68 Wash. 257 | Wash. | 1912
On March 30, 1909, the railroad commission of the state of Washington filed before itself a complaint challenging the sufficiency of the station facilities of the defendant, Great Northern Railway Company, at the various stations on its lines within the state of Washington. After service of the complaint upon the defendant, together with a citation to appear, a hearing was had at which the defendant company appeared by counsel and introduced evidence. Based upon this hearing, an order ivas made by the commis
This action was brought in the superior court in Spokane county against the railroad company by the state, upon the relation of the railroad commission, to recover a penalty under the provisions of § 5 of the railroad commission act (Rem. & Bal. Code, § 8681), for the failure to obey the order and complete the station within the time therein fixed. The case was tried upon an agreed statement of facts before the court without a jury. The court made findings in favor of the plaintiff, and rendered judgment thereon for $1,000 and costs. From that judgment, the defendant has appealed.
The facts upon which the defendant relied for a defense were agreed upon, subject to the plaintiff’s objection that they were incompetent, irrelevant, immaterial and constituted no defense. They were as follows: That at the time of the making and service of the order, the commission made and served orders requiring the construction of certain facilities at forty-seven other stations of the defendant in this state; that, prior to service, the defendant was informed of the nature of the orders, and directed its general superintendent to cause the Chattaroy depot to be constructed and the other orders complied with, except those from which appeals were taken to the superior court as provided in the act; that, by the defendant’s system then and prior thereto in force, which system is complex and set out in detail in the agreed state
The appellant’s contention, presented under several heads, when reduced to the ultimate may be fairly stated in two postulates.
(1) It is assumed that in the railroad commission act there is no provision, either expressed or implied, authorizing the commission to fix a time within which duties enjoined
If we have caught counsel’s meaning, this is a fair and just compend of their contention. The argument is attractive but specious. Its infirmity consists in the assumption that the fixing of a time within which performance must be made to escape the penalty impairs the obligation to perform. It would be equally as just to say that an order prescribing a manner of performance which in its nature must consume a certain time dispenses with the duty to perform during that time. Neither is true. The order, as to both manner and time, is based upon the antecedent and continuing duty. The admitted power of the commission to determine the duty and enforce performance under penalty carries with it the power and duty to determine manner of performance and time when the penalty for the failure to perform will attach. This is essential to the very genius of the law. The power to compel performance under penalty necessarily implies the power to fix a time beyond which failure to perform will not be tolerated, otherwise the provision imposing the penalty would be nugatory. The railroad commission act
“While in the abstract the power to prescribe rules and regulations for common carriers appertains to the legislative department, it is settled that within proper limits such power may be exercised through administrative officers and boards, and that in general such officers and boards have authority to do anything proper and necessary for the complete lawful exercise of the duties imposed upon them.
“Wherever a power is given by statute, everything lawful and necessary to the effectual execution of the power is given by implication of, law. Mitchell v. Maxwell, 2 Fla. 594; In re Pearson, 8 Fla. 496, text 508; State ex rel. Attorney General v. Gleason, 12 Fla. 190, text 209 ; Ex parte J. C. H., 17 Fla. 362; Ex parte Wells, 21 Fla. 280; State ex rel. Smith v. Burbridge, 24 Fla. 112, text 126, 3 South. Rep. 869. See, also, Markey v. State, 47 Fla. 38, text 50, 37 South. Rep. 53, text 56.
The railroad commission is made by the statute an intermediate tribunal with original cognizance and full power to
The statute declares that the orders of the commission when not appealed from are final and conclusive in future litigation. Unquestionably an order could not be final nor conclusive unless certain as to what it orders done, and the time within which the thing ordered must be done. The jurisdiction of the courts is one of review as to the whole subject so entrusted to the commission, not one of original cognizance. State ex rel. Railroad Commission v. Oregon R. & Nav. Co., ante p. 160, 123 Pac. 3. We are constrained to hold that the power to fix the time within which its orders shall be performed is necessarily implied from the plain purpose of the act that the commission shall have complete original jurisdiction with power to enforce its orders. The whole power of regulation and of inquiry for that purpose is imposed in the first instance upon the commission. This includes time of performance as well as manner of performance. There is nothing in the act which precludes a hearing as to time within which the thing ordered can be reasonably performed. The statute in section 3 (Rem. & Bal. Code, § 8629), empowers the commission “after a full hearing” to make its findings and order. The notice of the hearing was notice to the defendant that it might be heard on every matter to which an order on the hearing might, by the express or implied powers of the commission, extend. But it is urged that no evidence as to what would be a reasonable time was taken by the commission. The evidence taken at the hearing before the comnlission is not before us, and if it were we would be concluded by the statute from reviewing it. The third section of the statute provides:
“Any railroad, express, telephone or telegraph company*265 affected by the order of the commission and deeming it to be contrary to law, may institute proceedings in the superior court of the state of Washington, in the county in which the hearing before the commission upon the complaint had been held, and have such order reviewed and its reasonableness and lawfulness inquired into and determined. . . . Said action of review shall be taken by the said railroad, express, telephone or telegraph company, affected thereby, within twenty days after notice of said order, and if said action of review is not taken within said time, then in all litigation thereafter arising between the state of Washington and the said railroad, express, telephone or telegraph company, or private parties, and the said railroad, express, telephone or telegraph company, the said order shall be deemed final and conclusive. If, however, said action in review is instituted within said time the said railroad, express,, telephone or telegraph company shall have the right of appeal or to prosecute by other appropriate proceedings, from the judgment of the superior court to the supreme court of the state of Washington, as in other civil cases.” Rem. & Bal. Code,. § 8629.
