State ex rel. Oregon Railroad & Navigation Co. v. Railroad Commission

Dunbar, J. This is an appeal by the railroad company from a judgment of the superior court for Thurston county, affirming as reasonable and lawful an order of the railroad commission, ordering certain track connections between the appellant’s lines of railway and the lines of the Northern Pacific Railway Company and the Spokane & Inland Railroad Company. A statement of facts and bill of exceptions, was settled by the trial court, in which the evidence considered by the court below and a statement of the exceptions reserved were set out. On May 13, 1907, the commission caused to be filed with itself, as complainant, a complaint, against the railroads interested, which, among other things, complained of the lack of track connections between the appellant’s lines of railway and other railways in Eastern Washington. The complaint .was verified by the chairman of the commission,. and prayed for the interchange of cars, at Oakesdale and Garfield between the Northern Pacific, the — 23 — Spokane & Inland and the O. It. & N. Company; at Connell, Pullman, and Farmington between the Northern Pacific and the O. It. & N. Company; at Waverly, Thornton and Colfax between the O. It. & N. Company and the Spokane & Inland; at Rosalia and Palouse between the Northern Pacific and the Spokane & Inland. Citation was duly issued, directing the attendance of the interested railroads. The appellant appeared in response to the citation, filed its objections to the jurisdiction of the commission, and filed an answer. The hearing being had, an order was made directing track connections to be made by the interested railroads as above indicated, and dismissing the petition as to the track connections at Rosalia and Palouse. We have considered this case in connection with the case of State ex rel. Great Northern R. Co. v. Railroad Commission, post p. 33, 100 Pac. 187, as most of the questions involved in the latter case are involved in the case now under discussion, although this case raises some additional questions. But the arguments and citations of authority in both cases will be considered in the discussion of this case. The order for track connections having been served, the appellant in due course filed a petition to review the order of the commission, in the superior court of Thurston county. A writ was issued, and pursuant thereto a hearing was had upon the proceedings, and evidence certified by the commission to the said superior court. Here we may notice an objection raised to the manner in which the testimony in these different cases was certified. The complaint was an omnibus complaint, and the commission in its return referred to the evidence in certain other cases as evidence taken in the matter of this cause concerning the track connection order; and it was stipulated that the evidence referred to by the commission did contain'the evidence which was taken in this case. We see no real objection to this manner of certifying the testimony or statement of facts to the superior court. It is not contended that the evidence — 24 — in the case was not certified, and the particular form in which it was certified seems to us not to be material. The cause coming on for hearing, the appellant offered at the trial to produce and introduce before the court competent material and noncumulative evidence affecting the merits. The court refused to permit the evidence to be introduced or to permit witnesses to be sworn in support of the offer, holding that, under the statute creating a railroad commission and defining its duties and powers, no evidence could be introduced before the court in the case, and that the cause was required to be tried upon the testimony taken before the commission; to which ruling the appellant duly excepted on the ground that the ruling of the court deprived the appellant of its property without due process of law, and denied to it the equal protection of the laws, contrary to the fourteenth amendment to the constitution of the United States'. With the view we take of the law, it is not necessary to produce here the testimony offered. Various assignments of error are made, but they are more in the form of assertion of what the law is than of the ordinary and regular assignment; so that we will consider the merits of the assignments as they are presented by the briefs and arguments. The first contention of appellant is that the railroad commission law does not confer power or authority to institute an inquiry before the commission upon the question of track connections, or permit the commission to make any orders in respect thereto. The railroad commission law was passed in 1905, and it is conceded that, under the provisions of that act, the action of the commission complained of was not authorized; at least, the commission doubted its authority to act in the premises, and the act was amended in 1907 (Laws 1907, p. 536, chap. 226). It is contended by the appellant that the power given by such amendments did not confer the power of trackage connection. Section 3, page 538, of the Laws of 1907, vests the commission with power, upon complaint made, to make regulations concerning the sufficiency — 25 — of the trackage, railroad connections, siding, equipments, etc., and to order that additional trackage or siding be constructed. It is contended by the appellant that this does not make provision for physical track connections. However, from a reading of the whole section, we are convinced that the legislature intended to confer power upon the commission to compel the making of physical track connections, and that this is in harmony with the spirit of all the provisions of the act. It is next contended that, if it should be held that the commission law does confer such authority, such power will be found to