22 N.W.2d 569 | Minn. | 1946
Lead Opinion
The two proceedings were joined and tried before the commission as one action. After the hearing, on May 1, 1945, the commission made its order determining that certain of the switching rates complained of were excessive, unequal, and unreasonable, and unduly preferred certain shippers; all in violation of public convenience and necessity. Said order did not make "a tariff of rates, fares, charges, and classifications," as provided by Minn. St. 1941, §
"That all carriers serving the St. Paul Switching District, as herein defined, shall by appropriate and lawful tariff publication, establish on not less than five days' notice, to become effective on or before June 1, 1945, the charges for the switching of carload traffic from points and places on the tracks of the Port Authority of the City of St. Paul to connections with connecting lines and industries on their respective lines, the charges herein found reasonable;"
Service of the order upon defendants was made on May 2, 1945. On May 17, 1945, they appealed therefrom to the district court of Ramsey county, as provided by §§
On May 28, 1945, this appeal was taken from the court's order staying enforcement of the original order of the commission.
On appeal, complainants contend (1) that the district court, by virtue of §
1. We are of the opinion that the district court, by virtue of the applicable statutes, had discretionary power to stay enforcement of the order of the railroad and warehouse commission pending appeal. Section
"Upon the verified complaint of any person or of any corporation, private or municipal, that any tariff of rates, fares, or charges, * * * is unequal or unreasonable, the commission shall proceed to investigate the matter * * *. If upon the hearing such tariff of rates, fares, or charges, * * * is found to be unequal or unreasonable, the commission shall make an order stating wherein the same are so unequal or unreasonable and make a tariff of rates, fares, charges, and classification which shall be substituted for the tariff so complained of. The tariff so made by the commission shall be deemed prima facie reasonable in all courts and shall be in full force during the pendency of any appeal or other proceedings to review the action of the commission in establishing the same."
It is complainants' contention that the commission's order in effect constituted a tariff of rates, fares, charges, and classifications, and, hence, under §
"Every railroad company shall keep at every station or depot of its road, convenient for and open to public inspection, schedules printed in large type, showing all classifications, rates, fares, and charges for transportation of freight and passengers in force at the time upon its road. Such schedule shall plainly state the places between which persons and property will be carried, shall show the classification of freight, a distance tariff, a table of distances between stations, and state, separately, the terminal charges, and any rules or regulations in any way affecting the aggregate of such rates, fares, and charges."
In the commission's order there was no reference to classification of freight, tables of distances, schedules of rates, terminal charges, or to the rules and regulations contemplated by § 218.35 (§ 4832), nor could its order in the form issued "be substituted for the tariff so complained of" as specified in §
(It may be of interest to note here that the United States Supreme Court, in Pacific T. T. Co. v. Kuykendall,
2. In addition, subsequent sections of our statutes provide ample authority to support the court's action in suspending enforcement of the commission's order. Thus, §
"* * * If the [district] court shall determine [on appeal] that the order appealed from is lawful and reasonable, it shall be affirmed and the order enforced as provided by law. If it shall be determined that the order is unlawful or unreasonable, it shall be vacated and set aside. Such appeal shall not stayor supersede the order appealed from unless the court uponexamination of the order and the return made on the appeal, andafter giving the respondent notice and opportunity to be heard,shall so direct. If such appeal is not taken such order shallbecome final, and it shall thereupon be the duty of thecarriers affected to adopt and publish the rates orclassifications therein prescribed." (Italics supplied.)
It is clear therefrom that the legislature intended to extend to the courts power to stay enforcement of the commission's orders, including orders relating to rates, under the procedure outlined therein. Complainants' contention that §
Looking further at the statutes governing appellate procedure here, we find that § 217.30 (§ 4659) specifically provides:
"* * * no such appeal shall stay the operation of such order * * * unless the district or supreme court shall so direct and unless the carrier appealing from a judgment or order fixing rates for transportation of persons or property shall give bond in a sum and with sureties approved by a judge of the court ordering the stay, conditioned that the appellant will refund to the person entitled thereto any amount received for suchtransportation above the amount finally fixed by the court." (Italics supplied.)
