247 P. 162 | Mont. | 1926
We submit that the statute in question is unconstitutional, in the first place, in that it deprives the plaintiff, and any other railroad affected by it, of its property without due process, in violation of the Fourteenth Amendment of the federal Constitution and of section 27, Article III, of the state Constitution. It cannot be doubted that a statute which requires a railroad company to use its property and spend its money, constitutes a taking. (Oregon Railroad etc. Co. v. Fairchild,
No one doubts that a railroad may be required to fulfill the purposes for which it was organized, and the state in the exercise of its police power may require what is reasonably necessary to serve the public. But the state may not require a company without notice to build spurs to industries off its right of way, particularly where no showing of public necessity appears. (Missouri P. Ry. Co. v. Nebraska,
The statute further violates the above-mentioned sections for the reason that it purports to require the furnishing of facilities beyond those incident to the service the carrier has undertaken *308
to perform. The property of a railway company, notwithstanding it has been dedicated to a public service, remains its private property. (Interstate Commerce Com. v. Chicago G.N. Ry.Co.,
Finally, we submit that section 3833 is unconstitutional in that it is a delegation of legislative authority to the Board of Railroad Commissioners. The law authorizes the board "after such investigation as they may deem necessary, and under such rules and regulations as they may establish with reference thereto" to compel railway companies to extend or construct commercial or industrial spurs, provided the length shall be not to exceed two miles. It will be observed that no general duty upon the part of railway companies to construct such spurs is imposed. The duty arises by implication when the board orders the track constructed. The board's power in this regard is without limit except that the trackage ordered shall extend from constructed lines at stations or within station limits and shall not exceed two miles in length.
The power thus attempted to be delegated to the Board of Railroad Commissioners is legislative power. As we understand the law, the rule is that the legislature cannot delegate its power to make a law but it can make a law and delegate the power to determine some facts or state of things upon which the law makes or intends to make its own action depend. *309
(See Field v. Clark,
The statute fails to designate the conditions under which the board shall exercise the broad discretion given it. The character or extent of the business which may be done over spurs when constructed is not attempted to be defined. No limit as to the amount of business which must exist to justify an order of construction is suggested. The board may, under the statute, require such a spur for one enterprise which would not receive or ship three carloads of freight a year, and refuse to order a spur requested by another in the same block in the same town which would handle ten carloads per day. It is not required as a condition of making its order to determine whether there is any reasonable probability that the revenues received by the carrier through the operation of the spur will ever pay the cost of construction. Every standard by which to determine whether it will or will not exercise the power conferred is absolutely lacking. In addition to the cases heretofore cited we refer the court to the following: State v. St. Louis Southwestern Ry.Co. (Tex.Civ.App.),
Whatever may be the deficiencies in the statute arising from the failure to use apt language, it is elementary that the statute is not to be condemned simply because its terms could be twisted to support an unconstitutional exercise of power. If a statute is susceptible of two constructions, one of which will render it constitutional and the other void, the former is preferred. And since the administrative tribunal which is *311
charged with the application of the statute, has construed it to mean that a hearing must be granted before the power expressed can be exercised and that then the power can only be exercised in behalf of a public spur, it would seem that this court should follow the same construction. Certainly so, where there are no terms which enforce another view. (State ex rel. NorthernPacific Ry. Co. v. Duncan,
The only allegations in the complaint that in any real sense attempt to challenge the board's findings, are those which deal with the character of the spur as public or private. These allegations are that the order of the board was made on the application of a single prospective shipper, that there was not at the time of the application and is not now any public demand for the tracks requested and no public necessity therefor; that if the tracks are constructed in accordance with the order of the board, the portion off the railway company's right of way will be on private property, for there is no public road giving access to said tracks or any portion thereof; that the spur, if constructed, could not be utilized by any members of the public with the exception of the one shipper and that the spur is designed for the use of that company. Even if the spur were to be used solely by that shipper, that fact does not, per se, make the spur private in character. (See Butte A. P. Ry. Co. v.Montana U. Ry.,
The suggestion in the complaint that the statute authorizes respondent to enter into a service which it would not undertake and to dedicate to public use additional property is beside the point because (a) the board's order in the instant proceeding involves no such consequence, and (b) that statute merely requires the carrier to fill in the detail trackage necessary to make a reality of the broad undertaking of public service voluntarily adopted by the carrier when its rails crossed Montana's boundaries many years after the declaration *312
in section 5 of Article XV, Constitution of Montana. (Atchisonetc. Ry. Co. v. Railroad Com.,
At the threshold we observe that while the board of railroad[1] commissioners is a public agency of dignity and importance, vested with extensive powers and duties, and whose acts are valid prima facie (sec. 3809, Rev. Codes 1921; Stateex rel. Board of Railroad Commissioners v. District Court,
Counsel agree that the order complained of is based upon section 3833, Revised Codes of 1921, which reads as follows: "The board of railroad commissioners of the state of Montana shall have power and authority, after such investigation as they may deem necessary, and under such rules and regulations as they may establish with reference thereto, to compel railroads or railways or other companies or corporations operating and holding themselves out to be common carriers in the state of Montana, to extend or construct commercial or industrial spurs from constructed lines or tracks at stations or from within station limits; provided, the length of such commercial or industrial spurs or tracks shall be not to exceed two miles from *313 the headblock to end of track." This statute is attacked by the plaintiff as unconstitutional upon several grounds, the chief of which is that it assumes to delegate legislative powers to the board of railroad commissioners. With this main objection the others are interwoven.