have been conferred by virtue of the Laws of 1907, and that the amendments of 1907 were not in force when the hearings in. this case were instituted and citations served. This contention we think is absolutely untenable. The law of 1907, including the amendments under discussion, was approved March 16, 1907, and the proceedings in this case were instituted in May, 1907. Section £1, the last section in the act of 1907, prescribes that there shall be added a section tc be designated as section 39, providing that “an emergency exists and this act shall take effect immediately.” It is not reasonable to conclude that the intention of the legislature was to enact an emergency clause to take effect upon an act of the legislature which had been in effect for two years prior thereto. The natural and obvious conclusion is that the emergency clause was intended to apply to the provisions of the act of 1907. The next, and probably most important contention of the appellant, is that, if the amendments to the commission law of 1907 were in force and shall be construed as being intended to confer authority upon the commission in respect to track connections of railroads, then the legislation is void as a delegation of legislative authority which, by the constitution of the state, was lodged with the legislative assembly; because, as is claimed, if any power has been intended to be conferred, it is the bald power of arbitrary determination as to when, — 26 — where, and under what conditions track connections may be ordered and who shall pay for the same. It is admitted that, while the power of regulation of carriers may be exercised by the state directly by its legislature, or through the medium of the commission, yet the legislature must itself determine a standard for regulation by which the commission shall be guided; and it is asserted that this has not been done by the legislation in question, and that the action of the commission under consideration is an exercise of purely legislative authority. It is conceded by the appellant that the state may regulate railways, and that this regulation may take the form of ordering track connections between railroads under appropriate conditions; but it is contended that, before power can be conferred upon such subagency, the legislature itself, by legislative declaration, must establish standards or principles of regulation by which the commission shall be guided. For the purpose of the decision in this case it may be conceded now that the authorities cited by the appellant sustain the propositions contended for by appellant, viz: That use and enjoyment of property are essential attributes to property an interference with which constitutes a taking of property; that railway property impressed with a public use can be regulated whether the regulation take the form of a regulation of rates or of enforced track connections, but that this power of regulation is not unlimited; that all regulation by the state must be just and reasonable, and that the question of the reasonableness or unreasonableness of the regulation is essentially a judicial question, and that the owners of railway property against whom regulation is sought to be enforced have a right to demand from the courts an inquiry as to the validity. of this interference and submit to a court as a judicial question all controversies which may arise as to the lawfulness or reasonableness of the regulation. But an examination of the cases cited convinces us that they have no application to the case at bar, for the reason that the right to a judicial determination of the questions involved in the con — 27 — troversy — the main proposition — is accorded to the appellant in this case by the law of 1907. One of the main cases relied upon by appellant here, and also by appellant in case No. 7616, is Chicago etc. R. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970, but that case was decided expressly upon the theory that no judicial determination was permitted. Justice Blatchford, in writing the opinion for the court in that case, said: “The construction put upon the statute by the supreme court of Minnesota must be accepted by this court, for the purposes of the present case, as conclusive, and not to be reexamined here as to its propriety or accuracy. The supreme court authoritatively declares that it is the expressed intention of the legislature of Minnesota, by the statute, that the rates recommended and published by the commission, if it proceeds in the manner pointed out by the act, are not simply advisory, nor merely prima facie equal and reasonable, but final and conclusive as to what are equal and reasonable charges; that the law neither contemplates nor allows any issue to be made or inquiry to be had as to their equality or reasonableness in fact; that, under the statute, the rates published by the commission are the only ones that are lawful, and, therefore, in contemplation of law the only ones that are equal and reasonable; and that, in a proceeding for a mandamus under the statute, there is no fact to traverse except the violation of law in not complying with the recommendations of the commission. In other words, although the railroad company is forbidden to establish rates that are not equal and reasonable, there is no power in the courts to stay the hands of the commission, if it chooses to establish rates that are unequal and unreasonable.” It certainly cannot be contended that our statute could be so construed, for the statute itself especially provides for a review by the superior court, from which court there is an appeal to the supreme court of the state. It is given a review, not only upon the regularity of the proceedings, but upon the merits. It is true that the statute provides that the court shall hear the case only upon the testimony that is taken before the — 