93 A. 1028 | N.H. | 1915
At the suggestion of the court the argument has been confined to the preliminary questions (1) whether the record is sufficiently complete for adjudication here, (2) whether additional evidence shall be received, and (3) as to the scope of the appeal.
1. There were two petitions before the commission: (1) The plaintiffs asked for authority to issue stock and bonds and to engage in business in Lebanon and Hanover; and (2) the plaintiffs and the Lebanon Electric Light and Power Company and the Mascoma Electric Light and Gas Company asked permission for a transfer of all the property and franchises of the two latter to the first petitioner. "On account of the excessive price at which it is proposed to transfer and capitalize these properties," the commission found "such transfer would not be for the public good" and dismissed both petitions. All the capital of the Lebanon and Mascoma companies, both stock and bonds, is owned by the persons wishing to operate as the Grafton County company. The second petition is practically a request for permission to consolidate the two companies into one. Such transfer as is proposed may be made if the commission assent thereto, and the commission are required to make an order of assent if such transfer would be for the public good. Supp. P. S. 349; Laws 1911, c. 164, s. 13 (b).
Such a combination as is here proposed may or may not of itself be of public advantage, without reference to any question of price or capitalization. If it is found that such combination would be for the public advantage, the question at what sum the present owners should be permitted to capitalize the property in the new corporation will arise. Until that fact is found affirmatively, discussion of the question of capitalization is purely academic; and for this court to undertake the examination of the conclusion of the commission thereon would be not merely academic, but utterly useless. Ordinarily, where a petition is denied upon a single ground, it would perhaps be assumed that no other objection to granting it existed, and some expressions in the report tend to establish such conclusion in this case; but nevertheless the commission expressly hold open the question "whether the transfer is otherwise unobjectionable." The price at which the original holders sold the property, or which the present owners paid for it, while important as *497 evidence upon the question of capitalization, can have no bearing upon the question whether these two properties should be operated as one. Over the price either thought wise to make a measure of the transfer of the property neither the commission nor the legislature have or can have any control.
"No . . . public utility shall issue any stock, bonds, notes, or other evidence of indebtedness payable more than twelve months after the date thereof, without first procuring an order of the commission authorizing the same. Upon petition of the directors of a railroad corporation or public utility, the commission shall, after public notice and hearing, determine the amount of stock or bonds which in its opinion is reasonably requisite for the purposes for which the issue is to be made." Supp. P. S. 350; Laws 1911, c. 164, s. 14 (a). Much evidence is contained in the record and some evidentiary facts are found, but the fact which the statute makes it the duty of the commission to find is not found.
The plaintiffs' original pleading may have been faulty. Their petition should perhaps have asked the commission to "determine the amount of stock or bonds which in its opinion is reasonably requisite for the purposes for which the issue is to be made." Laws 1911, c. 164, s. 14 (a). But whether the prayer of the petition asking the authorization of an exact amount of stock and bonds should or should not, in view of the definite terms of the statute and modern liberality in pleading, have been considered sufficient to constitute a request for a determination of the amount reasonably requisite for the purposes of the proposed issue, the error, if one, was corrected by the definite request in the motion for rehearing, "that the commission find the price at which it will approve the transfer of the Mascoma and Lebanon properties, respectively, and the amount of stock and bonds which it will authorize the Grafton County Electric Light and Power Company to issue in payment of the same." Language could not be more definite or express in the submission to the commission of the precise question the statute required them to determine.
One purpose of requiring a motion for a rehearing, setting forth every ground of complaint, must have been to enable the commission to correct any error into which it may have fallen and thereby render an appeal unnecessary. The statement that the petitioners might bring another petition asking a transfer at a less purchase price would involve useless and unnecessary procedure. That a party should be driven out of court for mere defect in form *498 and compelled to begin anew, is a proceeding so foreign to New Hampshire practice for the last thirty years that it cannot be presumed the legislature intended to require such technicality.