It is apparent that here again the legislature contemplated that it would be within the court's usual discretionary powers to stay enforcement of rate orders pending appeal. We conclude, upon consideration of all the foregoing statutes, that the court was not prohibited by virtue thereof from suspending by stay the order of the commission here involved pending final determination of the appeal.
3. We must still determine whether the court abused itsdiscretion in suspending the commission's order. Section
In this respect the instant case is distinguished from Public Service Comm. v. Wisconsin Telephone Co.
Furthermore, here, in addition to the order and return submitted for examination, there was presented the affidavit of R.B. Leng, assistant general freight agent of the Chicago, St. Paul, Minneapolis Omaha Railway Company, one of the defendants, to the effect that he was familiar with defendants' existing tariffs; that he was present at the hearings on defendants' motion; and that if, pending the appeal, defendants were required to place in effect the reduced charges provided for by the commission's order and such order should be found invalid on appeal defendants would be forced to seek recovery of the additional freight charges due from numerous shippers, many of doubtful financial responsibility, or from nonresidents of Minnesota, indicating that a multiplicity of suits would follow reversal of the commission's order if the motion for stay were denied.
In 2 Dunnell, Dig., Discretion, p. 650, judicial discretion is defined as follows:
"Judicial discretion is that part of the judicial power which depends, not upon the application of rules of law or the determination *409 of questions of strict right, but upon personal judgment to be exercised in view of the circumstances of each came. It is a fundamental rule of appellate procedure that the determination of a trial court of a matter resting in its discretion will not be reversed on appeal except for a clear abuse of discretion. If a trial court exercises its discretionary power wilfully, arbitrarily, or capriciously, or contrary to well established legal usage, its action may be reversed on appeal, for the power is not absolute but judicial."
As stated in LaPlante v. Knutson,
"* * * the subject matter of the order appealed from was within the field of judicial discretion, wherein the judge is left free from arbitrary rules so that he may be unhampered in fitting his action to the merits of each case as it arises."
The discretionary power of the courts with reference to supersedeas or stay is defined in 4 C.J.S., Appeal and Error, § 635, as follows:
"* * * the statutes sometimes give an absolute right to a supersedeas or stay on appeal or writ of error on compliance with certain conditions, and do not leave the granting or refusal of the same to the discretion of the court. When, however, the matter is not regulated by statute, or when the statute does not give an absolute right, but leaves the matter to the court or judge, a motion for a supersedeas or stay is addressed to the discretion of the court or judge * * *."
And in Id. § 636, as follows:
"* * * As a rule a supersedeas or stay should be granted, if the court has the power to grant it, whenever it appears that without it the objects of the appeal or writ of error may be defeated, or that it is reasonably necessary to protect appellant or plaintiff in error from irreparable or serious injury in case of a reversal, and it does not appear that appellee or defendant in error will sustain irreparable or disproportionate injury in came of affirmance. It should begranted where * * * the loss or damage occasioned by the staycan *410 be met by a money award, where important questions of law are raised, which, if decided in favor of appellant or plaintiff in error, will require a reversal, to avoid a multiplicity ofsuits, or to protect the appellate court's jurisdiction." (Italics supplied.)
From the foregoing quotations, which express the general rules applicable herein, it is apparent that the power to stay proceedings pending appeal is inherent in the courts and exists notwithstanding the statutes may be silent on the matter. Here, the statutory limitations upon the court's power were not disregarded, and it is clear that there was no abuse of its discretionary power. If the rate-fixing order were to be reversed, in the absence of the stay ordered, defendants would be compelled to engage in a multiplicity of suits in this and other states to enforce collection of charges due. While it is true that affirmance of the order would entitle the shippers to refunds for overpayments, the court took cognizance of this in requiring the filing of the bonds above described. In its discretion, it determined that, under all the facts and circumstances, less litigation would follow if the commission's order were stayed pending the appeal. In arriving at this conclusion, we cannot say that it exercised its discretion in such a wilful, arbitrary, or capricious manner as to compel interference by this court.
