*1 outlined, Under authorities cited and the evidence the order from must affirmed. appealed
Affirmed. L. J. SHIELY CHICAGO, COMPANY v. MILWAUKEE, ST. PAUL
& PACIFIC RAILROAD COMPANY. (2d) 116. 37,437.
June 1958 No. Mulally,
James H. for appellant. Rider, Jr., Graham,
Stuart W. Roland D. for respondent.
Frank T. Gallagher, Justice. from an order
Appeal of the district court dismissing appeal from an order of Minnesota Railroad and Warehouse Commission.
The out of which arises was commenced Commission, herein Railroad and Warehouse the Minnesota
before commission, Min- a to as the referred Chicago, in behalf of respondent, in June Lines Committee nesota called the Milwaukee, hereafter & Pacific Railroad Company, *2 and railroad, gravel net ton on sand per a rate 75 cents publish Minnesota, near Hastings, No. 383 of the railroad moved from Spur Transfer, Park, Paul, and St. Louis Minnesota Minneapolis, Minnesota. resettings
After several was held commission hearing finally 24, L. referred to as on June 1956. J. Appellant, Shiely Company, to the according dates hearing the reset received notices Shiely, at the as hearing vice president. of its executive affidavit for the railroad and testified both time witnesses at which protestant, on Thereafter July and were cross-examined by parties. Shiely facts, its and order findings filed report, the commission in part: read which *
“* * and the hereby herein be same is denied the petition establishing to the railroad herein proponent company without prejudice ton, Parte cents net to Ex No. subject a rate of 75 increases per hereof, and to the named 1 and points from paragraph application ton, 52 cents at the same time rate of net establishing per increase, from Ex Parte 196 and to named in points paragraph hereof.”
On October the commission filed an order reopening matter and set a date for further In hearing. January peti- Shiely be tioned commission to to file permitted inter- complaint vention. The railroad which was denied opposed without as to the un- to the separate complaint petitioner prejudice rates. No was taken by rate or present reasonableness commission. that action Shiely date, was hearing of the the second original After two cancellations reassignment notice 1957. was of all April given held affidavit and according of its officer at represented dates its which 16th at time a witness heard April attorney, and an exhibit received in behalf.
With in connection with respect policy hearings, affidavit states that of the commission’s secretary hearings before the are whether any public person, not, he received a notice or his permitted to state position matter before the commission and material give testimony to such However, proceedings. persons receiving notices of hearings persons to such parties to take are not pro- in such appearing part hearings the Railroad and unless be a as defined ceedings such person III reads in as Commission Rules of Practice. Rule part Warehouse follows: (a) are
“The before the commission termed: addition, (b) but complainants; according respondents; thereto, (c) their there nature of relation intervenors.
[*] [*] * * [*] “The person against whom is made are persons complaint styled respondents. *3 intervene, to
“Complainants permitted as hereinafter are provided, intervenors; and if styled such is permission the granted, petitioner, becomes thereby, an intervenor and a to the proceeding. But leave not be will granted except petition containing allegations reasonably pertinent to the issues tendered on behalf of complainant or and which respondent do not unduly broaden them.”
Rule IV provides that person entitled any to to the complain com- and mission anyone having an interest therein may petition for leave to intervene any pending proceeding prior to or at the time set for the shown; but not for except good thereafter cause such petition the for must set forth the grounds intervention proposed and the interest of the the petitioner proceedings and should conform to the aof formal requirements may be complaint. Appearance entered without for or to leave intervene applying receiving in all general or special the investigations commenced commission by (which without complaint the situation here not in these which were commenced a complaint). of findings its second report, On the filed May fact, order, and as follows: is be and ordered, railroad applicant
“It therefore ton, to Ex subject rate net hereby 15j per authorized to establish a of the to from and Parte on sand and for gravel application 196 increases hereof, establish at the same time named in and points paragraph ton, of net from rate to Ex Parte 196 increases St. per 75^ Minnesota, Park, Transfer, St. Louis Minnesota and Minneapolis the location shipper’s switching charges of addition the without of Paid.” City of Authority of the Port the tracks findings, the second report, of After pursuant of Ramsey County, the District Court therefrom to appealed of that statute pertaining 216.24. The pertinent part S. A. to M. of the commission provides: district court from orders appeals commission, before the or any party to a “Any party proceeding thereof, Minnesota, attorney or the State of order affected district court of the county therefrom the general, appeal * * *.” them, reside, or a majority which complainants, dis- 1957, the