After the denial of their motion for rehearing, the plaintiffs filed a request for an amendment of the report making the original order, or of that denying the motion for rehearing, definitely fixing the amount of the capitalization which the commission would approve of the Lebanon and Mascoma properties. The point which the statute required the commission to find was thus definitely presented a second time, and the failure to pass thereon was error of law. For the reasons suggested, the appeal might now be sustained and the orders of dismissal vacated; but such order at this time would not mean progress in the litigation and might occasion unnecessary expense in a second presentation of the record. Instead of vacating the order at this time, it seems more convenient procedure to allow the same to stand until the facts that have not been found can be found and certified. The matter is recommitted to the commission to find and certify whether the proposed consolidation at a proper capitalization will be for the public good, and if it is, to determine the amount of stock or bonds which in their opinion is reasonably requisite for the purpose proposed.
It is conceded that questions of law involved in the action of the commission are revisable by this court. It is therefore the duty of the commission to find all facts which either party may request essential to the presentation of all questions of law raised by any decision or order made by them. Broderick v. Hunt, ante, 139.
2. The plaintiffs offer and ask to have considered certain evidence which was not submitted before the commission. The evidence appears material and important, and there is some evidence tending to show accident and mistake as a reason for not presenting it before the commission. Should the order dismissing the petition be sustained, the petitioners would be at liberty to commence a new petition, upon the trial of which the evidence could be presented. Convenience in administration seems to require its consideration now in connection with the evidence already taken. The evidence has been presented in the form of affidavits. The clerk will transmit to the commission certified copies of the affidavits and also of this opinion and order, for such further proceedings in accordance therewith as in the opinion of the commission justice may require.
3. The third question, as to the scope of the appeal, remains to be considered. The act of 1911 which created the public service commission *499 gave an appeal to "any party in interest aggrieved by any order of the commission or by any part of an order containing distinct and severable provisions, . . . by complaint in the nature of a bill in equity, filed in the superior court . . . against the commission as defendant," to "be tried and determined as other suits in equity." Laws 1911, c. 164, s. 17 (b). These provisions of section 17 were repealed in 1913, and a new section covering the matter of appeal was adopted. Laws 1913, c. 145, s. 18 (adding ss. 20, 22, to c. 164, Laws 1911); Ib., s. 19. So extensive repeal and reenactment suggests an intention to materially alter the character of the appeal provided. The provisions upon the subject are so rewritten and rearranged in the 1913 statute that critical examination and careful comparison of the two sections are necessary to ascertain what changes were intended by the repeal and reenactment then made; but such examination and comparison disclose that the substance and scope of the appeal are unaltered. The language used in both sections declaring the repeal of section 17 is significant. "Section 17 of said act in its original form is repealed" are the words in each instance, evincing an understanding that the changes made were of form merely. The power of the tribunal appealed to in the final judgment which it may render upon the appeal is in each instance set forth in the same language. Laws 1911, c. 164, s. 17 (f); Laws 1913, c. 145, s. 22 (h). Paragraph (i) of section 22, chapter 145, Laws of 1913, giving the appellate tribunal power to suspend an order of the commission pending an appeal and prescribing the procedure in such case, is identical with paragraph (g) of section 17, chapter 164, Laws of 1911, save only for the substitution of the word "supreme" in the place of "superior" as descriptive of the tribunal. The same language is used to define the weight to be given the conclusions of the commission in each case: "all findings of the commission upon all questions of fact properly before it shall be deemed prima facie lawful and reasonable"; and the essentials to the reversal of orders of the commission are in each case the same: "the order appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied by a clear preponderance of the evidence before it that such order is unjust or unreasonable." Laws 1911, c. 164, s. 17 (d); Laws 1913, c. 145, s. 22 (e).
In the act of 1913, more comprehensive language is used to describe the persons who may appeal and the matters to which the appeal may relate. In these respects a more extended appeal *500 appears to have been intended, but the procedure is complicated by the requirement of a motion for rehearing before the commission as an essential preliminary to the appeal. Laws 1913, c. 145, s. 22 (a), (b). The material changes there made, however, are in the tribunal, substituting the supreme court for the superior court, and in the form of the procedure. In place of a bill in equity brought in the superior court, the remedy of the party appealing is a petition to the supreme court. The commission are no longer properly defendants. Boston Maine R. R. v. State, ante, 437. As the appeal originally provided for was to be heard and tried as other suits in equity and the issues presented by the appeal "tried and determined by the court" (s. 17 (b)), it must have been intended that the issues of fact should be settled in the usual way upon evidence adduced in open court. The act however provided that "with the answer of the commission there shall be filed a transcript of the testimony introduced before the commission, together with the originals or copies of all exhibits introduced in evidence before the commission," with the further provision: "If, upon the trial of such appeal, evidence shall be introduced which is found by the court to be different from that offered upon the hearing before the commission or additional thereto, the court, before rendering judgment, upon request of either party, shall transmit a copy of such evidence to the commission and stay further proceedings for fifteen days from the date of such transmission" (s. 17 (d)).