4. Complainants refer to §
"* * * The tariff so made by the commission shall be deemedprima facie reasonable in all courts and shall be in full force during the pendency of any appeal or other proceedings to review the action of the commission in establishing the same." (Italics supplied.)
They contend that since, at the hearing on the motion, no evidence was presented to establish that the maximum tariff ordered by the commission was unreasonable, the court was bound to determine that such rate was prima facie reasonable, and hence that its order staying enforcement thereof constituted an abuse of discretion. We have previously held herein that the foregoing section, in the light *411 of the other statutory provisions applicable, does not operate to forbid the court, upon a proper showing, from staying the enforcement of a rate-fixing order of the commission pending appeal there from. We do not feel that it should be construed to mean that upon a motion to stay enforcement of a rate-fixing order it is incumbent upon the carriers affected to present evidence at that time establishing that the order appealed from is unreasonable or confiscatory, and that, in the absence thereof, notwithstanding the court's compliance with the statutory prerequisites for the making of such an order, and notwithstanding the presence of other factors ordinarily justifying a stay, the court is without power to grant the motion. Ordinarily, the granting or denying of a temporary injunction involves no determination of the merits, and it is not necessary that at the time of the application therefor the applicant submit the evidence intended to be presented at the final hearing. See, 28 Am. Jur., Injunctions, § 268.
Our conclusion here is supported by §
Public Service Comm. v. Wisconsin Telephone Co.
5. Our construction of the foregoing statutory provisions is not in conflict with the well-established rule (incorporated in §
6. The rule expressed in 43 Am. Jur., Public Utilities and Services, § 186, that a court will not enjoin the collection of rates established under legislative sanction unless they are palpably unreasonable or confiscatory, does not relate to orders staying enforcement thereof pending appeal, but rather expresses the rule applicable after full presentation of the evidence at the final hearing on such appeal. As a general rule, the courts follow the practice here adopted of staying enforcement of challenged rates pending appeal from the rate-fixing order. See, Arkadelphia Milling Co. v. St. Louis S.W. Ry. Co.
7. We do not attempt to determine now whether the maximum rates prescribed by the commission's order are unreasonable or confiscatory. Neither do we attempt to characterize the rates as established prior to the order. It may be that many of such prior rates were excessive and unreasonable. The function of the trial court will be to determine whether the commission's order is reasonable and valid, or otherwise, after the parties have had a fair opportunity of presenting such additional evidence as may be material to this issue. See, State v. G. N. Ry. Co.
The order appealed from is affirmed.
Dissenting Opinion
1. I think that it makes no difference whether the rates fixed by the commission be called a "tariff" or just plain "rates." Section
I think, however, that paragraph 7 of the commission's order2 constitutes a tariff, because it fixes a schedule of rates and classifications. After all, a tariff is simply a schedule of charges. 41 Wd. Phr. (Perm. ed.) pp. 108-109. The word "tariff" is used in the statutes with that meaning. The carriers' schedules of charges are *415
referred to as "tariffs" in §§
If, as the majority says, the commission did not by its order make a tariff of rates, charges, and classifications to be substituted for those in force at the time the order was made, we ought to reverse with directions to vacate the stay order, for the obvious reason that, since the stay was granted upon the supposition that the rate order provided for a tariff of rates that were confiscatory and that the stay was necessary to protect the railroads against irreparable loss resulting from enforcement of such confiscatory rates, there was no basis for a stay, and hence none should have been granted.
