*1 compensation paid He he should less attending paid amount he while was pot, in- coffee from time he was

jured until time he was able to regular employment September

turn to on

1st. is set award aside. McFARLAND, JJ.,

UDALL and concur.'

404 P.2d 692 COMPANY,

SOUTHERN PACIFIC Corporation, Petitioner,

The ARIZONA CORPORATION COMMIS Buzard, SION and Jack E. T. “Eddie” Wil liams, Jr., Clark, and John P. as Members Constituting Said Re spondents.

No. 8424.

Supreme Court of Arizona.

Bn Banc.

July 15, 1965.

Rehearing Sept. 21, Denied

Evans, Jenckes, Phoenix, Kitchel & petitioner. Smith, Atty. Gen.,

Darrell F. Robert W. Pickrell, Atty. Gen., former Robert S. Murlless, Atty. Gen., Asst. A. Gerald Machmer, Gen., Sp. Atty. Asst. *3 spondents.

STRUCKMEYER, Vice Chief Justice. corporation Petitioner is a railroad en- gaged aas common carrier in interstate and intrastate commerce the States of Ore- California, gon, Nevada, Utah, Arizona, Mexico, New In- Texas and Louisiana. operations pas- in its are cluded interstate senger Paso, running..between El .trains Texas, California, Angeles, and Los 18, 1964, April through Arizona. Effective petitioner its interstate train revised serv- pas- ice so to westbound as eliminate one. passenger senger eastbound one train Corporation day, train. On the .same notice, Arizona, without Commission- of entered, (cid:127) . “to requiring petitioner an order County compel operation present train schedules traffic maintain hearing.” appeal provided by law in public trains. An through pending Arizona adequate. Cf. these circumstances April 29th, va the Commission On Brooks, Transportation, Inc. Whitfield 18th, April apparently- cated the order of 526. Ariz. P.2d serious being there was of the view that urges that Commission Petitioner ex question legality of such an as to arbitrarily or- have the does.not order, parte an order show and entered train, petitioner operate passenger a der directing public hearing be held cause that a trains, through Arizona with- or within May 19th as to on before the Commission hearing out a determination pro why previously passenger service requires necessity convenience hearing vided not be restored. This should therefore, that, the Commission’s it and subsequently continued to 1964. was June order void. decision and are ready petitioner At time announced case foregoing statement for proceed as to the need with evidence collision frequent area of illustrative of refused such service but the Commission corporation management between petitioner’s reason hear evidence for the charged responsibility economic with the withdrawing petitioner’s action operation corporation assets from service was without trains regulatory its benefit of stockholders unanimously carried of law. On motion responsibility of charged bodies with petitioner “be it directed that forthwith or operated requiring that utilities be immediately dered restore the interest. 3rd, been discontinued.” On June criti- persistent “One of most entered Decision No. process is its regulatory cisms of complains, or petitioner separate tendency divide or ultimate dering consistent with the service restored responsibility. con- prior managerial file the Commission on schedules as the effi- tinuing well success as April 20, Subsequently petitioner’s en- operation cient commercial rehearing We was motion denied. primarily upon its terprise depends 12- granted pursuant to A.R.S. certiorari *4 responsibility and ability centralize 2001, appearing Commission it had management. The contempt establish unified proceedings under started regulatory process with is at odds Attorney Gen A.R.S. by seeking divide the Arizona, principle authority of eral on the of sponsibilities management of between 40-422, applied for a writ of manda had pub- agency Maricopa Superior administrative of mus in the .Court of Mis- utility is mistake to Public Service Commission lie official. 289, 544, souri, 276, 43 S.Ct. of the 262 U.S. the' effectiveness assume that 981, A.L.R. 807. measured 67 L.Ed. can be regulatory device solely by the extent of the interference Moreover, it cannot be doubted of man- legitimate functions with public utility may, in the in but that a first inter- agement. Such administrative stance, managerial in the exercise of its necessary to ef- vention, although functions, type and extent determine may many policies, legislative fectuate public the limits of service within accom- act as a barrier to the normal adequacy Duquesne reasonableness. manage- progressive plishments of Utility Pennsylvania Light Public Co. v. Techniques Cooper, ment.” Robert M. Pa.Super. 