In the act of 1913, the procedure is somewhat different, producing, however, the same result. Upon receiving notice of the filing of the petition of appeal, the commission are required to file with the clerk of the supreme court a certified copy of the record in the proceeding, together with such of the evidence introduced before or considered by them specified by either party, or considered by the commission proper to be certified, with the originals or copies of all exhibits (s. 22 (d)). No new or additional evidence is to be considered, but the case is to be determined upon the record, except that in certain contingencies the court may permit the taking of additional evidence. If such evidence is received, the new evidence is to be transmitted to the commission at the request of either party and the proceedings stayed as under the law of 1911 (s. 17 (f)). The power of the commission and of the court after the certification of additional evidence to the commission is substantially the same under either statute. It is therefore, under either statute, within the power of either party to an appeal to require that the action of the court shall be based *501 upon the same evidence as that of the commission, although such course is not obligatory upon them. While under the act of 1911 the appellant apparently may as of right produce any new or additional evidence, under the act of 1913 he may not do so unless the court find the evidence comes within the exception of the statute. In this respect the procedure under the appeal is materially modified.
No change in the scope of the appeal being intended in the reenactment of the appeal provisions in 1913, the question is: What control did the legislature originally intend to give to the appellate tribunal over the conclusions of fact judicially determined by the commission in the exercise of the jurisdiction committed to them? There is no occasion to go farther in the present case. Whether an appeal lies as to mere administrative acts of the commission, or what powers of that description the act gives the commission, are questions which may be left until they are raised by parties at issue over them.
One view suggested is that the control is merely supervisory. If this be so, "`the court has no power to revise the doings of the commissioners for the purpose of ascertaining whether they have judged wisely and correctly, nor for any purpose but to see that their proceedings have been regular, and that fraud and surprise has not been used to vitiate their results'. . . . Verdicts of juries, reports of referees, committees, or other officers appointed by law to determine controversies, are governed by the same general rule. They cannot be set aside or rejected merely because the revisory tribunal might or would have come to a different conclusion upon the facts. The proceedings, being regular and without error in law, will not be set aside unless the court can see that the triers, whether a jury or other tribunal, in coming to their results, `were influenced by passion, prejudice, partiality, or corruption, or unwittingly fell into a plain mistake.'" Doughty v. Little,
"The superintending power is generally limited to such matters *502
of law and fact as must be tried and decided in order to correct errors of law. When the legislature intends a court's decision of questions of fact shall be revisable by another tribunal on a new trial of the whole case, whether there is error of law or not, an appeal is ordinarily provided." Boody v. Watson,
But while the legislature may give an appeal implying a reinvestigation of the facts as well as of the law, it may limit the extent of such reinvestigation. The question therefore is: What limit has been placed upon the general powers of an appellate tribunal? Boston Maine R. R. v. State, ante, 437.
While the conclusions of the court may be based upon the evidence heard and considered by the commission, that is not a necessary result of the procedure. Absolutely conclusive evidence against the conclusions of the commission may be received which was not presented before that board. In permitting the introduction of new evidence before the appellate board, it must have been intended some use should be made of such evidence. The only use possible is as an aid in determining questions of fact pending before the tribunal. Hence it must have been understood that questions of fact would be presented before the tribunal, to be determined upon the evidence submitted. Generally, upon a broad appeal the case is heard anew upon evidence, without reference to the evidence at former trial (Bickford v. Franconia,
Counsel for the state suggest a distinction between the findings of the commission and their final order or decision. The distinction is well taken. Ordinarily, the findings of the commission will constitute the evidentiary facts upon which the justice or reasonableness of their order or decision will depend — the final question upon the appeal. The verity of these conclusions is therefore of vital importance. To illustrate: Upon a question of capitalization, if it were found that the property proposed to be capitalized did not exceed $150,000 in value, so long as such finding stands it could not even be argued that a refusal to approve a capitalization in stock and bonds at $300,000 was unjust or unreasonable. The legislature could have provided that the findings of the commission should be conclusive, when the only questions open would be the existence of any evidence and the regularity of the proceedings; or all reference to them could have been omitted, which would have left the question of the weight to be attached to them open to argument. The act however provides: "All findings of the commission upon all questions of fact before it shall be deemed prima facie lawful and reasonable, and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied by a preponderance of the evidence before it that such order is unjust or unreasonable." Laws 1913, c. 145 s. 22 (e).
