38 Ind. App. 439 | Ind. Ct. App. | 1906
Lead Opinion
This is an appeal to review the action of the Eailroad Commission of Indiana in fixing a rate on coal, and also an order of the commission forbidding the way-billing of cars loaded with coal at their marked capacity when such cars would not hold the marked capacity when fully loaded.
This case arose out of proceedings taken by the commission under the act of the legislature approved Eebruary 28, 1905 (Acts 1905, p. 83, §5405a et seq. Burns 1905), entitled: “An act providing for the creation of a railroad commission, the appointment and compensation of the members thereof, prescribing the powers and duties of such commission- and its members, prescribing certain duties and obligations of railroad companies, express companies and other common carriers, defining certain misdemeanors and prescribing penalties, providing for the collection of penalties by civil action from railroad companies and other common carriers by the State in cases therein provided for, appropriating money to carry out its provisions, providing for a review of the decisions of the commission and conferring jurisdiction on certain courts to hear and determine such proceedings, and repealing all laws and parts of laws in conflict therewith.”
The first and second sections of the act create the commission, provide for the appointment of three commission
The third section vests the commission with power and authority to supervise all railroad freight and passenger tariffs; to regulate car service -and the transfer of cars from one road to another, and to supervise charges therefor; to require and supervise the location and construction of sidings and connections between railroads, and the crossing of tracks and side-tracks of railroads by other railroads, vesting in the commission the authority now vested in the Auditor of State with reference to crossings and interlocking appliances; to supervise and regulate private car-line service and private tracks where the same are used in connection with any railroad in the State; to correct abuses and prevent unjust discrimination and extortion in freight and passenger tariffs on the different railroads, and to enforce the same by proceedings for the enforcement of penalties provided by law through courts of competent jurisdiction. The commission is also given power, upon failure of the railroads so to do, to fix and establish for all connecting lines reasonable joint rates of freight, transfer and switching charges; to fix the pro rata part of charges to be received by each of the two or more connecting roads, where such roads fail to agree; from time to time to alter, change, amend or abolish any classification or rate established by any company whenever found to be unjust or discriminative; to enforce reasonable and just rates for the use or transportation of loaded or empty cars and for storing and handling freight; to enforce reasonable rates for the transportation of passengers, and tolls or charges for all other service performed by any railroad company subject to the provisions of the act; to adopt and enforce such rules, regulations and modes of procedure as it may deem proper; to hear and determine complaints made against classifications or rates maintained by common carriers, or against
The fourth section provides for notice to the company, before rates or charges are revised or changed, for a hearing, that the commission may adopt rules to govern its proceedings, subpoena witnesses and order the production of books and papers, etc.
The fifth section reads: “In all actions between private parties and railroad companies or private car-line companies brought under this law, the rates, charges, orders, rules, regulations and classifications approved by or made by said commission before the institution of such action shall he held, deemed and accepted to be reasonable, fair and just, and in such respects shall not be controverted therein except as hereinafter provided until finally found otherwise in a direct action brought for that purpose in the manner prescribed by sections six, six and one-half and seven hereof.”
The sixth section provides that if any railroad company or party in interest be dissatisfied with any rate, classification, rule, charge or general regulation made, such company or party may procure a complete transcript of all the
The sixth section further provides that if the company or party in interest be dissatisfied with any order or regulation respecting the location or construction of sidings, switches or connections between railroads, or the crossing of one railroad by another, or the transfer or switching of cars at junction points, or the regulation of private tracks, such company or party may file a petition in the circuit or superior court of the particular county, setting forth the objections to the order, and after the requirements as to notice are complied with the case shall be set for hearing, “and shall be heard and determined as a suit in equity,
Section six and one-half provides: “All orders of the commission made and entered upon its records as herein provided respecting rates, charges, rules, regulations and classifications, or respecting the location or construction of sidings or connections between railroads, or to the crossing of one railroad by another, or the transfer and switching of cars at junction points, or the regulation of private tracks, shall be operative and in full force at and from the time fixed therefor by the commission as hereinafter provided, until any such order shall have been changed, modified or set aside by a circuit, superior or appellate court under the proceedings provided for in section six of this act: Provided, however, that if at the time of filing a transcript” in the Appellate Court, appealing from the fixing of any rate, the company filing such petition may, upon filing a bond specified, charge and collect the rate that existed before the making of the order by the commission, until such proceeding is finally determined; and if the company files the bond and continues to charge the old rate it shall give each person paying the old rate a certificate showing the amount received and the rate charged and containing a promise to refund the difference if the new rate is sustained by the Appellate Court. A penalty is provided for failure to comply, within a fixed time, with the promises contained in the certificate.