The appellant, having failed to avail itself of this statutory right to the review the order of the commission, is now precluded from questioning its reasonableness or legality, whether as to the time of performance or any other matter, in this action. By the terms of the statute, the order unappealed from is final and conclusive. The presumption is that it was based upon sufficient evidence.
“Nothing is better settled than, when the legislature specifically prescribes an adequate legal remedy, that alone is open to the litigant. Couchmcm v. Prather (1904), 162 Ind. 250; State ex rel. v. Black (1906), 166 Ind. 138, and cases cited; State ex rel. v. Indiana State etc. (1909), Ind. 87 N. E. 139. Appellants having failed to avail themselves of the opportunity presented to assail the order, and having, without cause, permitted the time for the commencement of proceedings in the circuit court to elapse, the final order of the commission as to them must be held conclusive in a court of equity, except against a cause that renders the order
See, also, State ex rel. Railroad Commission v. Oregon R. & Nav. Co., supra.
(2) Appellant’s other assumption is that the penal section of the railroad commission law (Rem. & Bal. Code, § 8631), was intended only to prevent contumacious disobedience of the orders of the commission, but not to punish mere delay. The argument is that the penalty being fixed by statute, the courts cannot relieve against it even where the failure to perform is the result of subsequently arising contingencies rendering performance impossible; that therefore the court must construe the words “refuse or neglect,” as found in the statute, to mean only a wilful or contumacious refusal to obey, in order to avoid the hardship which might result from any other construction. Again the argument is attractive but not sound. It approximates the petitio prmcipii. If the statute had declared that the penalty should be imposed for failure to perform, there would be force in the argument. The words used, however, are “refuse or neglect.” It is manifest that where the failure results from overwhelming force preventing performance, or from unavoidable casualty causing delay, then there is neither refusal nor neglect. In a suit to enforce the penalty, the sole issue is as to whether there has been a refusal or neglect, and upon proof of overwhelming circumstances arising subsequently to the time when the order became final and before the time has expired within which performance was ordered, such proof would negative the charge of refusal or neglect and extend the time or excuse performance. The hardship assumed could never arise, since not every failure to perform entails the penalty, but only failure arising from refusal or neglect. The severity of the penalty is no warrant for the courts to refuse to enforce it. The penalty is a matter of legislative discretion. Atlantic Coast Lime R. Co. v. Coachman, 59
It is also urged that the meaning of the word “neglect” must be known from the company the word keeps; that being used in connection with the word “refuse,” it is used only “to include within the purview of the act a refusal which could be proven only by proof that performance had been omitted;” in other words, that the word neglect implies a mere rule of evidence in the proof of refusal. The argument is too refined to convince. If the legislature had so intended, it would have been easy to say that unexplained neglect would constitute proof of refusal. The words used are not “refuse and neglect,” but “refuse or neglect.” The disjunctive “or” makes it plain that neglect shall incur the penalty as well as refusal. The statute says: “If any railroad . . . shall refuse or neglect to obey or perform any order of the commission” etc., the commission may apply to the superior court to enforce obedience, and the offending party shall be subject to the penalty. The intention is as plain to impose the penalty for neglect as for refusal. There is no room for any other construction. It is manifest also that contumacious or wilful neglect is not alone intended. The word neglect is unaccompanied by any such qualification, and the purpose of the act precludes any such implication. The statute is designed to secure adequate and reasonable accommodation and service for the public. If these are not furnished within the time fixed by the order, it is immaterial whether the failure has resulted from wilful and contumacious refusal or neglect, or from mere sloth or mismanagement. The effect upon the dominant purpose of the statute is the same in either case. Our construction is also in accord with the legal definition of the word neglect, which is:
“Omission or forbearance to do a thing that can be done or that is required to be done. Does not generally imply carelessness or imprudence; simply, an omission to do or*268 perform some work, duty, or act.” Anderson, Dictionary of Law, p. 703.
See, also, 2 Bouvier, Law Dictionary, p. 478; Black, Law Dictionary (2d ed.), p. 810. The general purpose of the statute must control and determine the meaning of the word “neglect” as found in the penal section. Warren v. United States, 58 Fed. 559.
It will not do to say that performance at any time before suit, though long after the time fixed by the order, is sufficient. That would, be to reward with immunity inexcusable delay, place a premium on procrastination, and compel the commission to sue on the heels of every order. Such a construction would strike the word “neglect” from the statute.
The facts relative to appellant’s system of work entailing delay, relied upon by the appellant as an excuse for nonperformance within the time fixed by the order, were as well known to the appellant when the order was served as now. If the appellant believed that the time fixed in the order was unreasonably short, it should have appealed to the courts for a review of the order. Having failed to do so, it is bound by the order, which is declared by the statute “final and conclusive” in the absence of such appeal. The facts relied upon constitute no defense to this action, however effective they might have been upon a direct review.
The unprecedented floods, occurring long after the expiration of the time fixed for performance in the order, were in no sense material. They could not excuse prior delay. Had these floods occurred within the forty days prescribed by the order for performance, evidence thereof would have been competent on the issue as to whether there had been any refusal or neglect, which is the sole issue in a suit to enforce the penalty. The finding that the station building was not completed within forty days after the service of the order, in the absence of any finding that the failure was occasioned by subsequently arising circumstances rendering performance impossible within that time, was sufficient to sustain the
Dunbar, C. J., Crow, and Morris, JJ., concur.
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