rGSU:J;: - SSKSSA: ^SE: OJnrupll Slam i>rl|0ol Slibtaty Cornell University Library KF 2094.C69 A treatise on the law of public service 3 1924 019 355 332 The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924019355332 A Treatise on the Law of Public Service Companies, Property Devoted to Public Use, Business in Public Employment, Carriers in Interstate Trans- portation and Regulation by Public Service Commissions with an Annotated Appendix Containing Procedural Parts of Commission Laws of the Several States. By NEEDHAM C. COLLIER, LL. D. of the St. Louis Bar Formerly Associate Justice of the Supreme Court of the Territory of New Mexico Editor of Central Law Journal 1918 THE F. H. THOMAS LAW BOOK CO. St. Louis B75/?^ Copyright, 1918 By Nebdhau C. Collieb DEDICATION THIS WORK IS AFFECTIONATELY DEDICATED TO MY TWO SONS. GEORGE BRYAN COLLIER AND CHARLES WHITFIELD COLLIER. NEEDHAM C. COLLIER. PREFACE There seems not much to be added by way of preface to tHe work I have produced in the within pages, beyond what is set forth in the introductory chapter thereto. That, as a forecast of what was to be, explains the general theory of the work. Ad- ditional consultation of the authorities relied on, here and there, presented occasion for discussion of principles they treated, and of illustration in application to new things and new forces in our later conditions than obtained at tne com- mon law. Also, it is to be noticed that there is connected with decision in the application of the principle of devotion of private prop- erty to public use, making it and business subject to regula- tion, additional reason in police power for the enforcement of sueh principle. This is endeavored to be shown. There is an intermingling of this principle and this power difficult to formulate. Each case may be said to depend upon its peculiar facts, remembering always the protection afforded by constitu- tional guaranty to private property against practical confisca- tion. As to this, however, it is to be noted, that when a public utility holds itself out, by charter or otherwise, to carry on a particular business, it has absolute duties to perform at prhat- soever cost this may entail. While it may be, that the great case of Munri v. Illinois, 94 U. S. 113, and its acceptance by the States, settled the basic principles discussed, yet the variety of situations in which it has been invoked presents an unfolding study of its limita- tions in application. Especially is this true in so far as the power under the commerce clause of our Federal Constitution is concerned. This work is presented to the profession in the hope that, in such a live subject as is treated, its members may find a fertile V. PREFACE field for professional investigation and practical suggestion to practitioners and to lawyers in the higher sense of that term. The treatment along common law lines is upon this view. The work has embraced decision by State and Federal courts closely down to the time the book has gone to press, and in some instances even after this time. As official reports were not in all such cases obtainable, resort has been had to the Na- tional Eeporter System — some cases being even too late for the bound volumes therein, and advance weekly sheets are relied upon. In citation I have, where possible, made use of the various forms of reports, whether eclectic or regular, in which cases have appeared — thus the trinity series, American Decisions, American Reports and American State Reports, Public Utility Reports (P. U. R.), L. R. A., L. R. A. (N. S.), and L. R. A. as currently appearing. Also reference in citation has been made to American and English Annotated Cases and Negli- gence and Compensation Cases. It is to be noted, also, that the page references are omitted in 61 L. Ed. (the Co-operative Edition), but as it is certain that this edition contains all the cases down to the end of October, 1916, term of the U. S. Su- preme Court, by the title of the case, reference easily may be verified in use. Trusting that the work may be of some assistance to my brothers in the profession, I send it on its way. Needham C. Collieb. St. Louis, Mo. VI Table of Contents PART I The Common Law as to Property Devoted to Public Use CHAPTER I. Easements in Things of Common Eight I 1. Monopoly against freedom of trade. 2. Rxclusive right not necessarily monopoly. 3. Things of common right in their nature indestructible. 4. Grantee of easement taking with notice. 6. Summary. CHAPTER II. Common Eights in Things Known to the Common Law i 6. Preliminary. 7. Classification of things subject to common right. 8. Waters, that is to say, rivers and the sea. CHAPTER III. Common Eights in Highways i 9. Kinds of public highways. 10. Bridge as a highway. 11. Cul-de-sac as a highway. 12. Ferries as highways. 13. Public square as a highway. 14. Railroads and street railways as highways. 15. Toll roads as highways. 16. Rivers and towpaths as highways. 17. Tidal not test of navigable water. 18. Inland lakes as highways. 19. Canals at common law. 20. Basement of public in a highway. yii TABLE OF CONTENTS, CHAPTER IV. Common Eights in Landings 5 21. Ports at common law. 22. Wharves in iwrts — Docks and quays. 23. Jus publicum emphasized by Lord Hale. 24. Jus regium, defined. 25. Warehouses in ports. 26. Legal and virtual monopoly. CHAPTER V. I. Eights in Commons, Markets and Fairs S 27. Commons as existent at common law. 28. Markets and fairs at common law. 29. Parks and recreation grounds. CHAPTER VI. Jus Publicum in Dedication to Public Purpose S 30. Preliminary. 31. Carrier devoting vehicles to public use. 32. Innkeepers engaged in public employment. 33. Grist mills at common law. 34. Summary of this chapter. CHAPTER VII. Title to Jus Publicum is in Trust § 35. Preliminary. 36. Use of inalienable public property. 37. Summary. CHAPTER VIII. Common Law Eemedibs by and Against Public Employments § 38. Preliminary. 39. Lien on goods in hands of public agency. 40. Ordinary procedure against public agencies. yiii TABLE OF CONTENTS. CHAPTER IX. Common Law as Pabt op Oub System 9 41. Preliminary. 42. Extent of American common law. CHAPTER X. Peopeety, Not Business, Affected With Public Inteebst. § 43. Location as test of public interest. 44. American common law as to navigable waters. 45. Magna Charta as enforcing trust theory in jus pubHcum. 46. Navigable waters, fresh or salt. 47. Public rights in floatable streams. 48. Public rights in lakes under American law. 49. Public rights in public landings. 60. Public rights in warehouses as public landings. 61. Stockyards as public landings. 