2. In my opinion, the district court was without authority to grant a stay of enforcement of the rate order on the appeal from the commission. On the one hand, we have three statutes which specifically provide that rates established by the commission shall be in force pending any appeal from the commission to the district court,3 and, on the other hand, we have a statute which provides generally that no appeal shall stay or supersede the order appealed from unless the court upon hearing and notice shall so direct.4 *416
Thus, the question arises whether what the legislature has specifically three times said cannot be done is authorized by a general provision otherwise broad enough to authorize such action. Unless there is some explanation for the apparent statutory conflict, it is indeed an unparalleled example of inexcusable legislative bungling. The conflict cannot be solved by merely holding that, because the general provision provides for a stay, it shall prevail over the specific provisions that there shall be none. This is contrary to the settled rule that specific provisions control over general ones (see, Railway Transfer Co. v. Railroad and Warehouse Comm.
The history of the statutes involved makes it clear that the legislative intention was that the district court should have no power to grant a stay of a rate order on appeal from the commission. At the outset, we should bear in mind that L. 1887, c. 10, the statute creating the commission and defining its duties and powers, is as Mr. Justice Mitchell said in M. St. L. Ry. Co. v. Railroad and Warehouse Comm.
Chapter 10 drew a distinction between the rate-making and administrative provisions, on the one hand, and other provisions, on the other. Section 8, subds. (e), (f), and (g), contained the rate-making provisions. Section 15, subd. (d), authorized appeals to the district court and provided:
"No appeal as aforesaid shall stay or supersede the order appealed from in so far as such order shall relate to rates oftransportation or to modes of transacting the business of the appellant with the *417 public, unless the court hearing or deciding such case shall so direct." (Italics supplied.)
Seizing upon the italicized portion of the statute as authorizing an appeal from a rate order, carriers appealed from such orders in M. St. L. Ry. Co. v. Railroad and Warehouse Comm.
Following the decision of the Supreme Court of the United States in 1890 in C. M. St. P. Ry. Co. v. Minnesota,
"* * * If the tariff of rates * * * shall be found by the evidence to be unequal or unreasonable, the commission shall state wherein they are unequal or unreasonable, and shall makea tariff of rates, fares, charges and classifications whichshall be substituted for the tariff complained of. *418
"Such tariff * * * shall be deemed and taken in all courts of this state as prima facie evidence that the tariff of rates, fares, charges or classifications so made is equal and reasonable, and such tariff so made shall be in full force andeffect during the pendency of any appeal that may be taken inthe matter to the courts." (Italics supplied.)
At the same time, c. 10, § 15, subd. (d), (the appeal provisions), were in effect repealed and a new provision adopted, called § 3, which authorized an appeal by "any railroad company or common carrier affected by any order of the commission," except certain administrative orders therein referred to. This section contained a further provision, as follows:
"No appeal as aforesaid shall stay or supersede the orderappealed from unless the court hearing and deciding such case,upon application and notice to the other party, shall sodirect." (Italics supplied.)
What the legislature did was to give to carriers for the first time a right of hearing in the rate-making process and a right of appeal from rate orders, but simultaneously therewith it provided that there should be no stay of a rate order on appeal by enacting the clause that "such tariff [of rates] so made shall be in full force and effect during the pendency of any appeal that may be taken in the matter to the courts." In short, it simply said that there should be a right of appeal, but no stay. The legislature adopted a specific rule denying the right to a stay on appeals from rate orders, and a general one for other appeals in which it allowed stays. As said in Aslakson v. State Dept. of Highways,
The provisions of L. 1891, c. 106, to the effect that a rate order shall be in force and effect during the pendency of any appeal and that stays may be granted on appeals involving other than rate orders (i. e., an order to maintain and operate a Sunday train such as was involved in State v. G. N. Ry. Co.
There have been some amendments to the statute, but they have effected no changes in the respects with which we are now concerned. Section 3, relating to appeals, was amended by L. 1895, c. 107, which added some provisions and reënacted the provisions relative to stays on appeals. In R. L. 1905, § 1 (e), was reënacted as § 1969, and § 3, as amended by L. 1895, c. 107, as §§ 1971 and 1972. While there is some slight change in the language in the revision, the changes were made without intention to change the meaning. Report of Revision Comm. 1905 (comments on c. 28), 2 Mason St. 1927, p. 2149.