28 — commission; but it also provides a complete remedy if the commission refuses to accept competent testimony, and if it admits incompetent testimony, of course, the reviewing court would simply disregard it. The supreme court of this state is bound by the testimony which is introduced in the superior court and comes up in the statement of facts, and yet it could not well be said that litigants are deprived in any way of obtaining the judgment of the supreme court on questions which have been litigated in the superior court. The statute provides, in so many words, that any railroad or express company affected by the order of the commission, and deeming it to be contrary to the 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 has been held, and have such order reviewed and its reasonableness and lawfulness inquired into and determined. Time is given to take this review. All the testimony upon which the commission acted is brought before the court, and we are utterly unable to conclude that the question is not finally determined by a judicial arbiter. Many statements are made by counsel for appellant in regard to the provisions of the statute; for instance, it is asserted by the appellant in State ex rel. Great Northern R. Co. v. Railroad Commission, supra (No. 7616), that this legislation is cunningly devised to give to the common carrier the right to a proceeding which is a judicial investigation in name only, and utterly lacking in the substance and quality of an ordinary judicial proceeding, and to prohibit the courts from pursuing any line of investigation except that which has been dictated by the commission, or having before it any facts or evidence except such as the commission may determine. On page 98 of appellant’s brief it is asserted that the vice of the statute consists in limiting the court in such inquiry to such evidence as the commission may see fit to take or certify; but a perusal of the statute itself shows that there — 29 — is no justification for such assertions. Section 5 of the Laws of 1907, page 548, provides as follows: “And the court before which such hearing is had, in case it finds any such findings so sought to be reviewed unjust, incorrect, unreasonable, unlawful or not supported by the evidence, shall make new and correct findings to take the place of such as may not be sustained, unless such findings are set aside and reversed for error on the part of the commission in rejecting evidence properly proffered, in which case it shall remand such hearing to the commission with instructions to receive the evidence so proffered and rejected;” a provision which flatly contradicts the statement that the evidence before the court is limited in inquiry to such evidence as the commission may see fit to take or certify. Appellant also states, on page 113 of its brief, that there is no provision whatever for any review by the superior court of any decision which the commission may make in the course of its proceedings, either in rejection or receipt of evidence which may be offered, or any review provided for any error in ruling in the course of the examination of witnesses. The portion of the statute which we have read equally answers this statement. The statute goes further and provides an appeal to the supreme court of the state, and provides that: “In case the supreme court finds any findings so sought to be reviewed unjust, incorrect, unlawful or unreasonable, or not supported by the evidence, it shall either make and render proper findings or remand the same to the superior court with instructions to make proper findings on the evidence already submitted, unless the same is reversed for error in rejecting evidence properly proffered, in which case the hearing shall he remanded to the commission with instructions to receive the evidence so proffered.” Laws 1907, p. 548, § 5. The statement that, if a witness shall appear and refuse to testify, there is no means of compelling testimony, is also answered by the statute as follows: “The said commission before which the testimony is to be given or produced, in case of the refusal of any witness to attend, or testify, or produce any papers required by the — 30 — subpoena, shall report to the superior court in and for the county in which the proceeding is pending by petition, that due notice has been given of the time and place of attendance of said witnesses, of the production of said papers, and that the witness has been summoned in the manner provided in this act, and that the fees and mileage of the witness has been paid, or tendered to the witness for his attendance and testimony, and that the witness has failed or refused to attend or produce the papers required by the subpoena, before said commission, in the cause or proceeding named in the notice and subpoena, and ask an order of the said court, compelling the witness to attend and testify before the said commission. The court upon the petition of the commission shall enter an order directing the witness to appear before the said court at a time and place to be fixed by the court in such order, and then and there show cause why he has not responded to said subpoena.” Laws 1907, p. 544, § 4. It then provides that, in case the witness does not purge himself, he shall be dealt with as for contempt of court. It is true that there are no penalties for perjury, but the general law on the subject of perjury provides for that. The penalty for perjury is not necessarily provided in every statute that provides for the taking of the testimony of a witness. These statements are repeated in many forms, and arguments are based upon the assumptions of the statements, and authorities are cited in support of the unconstitutionality of a law such as is indicated by the statements made; but as we have seen, the statements not being justified by the law