The seventh section provides that in all trials under section six “the burden of proof shall rest upon the plain-j tiff, who must show by clear and satisfactory evidence that; the rates, regulations, orders, classifications, acts or charges^ complained of are unreasonable and unjust to it or them.”
Section twenty-one: “The terms ‘road,’ ‘railroad,’ ‘railroad companies,’ ‘railroad corporations,’ ‘private car lines,’ ‘fast freight’ or ‘carrier,’ as used herein,- shall be taken to mean and embrace all corporations, companies, individuals and association of individuals, their lessees or receivers appointed by any court whatsoever, that may now or hereafter own, operate, manage or control any railroad or part of railroad in this State or any fast freight line or private car lines and express companies, and all such corporations, companies, and associations of individuals, their lessees or receivers that shall do the business of common carriers on any railroad in this State, (a) The provisions of this act shall be construed to apply to, and affect only the transportation of passengers, freight, express matter and cars between points within this State; and this act shall also apply to express companies: Provided, that this act shall not apply to street or interurban railroads, except as section three substitutes the railroad commission, created hereby for the Auditor of State, in respect to duties pertaining to the construction and maintenance of interlocking works at crossings of railroads and railroads operated by electricity.”
Section twenty-two provides that the act “shall not have the effect to release or waive any right of action by the State or any person for the right, penalty or failure which may have arisen, or may hereafter arise under any law of this State; and all penalties accruing under this act shall be cumulative of each other, and a suit for or recovery of one shall not be a bar to the recovery of any other penalty.”
The railroad commission moves to dismiss the appeal, on the ground, among others, that this court has no jurisdiction to hear such pretended appeal; that the appeal is not taken from the final judgment or decree of any court or body exercising judicial authority; that sections six and six and one-half of the act of 1905, supra, are in conflict with article three of the Constitution of Indiana. Appellant answers this motion by admitting the claim of appellee, that this court has no jurisdiction, and that the two sections named are invalid, but insists that the act is wholly void because, among other reasons, by section twenty-one, the act deprives certain railways of equal protection of the law. Appellant suggests that as there is a constitutional question involved the jurisdiction is in the Supreme Court.
Section six authorizes the appeal if the party is dissatisfied with any rate, classification, rule, charge or general regulation made, approved, adopted or ordered by the commission. Complaint is made in this appeal of a rate made by the commission, and also of what should perhaps be called a rule made as to way-billing cars. But the argument is directed to the making of the rate.
In the able briefs filed by a member of the commission on behalf of the commission, and by counsel for appellant company, and by the Attorney-General, a thorough discussion is had of the nature of the duty performed by the commission in the proceedings prescribed for fixing a rate.
In the above particulars the act differs materially from railroad commission acts in some other states, where the commission is given summary supervision of rates. See Chicago, etc., R. Co. v. Minnesota (1890), 134 U. S. 418, 33 L. Ed. 970, 10 Sup. Ct. 462.
