Illinois Central Railroad v. Dodd
61 So. 743
Miss.
1913
Check Treatment
Smith, C. J.,

delivered the opinion of the court.

This is an appeal from an order made by the Railroad Commission upon a petition filed with it by R. E. Dodd, directing appellant to re-establish a crossing over its right of way for the use and benefit of Dodd.

Chapter 86 of the Laws оf 1908, under which the appeal is taken, provides “that whenever the railroad commission shall make an order, the validity of which shall be i disputed upon the ground that the commission was with- • out power to make it, or whenever the commission shall refuse to make an order asked for upon the ground that it was without power to make it, any person feeling aggrieved by the action of the commission may appeal therefrom directly to the supreme court. Upon such' appeal the supreme court shall decide nothing except as to the .power of the commission in the premises, and all other questions which may be involved shаll remain unaffected thereby. ’ ’

Appellees now move to dismiss the appeal on the ground that this statute is in violation of section 146 of our state Constitution, which is as follows: ‘ The supreme court shall have such jurisdiction as properly be*43longs to a court of appeals.” The jurisdiction which properly belongs to a court of appeals includes only such as is of a revisory character, and necessarily impliеs that the matter revised must be a judicial decision, rendered by a tribunal clothed with judicial power. Planters’ Ins. Co. v. Cramer, 47 Miss. 200; Y. & M. V. R. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469, 122 Am. St. Rep. 321. ‘‘Judicial decision is the application, by a court of competent jurisdiction, of the law to a state ‍​‌​​‌​‌‌​‌​‌​‌​‌‌‌​‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​​‌‌‍of fаcts proved, or admitted to be true, and a declaration of the consequences which follow.” Le Blanc v. Railroad Co., 73 Miss. 463, 19 So. 211. And the judicial power of courts includes, among other things, the power to hear and finally determine controversies between adverse parties. 4 Words and Phrases, 3854. et seq. In Auditor v. A., T. & S. F. R. R. Co., 6 Kan. 500, 7 Am. Rep. 575, it was held' that the words “ ‘appellate jurisdiction,’ as used in Const, article 3, paragraph 3, providing that the supreme court shall have such ‘appellate jurisdictiоn’ as may be provided by law, means to revise and correct the proceedings in a cause already instituted, and necessarily implies that the subject-matter has already been instituted in and acted on by some other court; whose judgment or proceedings are to be revised. The fact that there has been a decision, however, is not sufficient; but there must have been & decision by a court clothed with judicial authority аnd acting in a judicial capacity. The tribunal from which an appeal lies need not be called a ‘court;’ but it must be one having the attributes of a court — a tribunal where justice is judically administered.” In Hubbell v. McCourt, 44 Wis. 584, it was said that “ ‘appellate jurisdiction,’ spoken of in the Constitution, is that kind of appellate jurisdiction which had theretofore been exercised by the highest judicial tribunals of the respective states, and not an unlimited appеllate jurisdiction over any matter or thing arising either in courts or out of courts which the wisdom or folly of any future legislature *44might see fit to confer or impose upon it. The appellate jurisdiction should be limited to the judgments and orders made by the courts of the state, and ‘orders’ made by judges or other officers out of court cannot be the subject of review in the first instance in the Supreme Court. ’ ’ 1 Words and Phrases, 453. The rule herein announсed has the sanction of the great name of Story, for in section 1761 of the second volume of the fourth edition of his Commentaries on the Constitution he used this■ language: “The essential criterion of appellatе jurisdiction is that it revises and corrects the proceedings of a case already instituted, and does not create that cause. In reference to judicial ‍​‌​​‌​‌‌​‌​‌​‌​‌‌‌​‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​​‌‌‍tribunals, an appellate jurisdiction, therefоre, necessarily implies that the subject-matter has been already instituted in and acted upon by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may, be exercised in a variety of forms, and, indeed, in any form which the Legislature may choose to prescribe; but still the substance must exist before the form can be applied to it. To operate at all, then, under the Cоnstitution of the United States, it is not sufficient that there has been a decision by some officer or department of the United States; it must be by some one clothed with judicial authority and acting in a judicial capacity.