said district court for a On railroad moved June latter on the ground missal Shiely’s appeal before affected order and district court had therefore no hear jurisdiction appeal. filed with parties Shiely between a stipulation Pursuant all the proceedings certified before copies court of the district clerk be referred to the before judge in both hearings, the commission On dismissal was to heard. October motion whom on the grounds ordered dismissal of Shiely’s district court nor a been that it had neither 216.24, that it meaning order within § the commission’s before the court and that the had court unlawfully was improperly *4 This the matter. is from that appeal over order. no jurisdiction (a) issues raised on are: it legal Shiely appeal The Whether to the it to to the proceeding entitling appeal became district (b) it from the commission’s whether became a court the commission’s order. (a) to appeal the covering right cites cases from this court 216.24. the district under § court from an order of It technical argues that this rather in its earlier court made decisions statute, v. N. Co. 60 interpretations as in Steenerson G. 461, Minn. 146 Minn. T. & T. and State v. Tri-State Co. however, claims, 178 N. It R. & H. W. 603. that in State and R. W. Comm. v. Rock Island M. T. W. and Co. 295 N. In re N. Acquisition Cloud 226 Minn. 32 W. Flying Airport, (2d) 560, argues The railroad our earlier decisions. we overruled two decisions are and controlling and that first claims contrary did overrule the but not distinguished the last two expressly earlier ones. supra,
In State v. T. & T. this court defined phrase Tri-State Co. “party to a in an from an order the commission proceeding” appeal under 216.24. In that case were commenced § an order why to show cause certain rates telephone should not be The reduced. received a notice of the city hearing and in behalf of itself and its appeared citizens objecting maintenance high rates. It at the and participated in the proceedings, including cross-examination of witnesses called by the telephone company. appealed district court from an order of the commission which temporarily approved maintenance of the higher rate. The district court dismissed the appeal ground that the city not before the commission. court we said that term Upon “parties” includes appeal those who are in the matter and interested who have the directly right examine witnesses, control and cross-examine proceeding, or judgment from order entered. finally We also said that one is because he interested merely in the results. We held in that made case was never city never became a party; it had no to control the it right proceedings; was not bound order commission; made it could commence new proceedings by filing commission, with the it complaint could not be denied a hearing ground on the order entered in in that case *5 540 605): 251, N. (146 178 W.
a bar. This said there court also “* * * were affected The of the its interests inhabitants city we were the but that fact alone not make it a If party. did did, rates reduction of hold it one interested in that procuring them review a proceeding in part and take who was appear allowed of control gain could appealing right would have the to appeal, v. Great out in Steenerson As pointed was the subsequent proceedings. not to ought 60 Minn. Northern Co. allowed.” before the for the came on hearing
In the Rock Island case matter operate permit the Rock Island commission on application Minnesota, and notice of in public highways motor vehicles state, including was the commission. All of the appellants, issued by brotherhood, and a railroad ap- several motor transport companies, in to the notice. No written response objections granting peared of the were The the brother- permit filed. appearances, except hood, were entered on the record and the were formally appellants designated The all “objectors.” as with hearing proceeded parties was active a brotherhood as The representative participating. who as the attorneys representing parties in the proceedings participant regarded commission record showed The formally. was without objection This all of them as parties. and treated situa- The Company. Island Motor Transit Rock respondent, part on the same regard parties tion At the trial in that court formal to the district court. all of the the brotherhood. except made by appellants were appearances court to submit the matter on of record in stipulated open The such evidence before the as supplemented by the record court, as was want to offer. In the trial the situation might the parties commission, there a full in the participation before the proceedings brotherhood, all without except appellants, objection decision, After the court made the Rock Island. trial all of the brotherhood, moved for amended appellants, including findings was made to the objection new trial. No of the brother- appearance hood and its was recited in the order proceedings appearance denying the motion. litigation
We said in that case that one who
as
“actor” in
appears
he claims or asserts an interest
in the
which
matter is
he
even
failed to file a written
as
though
pleading,
“party”
be waived
is a
where there
trial of the
which
voluntary
issue
raised,
Kratka,
the pleading would have
v.
92 Minn.
citing McAlpine
Henderson,
N. W.
and Henderson v.