62. Public rights in wharves, docks and piers. CHAPTER XL Calling Affected With a Public Inteeest § 63. Property and calling affected with public interest. 64. Highways by water and those on land. 55. Common carriers affected with a public interest. 66. Same — Nature of holding out. 67. Innkeepers affected with a public interest. 58. Dealers in articles of general necessity. 59. Grist and sawmills of public interest. 60. Insurance affected with public interest. CHAPTER XII. Callings fob Which Feanchises aee Necessaey § 61. Franchise with reference to callings. 62. Franchise to run a ferry. 63. Franchise to build a public bridge. ix TABLE OF CONTENTS. 64. Franchise for turnpike or toll road. 65. Franchise to canal for navigation. 66. Franchise for canals for irrigation. 67. Drains and levees. CHAPTER XIII. MoDEEN Business Requieing Public Feanchises. § 68. Preliminary. 69. Franchise for a railroad business. 70. Franchise for street and suburban railways. 71. Franchise for telegraph and telephone businesses. 72. Franchises for lighting companies. 73. Franchise for municipal waterworks. CHAPTER XIV. Eminent Domain and Public Pueposes. § 74. Statute necessary for exercise of eminent domain. 75. Constitutionality in exercise of powers of eminent domain. 76. Purpose of corporations not test of public purpose. 77. Federal power in exercise of right of eminent domain. 78. Summary. CHAPTER XV. Peopeety Subject to Eminent Domain. § 79. Property, tangible and intangible. 80. Property presently devoted to public uses. 81. Easements subject to eminent domain. 82. Franchise subject to eminent domain. CHAPTER XVI. Licensing op Businesses. § 83. License imposed by federal law. 84. Distinction between license and franchise. 85. Privileges in license not those in franchise. TABLE OF CONTENTS. CHAPTER XVII. Exclusive Eights Undeb Fbanchise. S 86. Monopoly rightful under franchise. 87. Construction not favorable to exclusive rights. 88. Franchise exclusive against private persons. 89. Franchise as contract not subject to impairment. 90. Reservation of right to amend. 91. Power of City to Surrender rate-making right. 92. Vesting regulation in public service commissions. CHAPTER XVIII. Peinciple op Eegulation Undee Police Poweb. § 93. Preliminary remarks. 94. Rate making in the insurance business. 95. State cases justifying rate making under police power. 96. Dissenting opinion in German-Alliance insurance case. 97. State cases as to rates under police power. CHAPTER XIX. Bate Making Based on Public Inteeest in Peopebtt § 98. Preliminary remarks. 99. Property affected with a public interest. 100. Enumeration in Munn case of business affected with public interest. 101. Virtual and legal monopoly same in effect. CHAPTER XX. Begulation of Common Cabbiebs. I 102. Preliminary. 103. Regulation based on public character of carrier. 104. Corporations as carriers. 105. Charter of carriers as evidence of public policy. 106. Anti-trust act affecting common carriers. xi TABLE OF CONTENTS. CHAPTER XXL [Rates Based on Peivileges Confebbed By Chaktees § 107. Acceptance of charter conferring privileges. 107a. Cliarter authorizing rate regulation. CHAPTER XXII. Eegulation Based on Exebcise of Eminent Domain § 108. Exercise of eminent domain based on public use. 109. Statutory declaration of public purpose. CHAPTER XXIII. Fixing Rates a Legislative Function § 110. Reasonable rates. 111. Reasonableness a legislative question. 112. Review by courts of legislative rates. 113. General schedule of rates. 114. State ruling on legislative power to fix rates. 115. Summary. CHAPTER XXIV. Maximum Eatbs Must be Reasonable Rates. § 116. Rule of reasonableness in fixing rates. 117. Extent of regulation of business devoted to public use. 118. Extent of regulation In other than railroad cases. 119. Regulation of business taking on public use. 120. Imposing excessive penalties unconstitutional. CHAPTER XXV. Fixing Rates bt Commissions. §121. Rates prima facie reasonable. 122. Delegated power to fix rates by commission. 123. Delegation of power as common law principle. 124. Commission exercises legislative and not judicial function, xii TABLE OP CONTENTS. CHAPTER XXVI. DiSCBIMINATION IN EaTES. § 125. Reasonable rate at common law. 126. Reasonableness requires uniformity in rate. 127. Anti-monopoly principle as to rates. 128. Anti-monopoly rule invoked by rate payers. 129. Anti-monopoly rule applicable to all public utilities. 130. Discrimination under legislative authority. 131. Discretion in classifying. 131a, Special service in round trip and commutation tickets. 131b. Party rate tickets. 132. Summary of this chapter. CHAPTER XXVII. General Eegulation by Statute. § 133. Preliminary. 134. Extent of statutory regulation of facilities. 135. Discrimination In furnishing facilities by railroads. 136. Switching facilities at terminal stations. 137. Unlawful dscrimination as to facilities generally. CHAPTER XXVIII. Valuation in Eate Making. § 138. Historical review. 139. "Fair value," criterion of rate making. 140. Pair value dependent on circumstances. 141. "Going value" deducted from valuation. 142. Value varies in public uses. 143. Experience is test in rate making. ZUl TABLE OF CONTENTS. PART II Interstate Utilities CHAPTER XXIX. Inteestate Tkanspobtation § 144. Regulation under constitutional limitation. 145. Regulation by Congress of railroads. 146. Regulation by nation paramount. 147. National and state regulation independent. 148. Congress exclusive in interstate commerce. CHAPTER XXX. Indirect Btjbden on Intebstate Commebce § 149. Preliminary. 150. Tax on interstate railroad. 151. State police power over interstate carrier. 152. Local facilities burden on interstate traffic. 153. Local rates working discrimination. CHAPTER XXXI. Eegulation of Intebstate Raileoads § 154. Scope of regulation. 155. Inconsistent positions of carrier. 156. Rates by state commission working discrimination against interstate rates. CHAPTER XXXII. Employees of Intebstate Caebiee 5 157. Varied character of legislation as to servants. 158. Safety appliance act. 159. Hours of service act. 160. Employers' Liability Act. 161. Workmen's Compensation Acts. 162. Federal Employers' Liability Act excludes Workmen's Com- pensation Acts. 163. Fixing a day's labor for employes. 164. Compulsory arbitration. xiv TABLE OF CONTENTS. PART III PubKc Utility Commissions CHAPTER XXXIII. Delegation oe Poweb to Commission § 165. Preliminary. 166. Origin of commissions for regulation. 167. Railroad commissions. 168. Commission for gas and electric company. 169. Commission regulating water companies. 