State ex rel. Lemke v. Chicago & Northwestern Railway Co.

| N.D. | Sep 17, 1920

Lead Opinion

Birdzell, J.

We have set forth the facts as stated in the affidavits somewhat fully for the reason that they have a direct bearing upon the validity of the order complained of. It' was conceded upon the argument that this is the decisive question in the case. Was there, or was there not, an order of the Board of Railroad Commissioners authorizing the increases complained of? In our view of the case the validity of the purported order does not depend upon the existence of any facts that might be more or loss controverted in the affidavits referred to in the foregoing statement. It seems, on the contrary, that the invalidity of the order is established by the facts concerning which there is a general agreement in all the affidavits.

It is elementary that the Board of Railroad Commissioners possesses only the authority conferred upon it by the constitution and the statutes of the state. Railroad Comrs. v. Oregon R. & Nav. Co. 17 Or. 65" court="Or." date_filed="1888-11-05" href="https://app.midpage.ai/document/board-of-railroad-commissioners-v-oregon-railway--navigation-co-6895317?utm_source=webapp" opinion_id="6895317">17 Or. 65, 2 L.R.A. 195, 19 P. 702" court="Or." date_filed="1888-11-05" href="https://app.midpage.ai/document/board-of-railroad-commissioners-v-oregon-railway--navigation-co-6895317?utm_source=webapp" opinion_id="6895317">19 Pac. 702. Its action, therefore, concerning any subject-matter within its jurisdiction, to be valid, must be in substantial conformity with the statutes governing its procedure and must be consonant with due process of law. Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U.S. 510" court="SCOTUS" date_filed="1912-04-29" href="https://app.midpage.ai/document/washington-ex-rel-oregon-railroad--navigation-co-v-fairchild-97625?utm_source=webapp" opinion_id="97625">224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. Rep. 535; Beale & W. Railroad Rate Regulation, § 1142. Testing the action of the board in this instance by these simple, yet fundamental, requirements, we are forced to the conclusion that the order in question is void. A brief statement of the reasons leading to this conclusion should demonstrate'its correctness.

The Board of Railroad Commissioners is a governmental body whose members are elected at large by the people. The governmental authority vested in the board combines administrative, legislative, and judicial functions. Within its range, therefore, the board exercises authority of the same kind as that vested separately in the three main departments of the government. It differs only in extent and finality. The statutes governing its procedure bear unmistakable evidence of intention on the part of the legislature to make its action effective upon the subjects committed to it and to clothe its regular action with presumptions of validity. To this end the board is charged with the duty of giving ample opportunity to interested parties to be heard before action is taken. It is required to preserve and transcribe the evidence upon which it acts. Sess. Laws 1919, § 42, chap. 192. See also §§ 4731 and 4741, Comp. Laws 1913. Its findings are likewise required to be filed (Sess. Laws 1919, §§ 42 and 43, chap. 192), and (Comp. Laws 1913, § 4741), and certified copies are made competent evidence in any proceeding, either before the commissioners or in any court, etc.

Appeals from its decisions are provided for. Sess. Laws 1919, §§ 34 and 35, chap. 192. It is inconceivable that upon an appeal from an order of tbe Board of Railroad Commissioners a court, in arriving at tbe substance of tbe matters agreed upon as findings or to be incoi’porated in an order or decision, should be compelled to extract them from the memory of officers and employees who might produce affidavits or give testimony to informal discussions during meetings of the board. The importance which the law attaches to the hearings, the findings, and the orders of this hoard, points unmistakably to the negation of any such procedure as this. If resort can he had to this method of arriving at the very substance of the matters agreed upon by the board, reasonable caution would suggest that such action should be deprived of any sort of presumption in its favor. Yet the statutes treating of the effect of decisions of the board are replete with provisions giving them presumptive validity, extending even, in some instances, to conclusive presumptions. Before any presumption could be indulged as to the correctness of the findings and conclusions, it ought at least to be requisite that there be the clearest possible evidence obtainable as to what the findings and conclusions are. Certainly no sort of presumption should arise in favor of a finding that can only be extracted from recollections of informal discussions. And even less should such findings be made a basis for an appeal. These statutes, as well as others which might be cited, render it clear that it was not within the contemplation of the legislature that the hoard of Railroad Commissioners could act upon any matter pending before it as so many individuals, and that the evidence of its action could be made to rest in the recollection of its members and employees.