itself, such authorities are not in point, and we have therefore not reviewed them. It is insisted that, inasmuch as the commission makes out the complaint, the commission is an accuser, and it is treated by the arguments of counsel as a tribunal in opposition to the just interests of the railroad companies. This court cannot act on such an assumption. The commission was provided for not for the purpose of interfering with any just and legal rights of the railroad companies or other corporations, but as a mediatory court standing between the private interests — 31 — of the country and the interests of the carriers; and the fact that the complaint in response to petitions is made by the commission formally is not such a fact as would warrant the assumption or suspicion that the commission was not acting justly and impartially. It is true that the forms of law and procedure under which this commission is acting are not in all respects like the forms and procedure governing other courts ; and in the language of many of the cases cited by the counsel for appellant, and repeated by the appellants themselves in their arguments, in some respects “it is not a proceeding under the forms and with the machinery provided by the wisdom of successive ages.” But it occurs to us that it makes no difference whether it is a proceeding under the forms and with the machinery provided by the wisdom of successive ages, or whether it is under the powers and proceedings provided by this age. Law is a progressive science, and must necessarily regard the changing conditions of society and of the business of the country, and the legislature and courts of today ought certainly to be as well qualified to provide machinery for the guidance of a commission as was the law-making power two hundred years ago. The essential idea does not take cognizance of the antiquity of the powers and machinery under which the commission is acting, but of the question whether, under such powers and the working of such machinery, the respective legal rights of the carriers and the people are preserved. A careful examination of the whole act, we think, refutes the statements made by the attorneys for appellant that the law is cunningly, devised for the purpose of preventing railroads from obtaining just judgments, and repels the presumption that the commission provided for by the legislature is appointed for the purpose of oppressing railroad companies. We think, on the contrary, the presumption must he that the commission will act with fairness towards all parties. It is also objected that the law provides that the commission may limit the number of witnesses. We do not think this — 32 — is an unreasonable requirement. With regard to the contention that a standard must be erected by the legislature for the guidance of the commission, we think that question is answered by the law itself, which provides in many places throughout chapter 226 that the enforcement of these different provisions shall be just, fair, and reasonable. When this imposition is placed upon the commission, with the right of the railroad company to appeal to the courts to determine judicially whether the action of the commission was just, fair, and reasonable, we think all constitutional rights are fully protected. The contention is also made that the commission act provides for the intermingling of legislative, executive, and judicial power. If we have given the statute proper construction, the concessions made by counsel for appellant as to the character of the commission laws which it is within the powers of the legislature to enact, renders unnecessary a discussion of this proposition; but yielding the courtesy of discussion, while there is no question that the constitution of the state recognizes a division of the powers of the state into three separate co-ordinate departments, viz., legislative, executive, and judicial, it is well established that the special jurisdiction of each is understood to be applied in a limited sense, and it is not meant that they must be kept wholly and entirely distinct without any connection or dependence whatever or connecting link between them. Or, as was said by this court in Bellingham Bay Imp. Co. v. New Whatcom, 20 Wash. 53, 54 Pac. 774, if all quasi judicial powers were taken from administrative and executive officers, the courts would be incumbered with useless litigation, and the administration of the government would become so expensive that it would be intolerable. This question was examined at length in that case, and many cases reviewed, and the logic of the opinion and the conclusion reached is opposed to appellant’s contention. In addition to this, no case has been cited by appellant, nor have we been able to find any, which sustains the view contended for. As to the public necessity for the track connections, we are not — 33 — prepared to say that the finding of the commission in that respect was not justified by the testimony. It is also contended by appellant that the law is unconstitutional because of the alleged excessive penalties which follow the refusal to comply with the order of the commission. This, in any event, would affect the constitutionality of only that portion of the act in relation to penalties. But, as counsel for appellant and respondents both agree that the penalties are not involved in this case, for the reason that the order of the commission provides for a subsequent order specifying the proportionate amount to be made by each of the railroads of the expense of making such connections, and that such subsequent order has never been made, we will decline to pass upon the question until it is a material issue in a case presented. Finding no error in the record, the judgment is affirmed. Rudkin, C. J., Crow, Fullerton, and Mount, JJ., concur. Chadwick and Gose, JJ., took no part.