There is here a clear distinction between the weight to be given to the evidentiary findings upon which the final judgment of the commission is based and the final judgment itself. The latter is not to be set aside or vacated unless clearly unjust or unreasonable, while the former are merely to be deemed prima facie lawful and reasonable. "Prima facie evidence is that which, not being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favor that it must prevail if it be accredited by the jury, unless it be rebutted or the contrary proved; conclusive evidence, on the other hand, is that which excludes, or at least tends to exclude, the truth of any other hypothesis than the one attempted to be established." 1 Stark Ev. *453; Emmons v. Bank,
The necessarily absurd proposition, that the findings, whatever they might be, should constitute prima facie evidence of the justice and reasonableness of such orders as may be made, is obviously not intended, but the prima facie attribute of the findings is confined to the character of the findings themselves as lawful and reasonable deductions from the evidence upon which alone they could be founded. But as they are merely prima facie, they are not conclusive, but can be attacked and impeached. Copp v. Henniker,
The burden therefore rests with the appellants to satisfy the court that upon the evidence the findings are erroneous. The fact that they are merely prima facie disposes of the contention that they were intended to stand, like the findings of a jury, if supported by any evidence. The legislature plainly intended to submit to the appellate tribunal the validity upon the evidence of the commission's findings of the evidentiary facts upon which the justice and reasonableness of the order appealed from might depend. The term "prima facie" imports merely that there was evidence upon which the finding could be made. Webster Dict. Whether the finding should be made is the question upon appeal. The various evidentiary findings being passed upon, the question remains whether the order should be vacated or set aside. This question may be disposed of by the conclusion upon the evidentiary findings reported. To return to the former illustration: If it were found upon all the evidence, giving due weight to the commission's findings, that the property proposed to be capitalized and reasonably necessary for the purpose was worth $350,000, and no question but one of value were involved, an order refusing to permit a capitalization at $300,000 would be clearly unjust and unreasonable.
There is a slight change in the phraseology relating to the trial or hearing before the appellate tribunal, from what it was in 1911. *505 The section, after providing that the case shall be in order for argument at the next regular session after the filing of the certified copy of the record, reads: "Upon the hearing, the burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful, . . . and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied by a clear preponderance of the evidence before it that such order is unjust or unreasonable" (s. 22 (e)). In 1911, the orders were grouped with the findings to be deemed prima facie lawful and reasonable. It is equally clear upon the language now in force that it was understood that the issue presented was to be passed upon by the appellate tribunal as triers of fact. One who has the burden of proof has the right as well as the duty to sustain it. The right is implied from the duty. When it is said that the plaintiff has the burden of proof, it is understood that he has the right to present the considerations upon which he relies and to invoke the judgment of the tribunal upon the issue. He is not thrown out of court if the tribunal think some reasonable men might find against him, but he prevails unless the tribunal themselves think he has not sustained the burden. The terms describing revisory power are familiar and simple. It might have been provided that the order appealed from should not be set aside if there was any evidence to sustain it, or unless it clearly appeared reasonable men could not find it just and reasonable, or unless it could not reasonably be found just and reasonable. This, or similar language properly descriptive of the limited power which the state claims the statute intended to give the appellate tribunal, was not used, but, on the contrary, language usual in describing the action of a tribunal deciding issues of fact upon a preponderance of the evidence.
