76 W. Va. 399 | W. Va. | 1915
By mandamus relator seeks to enforce obedience by defend
The order referred to was supplementary to an order entered on April 24, 1915, which was supplementary to a prior order, entered on April 20, 1915. By the first of said orders the Commission took note of the filing of said tariffs and schedules, on or prior to the 1st day of April, 1915, and of the proposal of the defendant to put them into effect May 1st, 1915, and that such passenger rates, fares and charges were in excess of those allowed by the act of 1907. And in view of said proposed changes it was considered and ordered that the Commission should enter upon a hearing or investigation concerning the propriety and lawfulness of s'aid new tariffs and.schedules, and being of opinion that the defendant should obey and comply with theqorovisions of said act until the Commission should have heard, investigated and finally determined the propriety of said increases, and the lawfulness of the proposed passenger rates, fares, charges and regulations, it was ordered that defendant be forthwith served with a copy of said order, and that it be required to appear before said Public Service Commission on April 24, 1915, and then and there present for consideration any reasons it might desire to present why it should not obey said statute, and why it should not be prohibited from putting into effect such pro
On the day so appointed the defendant entered a special appearance, solely and only for the purpose of objecting to any further proceeding or action on the part of the commission in respect of or in relation to the matters referred to, and filed a statement in writing setting out the grounds of its objection to the jurisdiction of the Commission of the matters and things under investigation and hearing. On consideration whereof, the Commission was of opinion and so ordered, that the grounds of objection were not sufficient, and that it had jurisdiction of the matters therein referred to, and that said special appearance be rejected. Thereupon, on request of the counsel for defendant, additional time was given until April 26, 1915, to enable it to determine what further appearance, if any, it should make in said investigation and hearing, and on the day to which said hearing was' continued, deféndant failing to- enter any further appearance, the second supplemental order, of April 26, 1915, kvas duly entered.
By respondent’s special appearance, on April 24. 1915, jurisdiction was challenged upon the following graunds: First: That relator was without lawful power or authority, (a)- to make any order affecting passenger rates, (b) to require appearance by respondent, (c) to require respondent to present reasons why it should not obey or comply with the provisions of chapter 41, of the Acts of 1907, or (d) to make any order prohibiting respondent from putting into effect and operating under the proposed increased passenger rates, fares and charges, referred to in. the order of April 20, 1915.
Second: That on April 23, 1915, respondent had instituted its suit in equity in the circuit court of Kanawha County, West Virginia, against the Attorney General, and all the prosecuting attorneys of the several counties of said state, through which respondent’s lines of railroad run, and against the several members of the Public Service Commission, to enjoin them and each of them from instituting or in any manner prosecuting respondent, or any of its agents, officers, or employees, for alleged violations of said act, and from in
i By demurrer, motion to quash, and return to the alternative writ, respondent has presented and relies on the same grounds as a defense to the writ.
It is conceded that the Public Service Commission, purely a creature of the statute, possesses only such powers and authority in the premises as are expressly conferred, or are necessarily implied, in order to properly perform its functions and to carry into effect the plans and purposes of the act creating it. United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571. As the statute was construed in that case the functions of the Commission as an administrative board are quasi-judicial and quasi-legislative.
The first ground of attack, in orderly sequence, is alleged want of constitutional authority in the Legislature to delegate to the Public Service Commission the power of making rates. And it is contended that if the Legislature has attempted to confer such authority and jurisdiction upon the Public Service Commission, the act to that extent is void and inoperative, on constitutional grounds.
Section 9, of Article XI, of the Constitution, relied on, provides: “Railroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as shall be prescribed by law; and the Legislature shall, from time to time, pass laws, applicable to all railroad corporations in the State, establishing reasonable
This section is the same as originally adopted in the Constitution of 1872. By acts of the Legislature 1872-3, chapter 227, now contained in chapter 54, Code 1913, serial sections 2996, etc., the Legislature, in the exercise of this constitutional power, classified all railroads and undertook to establish reasonable maximum rates and charges for the transportation of passengers and freights, and to limit railroads thereby. The law as thus enacted remained undisturbed until the passage of chapter 41, Acts of 1907, limiting all railroads to two cents per mile, or fractional part of a mile, except railroads under fifty miles in length, and imposing penalties for violations of the statute, and repealing all acts or parts of acts inconsistent therewith. Thus the maximum rate of two cents per mile, instead of the rates fixed by Acts of 1872-3, was established.