So that, before the commission can grant any relief from the rate fixed by the railroad, it must first find that the rate of which complaint is made, and which was fixed by the railroad, is unjust or unreasonable. And in doing this in the manner prescribed by section three of the act, the
In Reagan v. Farmers Loan, etc., Co., supra, the court said: “It has always been recognized that, if a carrier attempted to charge y a shipper an unreasonable sum, the
It is true that section three says that this court upon the appeal may “affirm, change, modify or set aside” the action of the commission. Whether the court would, upon final judgment, have power to change or modify a rate fixed hy the commission is not now presented. But it is manifest that the court might, as a court, determine whether the rate was legally established or whether it was established under a law authorizing it, and affirm or set aside the action of the commission in fixing the rate; and neither more nor less than this is done when the qu'estion of the unreasonableness of the rate is heard by a trial court. If the action of the commission should be affirmed, the rate is fixed, not by the court, but by the commission. The power to change or modify a rate is not at all essential to the power to affirm or set aside the order of the commission. It is quite true that it is an elementary principle that “upon judges as such no functions can be imposed except those of a judicial nature.” Cooley, Prin. of Const. Law, 53. And see Ex parte Griffiths (1888), 118 Ind. 83, 3 L. R. A. 398, 10 Am. St. 107; City of Terre Haute v. Evansville, etc., R. Co. (1897), 149 Ind. 174, 37 L. R. A. 189. But determining whether a rate has been legally established or whether the same is or is not reasonable, is a judicial function.
Our conclusion upon this branch of the case is that the legislature, in providing for an appeal to this court, has required of this court the performance of a judicial duty that may rightfully be imposed; that the legislature may
The motion to dismiss the appeal is overruled.
Dissenting Opinion
Dissenting Opinion.
The railroad commission is an administrative board, and not a court. Whatever may be said properly as to the theoretical nature of the elementary functions or powers of government involved in the making of an order by that board to correct, alter, change or establish a rate, charge, classification, rule or regulation upon complaint setting forth the unreasonable character of a rate, charge, classification, rule or regulation of a railroad company or an express company, the commission in the performance of such duty does not act in a judicial capacity, though the prescribed modes of procedure resemble in some respects those of a court, and though in the performance of the duty the commission must consider the question as to the reasonableness of the rate, charge, classification, rule or regulation concerning which complaint is made, and must decide what is, in the particular instance, reasonable. The question as to what is a. reasonable rate, etc., is in its nature a question of fact, and merely because an administrative board in the discharge of its duties must consider and decide such a question it does not thereby be
If a court render a judgment in a cause wherein it has jurisdiction, the legislature cannot set it aside and grant a new trial, or substitute its own decision for that of the court. Yet it cannot be doubted that though the railroad commission, pursuant to the statute, should fix a rate for a particular railroad, and there should be no appeal from the action of the commission, the legislature might by its subsequent enactment make a different rate for railroads which would supersede the future operation of the regulation made by the commission.
Whatever may be the correct conclusion upon the question as to the authority of the legislature to confer upon the Appellate Court original jurisdiction in a particular class of cases, or to require it to try and determine de novo
The word “appeal,” when properly used as'a term of the law, means the removal of a case from one court to another court. “The matter of appeals is essentially and throughout judicial, and there can, in legal contemplation, be no appeal when there js no decision by a judicial tribunal. Two things are essential, the decision of a judicial tribunal of original jurisdiction, and a superior court invested with authority to review the decision of the inferior tribunal.” Elliott, App. Proc., §15. In the next section of the same book it is said: “Appellate jurisdiction is the authority of a superior tribunal to review, reverse, correct, or affirm the decisions of an inferior judicial tribunal in cases where such decisions are brought before the superior court pursuant to law. * * * Judicial power resides in courts, and hence it is essential that the original, as well as the appellate decision, should be made by a court.” Elliott, App. Proc., §16.
“Appellate jurisdiction, ex vi termini, implies a resort from an inferior tribunal of justice, to a.superior, for the purpose of revising the judgments of the inferior tribunal.” Smith v. Carr (1808), Hardin (Ky.) 305.
To constitute appellate jurisdiction, properly so called, as distinguished from original jurisdiction, the decision to be reviewed must be a decision made by a court properly so designated, and not simply a decision of a body with quasi-judicial authority. Elliott, App. Proc., §11.
“The jurisdiction of an appellate tribunal is not exercised over ministerial or administrative officers directly, for when it exercises such authority it proceeds as a court of original jurisdiction.” Elliott, App. Proc., §20.
“The power of the appellate court necessarily includes the power not only to reverse the judgment, but also, to control and direct the subsequent action of the subordinate court.” Piqua, etc., Bank v. Knoup (1856), 6 Ohio St. 342, 349. And see Dodds v. Duncan (1884), 80 Tenn. 731.