Turning nоw to the statute creating the railroad commission, we find that it is a mere administrative agency, having nowhere been given the power to apply the law to a state of facts and to make a final declaration of the consequences which follow; all of its orders being subject to review by the courts, and when called in question being only prima facie correct. Code, section 4836; Western Union Telegraph Co. v. Railroad Commission of Mississippi, 74 Miss. 80, 21 So. 15; Mississippi Railroad Commission v. Illinois Central Railroad Co., 203 U. S. 335, 27 Slip. Ct. 90, 51 L. Ed. 209. In Western Union Telegraph Company v. Railroad Commission it was said that *45“the findings and determination of matters committed to the railroad commission by it are not final and conclusive, and were never so intended by the statute. It is a mere administrative agency, although, in some respects, it exercises yuas-i-judicial power. But at last the reasonableness and consequently the lawfulness of its determination is left subject to judicial inquiry and decision. If a common carrier, required by the commission to do an act, is of opinion that the requirement is a violation of its legal rights, it may refuse comрliance, and if, upon judicial inquiry, its contention is supported, it is not punishable or liable for a failure to comply. But it takes the risk of coming under all penalties and liabilities declared by the statute if, upon such inquiry, the сourts uphold the action of the commission. The statute, in express language, so provides. Section 4248 of the Code (4836 of our present Code) declares that ‘all findings of the commission, and the determination of every matter by it, shall be in writing, and proof thereof shall be made by a copy of the same, duly certified by the secretary under the seal of the commission; and whenever any matter has been determined by the commission, in the course of any proceedings before it, the fact of such determination, .duly certified, shall be received in all courts and by every officer in civil cases as prima facie evidence that such decision was right and proper.’ ” In Stone v. Y. & M. V. R. R. Co., 62 Miss. 607, 52 Am. Rep. 193, this court, and in Stone v. Farmers’ Loan & Trust Co., 166 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636, the supreme court of the United States, nеcessarily held, in the language of the latter court in Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 394, 14 Sup. Ct. 1053, 38 L. Ed. 1022, that “such a commission is merely an administrative board created by the state for carrying into effect the will of the state as expressed by its legislation. ’ ’ In deciding whеther or not the Connecticut Railroad Commission was clothed with judicial authority, the supreme court of that state, in *46State v. New Haven Co., 43 Conn. 351, said: “We think that the commissioners were not judges, that their duties are not judicial, and that their decision wаs not a judgment, in such a sense as to have the'effect claimed for it. The commissioners are nowhere in the statute called or referred to-as judges. The Constitution declares that the judicial power of the state shall vest in the supreme court ‍​‌​​‌​‌‌​‌​‌​‌​‌‌‌​‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​​‌‌‍of errors, the superior court, and such inferior courts as the general assembly shall from time to time ordain and establish. * * * Their duties, except in a very limited sense, are not judicial. They may, and doubtless do, in some cases, hear evidence, weigh it, and decide; and their decisions are in writing, and perhaps recorded. To that extent, as we said in Chester v. Connecticut Valley Railroad Co., 41 Conn. 348, their duties are ‘judicial in character,’ and thеir decisions in popular language are often spoken of as judgments. But it is not their duty, and they have no power, to ascertain and determine the rights and enforce the relative duties of contending parties. Thеir whole power, and consequently their whole duty, in respect to the matter now under consideration, was to give or withhold their assent to the proposition of the railroad company. Their duties are not tо enforce rights and redress wrongs, as a court of justice, but to stand in place of the legislature between corporations and the public and supervise the exercise of corporate powers, so that no injustice may be done. The legislature might, and for a considerable period of time did, discharge these duties itself; but as railroads became more numerous, and complaints more frequent, the power was wisely delegated to a convenient board, that could act promptly and with advantage to all concerned. The duties of this board, therefore, are not judicial, but such as pertain to the administrativе powers of the legislature itself.” See, also, People v. Railroad Commission, 158 N. Y. 430, 53 N. E. 163, and 33 Cyc. 46 and 52. Prom these views it necessarily follows that the railroad commission *47is not a tribunal of that character from which the legislature is authorized to grant appeals direct to this court.

The only cases wherein the precise question here under consideration has been passed upon by the courts, which have come under our observation, are the casеs of State ex rel. Railroad Commission v. Wilmington & W. R. Co., 122 N. C. 877, 29 S. E. 334, and Chicago, etc., Ry. Co. v. Railroad Commission of Indiana, 38 Ind. App. 439, 78 N. E. 338, 79 N. E. 520. In the former the statute conferring the right of appeal was held invalid for the same reasons which have conducted us to a similar conclusion with reference to the statute here under consideratiоn. In the latter statute, which provided for an appeal to an intermediate appellate court, was upheld on the ground that it was wholly immaterial whether the jurisdiction ‍​‌​​‌​‌‌​‌​‌​‌​‌‌‌​‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​​‌‌‍the court was called upon to exercise was strictly appellate or not, for the reason that the court itself was a creature of the legislature, and not of the Constitution,, and consequently the legislature had power to confer upon it any jurisdiction it desired so to do, provided only that the act it was called upon to perform was judicial in character.

Our attention has been called to the fact that in Railroad v. Adams, 85 Miss. 772, 38 So. 348, this court held that this commission is a tribunal inferior to the circuit court, within the meaning of section 90 of our present Code, which confers upon that court power to review by certiorari the judgments of all courts inferior to it; but we are not here concerned with the correctness of that decision, the ground of which is not disclosed, nor do we think it was thereby the intention of the court to overrule the case of Telegraph Co. v. Railroad Commission, supra, and hold that .this commission is a 'court, and not a mere administrative agency. The jurisdiction of the circuit court is vеry different from that of this court. It may be that it was properly given the jurisdiction to review by certiorari the quasi-judicial acts of a tribunal exercising quasi-judicial powers. 4 Stan. Enc. Proc. 919; *48People ex rel. v. Railroad Commission, 158 N. Y. 421, 53 N. E. 163.

Moreover, what we are here, by this statute, direсted in effect to do, is simply to render an advisory opinion to one of the other departments ‍​‌​​‌​‌‌​‌​‌​‌​‌‌‌​‌‌​​​‌‌​​‌‌‌​​‌‌‌​​‌​‌‌​​​​‌‌‍of the state government, and this the section of the Constitution now under consideration, by necessary implication, prohibits us from doing.

Motion sustained.

Appeal dismissed.