A brief statement of the facts in the instant case, concerning which there is practically no dispute, will serve to point out wherein the purported action of the commission falls short of satisfying the above requirements. There is no minute record that any definite proposition involved in the application of the carriers was submitted to a vote of the commissioners and the vote taken thereon. There are no findings signed by a majority of the members. There is no order or decision signed by a majority of the members. The purported order was admittedly promulgated at the direction of one member of the hoard (whose good faith we have no occasion to impugn), acting, as he believed, under the most favorable view of the facts, in accordance with the desire and consent of the other two members, such consent being apparently a matter of inference drawn from an informal discussion. Such does not, in our opinion, constitute action by the Board of Railroad Commissioners.

Upon the argument it was suggested that the record of the action of the board was established by evidence of a very satisfactory character; namely, the affidavits of those most familiar with the facts,—the officers themselves. But in our view qf the matter it is not a question of verifying an official record. It is a question as to whether or not an official record has been made. We are of the opinion that the undisputed facts show that no official action has been taken on the matter pending before the Railroad Commission.

It follows, therefore, that the injunction should issue as prayed for, and that the excess rates and fares collected and held subject to the further order of this court should be distributed to the vaxious patrons of the roads as they have contributed to the same. It is so ordered.

Christianson, Ch. J., and Robinson, J., concur.

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Concurrence Opinion

Robinson, J.

(concurring specially). In the opinion as written by Mr. Justice Bix-dzell I do concur. I do also concur with myself in commending railway managers to avoid the folly of the widow who killed the goose that laid for her the golden eggs. There must be some limit to the patience of the people who have no guaranty of 6 per cent, or even 1 per cent, and who do not clearly perceive the right or wisdom of robbing Peter to pay Paul. ,

In this state the railway passenger rates and most of the freight rates are regulated and fixed by statute. Yet, during the war, when constitutions and statutes were practically suspended, and when railroads wei’e taken over and operated by the government, special and excessive war rates were imposed and exacted by the government, and since the termination of the war and the restoration of the roads to their owners the railway carriers have, by sufferance, continued to exact the excessive war rates. In some way they have worked one or more of the railroad commissioners of the state, and have obtained a pretended order permitting them to add to the war rates for passengers, 20 per cent, and for freight, 35 per cent. However, it is entirely clear that the railroad commissioners had no jurisdiction to mate such an older. They cannot in any way vary or amend the laws of the state. Further, it appears that the pretended order of the commissioners was not made at a legal session of the board; it was not made upon proper notice, or any notice served upon the governor or the attorney general, nor after a fair hearing or any hearing. It was merely an arbitrary order, made in an arbitrary manner and without any jurisdiction, and for that reason it is null and void. Hence the carriers must be enjoined from continuing to exact, demand, or receive the excessive rates and charges in accordance with said void order, and all excess charges received must be refunded.

Filed October 1, 1921.

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Concurrence Opinion

Grace, J.

(specially concurring). I agree with the conclusion of the opinion of the court, as written by Mr. Justice Birdzell, which holds, in effect, that the alleged order of the Board of Bailroad Commissioners, under consideration in this proceeding, was not, in fact or in law, the order of that board, and that the pretended order is invalid and illegal, and of no force nor effect.

After hearing motion for modification.

Birdzell, J.

The relator filed a motion in this court for a modification of the foregoing opinion and order. In response to the motion the cause was again set down for hearing upon phases not covered by the previous opinion, and a restraining order was issued which restrained the putting into effect of any rates, fares, or charges in excess of those permitted by our former decision. The additional hearing having been had, we are of the opinion that the equities of the case require the disposition presently to be indicated.

This court assumed original jurisdiction under a petition setting forth various grounds upon which it was alleged that the order complained of was void, and that rates in excess of the legal rates were being put into effect contrary to law. In the decision of the matter it appeared to the court that the purported order was clearly void for the reasons stated in the opinion; and, owing to the probability that our opinion upon the other grounds alleged would be of no practical value, any further expression was deemed unnecessary. It now seems advisable, however, to express our views of the additional equitable considerations which must enter into the final disposition of the case in this .court.

Complaint is made that there was not an adequate notice of the hearing before the Railroad Commission, and that, as a result, the public was not properly represented, and lacked opportunity to present the facts bearing upon the application from its standpoint. There is no statute requiring any other or different notice than such as was given in this case; and, from the general structure of the statutes regulating procedure before the Board of Railroad Commissioners, it is readily to he inferred that the board itself, as a public agency, is charged primarily with protecting the interests of the public. In view of the invalidity of the board’s action, however, for the reasons already stated, and of the existence of other facts within equitable cognizance, it may be proper to order an additional hearing now, notwithstanding the sufficiency of the original notice. ■!