The power resides in every appellate tribunal to coerce obedience to its orders, writs and mandates. Elliott, App. Proc., §22.
“Jurisdiction is original when it is conferred on the court in the first instance.” 21 Am. and Eng. Ency. Law (2d ed.), 1009, note.
When a cause decided in one tribunal is removed to another and there tried de novo, the latter court is not concerned with errors committed by the former, but exercises authority in the nature of original jurisdiction, notwithstanding the method of bringing the cause before it.
When the legislature has authority to create a court, and, without any constitutional restriction, to prescribe its jurisdiction, it may judge for itself, however wisely or unwisely, upon the question as to the propriety of conferring original jurisdiction in one class of cases and appellate jurisdiction in other cases, and it may prescribe the manner of instituting the causes and the methods of procedure therein. To constitute original jurisdiction, the court must take cognizance of the case as an original cause.
The order of the railroad commission from which the appeal is authorized by the terms of the statute is not vacated by the appeal, but it remains operative and in full force until changed, modified or set aside by a circuit, superior or appellate court, though its operation may be suspended by the filing of a bond as provided in section six and one-half (Acts 1905, p. 83, §5405g Burns 1905), without involving the exercise of any power of the court except in the fixing of the amount of the bond and in the approval of the surety. '
An appeal, in the strict sense of the term, cannot be granted by the legislature directly from a purely administrative body to a court which is limited by the Constitution to appellate jurisdiction. Therefore, appellate jurisdiction, properly so called, cannot be conferred on any court by the authorizing of an appeal directly from such a body.
In Hubbell v. McCourt (1878), 44 Wis. 584, it was held that the appellate power of the' supreme court of Wis
In Auditor of State v. Atchison, etc., R. Co. (1870), 6 Kan. 500, 7 Am. Rep. 575, the appeal was taken pursuant to a statute by the auditor of state from the appraisal of the property of a certain railroad company made by the board of county clerks. On motion of the railroad company the appeal was dismissed. The legislature was under the constitutional restriction that the jurisdiction conferred on the court must be appellate, not original. It was said: “It would be absurd to claim, that it is in the power of the legislature to clothe this court with authority to review acts purely executive in their character, by giving an appeal therefrom to this court. Many of the duties which the executive is called upon to perform require great care and judgment in deciding how to act. Yet when the decision is made an appeal could not be given to this court, for that would give to the court executive powers as well as judicial.”
In Hestres v. Brennan (1875), 50 Cal. 211, it was held that the secretary of the interior, who had authority to approve, modify or annul the acts, proceedings and decisions of the commissioner of the general land office, exercised, in revising the acts of the commissioner, “supervisory, rather than appellate power, in the sense in which the term appellate is employed in defining the powers of the courts of justice.”
The judicial power, which every court possesses, is not created or given by the legislature. When, in the exercise of its constitutional authority, the legislature creates the court, though it may be abolished by the same authority, yet while it continues to exist it is invested with judicial power by the constitution which authorized its creation.
The railroad commission is put in motion by the filing of a complaint by some person or corporation injuriously affected, setting forth the unreasonable character of the rate, charge, classification, rule or regulation complained of, and after a hearing the commission is required to make such corrections, alterations, changes or new regulations, or any part thereof, as may be necessary to prevent injustice and discrimination to the party complaining, the order of the commission operating for the benefit of all persons or corporations situated similarly and on the line of the railroad. The complaint of the injuriously affected person or corporation filed with the commission operates merely as a necessary suggestion, and cannot be regarded as a pleading whereby a judicial proceeding is instituted. The' person or corporation thus putting the commission in motion need not be a party to the so-called appeal to this court. Eor the institution of the contemplated proceeding in this court, any railroad company or other corporation or party in interest, dissatisfied with any rate, classification, rule, charge or general regulation, made, approved, adopted or ordered by the commission, is to procure a transcript of the proceedings of the commission, and, if he or it so desires, a copy of the evidence, and the dissatisfied company or party is to file such transcript in the -office of the clerk of this court, and with it the dissatisfied company'or party is to file a concise written statement of its or his causes of complaint against the action of the commission, making the railroad company a defendant thereto. The cause in this court is to be “heard and determined” upon the transcript so filed. Upon such hearing this court is to make a decision which shall be a final decision of the matter heard, and is given power to affirm the action of the commission,
It does not appear to be contemplated that the court shall make any mandate to the commission, or that it shall remand the matter to the commission for further proceedings or for any purpose, and it is not required that its action shall be certified to the commission. The decision of the court is final, and the commission is directed to keep copies of all such findings and judgments on file in its office.