170. Commissions for various utilities. CHAPTER XXXIV. Statutes Cheating Commissions § 171. Express grant of powers. 172. Express grant of power to interstate commerce commission^ CHAPTER XXXV. Commissions as Special Tribunals § 173. All questions of law jurisdictional. 174. Commission with legislative, judicial, executive powers. 175. Test necessary to demonstrate unconstitutionality. 176. Exercise of jurisdiction by a commission. CHAPTER XXXVI. Remedies fob and Against Oedebs by Commissions I 177. Acts within conferred powers. 178. Mandamus by commission to enforce order. 179. Mandamus against a commission. 180. Injunction against commission. TABLE OF CONTENTS. CHAPTER XXXVII. Judicial Eeview of Findings by Commissions 5 181. Preliminary. 182. Prior resort to oommission. 183. Exhausting remedy before commission. 184. Notice and hearing in making legislative orders. 185. Findings involving questions of law. 186. Limitation in review by presumption of correctness. 187. Illustration showing questions of law or fact 188. No unlawful denial of right to jury trial. 189. Prima facie correctness of findings. 190. Findings by commissions like legislative declarations. 191. Technical rules not to be observed in hearings by commis- sion. 192. Essential right to hearing reserved. 193. Commission not a court, but tribunal of experts. 194. Judgment of court of review. CHAPTER XXXVIII. Commission Control to Peevent Monopolies. I 195. Preliminary. 196. Certificates of necessity or convenience. 197. Controlled monopoly and restricted competition. 198. Indeterminate permits protection from competition. 199. Unregulated competition of public utilities serious evil. 200. Privilege to use streets and highways. 201. Instances of denial of certificates of convenience and neces- sity. 202. Grants of certificates of convenience and necessity. XVI INTEODUCTOEY CliAPTEE Society is so constituted that some of its members, in pursuing their avocations, need the special use of facilities which are intended for the equal advantage of all. Eoads, streets and highways generally are public necessities, laid out by public authority, or, by such authority, accepted as dedicated by former own- ers. Being established, their use is of common bene- fit. They are to be free from obstructions, save in a way that is expressly authorized to particular in- dividuals or corporations. The most familiar way of a lawful obstruction of a public highway is the establishment of toll gates thereon in consideration of the highway being built in a particular way and kept in repair. This results, not as in any wise limiting the general right of any citizen to use such a highway, but a tax, so to speak, is imposed by public authority upon the privilege of use. It is only by franchise that anyone may be beneficiary of such a tax. In like way as roads and streets become highways, rivers have been esteemed public highways, and com- mon rights as to them have been recognized. So far as riparian owners are concerned the maxim applies, aqua currit ut currere solebat. Certainly one not a riparian owner may have no greater right than he. Therefore, where a highway reaches the river's edge it may be extended across by a privilege, in franchise, for a ferry or a bridge. There may be no more prac- tical obstruction of a river by a ferry or a bridge than INTRODUCTION occurs in the special use one may make of a common highway and, therefore, public authority must per- mit a franchise for either. From ancient times, also, the banks of navigable streams and parts of the sea have been deemed to be so intimately parts of the streams and of the sea that pubHc interest was attached to their use by owners of qualified rights. These owners were not allowed to stand at the threshold of entrance to the highways of the land and impose any terms they saw fit. Principally from the doctrine of common rights in highways by land and water has been developed regu- lation by public authority of the manifold activities which our modern conditions have brought about. "What may not seem directly to flow from the under- lying principles of this doctrine is supplied by appeal to public authority for special privileges grantable to an enterprise upon the claim that it is of public use and benefit. The policy of each of our states, as declared by its legislature, within the limits of con- stitutional power, dictates what may be a public use. Some special uses of facilities, that are of common right, may not have any claim to be deemed of public use or benefit so as to come within such policy. Es- sentially, however, their business brings them under the doctrine above referred to. Some such uses come under both aspects of the law. Other businesses sub- mit to the burden of favors granted or grantable by the public. It would seem as to the last named that the esse and the posse are the same in effect. The position a business occupies impresses on it a public interest, which I purpose in the following pages to discuss. This theory, it generally may be stated, is that the 2 INTRODUCTION . right created to ask special favors from the public in aid of a private business is not, so to speak, a float, but an actuality. It is not consistent with the dignity of a sovereignty that what it may grant is to be with- held if not applied for. For example, the privilege to demand the exercise of the right of eminent domain is as potent as though it were never exercised. Were this not so, its exercise as to one citizen ought to have no effect so far as the interests of other citizens are concerned. It hangs over the heads of all like a sword of Damocles. Our subject brings us into consideration of the things which the history of our common law shows have had attached to them. This is in return for the public benefits they have disproportionately enjoyed. The principle in the maxim qui sentit commodum, sen- tire debet et onus — ^who feels a benefit, should ac- cept a burden — applies. This is especially true in a country, the genius of whose rule is that public law grants to no one at public expense exclusive benefits or privileges. A consideration is the irrebuttable pre- sumption of every public grant to a private citizen. What this history shows was exacted of every bene- ficiary for what specially was accorded to him out of common right is a part of our common law. We de- duce therefrom the conclusion of the limit of the exac- tion, under constitutional safeguards,, in American law. Also, from the history of instances deductions will be drawn in the application of principles, underlying or specifically declared, to new enterprises, new