In this instance, though it is apparent on the record that its decision upon the merits of the application would involve the determination of some close questions of law as well as of fact, it does not appear that the commission called to its aid the attorney general of the state, who is by statute made the legal adviser of the board. Aside from the representatives of three commercial clubs and an employers’ association, there was no one in attendance representing the public as such. The sole representation of the public (with the exceptions heretofore noted) was by the one commissioner who presided at the hearings. The affidavits further show that at the time the original order was made one commissioner, who had not attended the hearings, yielded his assent without having heard the evidence and without having read it, acting, apparently, on the supposition that the previous action of the Interstate Commerce Commission had made his duty merely perfunctory. This is not the character of consideration required by § 10 of chapter 194, Session Laws of 1919, and neither is the commissioner’s supposition warranted either by the terms of the Transportation Act of the Congress of the United States or by anything known to us in connection with the application before the Interstate Commerce Commission for increases upon interstate traffic.

The present Public Utility Act attaches a greater degree of importance to the record made before the Board of Bailroad Commissioners than any heretofore existing in this state. By § 43, chapter 192, Sess. Laws 1919, it is provided that the findings of the commission shall bo admissible as evidence in proceedings before the commissioners or in any court, and that they shall be conclusive evidence of the facts therein stated as of the date and under the conditions then existing. By § 35 of the same chapter it is provided that upon appeal the lawfulness of the decision of the commissioners shall be inquired into and determined on the record-of the commission as certified to by it, and that no new evidence shall be taken on such appeal or introduced by any party. The importance which thus attaches to the record made before the Board of Bailroad Commissioners renders it imperative that full opportunity be accorded to all interests affected to make a complete showing before the board.

In North Dakota there is a peculiarity in the intrastate rate situation that perhaps is not present to complicate matters in any other state in the Union. A brief' statement of this peculiarity will suffice for present purposes. Chapter 194, Sess. Laws 1919, was enacted for the avowed purpose of classifying freight and fixing maximum rates and charges. This law was enacted during the period of Federal control; and, by reason of such control and the Federal Transportation Act, it is conceded that it did not become applicable as a rate statute prior to September 1, 1920. It was stated on the argument that the rates therein prescribed and the classifications were substantially the same as the prewar rates in effect in our sister state of Minnesota. Also that the same differ materially, both in regard to rates and classifications, from the schedules previously obtaining, and which were in force in North Dakota as the war rates. Section 10 of this act is the section which specifically authorizes th'e Board of Railroad Commissioners to permit carriers to charge higher rates than those prescribed in the law, provided they malee the requisite showing before the commission.

It is apparent that the action of the commission in the instant case entirely ignores the general scheme of rates provided for in the law, and that it authorizes the increases based upon pre-existing schedules filed. To what extent this action subverts the policy of the statute (chap. 194) we are not prepared upon this record to say. But since, prima facie, the statute has been ignored, and the rates adjusted without reference to it, it has in effect been nullified. We cannot say now to what extent it might have been necessary to depart from the plan of this law in order to give to the carriers the relief which the statute itself contemplates. This can scarcely be determined in the absence of a record from which it will be possible to ascertain the relationship between interstate and intrastate rates, so that discrimination may he avoided. It is quite as serious a matter for an administrative board to contravene a fixed legislative policy with respect to a matter which is purely legislative, as it is for a court to invalidate legislation on constitutional grounds, and when a commission is acting under the broad powers given it to authorize compensatory rates above the maximum provided by statute, it should act upon a record that shows the necessity for such action, and we have no hesitancy in saying that it should, so far as possible, observe the declared legislative policy.

The fact that the new rate statute goes into effect following a period of Federal control, and at the expiration of the period fixed in the Transportation Act within which rates could not be lowered, may give rise to extreme difficulty. But this does not, in our judgment, justify either a court or a commission in assuming that the difficulties are insurmountable. On the contrary, it points to the necessity of a more complete showing before the commission than might otherwise be required.

Against the foregoing considerations the carriers urge that they have, in good faith, attempted to comply with the laws of North Dakota in making their application and substantiating it by the showing required; that they have been deprived for approximately thirty days of the benefit of increased earnings from intrastate business to which the commission found them entitled; and that they should not suffer further hardship through delay. This court fully appreciates the situation from the standpoint of the carriers, but nevertheless, in view of the fact that approximately only one eleventh of their business in North Dakota is affected by this litigation, and the further fact that the war-rate schedules are not disturbed, we would hardly be justified in permitting the case to be closed before the Railroad Commission until there is the best assurance obtainable that a full record has been made upon which the legality of its final order can ultimately be determined. The short delay now required for this purpose, in our judgment, weighs less in the scale which determines the balance of inconvenience than would a present change in status which might ultimately be followed by new hearings, and in turn possibly by rescission of the earlier action with the attendant impossibility of reparation.