63 A.2d Appraisal of of Public Control-—An regulatory 466. In the of the exercise Methods, Annals 6. (Emphasis . power, legislature interfere with original.) management utilities when demands, there is ever interest but duty a railroad cor While part presumption attempt no of an on provide reasonable facilities for poration to a cor legislature of the to interfere with freight transportation passenger and poration any public inter further than the always existed and is one requires interference will be est and no statute, only provid granted by the statute beyond by implication clear adjudged pre-existing ing a which these method Chesapeake Potomac a statute. & letter of enforced, Pac. Co. may be Southern duties Manning, Telephone v. 186 U.S. Co. Oregon, 60 Or. Railroad 22 S.Ct. 46 L.Ed. 727, plainly purpose it is not 119 P. manage the affairs regulatory bodies to Respondents assert corporation. company’s decision to with the interference be found train is to eliminate an .interstate that, forgotten while “It must never be A, B and 40-367. Subsections A.R.S. § may regulate a view to the state provide: C rates enforcing reasonable made change shall be “A. No owner of charges, is not the any corporation in any public service utility companies, property of fare, toll, rental, charge or clas- rate, general clothed with and is not rule, regulation sification, any inor management incident power of affecting relating to or rel. contract ownership.” Missouri ex State charge, rental, toll, fare, classifi- rate, Telephone Co. v. Bell Southwestern *5 rates, fares, service, any showing privilege cation or in schedules or mission transporta- except facility, thirty days charges or classifications for after this state notice to the commission and to tion between termini within B, provided chapter. property. By persons in subsection plainly “The shall state schedules given by filing “B. Notice shall be * * * regulations or all rules open keeping with the commission and or any way change, in affect public inspection for new schedules part aggregate or the determine plainly change made stating to be rates, fares, charges and clas- force, in the then in schedules the service or the value when, go into change time will sifications shipper passenger, or rendered effect. 40-365, consignee.” subsec. A.R.S. § commission, good cause “C. The for (Emphasis supplied.) B. shown, may changes without allow frequency think of the serv- We days provided quiring thirty notice ice of the serv- rendered affects the value speci-. an this section order aggregate goes ice and determine the fying changes to be made and so rates, charges made. fares and time, effect, they when shall take required 40-365, legislature, by has they § and the manner which shall be file in the common carriers to schedules published.” filed and instance, first include which schedules must Admittedly petitioner give did not notice regulations affecting the value rules and thirty days in to the Commission advance prohibited, of service rendered. change Petitioner, of a in train service. 40-367, regu- changes in these rules and § however, ap- asserts that 40-367 has no § except upon thirty days lations notice plication case; to the facts of this but public. and the , - - we think -otherwise. question becomes as to the then 40-367, pro prevent A viola- A.R.S. subsec. of the Commission § changes rules, hibits in both "fares and in tions of Under Article Viola- 40-367. § regulations Penalties, seq., affecting any or contracts serv 40^-21 et tions A.R.S. § required ice.' pari This section'.must all be read to enforce Commission is section, corporations materia' with .the .-antecedent affecting laws' § - By thereof, every 40-365.1 require -subsection A all shall violations penalties common “promptly prosecuted file shall with the Com- due carrier Originally, by being respectively 1. Laws of 14 and 15 §§ sections immediately preceded 40-367, Chapter the' two therefor and collected If state recovered U-8 Order No. and the Com- ** Upon request Commis- mission’s decision in this cause are to be sion, attorney enforceable, institute general shall considered as valid- and au- prosecute proceedings thority actions must be- either in found the Con- 40-425, any pub- By violations. stitution statutes enacted *6 corporation legislature lic which to com- service fails for it is conceded that the subject ply any provisions with of law is to implied powers. Commission has no Such penalty powers of not than nor more less it as $100 exercise do not exceed $5,000 corpo- than for each offense. The those to be derived from a strict con- can, therefore, instigate ration commission struction imple- of the Constitution and an through attorney general action for menting the statutes. Commercial Life Insur- punishment comply for the failure 129, to ance Wright, Co. v. 64 Ariz. provisions Moreover, 40-367. for P.2d 943. § orders, violation of its commission Arizona, The Constitution of Ar

empowered corpo- to fine a service .XV, 3, A.R.S., ticle entitled “Power of § $5,000. up ration to A.R.S. 40-424. § classifications, commission as and rates rules, charges, contracts, accounts; addition, urges In the Commission regulation,” provides local that Com petitioner it has the to order power mission shall have full to and shall immediately restore the serv discontinued prescribe just and reasonable classifications ice, it did in its Decision No. 35247 of just charges rates and reasonable points first to the failure .June by be made corporations petitioner comply with its Gen rules, regulations to make reasonable by eral Order No. promulgated U-8 by ’corporations and orders which shall be many years ago. Or Commission governed in the transaction of business. der No. U-8 reads: The construction been Art. ORDERED, changes IS long no Corporation settled. In Commission “IT by companies shall be made railroad Grey State Arizona Pacific operating pas- within this state in Lines, hound 94 P.2d Ariz.