agencies and new forces. These add to or render INTRODUCTION obsolete the old, and bring the new under tbe old principles because of tbe maxim last above stated. New discoveries have wonderfully widened activi- ties, both in purely private businesses and in those which take on a quasi-public character. Sometimes the line of distinction between them shades almost imperceptibly to one or the other side. Statutory declaration, also, may determine where an activity may belong. If, however, there is plain invasion of private right, the statute may be deemed void. Herein it will be deemed necessary to consider the question of monopoly and its lawfulness. Monopoly would seem to be a factor in the solution of such a question, and this would be a question rather of fact than of law. Having passed the consideration of the existence of public interest in businesses privately conducted, we reach the point of the nature of the burden that may be imposed, and the obligation of its just imposition. It may be remarked, also, that franchises, in this work, will be considered in a twofold aspect, that is to say, as a privilege enjoyed by reason of a private business being affected by a public interest, and as granted to an artificial being, that is to say, a cor- poration. Text books and decisions often speak indistinguish- ably of public service corporations when they state principles applicable, purely, to the nature of busi- nesses conducted, whether by a corporation, an unin- corporated company, a partnership or an individual. Notably it may be said that in Massachusetts com- J)anies carrying on businesses affected with a public interest are s^dom, if ever, incorporated. The title 4 INTRODUCTION for this book has been chosen, among other reasons, to include businesses, whether or not they may be owned or conducted by artificial, as distinguished from natural, persons. Finally is considered an aspect which belongs en- tirely to our dual system of government. The states, being the ultimate owners of all property, have dele- gated to our general government a certain control thereover by virtue of the commerce clause in our Fed- eral Constitution. The Congress calls this control into exercise where use does not directly interfere with the operation of that clause. For its more complete protection the Congress specifically provides. When it so provides its will is the supreme law of the land insofar as in conformity to the purpose of such clause and there is no repugnance to other federal constitu- tional guarantees. That will can no more be inter- fered with by state constitutions than by state statutes. Statutes by Congress, respecting railroads and other instrumentalities of interstate commerce, are endeavored to be fully treated, and also the control they exercise over the instrumentalities of that com- merce. The regulation of public service companies and the regulation of the instrumentalities of com- merce, it will be shown, have much in common, but depend on different principles, the former arising out of owners of property seeking benefits from the public, the latter from a governniien't with delegated powers im- posing a burden on property. The title selected for this work — State and Interstate Utilities — ^indicatels that it will be attempted to state the law in an in- dependent or separate way, where the two classes of utilities need to be distinguished. INTRODUCTION To tMs work is added an appendix of the operative parts of tlie Commission Laws of tlie States and Ter- ritories, and thus the principles expounded from com- mon law times and embodied in statutory enactments are concretely applied, and the expanding effect of those principles is exemplified through rulings by ad- ministrative tribunals. PART I The Common Law as to Property Devoted to Public Use CHAPTER I. Easements ik Things of Common Eight S 1. Monopoly against freedom of trade. 2. Exclusive right not necessarily monopoly. 3. Things of common right in their nature indestructible. 4. Grantee of easement taking with notice. 6. Summary. § 1. Monopoly Against Freedom of Trade. — ^From Magna Charta there lias come down to ns prohibition of monopoly against the freedom of trade and traffic, and, therefore, it was held in 1607 that a royal grant to a subject of the sole right to import into the realm playing cards and to be secure against others making them in England was void.^ In this case it was in- sisted that the grant was valid because "playing at cards is a vanity." But it was said: "It is true, if it is abused, but the making of them is neither a van- ity or a pleasure, but labour and pains." Then there is a distinction drawn between monopoly and license as follows: "It is true that none can make a park, chase or warren without the King's license, for that is quodam modo (in a measure) to appropriate those 1 The Case of Monopolies, 11 Coke 84b. { 1 EASEMENTS IN THINGS OP COMMON EIGHT creatures, wMcli are ferae naturae and nullius in bonis, to himself, and to restrain them of their natural lib- erty, which he cannot do without the King's license; hut for hawking, hunting, etc., which are matters of pastime, pleasure and recreation, there needs no li- cense, without any restraint to be made, unless by Parliament. ' ' Thus it early appeared that, so far as trade and traffic were concerned, no monopoly for private bene- fit could be countenanced, while, as to animals and birds ferae naturae there could be. As to the former there was universal right and as to the latter there was right in no one but the captor. Our game laws show that the right to become a captor may be regulated. Monopoly, as regards trade and traffic, relates, however, not to common or iden- tical rights in all of the public, but only in its effect upon the several freedom of each one of the public in that trade and traffic. It takes into account restraint of trade, as the interest or business of an individual or the public is affected. Is there property that is on middle ground between trade and traffic and birds and animals ferae naturae? Does not a public high- way supply an affirmative answer to this question? It is not a thing belonging to one man more than to another, and yet all men have an interest in its pre- servation. Its possessor, then, is the public, which, in its collective capacity, is represented by the state and its subordinate tribunals. Monopoly or virtual monopoly in a thing belonging to the public may be obtained or granted, as will hereinafter be shown. Particularly pertinent to this subject is the lan- guage of Justice Story from the landmark case of 8 