in advance of a hearing and decision upon that question in the suit in equity would deprive it of the due process of law guaranteed by the Fourteenth Amendment.
In the course of its opinion the Supreme Court said, pp. 243-246:
"We are not called upon to consider and determine the merits of the controversy between the Fletcher Paper Company and respondent railway company upon the order of August 3, 1911. Such questions are involved in the case now pending before the circuit court for the County of Wayne in chancery, wherein the respondent railway company seeks to review, annul and set aside said order. The sole question before this court in this proceeding is whether the order of the railroad commission shall
take effect and become operative pending the hearing and determination of that chancery cause. . . .
"Relative to an order made by this commission this court has said: ' . . . Its orders stand until modified or set aside by it or by the courts. . . . Presumptively, the findings and orders of the commission are right. If attacked, the complainant has the burden of showing by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable, as the case may be.' Detroit &c. R.R. v. Railroad Commission, 171 Michigan, 335, 346.
"The petitioner in the instant case before the railroad commission offered, and upon this hearing before this court keeps such offer good, to indemnify respondent for all costs and expenses incurred in re-laying the tract taken up by it, with interest, and to pay all rates that may be fixed or charged by the railway company and approved by the commission, in case this order is vacated and set aside by the Wayne circuit court in chancery, or by this court, if an appeal is taken. This indemnity would save respondent harmless from any possible loss in complying with the order, and ...