senger train schedules or facili- station was examined It was held that detail. accommodations, ties dr which re- rules, regu will make reasonable sult in curtailment service to the corporations lations and orders general public, authority until toso do governed shall be in. transaction has been- obtained from power given only Commis- business refers sion.” pre- Commission the Constitution reasonably necessary to accommodate reasonable classifications just and scribe traffic, passengers charges transport or just and reasonable rates corpora- freight, transported or offered for by a made be ques- transportation.” (Emphases supplied.) of the Commission tion. The orders cannot be on in this casé sustained tioned urges that this statute The Commission authority. of constitutional grounds authority Order sufficient to enact General permits it to order that No. U-8 and points to 40- reinstated. Ob- discontinued service provides: 324.2 That section viously is sufficient the commission “When finds promulgate an order Commission to run street railroad does not railroad or Company to quiring Pacific Southern cars, number trains or a sufficient improve the State of its service within operate possess sufficient motive or or of the train Arizona the elimination if necessary power reasonably to accom- in- question has been rendered transported of- by or traffic modate the obvious, Equally adequate insufficient. or it, does transportation fered contemplate Commis- it does not or cars with run trains sufficient finding upon a promulgate sion shall orders proper frequency at reasonable or crystal ball.3 of facts means of a *7 safety, to or does having regard times equipment proper places, at in ren stop corporation commission The upon any judicially. train cars dering run or its Arizona or does not decision acts run, Gas Union time schedule for Public Co. v. Southern a reasonable Service may any Co., 373, 377, make order 435. 265 P.2d commission 76 Ariz. 40-321, points By 40-246, sub- of to A.R.S. 3. the Commission also may any person reading: A, file or its own motion see. writing setting petition complaint that finds in the commission or “A. When a thing equipment, appliances, any or or omitted facilities forth or done act corpora- corporation any public of be done * * * * * * law, inadequate any provision of and are in of tion violation upon petition, hearing insufficient, commission de- a shall be had or shall * ** adequate complaint be served or shall or and notice what is termine complained sufficient, of party not less than’ deter- on the and shall enforce its (Em- days regulation.” for the hear- the time set ten before order'or mination requires necessity ing phasis supplied.) that unless hearing language an earlier date. 40- be held at and §§of Both the 40-321 com-, inadequacy provides enough that to cover Section broad 324 are complained plainant party applicable of shall and statute service but attorney "by person specific in bé heard reference as' it has § 40-324 hearing. simply running at the: of trains and not' introduce evidence . generally. shall make Thereafter the Commission services containing decision. file its an order

347 legislature contemplated have a deter- freely, must stowed so the ‘inexorable process safeguard’ open mination accordance with due fair hearing of a law, the statute would be un- integrity. otherwise be maintained its repeatedly right have held hearing constitutional. We to such a one of ‘the variety process a of circumstances due play’ rudiments of fair assured to ' under the Fourteenth Amendment every litigant law the Fourteenth requirement. the Constitution of the United States Amendment as a minimal quires hearing, a there be notice of can compromise There be no on the witnesses, hearing, produce ex- footing of expediency, convenience or a amine to have adverse witnesses and or because of a natural desire full ac- harassing consideration determination rid of delay, when that cording body with evidence before the requirement minimal neglect- has been Application hearing whom the is held. See ignored.” ed or Telephone Ohio Bell Levine, 97 Ariz. 397 P.2d v.Co. Public Utilities Commission of Ohio, cases cited. 292, 304-305, 301 U.S. 57 S.Ct. 724, 730-731, 81 L.Ed. 1093. Petitioner, having prop before (Citations omitted.) use, erty subjected was entitled to a hearing introduce evidence at a to es Other courts have held that if a tablish that reasonable and its service was exercising judicial commission is quasi- adequate impartial have deter an judicial process function due re law mination on the evidence. quires that hearing be a there before “Regulatory Application commissions have been decision. of Citizens Utilities powers Co, 487; invested with within the broad Mayfield 82 Idaho 351 P.2d sphere duty assigned to them Gas Co. v. Public Ky, Service proceed- quasi-judicial 8; Even law. 259 S.W.2d ex State rel. North Caro expert ings judg- their informed lina Utilities Commission v. Caro Western proper Co., ment exacts and Telephone receives lina N.C. S.E. 873; Maltbie, deference courts from when 2d New York Edison Co. v. been reached due 277; submission Lighting N.Y. 2 N.E.2d Erie Indeed, much Pennsylvania Utility constitutional restraints. Co. v. Public Com they mission, 901; Pa.Super. 190, do the realm of ad- within 198 A. *8 exempt Creaser, Light ministrative discretion is from Colonial and Power Co. v. supervision those have restraints 87 Vt. 89 A. 472. We do not con if obeyed. authorizing been All the insistent strue more. 40-324 as need, power been an be- Commission to enter order without a when hearing 'party at which 'a provided introduce tion that the service so in- according adequate. evidence and have a decision to “ *