EASEMENTS IN THINGS OF COMMON RIGHT § 2 Charles Eiver Bridge v. Warren Bridge,^ a summing up thiat universally has been accepted. § 2. Exclusive Right Not Necessarily Monopoly. — There are said to be monopolies in "the odious sense of the term" and those permissible in law. Thus, where plaintiff and defendant were possessors of legislative charters to build a bridge it was said: "Both claim under legislative charters and both claim that they have in view a public object, and both have expended considerable sums under their respedtive grants," and "we do not think that on either side there is any monopoly in the odious sense of the term. ' '^ How essentially an exclusive privilege may differ from an odious monopoly is shown in a Tennessee case, from which is quoted language as follows : "We know of no better definition of a monopoly than that given by Lord Coke and adopted by the Supreme Court in the case of Charles Kiver Bridge v. Warren Bridge, 11 Peters 607: 'A monopoly is an exclusive right granted to a few of something which was be- fore of common right — so that it is not a case of monopoly, if the subject had not the common right or liberty before to do the act or possess or enjoy the privilege or franchise granted as a common right.' The question, then, is narrowed down to the inquiry: did the individuals composing the Memphis Water Company have the right, before their incorporation, 2 36 V. S. (11 Pet.) 420, 9 L. Ed. 773. See also Butchers' Union Slaughter House Co. v. Crescent City Livestock Landing Co., Ill U. S. 746, 28 L. Ed. 585, 4 Sup. Ct. 652. 3 Enfield T. B. Co. v. Hartford R. R. Co., 17 Conn. 40, 42 Am. Dec. 716. § 2 EASEMENTS IN THINGS OF COMMON RIGHT in common with all others, to erect waterworks in Mem- phis, to take up the pavements, occupy the streets and do such things as were necessary and proper, in com- pleting their waterworks? It is clear that none had the right to do these things except the City of Mem- phis by virtue of its corporate powers ; and this right, on the part of the city, was exclusive untU it was transferred to the Memphis Water Company. It is more a monopoly when conferred on the Water Com- pany than when it belonged to the City of Memphis. It was an exclusive privilege . . . but it was not a monopoly."* The exclusive privilege theory is also advocated in a Maryland case,® where by legislative charter there were granted ferry rights and the exclusive use of a county wharf for a landing place. This grant was as- sailed as opposed to the Constitutional Declaration of Eights forbidding monopolies. The court said: "It is not a monopoly in any sense, but a privilege conferred on the company to be exercised for the pub- lic benefit." One of the great cases in this country involved the grant of a franchise to take tolls" and the question was whether the chartering of a second bridge vio- lated an alleged exclusive franchise, there being no ex- press grant, that it should be exclusive. The ma- jority opinion held against the contention that it did. However, it was not denied that it was in the power of the legislature to have granted such a franchise. 4 City of Memphis v. Memphis Water Co., 52 Tenn. (5 Heisk) 495. See also ex parte Birmingham, Ala., 74 So. 511. 5 Broadway & Locust Ferry Co. v. Hankey, 31 Md. 346. e Charles River Bridge Co. v. Warren Bridge. 36 U. S. (11 Pet.) 420, 9 L. Ed. 773. 10 EASEMENTS IN THINGS OP COMMON RIGHT § 2 A concurring opinion to the conclusion adverse to complainant said: "The complainant's charter has been called a monopoly; but in no just sense can it be so considered. A monopoly is that which has been granted without consideration, as a monopoly of trade or of the manufacture of any particular article to the exclusion of all competition. It is withdrawing that which is a common right from the community and vesting it in one or more individuals to the exclusion of all others. Such monopolies are justly odious, as they operate not only injuriously to trade, but agaiast the general prosperity of society. But the accommo- dations afforded to the public by the Charles Eiver Bridge, and the annuity paid to the college, constitute a valuable consideration for the privilege granted by the charter. The odious features of a monopoly do not, therefore, attach to the charter of the plaintiffs." The dissenting opinion by Justice Story said: "What is a monopoly, as understood in law? It is an exclusive right granted to a few of something which was before of common right. Thus a privilege granted by the King for the sole buying, selling, mak- ing, working or using a thing, whereby the subject, in general, is restrained from that liberty of manufac- turing or trading, which was before denied, is a mo- nopoly. . . . No sound lawyer will, I presume, as- sert that the grant of a right to erect a bridge over a navigable stream, is a grant of a common right. Be- fore such grant, had all the citizens of the state a right to erect bridges over navigable streams? Cer- tainly they had not, and, therefore, the grant was no restriction of any common right. It was jieither a monopoly, nor, in any legal sense, had it any ten- dency to a monopoly. It took from no citizen what 11 § 2 EASEMENTS IN THINGS OP COMMON EIGHT he possessed before, and had no tend.ency to take it from him. . . . Even in cases of monopolies, strictly so called, if the nature of the grant be such that it is for the public good, as in cases of patents for inventions, the rule has always been to give them a favorable construction in favor of the patent, as Lord Chief Justice Eyre said, ut res magis valeat quam pereat." This sho-ws that it is not wholly inapt to call a grant made for the public good a monopoly, but it is not a m^onopoly in a strict sense, that is to say, an odious sense of the term, as is well illustrated in the Slaughter House case/ There the decision was unanimous, that it was beyond the power of a state legislature to make a contract limiting the future exercise of legislative power as to subjects affecting public health and morals. The grant in the case was held to create a monopoly in that it compelled others to abandon their regular business, it being "an incontrovertible proposition of both English and American public law, that aU mere monopolies are odious and against common right." But Justice Bradley, with whom concurred Justice Harlan and Woods, said, "I do not mean to say that there are no exclusive rights which can be granted, or that there are not many regulative restraints on civil action which may be imposed by law. There are such. . . . An exclusive right to use franchises, which could not be exercised without legislative grant, may be given; such as that of constructing and operating public works, railroads, ferries, etc. In such case^ a part of the public duty is farmed out to those willing 7 Butchers' Union Slaughter House Co. v. Crescent City Live- stock Landing Co., Ill U. S. 746, 28 L. Ed. 585, 4 Sup. Ct. 652. 