That the Legislature by these statutes undertook to comply with the mandate of the Constitution is manifest, and nowhere has it undertaken to delegate to any board or Public Service Commission its legislative authority under the Constitution to establish reasonable maximum rates, or to promulgate and establish tariffs and rates for passengers or freights, to have general application to all railroads. Chapter 9, of the Acts of the Legislature of 1913, establishing the Public Service Commission, and prescribing its powers and duties, unless in the particulars pointed out by counsel for respondent, neither abrogates nor delegates legislative authority imposed by the Constitution, and is but the reasonable exercise by the Legislature under said section of the Constitution, of its authority to regulate tariffs and rates and to provide “for the correction of abuses, the prevention of unjust discriminations between through and local or way freight and passenger tariffs, and for the protection of the just rights of the public”, etc.
Section 5, of that act, relied on by relator as warranting
“Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in such order, or until revoked or modified by the commission, unless the same be suspended, modified, or revoked by order or decree of a court of competent jurisdiction. ’ ’
We fail to find in this section any delegation of legislative power, specifically imposed by the Constitution on the Legislature. Powers conferred' by this act upon our Public Service Commission are similar in character to those conferred by Congress from time to time upon the Interstate Commerce Commission, and by many of the states upon commissions of like character, for the control and regulation of public service corporations.
In the early history of the Interstate Commerce Commission, though not specifically conferred, jurisdiction was
As is apparent the basis of this decision was that the powers denied the Commission were not specifically conferred by the Act of Congress. Subsequently by the amendment of 1906, known as the Hepburn act, the Commission was given further power, after finding an existing rate unreasonable, to fix a reasonable rate for the future, and to enforce observance thereof; and later by the amendment of 1910, known as the Mann act, the power of the Commission was enlarged so as to' include the suspension before going into effect of any increase in rates announced by a carrier, for certain limited periods, pending its investigation of the reasonableness of such rates.
By the act creating the Public Service Commission of this state, as originally passed, substantially all the powers conferred by Congress upon the Interstate Commerce Commission, respecting interstate carriers, except the power to- suspend the operation of rates, or changes in rates, were conferred upon the relator, in respect to intrastate railways. And by a recent amendment of section 9, of said act, by chapter 8, of the Acts of 1915, not in force at the time these proceedings were begun, the Commission was empowered, by
While it is conceded,, as a general proposition, that the making of railroad rates or reasonable maximum rates, for general application, primarily at least, is a legislative function, nevertheless it seems to be now established law, by state, and federal decisions, that legislative control over railways- and other public service corporations may, within constitutional limitations, be delegated to Public Service Commissions. 2 Willoughby on the Constitution, section 778, and cases cited in notes; 4 R. C. L., pages 620, etc., paragraphs; 93 to 96, inclusive; Beale .& Wyman, Railroad Rate Regulation, sections 1032 to 1035, inclusive.
The reason behind all such regulatory laws and boards or commissions is the clear distinction to be observed between the prescribing of rates generally without any complaint, controversy, or investigation, and directing the observance of a certain particular rate or schedule, after judicial or quasi-judicial investigation of its propriety. 1 Drinker on the Interstate Commerce Act, pp. 394, 395, and cases cited; Beale & Wyman on Railroad Rate Regulation, supra, section 1034. In Interstate Commerce Commission v. Chi., R. I. & Pac. Ry., 218 U. S. 88, the power of the Interstate Commerce Commission, to investigate and pronounce unreasonable and discriminatory existing or proposed new rates, and to prescribe other rates in place thereof,- was distinctly decided. See,.' also, Interstate Commerce Commission v. Perry, 3 I. C. R. 740, where, prior to the amendments of the federal act, power in the Commission was asserted not only to find that an existing-rate was unreasonable, and forbid its continuance, but also to ascertain,; order and enforce a rate that was reasonable, and where the reasons for the right to exercise such authority in special instances are dilated upon by Yeazey, Commissioner.