law. * * right manage corporation merely ment of a railroad urges The Commission that A. rearrange to its train service between supplies necessary R.S. 40-202 author points, enlarge . or decrease the ity support to its Order No. U-8. trains, number of its has never been provides: A.R.S. 40-202 questioned, respect either in with * * may super- “A. The commission trastate or interstate railroads. regulate every public vise and think We it was not the intention of corporation Legislature in upon the state and do all encroach things, specifically authority designated whether fix the schedules for its thereto, in universally recognized this title or in train addition necessary management, and convenient in the exer- vested in the railroad power jurisdiction.” suggested, cise of such within limits hereinbefore provide remedy or to relief and a Clearly this statute does' no more than apparently where none was needed.” already confirm that which the Commission Nashville, Hannah, C. L. R. & St. Co. v. possessed Constitution; namely, under the 160 Tenn. 27 S.W.2d general right supervise regulate A.L.R. 837. corporations. right The supervise regulate things and do those The Commission’s decision of necessary and in convenient the exercise 3, 1964, attempts apply petitioner’s June power supervision of its regulation property showing use without a grant and of itself does additional necessary it was because the serv powers beyond to the Commission inadequate. ice had become suffers legislature specifically has set unconstitutionally from the defect that forth. Section 40-202 means that the Com- deprives petitioner property without may supervise mission regulate under process nullity. due It is of law. authority granted by the Constitution U-8, pro Commission’s General Order No. and, addition, statutes has the hibiting change scheduled facilities or do things necessary those and convenient resulting in accommodations curtailment powers. granted exercise of the service until has been obtained legislature given has not the Com- from is inconsistent 40-367, mission the rearrange petitioner’s legislative enactment, A.R.S. § judicial train service without supra, providing change determina- that no shall *9 days except Corporation thirty fully made after notice Arizona is Commission so legislature majority The in the Commission. discussed both the and dis- provided opinions. the is senting question Commission not em- in- The real repeal powered hy pro- the statute volved here is whether the commission had hibiting changes prior authority It without consent. to issue the order June nullity. must be held to be a petitioner it which directed that “be immediately forthwith ordered to restore requiring that no Section the services that had been discontinued.” thirty except change shall he made after 40-367, A.R.S. set forth in both the § days to, obviously designed among notice is majority dissenting opinions, provides things, give other the time only the method which the railroad necessary hearing in which to hold the legally could reduce train service. The under A.R.S. 40-324 to determine wheth § did comply railroad not with this section changed er the service is reasonable and statute, provides: of the which adequate. finds, If the Commission after hearing, changed change “No shall be made * * * the deletion of an public reason.of interstate corporation provides train inadequate service within except thirty days after to the notice Arizona, plainly authority it has the commission public pro- as operated order an intrastate train as vided in chapter.” this necessity requires. convenience and No given notice was to the commission before the removal the train which (cid:127) 1st, petitioner order of June thereby object reduced the service. The immediately restore discontinued serv- .the of A.R.S. 40-367 is One two-fold. is to § ice, and the Decision 35247 in No. this give any proposed notice of cause are vacated and set aside. change people thirty days allow ; which to make other arrangements for LOCKWOOD, J., BERNSTEIN, C. transportation. give The other is to J., concur. up commission time hearing to set determine whether the changed schedule McFARLAND, (specially con- Justice provide adequate would reasonable and curring). true, service. set forth Both majority opin- dissenting majority opinion, pro- the commission could ions set forth the facts involved in this provided 40-421, ceed as in A.R.S. 40— § case. I concur in'the results reached 40-425, provides which for majority. regulatory power penalties for all forth violations as set U-8, However, the order is sufficient procedure not