If we, on the hearing upon the information furnished by the transcript, should be unwilling to affirm the action of the commission, that is, to approve the rate, etc., ordered by it, we are not directed to reverse a decision of the commission, but the statute provides that we may affirm, change, modify or set aside, as justice may require. In view of the provision that our decision shall be final, it is intended that it shall furnish the regulation which is to control the railroad company, and it cannot be supposed that we are to stop with merely setting aside the action of the commission which we do not affirm. It is contemplated, and, if we are to make a final adjustment as required, it is necessary, that when we cannot approve the commission’s rate, etc., we shall not merely set aside the
It would seem that the actual purpose of the statute is an attempted investment of a court of appeals with administrative functions which would in effect make it an additional railroad commission with modified procedure and without proper facilities. It is certain that we cannot perform what by the statute is contemplated, and that without which we would not have been given any of the authority which it attempts to confer, unless we are to exercise power not pertaining to a court.
Eor the foregoing reasons I am of the opinion that the appeal should be dismissed. Having arrived at the conclusion that this court has no jurisdiction in the premises, I cannot regard it as proper to go further , into the question as to the authority of the railroad commission.
Dissenting Opinion
Additional Dissenting Opinion.
[Filed December 27, 1906.]
When this case was before the court upon the motion of the appellee to dismiss the appeal, and the motion of the appellant to dismiss the complaint'filed with the railroad commission, there was scarcely sufficient time for the proper examination of the important subject, the
After an opportunity to examine the opinion of the majority filed on the former hearing and the authorities cited therein, it seems proper to add something to what was said on that hearing concerning the character of the commission’s authority and this court’s jurisdiction.
It is said in that opinion of the majority: “While the statute does not make the commission a court, and it is not a court, yet the act of setting aside the rate complained of —and this must be done before another rate can be fixed to take its place — and fixing another, upon evidence introduced, upon a complaint filed — in fact, a trial had with the aid of judicial process — may properly be said to be the exercise of a quasi-judicial duty. In any event, the power exercised in this particular is more of a judicial than of an administrative character.”
The rate fixed by the carrier is set aside by the commission only in and by changing it. The decisions of the Supreme Court of the United States, cited later in that opinion, clearly are to the effect that the prescribing of changes of rates fixed by the carrier is a function to be exercised by the legislature by its own action or through its instrumentalities, and not by the courts. The provisions of our statute concerning the methods of the commission in gaining the information upon which it is to act are not all mentioned in the opinion of the majority in this connection. By section eleven the commission is given power to elicit all information deemed by it necessary to the hearing and consideration of any complaint made to it. It may submit blanks or interrogatories for eliciting information necessary to the consideration and determination of any and all questions over which it has jurisdiction. It “may use such other means or methods of securing such information as may be deemed expedient by it.”
