37 N.W.2d 538 | Minn. | 1949
Four questions are presented for decision, viz.:
(1) Whether an exercise by the commission of its power under M.S.A.
(2) Whether in fixing an emergency or temporary street railway rate of fare the commission has the power to fix it in such an amount as will produce revenue not only necessary to meet fixed charges and operating expenses, but also sufficient to yield a reasonable return on the fair value of the property devoted to street railway use;
(3) Whether a finding by the commission of the emergency on which the emergency or temporary fare is based is necessary; and *437
(4) Whether a prior order of the commission, made within a year prior to the emergency or temporary rate order, fixing rates of fare and providing that "after the expiration of one year" an application to modify it might be made, barred such an application within the year.
There may be other questions lurking in the record, but, since they have not been assigned as error, we neither decide them nor intimate any opinion with respect to them.
The facts out of which these questions arise are that both streetcar companies, having filed declarations and consents and obtained indeterminate permits under §§
In 1925, in rate proceedings, the commission found the values of the street railway properties here involved and fixed a rate of fare *438 based thereon, and thereafter, in 1929, 1941, 1943, and 1947, it reopened the proceedings for the purpose of making adjustments in the valuations and of fixing new rates of fare based thereon. While there have been several hearings and orders, all have been part of a single proceeding, the one instituted in 1925, which has been reopened from time to time to hear and determine such further applications to fix rates of fare as have been instituted.
Each of the 1947 rate orders contained a provision to the effect that the rate of fare should be ten cents cash fare or five tokens for 45 cents (each token to be a fare), with transfer privileges then in force, and that after the expiration of one year from the date of the order (September 10, 1947) either the city or the street railway company might apply to the commission for a modification of the order. The present applications were filed in May 1948 (within, not after the expiration of, one year from the date of the September 10, 1947, order) and petitioned the commission to reopen the prior proceedings, to fix the rate of fare at 12 cents, and to fix an emergency or temporary fare pending the final determination of the applications.
The fixing of an emergency or temporary rate of fare pursuant to the applications was heard as a separate matter in June 1948. On July 12, 1948, the commission filed orders fixing the rate of fare in each city at 11 cents, with existing transfer privileges, until changed by subsequent order of the commission, and adjourning the hearing to a later date to be fixed on application and ten days' notice.
The July 12, 1948, order in the Minneapolis case found as facts that by the 1947 order the rate of fare was increased so as to increase the company's annual net operating revenue to $1,183,583, which it was estimated would yield a return of 5.99 percent on the fair value of its property; that subsequent thereto operating expenses had increased by reason of wage increases retroactive to January 1, 1948, provision for sick leave of employes made necessary under an employment contract, added services, and higher taxes so as to reduce the net operating income to $175,674 during *439 the first five months of 1948 or an "equated rate of return" of 2.13 percent on the valuation found by the 1947 order; that to make the net operating income yield a fair return (5.99 percent) on the 1947 valuation, which was adopted for purposes of the 1948 order, the rate of fare should be increased to 11 cents; and as a conclusion that the rate of fare should be increased to 11 cents until changed by subsequent order of the commission and that the hearing be adjourned to a later date to be fixed upon application and notice.
The July 12, 1948, order in the St. Paul case found as facts that the valuation made in the 1947 order had been adopted by both parties; that by the 1947 order an increase of fares was granted increasing the company's annual operating revenues $707,134; that expenses had increased subsequent to such order in the amount of $727,213 because of increased wages, benefits to employes, and added services, thus reducing the company's income $20,779 below what it was at the time of the 1947 increase; and that an increase of the rate of fare should be made sufficient to earn a reasonable return (6.62 percent) on the fair value of its property; and as a conclusion that the rate of fare should be increased to 11 cents, etc., as in the Minneapolis case.
It appears without dispute that the increases ordered were more than was necessary to meet fixed charges and operating expenses of the street railway companies, but not more than was necessary to yield a reasonable return on the fair value of their properties comprising their street railway systems.
1. The argument in support of the cities' contention that the commission's power to fix emergency or temporary rates of fare has been exhausted is that the act contemplated that, when street railway companies came under the act, it would be necessary in the first rate-making proceeding for the commission to establish a valuation of their properties; that, because rate-making proceedings may consume long periods of time, the commission was authorized to fix emergency or temporary rates of fare pending a valuation of the street railway properties; that the power so granted was limited to the making of the first valuation — a valuation; and that the *440 exercise of the power to make the valuation in 1925 exhausted the power thereafter to fix emergency or temporary rates of fare.
Whether the power to fix emergency or temporary rates of fare was one which was to be exhausted by a single exercise of the power to make a valuation or was one to be exercised repeatedly as occasion might require depends on the legislative intent. This is to be sought in the language used, in the light of the subject matter and the purposes of the statute. All the indicia of legislative intention here betoken a meaning that the power to fix emergency or temporary rates of fare was to be a continuing one to be exercised repeatedly as occasion might require. To begin with, there is no express provision in the act that a single exercise of the power to make a valuation shall exhaust the power to fix such rates of fare pending a valuation. Because express manifestation of such an intention is lacking, the existence thereof depends upon whether an inference thereof in permissible. If such an inference is not permissible, it follows that such an intention is entirely absent. The question, then, is what inferences are to be drawn from the provisions of the act. First to be considered is the nature of the power. Fixing rates is a legislative function (City of Duluth v. R. R. W. H. Comm.
The provisions of the statute for repetitious exercise of the rate-making process with the making of a valuation as an incident of each exercise thereof to obtain a base for the determination of the reasonableness of the rates to be fixed and for the fixing of rates sufficient to yield a reasonable return on such valuation evince, in the light of constitutional requirements that emergency or temporary rates the same as permanent rates must yield such a return, an intention that the power to make valuations and to fix emergency or temporary rates pending the making of such valuations is of a *442 continuing nature, to be exercised repeatedly as occasion may require. Such a meaning is implicit in the very nature of the power and of the statutory and constitutional requirements governing its exercise.
There are, of course, powers which are exhausted by a single exercise thereof (see State ex rel. Clark v. Stanley,
2. In fixing an emergency or temporary street railway rate of fare, the commission has the power to fix it in such an amount as will produce revenue not only necessary to meet fixed charges and operating expenses, but also sufficient to yield a reasonable return on the fair value of the property devoted to street railway use. As a matter of law, a rate of fare in such an amount is required because a lesser one would be confiscatory and violative of due process. State v. St. Paul City Ry. Co.
3. The question as to whether the commission is required to find the facts upon which it bases an order fixing emergency or temporary rates of fare is answered by the fact that here the commission actually made detailed and explicit findings of fact upon which it based its order. The requirements of the rule contended for were in fact satisfied here.
4. The commission had the power, notwithstanding its order of September 10, 1947, to the effect that an application might be made to modify it "after the expiration of one year," to entertain the instant proceedings within the year. The statute in express terms makes it the duty of the commission to entertain such proceedings at any time. Administrative officers cannot divest themselves of statutory duties by refusal to act or by adjournment of their sessions, and where they attempt to do so they may be compelled by mandamus to act, even though their action may not be thereby controlled. 34 Am. Jur., Mandamus, §§ 126, 127. By entertaining these proceedings notwithstanding its prior order, the commission but performed its statutory duty. There is no estoppel in such a case to prevent official action. See, Muehring v. School Dist.
Our function on appeal does not involve a consideration of the broad questions whether increases in rates of fare should be granted, but is limited to the questions which have been presented for our decision and which we have answered. No error has been shown. There should be an affirmance.
Affirmed.