247 N. Y.
Referring the Steenerson cases, and Tri-State we said in In re Acquisition of Cloud Flying supra, Airport, that those decisions were distinguished but merely actually overruled in in that broader part a .definition of the to a It phrase proceeding” was is “party adopted. apparent case, that all the court intended in the Flying Cloud Airport involving vacating certiorari in of an order the Minneapolis-St. Paul Commission Metropolitan Airports acquisition of an airport, was to that a broader definition say to a “party proceeding” was that adopted than contained in the or Tri-State Steenerson cases. The court then submitted the correct rule in the Flying Cloud case Airport (226 as follows 564): 32 N. W. [2d] “An who actor participates, with or without formal inter- pleading or vention, as an active contestant merits for the determination of fact, issues of or and who outcome of law will be by proceeding bound and affected either favorably to an adversely, respect to him asserted interest as from an peculiar distinguished interest com- mon to the or other in is taxpayers a public general, to party pro- ceeding.” explained
That further that there is a opinion distinction between par- ticipating assist in simply issues and clarifying a asserting peculiar as party merits in them participating be affected the outcome. likely interest held that we case Airport the Flying that rule in Cloud Applying the proceedings. was not bound by never relator became not have and did the airport in that was not the Relator case owner indirect it had an The fact that surrounding interest in the any property. signifi- of no as an was considered interest active in aviation participant court that relator Likewise it obvious cance court. merely appearing no as a acquired standing proceeding We held advice suggestions. an offer attorney at the Airports Metropolitan of the Minneapolis-St. there that order any have no dif- could Airport Cloud regard Flying Commission it have on other taxpayer, the relator than would ferent effect upon to give was not sufficient fact that alone taxpayer and the relator involving it a to review the commission’s right proceeding certiorari a showing or administrative function without the exercise a legislative not common to all possessed relator interest We taxpayers. as it had no such in the matter would concluded interest as a either make participation necessary proper. our circumstances that under facts and here opinion
was not as particular involved herein intended *7 216.24. It never made a by was or became to the proceeding. § party intervene, railroad, Its petition was denied opposed by by No commission. that denial was appeal taken. It had no right to order, it was bound commission’s by the proceeding, control a new a proceeding by complaint it can commence commission. in addition to
(b) a position being party takes Shiely 16, 1957, it is a affected the order by May also party proceeding shall consider. which we now more than a month before
On 16 April May petition denied to intervene and no Shiely’s appeal That denial was without taken from that order. prejudice Shiely as to a the unreasonableness of the file separate complaint present rate
543 or rates. No such has been filed to the record complaint according before us. It is obvious from the record commission did not consider a affected by 16 order. May
In Steenerson v. G. N. Co. 60 Minn. 62 N. W. court considered the matter of who was fixing affected an order rates by and charges the commission. In that by case a filed a shipper grain complaint with the commission in behalf of himself and others similarly situated, alleging the rate charged the Great Northern to terminal points unreasonable and should be reduced. The Northern Pacific Railroad filed its Company petition leave to intervene and asking heard on the merits of the case. That was denied. The petition com- mission made a fixing an order schedule of rates. Upon both appeal by railroads to the district court the Northern Pacific filed another petition intervene, which was This granted. court reversed on the ground Northern Pacific was not commission’s order within of the statute. meaning The court said there that it would require clear very expression intent legislative to hold that a statute granted the right to appeal those cases to road or carrier which had not theretofore been a but which might in a business be affected way an order fixing rates and charges. (60 concluded Minn. 830): N. W.
“* * * xhe roads or carriers affected an order of the commission are those whom upon it has a legal direct effect, operation and not those gain who lose only in a business way.” This court considered similar statute, another 106.631, § somewhat here, to the one In re involved Ditch County No. Chippewa (2d) County, 305. That section permitted an to the district court appeal aggrieved” by “any final order We held in that case that judgment. landowners who were not parties for an of a improvement drainage ditch and were not to an assessment for benefit or entitled to damages were not aggrieved within the 106.631 meaning so as § to entitle them to the district court from an order of the board of county commissioners granting such improvement or to appeal to this court from an order of the district court such dismissing *8 that ordinarily only further said there The court
appeal. v. Tri-State State from quoting their may appeal, record or privies 603. N. W. T. & 146 Minn. T. Co. bound by affected directly was not
It is our opinion It is apparent in these proceedings. order May commission’s 15‡ rate as much to the is not so objection the record that its a pro- in obtaining it is interested in the order but established 52‡ it to establish so as to enable from St. Paul low rate portionately doing is not now Park and where it new in St. Louis yards Minneapolis, in that the merit of position are not passing Shiely’s business. We it is not such a but it to us that respect appears either it within the statute order at this time as to bring commission’s as a affected. dismissing the district court order of hold that therefore
We be affirmed. and should record justified Affirmed.
Murphy, (dissenting). Justice dissent. the majority respectfully agree
I am unable MARQUETTE NATIONAL BANK OF v. M. SWORD CLARA AND OTHERS. MINNEAPOLIS (2d) 75. 37,485. June 1958 No.