12 EASEMENTS IN THINGS OP COMMON EIGHT § 3 to undertake tlie burden for the profits incidentally arising from it. . . . But the ordinary pursuits of life, forming the large mass of industrial avoca- tions, are and ought to be, free and open to all, sub- ject only to such general regulations, applying equally to all, as the gen.eral good may demand, and the grant to a favored few of a monopoly in any of these common callings is necessarily an outrage upon the liberty of the citizens as exhibited in one of its most important aspects — the liberty of pursuit." From all of this is to be deduced the principle that to grant an exclusive franchise in the operation of what should be deemed public work is for the state, acting in behalf of the ultimate owner, to "farm" it out to another for the incidental profit therein. In this there is a contract made in the free pursuit of business, just as in a contract made by an individual for his own benefit. As trustee for the people the state must guard against the equal rights of any one of its cestuis que trustent being discriminated against. Having common rights in the property which is to be farmed out, let us inquire whether or not that prop- erty is indestructible. § 3. Things of Common Right in Their Nature In- destructible. — iWhen we say that a bridge, a ferry, or a wharf, belongs to the people, do we mean that the ma- terial going into either is what belongs to them? If a highway is laid out, whether it be fit to travel on or not, it belongs to the people. If the people are called out to work upon it or submit to taxation so as to make it usable, it is afterwards, as before, a subject in which there is a common right. So when we speak of a bridge, a ferry .or a wharf belonging to the people, it 13 § 4 EASEMENTS IN THINGS OP COMMON EIGHT is no more than when a turnpike or a planS road is similarly spoken of. It is the public highway in which^ the common right exists, and the farming out of which Justice Bradley speaks is the improvement, for ex- ample, of the highway. In this way, to improve a river for a ferry or for a bridge or a landing place for a wharf is not to transfer any right in the river or landing place, but it is a mere permit to one to reim- burse himself for his expense in the improvement thereof. So it comes around to the measure of the use of what underlies the improvement. This underlying thing exists when the improvement is made. As to soil on which a house is built, it is incapable of real deterioration or destruction. All such things con- tinue "as long as grass grows or water runs." They are immortal, if anything terrene may be so regarded. Of course, there may be abandonment, as of a high- way, or change of the course of a stream, but there springs into existence, by the mere application of legal principle, that which takes its place and, piossibly, without appreciable interval of time. If there might be a cesser of property on which the principle could apply, there yet remains the unceasing potentiality of application. There is no private property in the in- destructible soil of a highway or in the waters of a river or a sea, but there may be granted an easement therein.* <§, 4. Grantee of Easement Taking With Notice.— Eight of use is granted by the representative of the public or its trustee, and, the grantee takes with no- 8 state ex rel. v. Hannibal & R. C. Gravel Road Co., 138 Mo. 332, 39 S. W. 910, 36 L. R. A. 457. 14 EASEMENTS IN THINGS OF COMMON RIGHT } i tice of the limitation on tlie powers of the trustee, tliat is to say, with knowledge that one of the public is not to be discriminated against in favor of another. As showing how similar a river is to an ordinary public highway, that is to say, a road or a street laid out for or dedicated to public use, it has been said: "The ferry may be directly under public control or the sovereign power may authorize a person or cor- poration to maintain this portable highway. When the power is delegated, the grantee of the franchise discharges a public duty in operating the ferry; and in the discharge of that duty he exercises a privilege which the state may grant or withhold at pleasure. The franchise does not consist of the right to sail his boat upon the stream or moor it by the shore. It is the privilege of operating a floating highway, of estab- lishing and maintaining a public thoroughfare over water, and of charging tolls for the facilities for pass- age so afforded. Whatever right is enjoyed by the citizen in this regard is derived exclusively from the sovereign power, which has full control over the whole subject. The state may exclude all persons from the business. It may run all ferries itself."' The germ of the principle of a farmed-out easement in an indestructible property of the people is contained in these words, but its expression is somewhat in- exact. It is not the boat that makes a "floating high- way." The river is the highway and the right and duty to maintain the boat over the river in a prescribed course is a franchise. That is the easement in the river, an indestructible property belonging to the pub- 9 Patterson v. Wollman, 5 N. D. 608, 67 N. W. 1040, 33 L. R. A. 636. 15 § 4 EASEMENTS IN THINGS OF COMMON EIGHT lie. As to property witli highway rights therein every citizen has a right to swim the river, as a highway, provided he does not injure property employed in the easement or franchise granted to another, or unduly interfere with its use. In an early Iowa case^" there is found very happily expressed the distinction ahove expressed: "If a person wished to use the buoyant power of the Mississippi river for the purpose of transporting heavy freight, either longitudinally or from one shore of the river to the other, and entirely unconnected with any public highway, the power of the legislature to interfere with his rights in this re- spect would certainly be very questionable. The river, in that case, offers a facility for transportation, of which he has a right to avail himself. The word ferry seems to denote the right merely to use a river as a highway traversed at a certain point." In another case it was said: "The right to a ferry does not at all depend upon the right to or property in the waters over which it passes. It is a maxim upon this subject, that a right of ferry is a franchise con- sisting in the right to transport persons and carriages for hire, and therefore the property in the waters may be in one and the right of ferry in another. This is said to be the case with ferries in the Thames, where the ferry, in some places, belongs to the Archbishop of Canterbury, while the interest in the waters is in the Mayor and Aldermen of London."" This case then goes on to say that: "Whatever may be the theoretic view of the law as to the property of public waters, it is very clear that they are held for the use 10 United States v. Fanning, Morr. (Iowa) 348. 