That case was a suit instituted in the circuit court of the Hnited States to restrain the enforcement of rates fixed by the railroad commission of Texas. The defendant denied the power of the court to entertain an inquiry into the matter, insisting that the fixing of rates for carriage by a
In Chicago, etc., R. Co. v. Minnesota (1890), 134 U. S. 418, 33 L. Ed. 910, 10 Sup. Ct. 462, which was a writ of error to review a judgment awarding a writ of mandamus, it is said in the concurring opinion of Mr. Justice Miller: “The proper, if not the only, mode of judicial relief against the tariff of rates established by the legislature or by its commission, is by a bill in chancery asserting its unreasonable character and its conflict with the Constitution of the United States, and asking a decree of court forbidding the corporation from exacting such fare as excessive, or establishing its right to collect the rates as being within the limits of a just compensation for the service rendered.” It was further said that in the proceeding by mandamus against the railroad company, “which is equivalent to establishing by judicial proceeding the reasonableness of the charges fixed by the commission, I think the court has the same right and duty to inquire into the reasonableness of the tariff of rates established by the commission before granting such relief, that it would have if called upon so to do by a bill in chancery.” Mr. Justice Bradley (Mr. Justice Gray and Mr. Justice Lamar concurring) was of the opinion that when the legislature or its railroad commission had fixed a tariff of fares and freights, the matter could not become a judicial question. In his .dissenting opinion he said on page 464: “Such a board would have at its command all the means of getting at the truth and ascertaining the reasonableness of fares and freights which a legislative- committee has. It might, or might not, swear witnesses and examine parties. Its duties being of an administrative character, it would have
St. Louis, etc., R. Co. v. Gill (1895), 156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct. 484, was an action to recover judgment for penalties for charging and receiving fares in excess of the rate per mile fixed by statute.
Railroad Commission Cases (1886), 116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334, were suits to enjoin the railroad commission of Mississippi from enforcing against certain railroad companies the provisions of the railroad commission statute of that state.
In Smyth v. Ames (1898), 169 U. S. 466, 42 L. Ed. 819, 18 Sup. Ct. 418, and other cases decided at the same time, the plaintiffs sought a decree enjoining the enforcement of certain rates of transportation, upon the ground that the statute prescribing them was repugnant to the Constitution of the United States.
Burlington, etc., R. Co. v. Dey (1891), 82 Iowa 312, 48 N. W. 98, 31 Am. St. 477, 12 L. R. A. 436, was a suit to enjoin a railroad commission from establishing joint rates for certain railroad companies.
Chicago, etc., R. Co. v. Jones (1894), 149 Ill. 361, 37 N. E. 247, 24 L. R. A. 141, 41 Am. St. 278, was an action in debt to recover from a railroad company penalties for alleged overcharges of freight in excess of rates fixed by a railroad commission.
In Atlantic Express Co. v. Wilmington, etc., R. Co. (1892), 111 N. C. 463, 16 S. E. 393, 32 Am. St. 805, 18 L. R. A. 393, there was an appeal from the railroad commission to a county court and an appeal from that court to the supreme court. In the statute, the commission was expressly “created and constituted a court of record;” but it was held in Caldwell v. Wilson (1897), 121 N. C. 425, 28 S. E. 554, to be an administrative court, and not a judicial court. And in Pate v. Wilmington, etc., R.
In State, ex rel., v. Minneapolis, etc., R. Co. (1900), 80 Minn. 191, 83 N. W. 60, which was an appeal in a proceeding for a writ of mandamus, the statute there referred to which provided for an appeal authorized the appeal to the district court, and provided that “ ‘upon such appeal, and upon the hearing of any application by the commission or by the attorney-general, for the enforcement of any such order made by the commission, the district court shall have jurisdiction to, and it shall, examine the whole matter in controversy, including matters of fact as well as questions of law, and to affirm, modify or reverse such order in whole or in part as justice may require,’ ” and that “ ‘the remedies herein provided for shall be in addition to all existing legal and equitable remedies.’ ” It was said by the court that no effect would be given to the language italicised, “if it was not intended that in a proceeding like this, to enforce an order made by the commission, there should be just such a trial as there would be if an appeal had been taken from the order. On such appeal, the court will examine matters of fact to ascertain whether there is any evidence reasonably tending to
It is said in the opinion of the majority of this court in the case now before us: “The question then presents itself: May the legislature require that a court shall determine these same questions, not by a trial, but by a review of all proceedings and evidence taken by the commission?”