Meanwhile, L. 1897, c. 67, authorizing the commission to initiate rate proceedings on its own motion, was enacted. This was carried into R. L. 1905 as § 1970. In 1907, the provisions relating to appeals were again amended. L. 1907, c. 167, § 2. The amendment is now part of §
"* * * If such appeal is not taken, such order shall become final, and it shall thereupon be the duty of the carriers affected to adopt and publish the rates or classifications therein prescribed. And all orders heretofore made, from which no appeal was taken, as provided by law, shall be deemed to have been in full effect for all purposes from the time when the right to appeal from such *420 order expired. When no appeal is taken from an order, as herein provided, the parties affected by such order shall be deemed to have waived the right to have the merits of such controversy reviewed by a court, and there shall be no trial of the merits of re-examination of the facts of any controversy in which such order was made, by any district court to which application may be made for a writ to enforce the same."
The first sentence of the quoted portion is said by the majority to make it clear that it was intended thereby that the district court should have the power to grant stays on appeals from rate orders. This, it will be shown later, is untenable.
Finally, in 1911, two new sections were added, which do not change the meaning of those already referred to, but do unmistakably show that their meaning is just as I have stated it. Chapter 50 was added, authorizing the attorney general to institute rate proceedings and adopting in toto the procedural provisions of R. L. 1905, § 1969 (§
While the majority disavows the propriety of resorting to construction, it has done that very thing to bolster what I deem to be an untenable conclusion. The majority says that the sentence from L. 1907, c. 167, § 2, now a part of §
Furthermore, the part of c. 167 relating to stays on appeals is a reënactment of these provisions in the prior statutes. Where provisions of a statute are carried forward into an amendatory statute, they are deemed to have been reënacted with the meaning they originally had. The other provisions of the amendatory act are simply so much new legislation. State ex rel. Maryland Cas. Co. v. District Court,
Nor does § 217.30 (§ 4659), authorizing the granting of a stay on appeal from the district court to the supreme court, disclose any legislative intention that the district court should have such power on appeals from the commission. Statutes may, and commonly do, provide for stays on appeals from the judgment or orders of particular courts; and, where a stay is authorized on appeal from one court, it does not authorize one on appeal from another court. Dutcher v. Culver,
Furthermore, the mere fact that § 217.30 (§ 4659) was enacted is convincing proof that there were to be no stays of rate orders on *422
appeal. Ordinarily, the right of appeal carries with it by implication as a traditional incidental power for doing complete justice the right also to grant stays pending an appeal. Scripps-Howard Radio, Inc. v. Federal Communications Comm.
The way in which the legislature dealt with appeals to this court is indicative of what it intended when it provided in effect that there should be no stay of a rate order on appeal to the district court. In the first place, the granting of a stay on appeal to this court is discretionary with the court. Provision is made to protect shippers by a provision that no stay shall be effective "unless the carrier appealing from a judgment or order fixing rates for transportation of persons or property shall give bond in a sum and with sureties approved by a judge of the court ordering the stay, *423 conditioned that the appellant will refund to the person entitled thereto any amount received for such transportation above the amount finally fixed by the court." The need for a bond on appeal from the commission to the district court is as great as it is on appeal from the district court to this court. Since the legislature considered the matter in connection with appeals to this court by a specific provision covering the matter, its omission to make similar provision on appeal from the commission to the district court can be explained only by assuming that the legislature intended that on such appeals there should be no stay and hence no need for a bond. It cannot be believed that it would have intended to provide for stays without at the same time providing for a bond as necessary for the protection of shippers and passengers as it did on appeals to this court. The recent history of railroad receiverships and bankruptcies and the hardship, inconvenience, and losses to patrons of the carriers incident to the assertion of claims in such proceedings emphasize the need of such protection and almost certainly indicate that the legislature did not overlook the matter. Six of the eight carriers involved in these proceedings have been in bankruptcy or receivership at one time or another. Some have been so involved more than once. Trustees in bankruptcy appear for two of them in this case. In view of the close attention which the legislature and the commission have given to the public interest in such matters, it is inconceivable that any sort of stay would ever be granted, except upon security to protect the public. The presence of a requirement for a bond as the condition of a stay on appeals to this court and the absence of any such requirement on appeals to the district court betoken a legislative intention that, because, as has been pointed out, there is no right to a stay of a rate order on appeals from the commission to the district court, there is no need for a bond either.