11 Pay, Petitioner, 32 Mass. (15 Pick.) 243, 253. 16 EASEMENTS IN THINGS OF COMMON EIGHT § 5 of the public, for all useful purposes. Ferrymen have the same common right to navigate these waters with their boats, as fishermen, coasters, shipmasters with their boats and vessels, and the United States with her navies. The franchise of a ferry does not confer or enlarge, take away or impair the right of naviga- tion. It is a franchise, conferring certain privileges and imposing certain duties, not affecting the right of navigation, but presupposing its existence." This case also holds that the right of the Mayor and Aldermen of Boston to grant a ferry right "is vested in them as trustees for the public, to be exercised for the public good. ' ' This is not directly saying that the sovereignty of Massachusetts is a trustee for the pub- lic, but it does mean that any subordinate tribunal as to such a duty is a trustee, and its grantee takes with notice of limitation on its authority to grant any fran- chise in the use of property in which all have common rights, which will work unequally in favor of one as against another. § 5. Summary. — Common rights in trade and traffic is one thing. Common rights in what belongs to the public is another. In the one there is the right of privilege; in the other the privilege of use. Both are common, but monopoly in the former is odious and makes pent-up activities which rightfully should be free. In the latter it is praiseworthy, and no more restricts than does the exercise of the right of a pri- vate owner to do as lawfully he may with his own. It bears resemblance to monopoly as to trade and traffic in that it raises an easement in or servitude over that which is of common right, for the real benefit of the proprietors. As Justice Bradley, in effect, says the 17 § 5 EASEMENTS IN THINGS OF COMMON RIGHT common right is "farmed out" for its better enjoy- ment by the owners. Such easement or servitude is subsidiary and not independent. As water can not rise above its level, there is no ascendancy above title in that of which the easement or servitude is an inci- dent. Therefore, as public property is for the com- mon enjoyment of all, its adaptation for use leaves it as before. Therefore, further, when the public's trus- tees, pursuant to the public's welfare, farm out im- provement of the public property, the other contract- ing party takes with notice of the trustee's powers. But independently of such notice the very nature of property, in which there is common right, carries the irresistible conclusion that exclusive privilege of use by an individual is affected by that nature. As a pri- vate owner does not convey his title by granting a servitude over, or an easement in it, neither does the public release ownership in doing as it wills with its own. 18 CHAPTER II. Common Rights in Things Known to the • Common Law 5 6. Preliminary. 7. Classification of things subject to common right. 8. Waters, that is to say, rivers and the sea. § 6. Preliminary. — ^It is designed in tMs chapter to notice the application of the principle considered,^ to those things which were held of common right in all the people in the days of our common law. In the simple society of those times and, especially, hefore invention and discovery greatly differentiated the prospects and living of one citizen from another, the things in which there existed common rights of all were less numerous than now. Rather it may be said, that this common right existed in practically as many things then as now, but a complex and progressive civilization had not brought to the fore such diversification in subdivision of these ancient rights. Well known examples of this sub- division appear in railroads or public highways and standing at the door of trade as shown in the Munn case,^ of ordinary highways, bridges, ferries, ports and other things of common law times, in which equal rights were declared and protected. ^ 7. Classification of Things Subject to Common Right. — The grand head to which at common law all uses of a public nature may be thought referable is that of going and coming by the public in all public ways and 1 1 Chapter 1, ante, 2 Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77. 19 § 7 COMMON EIGHTS IN THINGS landings. As to these, if preference were given to one over another, it would amount to the restriction of the liberty of locomotion of the citizen. This would be un- just, unless the general owner of these ways and land- ings, solely for the purpose of improving them and mak- ing more convenient their use by the public, gave to a particular citizen the right to attach conditions to such locomotion. For example, the use of a public highway, by imme- morial custom, included the right to ride a horse or use a vehicle, or drive a flock of sheep or herd of cattle thereon. It is true, however, that any particular use of a highway by one may be restrained. Thus, where a statute made the driver of a herd of horses, mules or swine over a public higtway constructed on a hillside liable for all damages done in destroying its banks or rolling rocks thereon, it was said : ' ' The public own the highways and must bear the expense of keeping them in repair. . . . There is no absolute liability for using the public highway, but it is deemed probable that a use in a particular way, with particular property, will produce a peculiar injury, and, if such injury is produced, then the person producing it is held liable.'" It has been said that : ' ' The only right which the pub- lie has in and to a highway is to use it for the purpose of traveling over it without obstruction or interference. ' '* Subordinate boards of a state have control merely to protect that use. In the same way landings for the use of all the peo- ple, termed public landings, may come about and an 3 Brim v. Jones,, 11 Utah 200, 39 Pac. 825, 39 L. R. A. 97. * Guernsey v. Northern California Power Co., 7 Cal. App. 534, 94 Pac. 858. 