Giving to the language used its plain and ordinary signification, interpreting it as usually understood, there can be no escape from the conclusion that it is the conscience of the appellate tribunal which is invoked. The question is not whether the commission acted honestly, or whether there is or not some evidence to support their conclusion, or whether some reasonable men might think the order just and reasonable, but is the mind of the appellate tribunal satisfied with the degree of certainty required by the statute that the order is unjust or unreasonable. If the decision is one that can constitutionally be placed upon the court, the court cannot disregard the duty imposed. The requirement that the court must be *506
satisfied by a clear preponderance of the evidence before it cannot be construed as prohibiting the court from weighing the evidence. The evidence required to sustain a decree for the reformation of a written instrument must be "entirely plain and convincing beyond reasonable controversy." "The mistake must be made out in the most clear and decided manner, and to the entire satisfaction of the court." Searles v. Churchill,
As has already appeared, the appeal provisions of the law of 1911 were thoroughly and carefully revised in 1913; and if the intent had been to abolish all correction of errors except those cognizable under the supervisory power, apt language to that effect would have been used, and the repeal of the appeal section of the law of 1911 would not have been limited to the repeal of the section in its original form. The purpose to impose directly upon the supreme court the appellate duties originally imposed upon the superior court is too plain to be mistaken. It is said that the supreme court is the court of law, and that it could not have been intended to require that court to find facts. While as a rule the supreme court has not had jurisdiction of questions of fact, it has always been understood since 1901 to include within its jurisdiction the determination of the facts involved in the incorporation of railroads under general law. Petition of Laconia St. Ry.,
The interstate commerce act, and the citations to cases dealing with the power of the courts over the decisions of that and other similar bodies made in argument, have been examined, but they have not been found of much assistance. The act under consideration gives an appeal. Boston Maine R. R. v. State, ante, 437. The only question is to what extent the provisions of the act are *507 limitations of a general appeal. What the power of the court would be in the absence of an appeal or in the presence of a mere review of legal error is of little consequence in construing a proceeding which by its terms naturally includes both law and fact.
It is urged that the duties imposed upon the commission are legislative in character, and that the duty of passing upon questions determined by the commission in the exercise of powers legislative in their nature cannot constitutionally be imposed upon the courts by appeal. Steenerson v. Railway,
The questions presented by this appeal are the value of the property involved and whether the public good requires or will *508
permit the proposed incorporation. Conceding that the legislature may delegate to another body the determination of these questions, which it might have settled for itself by an act incorporating the appellants or by refusing to do so, there is nothing in the nature of the questions upon which it can be said the determination of them by a court is beyond judicial power. Both are plain questions of fact. That the determination of value is a judicial question is too plain for discussion. What the public good requires is a question of fact. Petition of M. M. R. R.,
Whether as a matter of policy it would be more for the interests of the public that the conclusions of the commission should be made final and conclusive is not a judicial question. The only question before the court is whether the legislature has granted a retrial of justiciable questions by the court, and whether, if it has attempted to do so, it can. Both of these questions are answered in the affirmative. "Undoubtedly, a state may permit appeals to its courts from the rate-making orders of its railroad commission, and upon the review of such orders it may expressly authorize its judicial tribunals to investigate and decide questions which otherwise would not belong to them." Louisville etc. R. R. v. Garrett,
"The final judgment upon every appeal shall be a decree dismissing the appeal, or vacating the order complained of in whole or in part, as the case may be; but in case such order is wholly or partly vacated, the court may also, in its discretion, remand the matter to the commission for such further proceedings, not inconsistent with the decree, as in the opinion of the commission justice may require." Laws 1913, c. 145, s. 22 (h). Whether the controversy can be disposed of by a decree dismissing or vacating the order complained of "in whole or in part" will depend upon the facts of the particular *509 case. But the authority to vacate the order in part seems to require the court to determine to some extent, at least, what order may be just and reasonable. But discussion of the final judgment may well be left until there is occasion to make it.
As to the scope of the appeal, the conclusion is that, in addition to the questions of law that may be involved, the questions of fact presented by this record are open for discussion and determination, subject to the limitations that the findings made by the commission are to be taken as prima facie correct and that the orders made are not to be disturbed unless it plainly appears "beyond reasonable controversy" that they are either unjust or unreasonable. In accordance with the suggestion upon the first two points, the order is,
Remanded.
All concurred.