therein. commission to have entered an procedure commission only absolutely order —after notice for the railroad it offers because follow could any proposed change, file a schedule of protection no period. provided B, thirty-day and as 40- for the will be continued 367—for railroad restore its serv- majority agree I period ice exceeding for a the statu- *10 majority and (quoted in the Order U-8 tory days. thirty may This have been A. with dissenting opinions) inconsistent is what to attempting the commission was change permits a 40-367 R.S. § do. The order did not so read. solely Proceeding thirty days’ notice. after facts in the show the case commis- U-8, the com- it is conceivable under sion, first, 18, April 1964, on ordered the the hearing on not might have mission pres- railroad without notice “to maintain longer necessity for much the service through train ent traffic schedules Arizona period contends The commission of time. However, pending public hearing.” on authority 40-202 is sufficient that A.R.S. § April 29, 1964, it vacated this order and support Order U-8. its public hearing directed a held to be before provides: 40-202 § May why the as commission on 19th may supervise commission “A. The passenger previously provided the service cor- regulate every public service (before April 18, 1964) should not re- things, poration do all in the state and this, doing In not stored. it did order in this specifically designated whether n but railroad to maintain service thereto, necessary or in title addition duty indirectly it re- relieved of the such exercise of and convenient . storing hearing. pending service jurisdiction. power and public corporation A shall “B. 40-367, C, Under A.R.S. the commis- § order, decision, every rule comply with changes requiring sion allow without regulation made the commission or thirty days’ clearly notice. shown affecting relating to or matter while commission did have not cor- as a its business formal notice had change actual poration, everything nec- shall do same, proceeded notice of accord- essary compliance with secure circumstances, ingly. Under these after order, every de- observance of taking jurisdiction up setting a' hear- cision, regulation.” or rule ing and appearing with its railroad agree appointed day I While do not that A.R.S. witnesses on the had —which support 40-202 is been sufficient continued to 1964—it was the June duty any part proceed its property the commission to service or of its hearing use and determine whether devoted to or disable it- changed performance pub- was and ade- self from the reasonable of its quate. except lic duties with the consent of state; and the mere that the fact stated, For I the reasons concur enterprise particular aor service is opinion majority that the order profitable not does justify utility 8, 1964, ordering petitioner re- June in ceasing refusing perform immediately store the discontinued serv- (Emphasis supplied). duties.” 73 C.J. ice, should be vacated and set aside. S. ap- Public Utilities cited with proval in ex State rel. Carolina North UDALL, (dissenting). Justice Casey, Utilities Comm. v. 245 N.C. opinion. I majority dissent from 8, 13; 96 S.E.2d and Great North- Ry. Com’rs, ern Bd. R.R. In this case Southern Pacific Com- Mont. 298 P.2d pany asserting discontinue half of its trans-continental train service obligation utility on the through Arizona to the without notice secure the consent of the is an state af- Corporation Arizona one, public utility firmative and a can A.R.S„ quired seq. under (1956) et permission obtain to discontinue abandon *11 and .the Commission’s Order No. only proceeding a in which U-8, and Interstate without notice to the party. state is a State ex rel. Railroad public any Commerce Commission or to Bullock, 321, Com’rs v. 78 82 Fla. So. authority. In and west eliminating the east 866, 232, 8 254 (1919), A.L.R. 236 aff’d n bound passenger flying trains the is railroad 193, (1921). 41 U.S. S.Ct. 65 L.Ed. 380 in the principles face well settled of of In this case the court said: public utility law which existed at have “By acceptance of its charter from days least and his since the of Lord Hale company permitted the state a such is Stagecoach. rights enjoyed to exercise certain not public property by a

“The It is given devotion certain of individuals. itself, duty use it the to serve such sovereignty carries with the attributes of public, duty must be and such as the of eminent domain. utility performed public charged or its by perform- a likewise is with the public duties, namely, sur- privileges franchise must be ance of certain rule, it general a has common While rendered. duties of a carrier. As by private 'right capital it no discontinue abandon is constructed ot 352 primarily individual controlled road 119 P. 60 Or. instrumentality