Eeference is then made to a class of cases where an appeal is always tried de novo, the court to which the appeal is taken assuming to act only as a court of original jurisdiction in such cases. It is then argued that it is within the province of the legislature to confer original jurisdiction upon this court, or “jurisdiction other than strictly appellate jurisdiction,” which, of course, can properly mean nothing but original jurisdiction, Tet it is said, further, that “it is clear that the legislature did not intend that there should be a ‘trial’ in this court in the ordinary .meaning of the term” — a statement in which I concur. The court then indicates its belief that the function of this court under the statute is only to review the case upon the transcript as a court of appellate jurisdiction, for the correction of errors, the same presumption prevailing in favor of the action of the commission that prevails in a review of a judgment in a civil action. It is not clearly stated that this court is not to weigh the evidence, but it is stated that it cannot be said that the only question presented would be the weight of the evidence, and that, if the contrary could be said, the objection that the statute delegates to a nonjudicial body the duty of hearing the evidence upon which a court is to render a decision would not be tenable, the instances mentioned being of the taking of evidence under a court’s own sanction for its use in rendering a judicial de
The majority not only said that this court has been given exclusive “appellate jurisdiction,” but the court refused to consider at that stage of the case the motion of the appellant to dismiss the complaint, saying that it was not filed in this court, but came to it in the transcript of the proceedings of the commission. If this court had been regarded as having the case before it as an original case, it, of course, could have taken up that motion when it thus refused to do so.
■ It is said that this court is designated as the tribunal to determine finally certain controversies arising “between the railroad commission and the persons or corporations with whom it has to deal;” and it appears that the majority treated the case as before this court for its action as a court of appellate jurisdiction only, though it foreshadowed a disposal of the appeal as if upon the theory that this court, instead of having the power to render judgment as directed by the terms of the statute, and as intended by the legislature, had the authority to dispose of the case much in the way in which such a matter might be determined upon an original judicial investigation of the question as to the reasonableness of the rate fixed by the commission.
In seeking to construe and apply the statute in question, the manifest intention of the legislature should be kept constantly in view, and it should be assumed that the legislature intended to employ the terms of the statute in the sense in which they are and have been understood and applied. From the beginning of the judicial history of this State it has been uniformly the usage of the legislature and.
The statute, upon careful reading, indicates the intention of the legislature to confer in such a case as that, before us appellate jurisdiction, and not original jurisdiction. This court is to hear and determine the appeal upon the transcript of the proceedings of the commissioners. In the same section which makes these provisions for appeal, provision is made also for a proceeding of another kind, whereby, in case of dissatisfaction with certain orders of the commission, the dissatisfied company or party may file a petition in the circuit or superior court, making the commission a defendant, the cause to be heard and determined as a suit in equity, without a jury. It was clearly the intention to recognize this court as a court of appeals, and to confer upon it appellate jurisdiction, and not original jurisdiction, in cases to be removed to it from the commission.
The legislature cannot invest this court with judicial, duty as a court of appeal for the correction of errors, except in cases which have been decided by judicial courts, prop
It need not be said in this case that this court might not be- given original jurisdiction to determine judicially the question as to the reasonableness of a rate fixed by the railroad commission. It has not been given such jurisdiction.
Without authority to take evidence de novo, and to proceed as in an original case, there cannot be an examination according to judicial methods; and, if the decision of this court on such an appeal as this is to have the conclusive effect of a judgment, the parties in interest will be deprived of a judicial investigation according to the principles and rules of law and equity.
If there had been a mere allowance of an appeal, the question would have arisen whether this court might not take thereunder original jurisdiction and have a trial de novo. But the legislature did not leave opportunity so to apply the word “appeal” used by it; on the contrary, it designated the procedure in this court. See Hays v. Merchants Bank (1895), 10 Wash. 573, 39 Pac. 98.
We cannot treat the action of the commission as merely prima facie correct. No method is provided for meeting in this court a prima facie case. If the information on which the commission proceeds, so far as it is shown by the transcript, merely tends to support the commission’s decision, its determination, by the requirements of the statute, would be conclusive here. Can one who has passed through such a nondescript proceeding be said to have had his day in court ?
This opinion, to supplement my former dissenting opinion, is filed at this time because my service on the bench of this court will terminate at the end of this month and before the final hearing of the pending cause.
Concurrence Opinion
I concur in the conclusion that an appeal will lie to this court from the action of the railroad commission, and think the motion to dismiss the appeal is correctly overruled. • I entertain the further opinion that appellant’s motion to dismiss the petition presents the constitutionality of the act creating the commission, and that it is a matter of such importance it ought now to be decided.