We are of opinion, therefore, that there is no merit in the- ¶ contention that the Public Service Commission is without ] constitutional or legislative authority to exercise the powers-specifically conferred upon it by the act of the legislature : creating it. In exercising those powers and functions it is! not exercising powers specifically confined to the Legisla-
The second ground urged in resistance of the writ is that the present statute, chapter 41, Acts 1907, in pursuance of the constitutional mandate, is the paramount law of the state, is still in force, and that the relator has no power to change or modify that law, or make any new or different rate for carriers of passengers. And while affirming and urging with persistency this proposition, in opposition to the authority and jurisdiction asserted by the Public Service Commission, counsel for respondent affirm with equal emphasis, the cognate proposition, that as to the railway company the statute is invalid and without binding force or authority, even prima facie, upon it, because, as it has attempted to determine for itself, the maximum rate fixed by the statute is unreasonable and confiscatory, and that regardless of this paramount law, it may with impunity and without application to or authority granted by the Public Service Commission, or by any judicial process, promulgate and put into effect new tariffs and rates, and that the Commission is without power or jurisdiction over it in the premises, to investigate or decide whether the maximum rate prescribed by the statute is reasonable or confiscatory, or to make any order in the premises.
But for the jurisdiction conferred upon the Public Service •Commission by the Act of 1913', and upon principles enunciated in Coal & Coke Railway Co. v. Conley, 67 W. Va. 129, on showing to the satisfaction of the court that the maximum rate prescribed by the statute, as to it, is confiscatory, equity would have jurisdiction, on that ground, to enjoin, for the time being, enforcement of the statutory rate. But that decision is no authority for the proposition -now advanced in this case, that before judicial inquiry injunction will lie against the public officers from enforcing the statute. True, a preliminary injunction was granted by the circuit court in that case, but the propriety of that injunction was not presented here, and the practice finds no justification in the decision of this court in that case.
Since the decision of the Coal & Coke Railway Case, how
"While we do not find in the act relating to the Public Service Commission, in force at the time these proceedings were inaugurated, specific authority to suspend existing or new rates, we do find in section five above quoted, power to investigate all methods and practices of public service corporations, and to require them to conform to the laws of the state. It was pursuant to this authority that relator entered upon the investigation recited in the original and special supplemental orders, and summoned respondent before it, and the command of the alternative writ, sought to be made peremptory, as we have seen, commanded respondent to obey and comply with and conform to the provisions of said chapter 41, of the Acts of 1907, and to .prohibit it from putting into effect the proposed increased passenger rates, and from making or putting into effect any other or different passenger rates than those prescribed in said acts until the 1st day of June, 1915, unless otherwise ordered by the Commission.
If it be true as contended that the statutory rate for passengers and baggage, as to respondent, operates to deprive it of a reasonable and lawful return for the services rendered, and therefore confiscatory, the proper construction of the act creating the Public Service Commission,, an our opinion, requires that resort be first had to that commission as the primary forum in which to have investigated and determined those questions. That Commission being given the power and authority to investigate and to change any intrastate charge or toll which is unjust or unreasonable and to prescribe a
As thus construed the statute imposes no hardship upon or barrier to the speedy determination of respondent’s rights in the premises. The remedy given by this statute is more summary. and is calculated to lead to better and quicker results because of the peculiar powers and functions of the Commission, than resort to a court of equity in the first instance, whose powers are limited to the determination whether a specific rate is unreasonable, and it is without power or jurisdiction to determine wha,t rate would be reasonable, and to enforce the same.
According to the original writ the Public Service Commission had already entered upon the investigation of respondent’s proposed new schedules and rates. Since the establishment of the Interstate Commerce Commission the federal courts have declined to take jurisdiction to test the validity of interstate rates pending proceedings for the same purpose
Not only is the right given to respondent to apply for relief in the first instance to the Public Service Commission, a forum having quasi-legislative and quasi-judicial powers, but if aggrieved by the entry of any final order of the Commission affecting it, it may apply to this court for suspension of such final order, and for a full hearing upon the merits of its case as prescribed by section 16 of the Public Service Commission act, and as interpreted and construed by this court in United Fuel Gas Co. v. Public Service Commission, supra, or as there indicated, by original application to any other court having jurisdiction, to have determined the reasonableness of the rates as fixed and order to be put into effect by the Public Service Commission.
Some of the propositions advanced by counsel for the relator, supported by many federal supreme court decisions, in support of the primary jurisdiction of the Public Service Commission are.: (1) That rate making is primarily a legislative function; (2) that there is no distinction between the exercise of this function directly by the legislature or medi-ately through a Commission; (3) that injunction does not lie against the exercise of legislative function, and (4) that injunction does not lie against the making of a rate, or .against a Commission before the rate is made. ¥e think it will be unnecessary to enter upon any other or further discussion of these propositions; and as the cases cited in support of them are so numerous, even a citation of them here would overburden this opinion.
Peremptory writ awarded.