effort, public (1911).' it is a 729 subject regulation operation in its Barbour, As was said Barton U.S. public authority. Accordingly, 126, 135, (1881) 26 L.Ed. 672 : therefore, public such an in- “A railroad is be con- artthorized to operation road terest public good structed more for the that, undertaken, it when once private gain. be subserved than for proceeding discontinued highway public transportation, As a represented, in which state is not concern, public it a matter not been when such discontinuance has management be- its construction and consented to the state.” commonwealth, long primarily involving In a case the same railroad only put private and are into hands company court, Oregon now before this public to subserve convenience and Supreme Court said in 1911: economy; public rights but the retain consequence of vast in the road and railway corporation “The is invested appendages, neither the com- which powers sovereign, be- with the pany mortgagee nor creditor or agent it cause is a trustee and They can interfere take their with. sovereign, and exer- therefore must subject rights, rights to the cise its functions under su- public, enjoy be content to must pervision superior. of its Its them subordination thereto.” ministerial, carry namely, are duties objects out the creation with of its The Constitution of the United States necessity n under the due reference to what process clause does not require, convenience continuing grant company to a railroad compel necessity reside must of privilege franchise and exercising its' .of creator, in its the state. ,at escape permit the same time from the duties incidental Fort Smith thereto. duty railway corporation “The aof Bourland, Light & Traction Co. v. provide reasonable for the facilities (1925). U.S. S.Ct. 69 L.Ed. transportation passengers existed, freight always is one practice It is the of railroads universal ' *12 by permission and not one created statute. ask state to dis- of the to. only provides service, statute passenger a method train even continue may pre-existing which these duties be for the discontinuance where reasons , passenger enforced.” Rail Southern Pac. Co. v. of the is so train service clear 353 request formality. meaningless proof that the is a to the board to submit sufficient Q. Municipalities Chicago authorizing B. R. & Co. an order for the continu- 352, Holdrege, 41 of 152 Neb. N.W.2d ance of such prop- service. Rather the only procedure (1950). 157 We have found one er was the board followed right compel instance to'discontinue here continuance passenger train notice was company without service until the it- railroad railroad, case adequate claimed and in that proof appro- self submits priate proceedings of the railroad to discontinue in- longer requires the trains without denied. notice was terest no the service Com’rs, Ry. Great Northern v. Bd. of R.R. principles within the above of 1093, (1956), 130 P.2d Mont. cited case and the cases therein cited. appeal dismissed for want of a substantial “It well be conceded if question,

federal 352 U.S. S.Ct. board ordering were the institution of (1956).1 1 L.Ed.2d 114 The court said: new or additional service without notice complained “The order of the board opportunity and without an heard simply requires here of railroad the action and authorizing the statute company operation to continue the contrary would be state and approval its trains until it obtains prin- federal Constitutions within the commission, upon of the railroad ciples announced in the Chi- casé of proper showing, to abandon such serv- cago, Ry. M. & St. P. Co. v. Board In proceedings ice. the burden Commissioners, of Railroad 76 Mont. proof upon railway rests com- 247 P. 162. But as before stated pany warranting showing make a findings board here made no the abandonment of the service within fact and in testimony fact' no heal'd principles laid down this court that would sustain institution St, in Chicago, M., P. & P.R. Co. v. any additional service. not order Tfdid Commissioners, Board Railroad new or additional All service. railway

