47 Kan. 497 | Kan. | 1891
The opinion of the court was delivered by
The question for our consideration'in this case is not what power the legislature of the state may delegate or confer upon the board of railroad commissioners, but what power is conferred by the existing statutes. It is contended upon the part of the state that the finding of the railroad commissioners of the 13th day of May, 1891, that the Kansas Central railroad “is in an unsafe and dangerous condition for the transportation of persons and property, by reason of the insufficient condition and weight of the iron rails in the tracks thereof,” is final and conclusive upon the defendants and this court. Further, that the order of the commissioners requiring the Kansas Central railroad to be relaid with new rails of standard pattern, and of not less weight than 56 pounds to the lineal yard, is also final and conclusive; that, in proceedings in this court to compel a compliance with the order of the commissioners, the statute neither contemplates nor allows any issue to be made or inquiry had of the condition of the railroad examined by the commissioners, or
The persons first appointed as commissioners were Hon. James Humphrey, Hon. L, L. Turner, and Hon. Henry Hopkins. In the first report of the commissioners, their powers under said § 5 were very clearly and fully defined by them. They said:
“The commissioners, under this section, have no power to enforce an order. They can simply advise the company in fault of the changes desired or deemed necessary. To have invested the commission with the power to enforce its own orders, it would have been necessary to have changed the character of the board and the scope of its functions and powers. It would have been necessary to have given to the commission all the powers of a court of chancery, to bejexercised within the scope of its assigned duties, with such ministerial officers attached to the board as are usual and necessary to such tribunals, to execute its injunctions and mandates. It would have ren*504 dered it necessary to have instituted a formal investigation, upon proper complaint and notice to the company complained pi', and the rendition of a formal judgment and decree upon the evidence which should be submitted to the board. Manifestly, in such case it would have been improper for the board to have acted upon knowledge and information gathered from personal observation, or the ex parte statements of individuals, as much so as it would be for regularly-organized courts to act judicially upon evidence which has never been disclosed to the opposite party to the suit. The supervisory powers of the commission would in such case extend only to such matters as should be formally brought before it by complaint, and no such complaint would be made until some one had become the suffering victim of some neglect, failure, or other violation of duty on the part of a railroad company. Thus the chief benefits which were intended to be secured by giving the commissioners general supervisory powers would be sacrificed by imposing upon them those limitations in the exercise of functions which are necessary to impress upon judicial decrees the weight and character of impartiality.” (First Annual Report of Railroad Commissioners, 1883, p. 4.)
In 1888, the commissioners were Hon. Albert R. Greene, Hon. Almerin Gillett, and Hon. James Humphrey. They evidently did not understand that their orders were final or conclusive, and that the courts, under the existing statute, without a full investigation and hearing thereof, are required to enforce their orders. They said:
“The orders, decisions and recommendations of the board, upon the various matters which have come before it the past year, have in nearly all instances been complied with and carried out by the railroad companies affected by such decision or order. In one instance, however, the company affected by a decision of the board has demurred, and so far, we have been advised, has refused to comply with its requirements. . . . It is respectfully recommended that provision be made by statute for the enforcement, by appropriate remedy, in courts having jurisdiction, of the decisions and orders of the board.” (Sixth Annual Report of Railroad Commissioners, 1888, pp. 45, 46.)
In compliance with the foregoing request, the legislature passed an act on the 2d of March, 1889, attempting to compel
In 1890, the commissioners were Hon. James Humphrey, Hon. George T. Anthony, and Hon. Albert R. Greene. In their report they also asked for additional power. They said:
“It should by provided by law that the order of the railroad commissioners shall be the governing law of the railroad companies, to be obeyed and respected by them, until vacated by a competent judicial tribunal on appeal.” (Eighth Annual Report of the Railroad Commissioners, 1890, p. 10.)
No additional power was conferred at the session of the legislature for 1891. Therefore, as before stated, the only act that it is necessary to construe in this case is § 5, chapter 124, Laws of 1883. (Gen. Stat. of 1889, ¶ 1328.) When the legislature of 1889 gave additional powers to the commissioners concerning railroad stations, connections, side-tracks, switches, etc., but refused to change the statute for the enforcement of the recommendations of the commissioners concerning the necessary repairs, etc., of railroad tracks, it is clearly evident that the members thereof did not think the order of the commissioners in such matter should be an absolute finality, or should be enforced without the ordinary judicial investigations in the courts. The counsel representing the state in this case, upon tbe hearing thereof, made a very able argument to establish that, within the police power, the state has ample authority to compel the repairs of any railroad, so that it may be operated safely for the public. This argument, although strong and ingenious, cannot be applied here, because the legislature has not, by statute, conferred, or attempted to confer, the power claimed, even if it had the authority so to do. It will be noticed, however, by the language of said § 5, that the power of the commissioners is as effective in matters relating to the convenience and accommodation of the public as to those hav
It is an historical fact, well known by those who attended the session of the legislature of 1883, and by those acquainted with the proceedings of that body, that there was a bitter contention among its members as to what power should be conferred upon or delegated to the commissioners to be appointed under the act or bill then pending for adoption. A part of the members, under the lead of Hon. Eugene E. Ware and others, were favorable to the delegation to the commissioners and the courts full authority for the enforcement of their orders; others, and a majority, opposed the delegation of such power; and the result was that advisory action only on the part of the commissioners was provided for. The national interstate commerce act of February 4, 1887, differs widely from the act of 1883 of our legislature, in expressly providing for writs of mandamus to be issued out of the United States circuit courts to compel railroad companies to comply with the orders of the national commission, and also for punishing in such courts railroad companies for violating or neglecting to obey any lawful order or requirement of the national commission. (Vol. 1, Interstate Commerce Commission Reports, 665— 671.) We understand that generally the recommendations of the state commissioners have been complied with by all of the railroád__companies affected thereby, and if the road and track of the Kansas Central are in the dangerous condition reported by the commissioners, it is most unfortunate to the public that the corporation having the operation of the road has not long since carried out the requests of the commissioners, so as to put the road and track in a safe and secure condition for the transportation of freight and the carrying of passengers; but
Without deciding other questions raised upon the argument, the motion to quash must be sustained, because the legislature has not provided, or attempted to provide, that the recommendations of the railroad commissioners concerning the repairs of railroads, their tracks, etc., are an absolute finality. The plaintiff will have leave to amend the alternative writ, if it so desires, by setting forth all allegations necessary of the dangerous condition of the track or road-bed of the Kansas Central Railroad Company; its refusal to operate its road safely or securely, and its neglect of duty, if any, in any other matters, and also to ask for such orders in the premises as may be deemed proper. Issues may be joined thereon, as in other mandamus cases, and an investigation will be judicially had of the truth of the matters in controversy. What power this court may lawfully exercise in compelling necessary repairs upon a railroad, or in requiring the safe operation of such a road, we leave for future consideration. f