It has also been suggested by the majority that denial of the power to grant a stay raises a doubt as to the constitutionality of the statute insofar as it so provides. This suggestion is clearly without merit. A statute providing that a reviewing court shall *424
not stay an administrative body's order during the pendency of an appeal to review the order is constitutional. Yakus v. United States,
It seems to me that the history of the rate making, the appeal, and the stay provisions of the statutes shows that in the beginning carriers were not entitled to be heard in the rate-making process; that there was then no right of appeal and of stay; that thereafter, when it became necessary for constitutional reasons to accord the carriers a right to be heard in connection with rate making, they were also given a right of appeal to review rate orders, but at the same time it was also expressly provided that there should be no right to any stay with a repeal of the language in the old statute susceptible of such a meaning; and that, after the pattern was thus set, it has been continuously maintained in all legislation, including the last legislative expression in the matter in 1911, as the settled legislative policy of the state.
3. Assuming, for the purposes of discussion only and without in any way conceding the point, that the district court has the power to grant a stay of a rate order on appeal from the commission, there was, in my judgment, a clear abuse of the power here in granting the stay.
Before proceeding to consider the question, I want to make it clear that the so-called bond required by the trial judge was without any legal effect, because the statute does not authorize the taking of such a bond, as has just been pointed out; because the bond only binds the carriers to discharge an obligation otherwise imposed by law to refund any overcharges; and because the bond affords no security whatsoever for such payment. See, Williams v. Hart,
A statute providing for appeals from an administrative agency to a court and for stays of administrative orders pending appeals to determine their validity does not establish the same relation between the court and the agency (here the district court and the *426
commission) as between an appellate and an inferior court, and, in the very nature of things, no such relationship can be constitutionally established. The commission exercises legislative power when it makes a rate order. Courts exercise judicial power only. An attempt to delegate rate-making powers to the courts, either in the first instance or by way of review, would be an unconstitutional delegation of legislative power to the judiciary. Because of this division of governmental power, courts accept, as they are bound to do, the orders of the commission as "judgments of a tribunal appointed by law and informed by experience." State v. G. N. Ry. Co.
"The powers of the reviewing court are purely judicial and lack legislative attributes. Its function is to protect constitutional rights, not to sit as a board of revision with appellate legislative authority to substitute its own judgment for that of the commission."
To like effect see, In re Lake Elysian High-Water Level,
While the proceeding by which a case is transferred from the commission to the courts is called an "appeal," the review, because of constitutional limitations upon the court's power, is limited to questions of a judicial nature, such as whether the commission acted within the scope of its statutory power, whether there is evidence reasonably sustaining the facts found by it as a basis for its action, and whether its action is violative of the constitution. These questions could be reviewed otherwise in an independent action, as, for example, in one for an injunction. Any determination of other questions would involve the exercise of nonjudicial power. In Federal Communications Comm. v. Pottsville Broadcasting *427
Co.
"* * * But to assimilate the relation of these administrative bodies and the courts to the relationship between lower and upper courts is to disregard the origin and purposes of the movement for administrative regulation and at the same time to disregard the traditional scope, however far-reaching, of the judicial process. Unless these vital differentiations between the functions of judicial and administrative tribunals are observed, courts will stray outside their province and read the laws of Congress through the distorting lenses of inapplicable legal doctrine."