Mont. 255 P.2d 346. The has been done is to order the mainte- company may not, by abandoning the quo nance of the status until the rail- permission service without way of the board company proceeds regular in the of railroad and without way provided by,law commissioners regula- and the hearing, proof shift 'burden tions of "the board the bur- sustain to. noted, 1. It should he here the ultimate one at bar for want of substantial fed a- questions yet majority question, arbiter federal dismissed this eral their base substantially opinion process”! ease which is identical to the bn . a denial of “due *13 prosecuted hi has been the matter justify- until case proving a sufficient den of of the the direction under the trial courts the service of- ing discontinuance the General, appeal the has Attorney and until question.” resort, courts of last taken in the been is es- proof burden The matter federal, only would and then state dis- Where kind. cases sential service would public whether the- know must issue, the railroad is at continuance be restored. that has which it present the evidence by the longer needed are no the trains majority sight of fact that The loses the arbitrarily discon- cannot, by public. It the rail- just is not a contest between fhis here, trains, place done tinuing was the Commission; that the and the but road estab- burden of upon- the Commission the first con- parties should receive who needed, as the lishing trains are public traveling who are sideration required do if be Commission would uninterrupted until have entitled to or additional service order new was .to been that service has terminated public convenience. (1956) authority of 40-367 law. U-8. Commission's General Order has majority In the instant case proof clearly shifted the burden just in seek- If the railroad has cause the Rail- requiring before daily sched- ing the number to cut down compelled to continue road can be its passenger over running trains ules the. Com- present and service schedules ample in Arizona it has lines required prove that such be mission will existing- apply law. for such relief under necessary for are service and schedules sympathetic atti- displayed This court necessity of-the-public. convenience problems Southern tude toward reviewing orders of the Pacific in only majority has held that Corpo- Corporation Commission. Arizona -be remedy is to available to Co., Com’n v. Pac. 87 Ariz. (1956); ration Southern 40-421 40-424 found A.R.S. §§ (1960). case was 350 P.2d 765 If this authorize (1956), (1956), and merits, an order for before us on its prosecuted promptly that all violations be se- might the trains discontinuance of penalties therefor be due the state com- held a railroad cured. It has been be 'noted recovered collected. will seek, regulatory pany duty has the penalty provisions be- give no these finés, duty permit, elimina- agencies public. have -The whatever lief facilities which of those services and any, tion the Commission if are collected longer only are no needed used of the state. The the benefit Q. Chicago, & B. substantial extent. public, course to the wait available Municipalities R. Co. v. Holdrege, sion corporations over (1950); Reading therein, Neb. 41 N.W.2d 157 business doing including the Pennsylvania Utility Co. v. Comm., regulation Public of rates charges to be Pa.Super. 635, 159 A.2d 61 (1960). made and corpora- collected ; further, tions Provided that classifica- reach, majority opinion, in order to tions, rates, rules, charges, regulations, result, particular declaring resorted to orders, and systems prescribed forms Commission’s U-8 General Order invalid. *14 by Corporation made said Commis- respect With contention the Com- may sion from time time be amended promul- mission did not have repealed by such Commission.” gate General Order U-8 an examination of (Emphasis added). pertinent statutory Constitutional and provisions reveals following. Arizona At first blush it appear would Constitution Article 3 states: provision constitutional alone is sufficient Corporation “The shall authority to the promulgate Commission to power to, have shall, prescribe and full However, General Order U-8. this Court just and reasonable classifications to be Comm, Corporation in of Arizona v. Pacific just used and and reasonable rates and Greyhound Lines, 54 Ariz. 94 P.2d 443 charges collected, by be made and (1939) said : corporations within the “ * ** therein,

State for service rendered and we are opinion rules, make reasonable regulations, and * * * power the ‘full make orders, by corporations which such regulations rules, reasonable and or- shall be governed in the transaction of ders, by corporations which such shall business may pre- within the and State be governed in the transaction of busi- scribe the forms of contracts and the State’, ness within the systems keeping accounts to be used qualifies only and refers to the by corporations such transacting given the commission the same sec- business, such and make and enforce tion to rules, regulations, reasonable and or- ‘prescribe just and reasonable classifi- convenience, comfort, ders for the and used, just cations to be and and reason- safety, preservation and the able charges rates and to be made and health, employees patrons collected, by public corporations; corpora- Provided, of such tion’,” incorporated 54 Ariz. may at P.2d at cities and be towns supervi- authorized law to exercise by filing

