92 A. 837 | N.H. | 1914
This is a petition for a writ of mandamus to compel the defendants to comply with chapter 92, Laws of 1913, which provides that all steam railroads operating a passenger service in this state shall hereafter issue 500-mile mileage books at the rate of two cents a mile, good for the transportation of the bearer over all their steam railroad lines in this state, and keep them on sale at their ticket offices in this state, with a proviso excepting certain lines. The defendants demur to the petition. The only facts alleged in the petition are the existence of the statute and the defendants' refusal to comply with it.
Whether the rate fixed by the statute is unreasonable and confiscatory, or deprives the defendant railroad of reasonable compensation for the transportation service required, and whether it discriminates against non-purchasers of mileage books, are all *426 questions of fact, as is also the question whether the rate was fixed without due investigation, if that be material. These grounds are alleged in support of the demurrer, but they are neither proved nor admitted. If alleged in an answer to which the state demurred, their materiality would be before the court for decision; but it is not understood that the state assents to the verity of the allegations as matter of fact, or contends as matter of law that the legislature has the power to impose upon the defendants the carriage of passengers at a rate less than reasonable for the service rendered, or so low as to amount to confiscation or to a taking of the defendants' property without due process of law. Consideration of these questions is properly left until they are raised by parties at issue over them. Neither is there anything before the court upon the question of discrimination as between purchasers of mileage and trip tickets, if that objection is open to the defendants in opposition to a rate which affords to them a reasonable return for the service rendered. There is nothing here which shows what the customary trip-ticket charge is for transportation on the defendants' road, or whether the customary charge is a reasonable one. Discrimination produced by an unreasonable overcharge for trip tickets cannot render unconstitutional a statute requiring the sale of transportation in 500-mile lots at a reasonable rate. This leaves the only question raised by the demurrer the bald one of legislative power to fix the maximum rate for transportation when taken in 500-mile lots.
That the fixing of rates for transportation is a legislative and not a judicial question, within the power of the state as to transportation wholly within the state up to the point where interference with interstate commerce is reached, is settled by federal authority. "The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind." Holmes, J., in Prentis v. Atlantic Coast Line,
As the fixing of rates is a legislative question, the allegation that this rate was fixed without judicial investigation of its reasonableness and without opportunity for the defendants to be heard is without merit. There is nothing in the case tending to show that the enactment of the statute was not preceded by legislative investigation. Whether it was or not is immaterial. Legislative hearings are not judicial proceedings, and conclusions reached thereby are not res adjudicata. Prentis v. Atlantic Coast Line,
In support of the contention that the rate is arbitrary and the statute unconstitutional, reliance is placed upon Chicago etc. Ry. v. Minnesota,
The case Budd v. New York left open the question whether the courts had power to interfere in case the rates established by statute were found to be unreasonable, because there was nothing in the record to show that the rates were unreasonable (Reagan v. Company,
From what has been said it follows that the case Lake Shore etc. Ry. v. Smith,
It is not alleged in the instant case that the legislature has fixed any maximum rate which must prima facie be considered reasonable. In fact, the legislation as to mileage tickets is understood to be the only instance of a legislative attempt to fix a rate. Clough v. Railroad, ante, 222, 232. So far as the legislature has acted, two cents a mile is the maximum rate. If that is a reasonable rate, there is no discrimination. If it is unreasonable, confiscatory, the defendants have a remedy upon proof of the fact. As the record is now presented, it is unnecessary to further consider the federal case cited which binds this court so far as it correctly declares the federal law as now expressed.
The contention that the statute prescribes in section 2 an excessive, unconstitutional penalty for its violation need not be examined. The state does not ask for action under that clause. The command of section 1 is sufficient authority for the present proceeding. The correct construction and validity of the statute as a limitation of the rate-making power conferred upon the public service commission is not now involved and has not been considered. The order now is,
Demurrer overruled.
All concurred. *431