Hence, on appeals from administrative bodies courts do not have the same function to perform with respect to administrative orders as they do with respect to judgments and orders of inferior courts. The right to interfere judicially with administrative orders, either by interlocutory injunction or a stay, where one is permitted, is limited to such instances as justify a court in interfering with any legislative act. Courts have no discretion to stay the effect of legislative action, except upon the grounds mentioned. Unless grounds for such interference are established, a rate order must remain in effect pending the proceeding in which it is being reviewed. Public Service Comm. v. Wisconsin Telephone Co.
It is to be remembered that rate orders should be put into effect at the earliest possible moment and that to the extent enforcement of such an order is stayed or delayed the rate-making process is thwarted. 3 Pond, Public Utilities, § 931. See, Louisville and Nashville R. Co. v. Behlmer,
The provisions of §
The evidence in support of the order consisted of the order itself, which under the statute is prima facie evidence that the rates fixed are reasonable. The order recites that the rates prescribed are based on the cost of rendering the services involved and that the evidence of the carriers consisted of hypothetical figures which did *429 not reflect the true fact situation or the cost of the services. The rates in all instances were comparable to those lawfully fixed by the interstate commerce commission. The disparity between those rates and the charges in some instances amounted to such sums as $1.02 a ton or $51 per car and $26.32 for a service the reasonable rate for which should be not to exceed $4.
The showing for the stay consisted only of an affidavit of R. B. Leng, in which he states among other things that he is familiar with all the proceedings and the evidence; that, if the rate order were enforced and later found to be invalid, the carriers would have to bring a multiplicity of suits to recover "overcharges" — evidently he means the undercharges; that a bond would protect shippers; and that he and all the carriers "believe the order of the Commission to be unlawful, unreasonable and confiscatory." He also states that all the statements contained in the motion are true, and these, so far as here material, are that the rates fixed are lower than those formerly existing and that the rates fixed "are and will be in the future unreasonable, non-compensatory, and will be confiscatory."
The statements in Leng's affidavit and in the motion are mere conclusions, as distinguished from statements of fact. The statements in his affidavit that he and the carriers "believe" that the order was "unlawful, unreasonable and confiscatory" are mere conclusions and no evidence of those facts. Amory v. Amory,
"* * * Not only did the court fail to set forth the facts pertinent to a conclusion that an interlocutory injunction should issue, but the court declared that the prescribed rates were confiscatory without any findings warranting such a conclusion."
Here, the carriers made no showing of facts showing confiscation; they simply alleged a conclusion of law that such was the fact without any proof to substantiate it, and the trial judge adopted the conclusions of law thus stated as a statement of facts justifying the granting of a stay. The majority here attempt to distinguish the Wisconsin Telephone Company case on the untenable ground that it was decided under 28 USCA, §§ 381, 382, 383, and Equity Rule 70 1/2 (28 USCA, § 723, Appendix), which it claims in effect require findings of evidentiary facts. The plain fact is, as the opinion shows, that Equity Rule 70 1/2 had no application and that the case was decided without regard to it. The opinion states (
"It is true, as the appellee contends, that the terms of Equity Rule 70 1/2, relating to decisions of suits in equity, apply to decisions upon final hearing and do not embrace decisions upon interlocutory applications. But the duty of the court in dealing with interlocutory applications, to which this Court had previously. directed attention, was not altered by the adoption of that rule."
Likewise, the statutes in question do not require any particular kind of proof of the facts constituting confiscation, and the decision was not made upon the supposition that they did. The opinion does not refer to any of these sections. No reason is apparent why it should have done so. Section 381 applies only to temporary restraining orders "granted without notice to the opposite party" and requires in such cases a showing of "specific facts" that irreparable injury, loss, or damage will result to the applicant "before notice can be served and a hearing had thereon." That section specifies what facts shall be found, but not the evidence by which *431 the facts shall be established. The cited case did not arise under this section, as the opinion clearly shows. Section 382 relates to security required upon issuance of a "restraining order or interlocutory order of injunction." Section 383 relates to the provisions of injunction orders and restraining orders and requires that the reasons for the issuance of the same be set forth and that the acts restrained be specifically described. Of course, these do not relate to the question of the proofs required, and the court evidently was of that opinion. If not, it would have cited the statutes and shown their applicability to the case before it.