However, given “B. shall be should noted that Article Notice he open keeping provides: with the commission and 6 of the Constitution public inspection new schedules for enlarge law-making power may “The change stating plainly the made be powers and extend duties of force, in the schedules then may Corporation change go ef- time will into when prescribe regulations gov- rules and fect. be- proceedings ern instituted commission, good regu- “C. cause it; but, fore until rules and such shown, law, may changes provided by allow without the Com- lations are regula- thirty days provided quiring notice rules and mission make specify- order proceedings.” this section an govern tions (cid:127) n ing changes so be made and the added). (Emphasis effect, they time take when shall legisla- provision the Consistent with this they shall filed manner which following passed statutes: ture published.” (1956), provides: which pro- statutory feel it is clear these We adequate authority visions are under may supervise “A. The commission pass the Commission could General Orders every cor- regulate in this things, such U-8 case. poration do in the state and all *15 designated specifically in this whether argues 40-202 The railroad that A.R.S. § thereto, necessary title in addition or standing (1956) alone authorize of such in the exercise convenient an unconstitutional Order is invalid as U-8 power jurisdiction.” delegation authority. In the legislative of Haggard of v. Industrial Commis- case provides: (1956), 40-367 which A.R.S. § sion, we (1950) 915 71 Ariz. 223 P.2d change by any “A. shall be made No said: rate, any in service corporation course, rule, ordinary “The charge toll, rental, fare, or classifica- delegated legislative powers cannot be rule, tion, any regulation con- in or or *** to administrative bodies. rate, any relating affecting tract to or toll, au- fare, rental, charge, that when classification But this does mean service, ad- any privilege or so the act itself or in thorized to do days rules except thirty may bodies not make facility, after notice ministrative legisla- supplementing and regulations commission and to the chapter. operation and complete in tion its provided this enforcement, regula- rules and far as the Commission had the proper au- if thority tions are within the standards set promulgate such an order. forth * ** legislature. in the act The railroad next ap- contends that the plication of General Order U-8 to them in “The extent character these case unconstitutional as an inter- regulátions rules and must be fixed ference with interstate commerce. accordance with common and the sense governmental inherent necessities of Act, The Interstate Commerce 49 U.S. coordination, and the standards laid provides 1(17), pertinent C.A. part: § down legislature within “ * * * chapter nothing in this shall body may the administrative act impair State, affect the aof may be in general broad and terms.” power, the exercise police of its (Emphasis added) at 71 Ariz. 100- require just and freight reasonable 101, 223 P.2d at 921-922. passenger service for busi- intrastate ness, except require- insofar as such In power granted view of the the Com- ment is inconsistent with lawful by' (1956) mission A.R.S. 40-324 allow- order of the Commission made under ing the changes Commission order provisions chapter of this and ex- par- adequate insure cept provided as otherwise chap- in this requirement railroad, ticular and the notice ter.” (1956), A.R.S. common sense would dictate that could Supreme The United States Court in South- pass a requiring General Order railroads ern Pacific Co. State of Ariz. ex rel. to seek Commission cur- before Sullivan, 325 U.S. S.Ct. present

tailing existing feel service. We (1945) L.Ed. 1915 has said: requirement “necessary and convenient” “Although the commerce clause con 40-202 (1956) is a sufficient ferred government pow on the national standard Haggard, to meet test regulate commerce, possession er to which said “the standards laid down power does not exclude all state * * * legislature in broad regulation. Ever since Will general terms.” This is consistent Co., son v. Black-Bird Creek Marsh subject general with the case law on this (US) 7 L.Ed. Pet. *16 delegation legislative authority. of of See Cooley Wardens, v. Board of How. Davis, Administrative 2.01 Law Treatise §§ (U.S.) been L.Ed. (1958). and 2.16 I therefore would hold recognized that, in the con absence of that the General Order U-8 is valid inso- flicting legislation by Congress, there application' proper make I power in the state of a residuum ^ per- Order U-8 for pursuant to General matters of governing laws to make passenger to discontinue mission service.' nevertheless concern which

local Com’rs, Ry. Bd. of R. v. R. Great Northern com- interstate affect measure some supra. At time the railroad will even, extent, regu- some merce adequate hearing on 766-767, entitled to a full 65 S.Ct. at late it.” 325 U.S. attempted I do not condone the matter. at 1519. in this case. accompli the railroad fait claim made no The railroad has In- of the provision the ICC or order of been violáted Act has

terstate Commerce order does U-8. The General Order regulate interstate

purport to control only with deals The order

commerce. public service providing railroads

those 404 P.2d 705 the order I believe within the State. U.S.C.A. exception of 49 clearly within the E. Wilson, Appellants, L. and R. L. IMAN the States giving quoted above 1(17) v. passenger regulate intrastate Secretary Wesley BOLIN, capacity In his as Appellee. regulation in- Arizona, provided is not of for the State of State Wilson, Appellants, E. L. L. IMAN R. any order of the ICC. consistent indicate nothing the record to There is BOLIN, capacity Wesley acting as Sec in his ICC have the elected to the railroad Arizona, retary of State the State (cid:127) pass on the discontinuance al., Boards Woodall et Clerks of Rhea pursuant appropriate notice giving Supervisors Fourteen Counties Arizona, respectively, the State of thereby pre- 13(a) U.S.C.A. § Supervisors Fourteen Boards of jurisdiction in the empting the State of Arizona, Appellees. Counties of the State of Gen- would hold that matter. I therefore Nos. applied U-8 in this case to eral Order Supreme Court of Arizona. unconstitutional. the railroad is not En Banc. they Lastly, the railroad contends that present opportunity evi- were denied an July 16, 1965. regarding of serv- dence the discontinuance to com- cannot be heard

ice. The railroad hearing

plain they have been denied -they, comply -the

until with the orders