The difficulty of defining the line which separates[2-4] legislative power to make laws from administrative authority to make regulations has frequently been the subject of controversy. (United States v. Grimaud,
Mr. Justice Lumpkin, speaking for the supreme court of Georgia in Southern Ry. v. Melton,
Mr. Justice Harlan, in Union Bridge Co. v. United States,
Necessarily, the extent of the course of procedure and of the rules of decision are for the determination of the legislature. We think the correct rule as deduced from the better authorities *315 is that if an Act but authorizes the administrative officer or board to carry out the definitely expressed will of the legislature, although procedural directions and the things to be done are specified only in general terms, it is not vulnerable to the criticism that it carries a delegation of legislative power.
But the power must not be so arbitrary in character as to transgress the "due process clause" of the state or national Constitution. It would be difficult to couch a statute in more general terms than those employed in the one we are considering. Counsel for plaintiff are justified in saying that whether or not a hearing shall be ordered and the carrier afforded an opportunity to introduce testimony relative to the necessity or propriety of an order requiring construction, or whether the investigation shall be ex parte, is left entirely to the board itself. The statute does not undertake, even in the most general terms, to prescribe the conditions under which the board may compel the carrier to construct a spur. It does not provide that the board may issue its order when reasonable public necessity requires it; there is no indicated rule of decision. It does not require as a condition to the making of the order that the board shall give the carrier notice and a hearing; it does not contain even that procedural direction. On the contrary, it assumes to authorize the board only after such investigation as they may deem necessary, and under such rules and regulations as they may establish with reference thereto to compel common carriers to extend and construct commercial or industrial spurs.
The intention of the legislature in passing this statute is not easy to determine. Did it intend to depart from a well-established policy? When Chapter 135 of the Laws of 1917, now section 3833, supra, was passed, Chapter 136 of the Laws of 1909 (Session Laws 1909, p. 204) sections 3827 to 3832, inclusive, Revised Codes of 1921, was upon the statute books. Sections 3827, 3828 and 3829 assumed to confer authority upon the Railroad Commission to do certain acts, using the express words "after notice and hearing." Section 3829 assumed to give the *316 commission authority to compel railroad companies to construct certain industrial or commercial spurs, "after notice and hearing." The applicability of section 3829 to the present proceeding has neither been suggested nor argued by counsel and we expressly reserve an opinion with respect to it. If, however, the legislature in enacting Chapter 135 of the Laws of 1917, now 3833, intended to substitute that section for 3829, it would appear that it intended to do away with the provision for notice and hearing and to substitute in lieu thereof the discretion of the board; in effect permitting that body to determine whether it would give notice of the proceeding and whether it would accord to the carrier a hearing.
When we conceive that the board's order to the carrier to construct the spur-track is in effect a taking of property, for it requires the carrier to use its property and spend its money (State of Washington ex rel. R. N. Co. v. Fairchild,
While it is true, abstractly, that notice and opportunity for a hearing are not essential to the validity of legislative enactments, such legislation nevertheless may be invalid as violative of the Fourteenth Amendment because arbitrary, unjust and unreasonable. A statute which undertakes to deprive a person of his property without notice and opportunity to be heard certainly is invalid. (Chicago, M. St. P.R. Co. v.Minnesota,
The legislature itself may not deprive a person of his property without due process of law and with reason quite as strong it cannot authorize its creature to do what it cannot do itself.
In Stuart v. Palmer,
Whatever may be the rule generally, where the taking of property is involved extra-official or casual notice of a hearing granted as a matter of favor or discretion cannot be deemed a substantial substitute for the due process of law the Constitution requires. This is the holding of the supreme court of the United States in Coe v. Armour Fertilizer Works,
The constitutional validity of a law is to be tested not by[5] what has been done under it, but by what may be done under it. (State ex rel. Redman v. Meyers,
Where property is sought to be taken under an administrative regulation "the defendant must not be denied the right to show that, as matter of law, the order is so arbitrary, unjust and unreasonable as to amount to a deprivation of property in violation of the Fourteenth Amendment. (Chicago, M. St. P.S.Co. v. Minnesota,
"The hearing which must precede the taking of property is not a mere form. The carrier must have the right to secure and present evidence material to the issue under investigation. It must be given the opportunity by proof and argument to controvert the claim asserted against it, before a tribunal bound, not only to listen but to give legal effect to what has been established." (Fairchild Case, supra.)
This statute, we think, comes within the denunciation expressed in Yick Wo v. Hopkins,
We have been discussing the character of the statute, not the actions of the board. It is fair to say the board was duly mindful of the necessity of notice and hearing.
The plaintiff further urges that the statute is[6, 7] unconstitutional for the reason that it purports to authorize the board to compel the construction of spurs regardless of whether they are public or private in character. If this were the only objection to the statute we should not hestitate to pronounce it constitutional under the rule that if a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional, the court will prefer the former (State ex rel. Northern P. Ry.Co. v. Duncan,
This disposition of the case makes it unnecessary to discuss the other points presented by counsel.
For the reasons foregoing, however, the statute cannot be sustained; it is unconstitutional beyond a reasonable doubt. *320 The action of the district court in overruling the demurrer was right and its judgment is affirmed.
Affirmed.
ASSOCIATE JUSTICES HOLLOWAY, GALEN, STARK and MATTHEWS concur.
Rehearing denied June 11, 1926.