These views were reiterated in Illinois Commerce Comm. v. Thomson,
Cases arising under the New York statute (47 McKinney's Cons. L. of N.Y. c. 48, Public Service Law, Art. 1, § 23[2]), providing that a stay order shall be granted only upon "a specific finding based upon evidence * * * that great and irreparable damage would otherwise result to the petitioner and specifying the nature of the damage," hold that the evidence must be of a factual nature and not mere conclusions. Matter of Long Island Lighting Co. v. Maltbie,
By a showing of facts as distinguished from conclusions is meant such an explicit statement of evidentiary facts as would be proper in the oral testimony of a witness. Pierse v. Smith,
What discretion did the trial judge have in the premises? The majority says that he had a right to exercise a "personal judgment." I think that such a view involves a fundamental error. In my judgment, the thing characteristic of judicial discretion is that it lacks any element of personal action on the part of the judge. When a judge exercises judicial discretion, he decides a particular case by applying the law to the facts before him. Jaques v. Chandler,
"* * * Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law."
Guided by such a conception of a judge's duty, justice is dispensed according to the rights of the parties and not as judicial favor. As the court well said in Walters v. McElroy,
"* * * Certainly no chancellor in any English speaking country will at this day admit that he dispenses favors or refuses rightful demands, or deny that when a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandable ex debitojustitiae, and needs not to be implored ex gratia."
The adoption of the judge's individual sense of justice as a criterion for deciding cases would result, as Mr. Justice Cardozo says in his "The Nature of the Judicial Process," p. 138, in "juridical anarchy" at worst and "judicial impressionism" at best. Further, he says (pp. 140-141) that a judge must decide according to applicable rule and that he is never free to decide as he might please. The text says:
"* * * The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming *434 at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.' "
It follows that where a judge must be satisfied as to the existence of facts as the basis for the exercise of judicial discretion, it is meant that he shall be judicially and not merely personally satisfied. Pierse v. Smith,
In a case involving an application to enjoin or to stay a rate order, the exercise of judicial discretion is no different from that exercised in other cases. Public Service Comm. v. Wisconsin Telephone Co.
"* * * While an application for an interlocutory injunction does not involve a final determination of the merits, it does involve the exercise of a sound judicial discretion. That discretion can be exercised only upon a determination, in the light of the issues and of the facts presented, whether the complainant has made, or has failed to make, such a showing of the gravity of his complaint as to warrant interlocutory relief. Thus, if the issue is confiscation, the complainant must make a factual showing of the probable confiscatory effect of the statute or order with such clarity and persuasiveness as to demonstrate the propriety in the interest of justice, *435 and in order to prevent irreparable injury, of restraining the State's action until hearing upon the merits can be had."
There are limitations implicit in judicial discretion springing from its very nature. There is no room for discretion where there are no facts to decide, as, for example, in the instant case, where all the evidence is one way — it all being in favor of the commission's order — or where the judge's duty is otherwise clear. Potter v. Holmes,
It is true that there are some expressions in the books contrary to the views which I have expressed above. The rather astounding statement of the rule that judicial discretion involves the exercise of a judge's "personal judgment," taken from 2 Dunnell, Dig. p. 650, is not based upon any court decision, but upon a dictionary definition. Dunnell clearly ignores our own cases such as State ex rel. Ruesswig v. McDonald,
In order to be entitled to a temporary injunction or stay, the plaintiff must make out at least a prima facie showing of a right to final relief. Where he fails to make such a showing, as the carriers here have, he is not entitled to any relief, much less to relief on the ground of avoidance of multiplicity of suits. Davis v. Forrestal,
This is a case where the trial judge had no discretion in the premises. The only legal evidence before the court was the order itself. Under the statute (§
It is only because of the importance to the public of the questions here involved that I have stated my views at such length.
MR. JUSTICE CHRISTIANSON took no part in the consideration or decision of this case.
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