Without further expression concerning the merits of this controversy at present, and with no intention to indicate what action the commission should take when the record is completed before it, the further order of this court is that the Board of Railroad Commissioners be and is hereby required to open Case No. 1592 for further hearing; that the board publish notice of the time and place of hearing in accordance with § 585, Comp. Laws 1913, and mail a copy of such notice to the relator herein; that at such hearing the relator and all other interested parties be permitted to adduce evidence, examine witnesses, and submit depositions ; and that all of the respondents herein be and they are hereby directed to co-operate to the end that a full hearing be had and a complete record thereof be made as required by law.

The writ and restraining order previously issued herein will remain in effect pending full compliance with the foregoing order and the final disposition of Case No. 1592 by the Board of Railroad Commissioners.

Christianson, Ch. J., and Bronson and Robinson, JJ., concur.

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Concurrence Opinion

Grace, J.

(concurring specially). Relator having made and filed'a motion in this eonrt for modification of the original decision and order, a further hearing, upon elements of the case not considered in the previous decision and restraining order, was, by this court, permitted and ordered.

The motion was fully argued by all parties, in which a further decision, covering additional points not incorporated in the original decision, has been written. Upon the petition originally presented to this court, it assumed original jurisdiction. It exercised its power under that jurisdiction, to declare the order of the Railroad Commission void, and the rates therein prescribed as excessive and contrary to law, and properly so.

The further decision of this court states: “The fact that the new rate statute (Sess. Laws 1919, chap. 194) goes into effect following a period of Federal control, and at the expiration of the period fixed in the Transportation Act, within which rates could not be lowered, may give rise to extreme difficulty. Rut this does not, in our judgment, justify either a court or a commission, in assuming that the difficulties are insurmountable. On the contrary, it points to the necessity of a more complete showing before the commission than might otherwise be required.”

There are other expressions in the additional decision, expressing the same thought, principle, or conclusion, and with all this, we agree. It is the same principle stated, and the same conclusion arrived at by the writer in his dissenting opinion, in the case of State ex rel. Langer v. Northern P. R. Co. 43 N.D. 556" court="N.D." date_filed="1919-04-01" href="https://app.midpage.ai/document/state-v-northern-pacific-railway-co-6738989?utm_source=webapp" opinion_id="6738989">43 N. D. 556, 172 N. W. 329, wherein it was stated: “At such time, when such transportation systems are returned to their owners, if they be so returned, all state regulations and powers will be again revived, and be of the same force and effect as they were at the time of the taking of Federal control.

“The power of the state at the time of taking of Federal control, to prescribe fares, rates, and charges was not repealed, but merely suspended during Federal control, and, upon the termination of that, will again have the same force and effect as at the time of taking of Federal control.”

We there, further, fully discuss this principle, at length. Chapter 194 of the Sessions Laws of 1919 was a law of this state at the time the roáds were released from Federal control, and became applicable as a rate statute on the 1st day of September, 1920, after Federal control had wholly ceased, and after it no longer had power to fix or prescribe rates. Though that statute became applicable at the time above stated, it seems to have been ignored and disregarded by the commission, and thus, it disregarded the will of the legislature, as expressed in that law, and in effect nullified it.

We do not think the commission can disregard this law. We think it must be the basis of any action the commission may take, resulting in the issuing • of its order fixing or prescribing rates. It is the scrarce of their authority and power, relative to fixing rates. It will be time enough to discuss all the principles involved, and whether or not the commission may, in any degree, depart from that law, and upon what principle they may do so, if at all, when the full record is presented, if it ever is presented, from which it may be determined, upon a full consideration and analysis of interstate and intrastate rates, what, if any, power of action may be exercised or taken, by them, to avoid discrimination.

The further order of this court, requiring the Railroad Commission to open up the case for further hearing, and that the board publish notice of the time, and place of hearing, and mail a copy thereof to the relator, and that all interested parties be permitted to adduce evidence, examine witnesses, and that the respondents be directed to cooperate in this regard, and that the restraining order previously issued remain in effect, pending full compliance with this order, and until the final disposition of the case by the Board of Commissioners, is in accord with my view.

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Concurrence Opinion

Bronson, J.

(specially concurring). I concur in the opinion of Justice Birdzell to the extent that it holds and determines that no order of the Board of Bailway Commissioners was, in fact or in law, made.

I expressly disapprove of the statements made in the opinion of Justice Bobinson concerning so-termed excessive war rates, the jurisdiction of the Bailroad Commissioners, and the manner in which he states that the order involved was obtained. I am of the opinion that such discussion is not concerned in the consideration of the questions presented to this court in this action.