20 COMMON EIGHTS IN THINGS § 7 easement in favor of the public may be acquired very like to tbat in a highway.^ The easement, however, in a public landing may be very different from that in a highway, as only by the structures placed upon a land- ing and the use of them may the landing, where they are, become a public landing.® The landing here spoken of means those places used as docks, wharves, piers and the like, which may be private or public. Commons, ex vi termini, are for public purposes, but a common, as here meant, is not that coming down from feudal itmes.^ In this way the term is used "in its strict legal sense, as being a right or profit which one man may have in the lands of another." Rights of common, in this strict sense, gave rise to much re- finement. There were rights appendant and appur- tenant or in gross, but, whether one or the other, they referred to the use generally of uninclosed fallow lands attached to a manor held by the Lord thereof. A common, as here meant, is "in its popular sense a piece of ground left open for common and public use, for the convenience and accommodation of the inhab- itants of the town. ' " Under this decision would come a public spring of water for public use,^ and the author has in mind a notable instance of this kind in the State of Georgia. In a treaty with the Creek Indians in the early part of the Nineteenth Century there was reserved to their chief. Gen. Wm. Mcintosh, a thousand acre square of land, in the center of which was a spring called In- dian Spring. He conveyed this land to the state, which 5 Gardiner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407. 6 Button V. Strong, 66 V. S. (1 Black.) 23, 17 L. Ed. 29. 1 2 Black. Com. 33. 8 Cincinnati v. White, 31 U. S. (6 Pet.) 431, 8 L. Ed. 452. 9 McConnell v. Lexington, 12 U. S. (12 Wheat.) 582. 21 § 8 COMMON BIGHTS IN THINGS divided it up for sale, except that it reserved for pub- lic use the spring, from which, flowed waters of re- markable curative properties. Obviously, parks, playgrounds and sites for the advancement of the moral and material welfare of a state or community come under the popular sense of the term "com- § 8. Waters, That Is to Say, Rivers and the Sea. — Possibly one other class of things of common right should be added to the three above spoken of, that is to say, rivers. But a river, at least when navigable, has been called a public highway, and when not navigable it is part of a highway on land, where one traverses the other. When a river interferes with public use the difficulty is met by the use of a bridge or ferry. This is an improvement not wholly unlike improving a high- way by making it a plank road or a turnpike, and tolls are similarly authorized. Eivers, therefore, are ob- structions to be overcome, while wear and tear is pro- vided for by repairs. There is the same principle at bottom, whether a rivulet or a navigable river crosses a highway, except that in this country the latter is superior to the high- way, from a federal standpoint, so far as an obstruc- tion is concerned. Also, state policy may, for certain purposes, give, even to a non-navigable stream, a status to be pro- tected even as against highway laws. This, however, is referable to the state as owner of the whole high- way managing its property for the best interests of the public. The sea is considered only as to its ports and comes, therefore, under the classification of landings. 22 CHAPTER III. Common Eights in Highways § 9. Kinds of public highways. 10. Bridge as a highway. 11. Cul-de-sac as a highway. 12. Ferries as highways. 13. Public square as a highway. 14. Railroads and street railways as highways. 15. Toll roads as highways. 16. Rivers and towpaths as highways. 17. Tidal not test of navigable water. 18. Inland lakes as highways. 19. Canals at common law. 20. Hlasement of public in a highway. § 9. Kinds of Public Highways. — The term " high- ways" is one of comprehensiveness somewhat like the term "land," as to which Blackstone said: "By the name land, which is nomen generalissimum, every- thing terrestrial will pass."^ At all events it is a general term. Thus Lord Holt said in 1705 that: "Highway is the genus of all publick ways, as well cart, horse and footway."^ This case concerned an in'dictment for nonrepair of a bridge and it was held faulty for not alleging that the bridge was in the high- way, thereby implying that if it were it would be a part of a highway. § 10. Bridge as a Highway.— In 1707 it was held sufficient in an indictment to allege that a bridge was a common bridge and "it is needless to say it is in the 1 2 Black. Com. 19. 2 Reg. V. SaintifE, 6 Mod. 255, 4 Vin. Abr. 502. 23 § 12 COMMON RIGHTS IN HIGHWAYS highway." This was implied,^ In 1810 it was said that a bridge is "as public as the highway itself is in which it is situate and of which for the purpose of passage it must be understood to form a part."* Our Federal Supreme Court has said: "At common law a bridge was a common highway and the county was bound to repair it," and: "It is therefore clear that at the common law a county might be required to main- tain a bridge or causeway across its boundary line and extending into the territory of an adjoining county. The same rule prevails in this country. "° A number of state cases might be noticed to sustain this view of a bridge as being part of a highway and in itself a highway, but it will be thought sufficient merely to cite some of them.* § 11. Cul-de-sac as a Highway. — ^A cul-de-sac, or a street open at one end only, if dedicated formally or used sufficiently long for presumption of dedication to arise, has been held to be a highway at common law,' and this ruling has been approved in common law states.® § 12. Ferries as Highways. — A ferry has been called a highway. Thus Lord Abinger said:' "A public 3 Reg. V. Sainthill, 2 Ld. Raym. 1174. *King V. Inhabitants of Bucks, 12 East. Rep. 191, 202. B Washer v. Bullitt County, 110 U. S. 558, 28 L. Ed. 249. 6 Chicago V. McGinn, 51 111. 266, 2 Am. Rep. 295; Com. v. Cen- tral Bridge Corp., 12 Gush. (Mass.) 243; Union Pac. R. Co. v. Col- fax County, 4 Neb. 202; State v. Wood County, 72 Wis. 637. TWoodyer v. Hadden, 5 Taun. 125; Rugby Charity v. Merry- weather, 11 East. 376, note. sBartlett v. Bangor, 67 Me. 460, 467; People v. Kingman, 24 N. Y. 559; Pennick v. Morgan County, 131 Ga. 385, 392, 62 S. E. 300. B Huzzey v. Field, 2 Cramp. M. & R. 432, 437. 24 COMMON EIGHTS IN HIGHWAYS § 12 ferry is a public highway, of a special description, and its termini must be in places where the public have rights, as towns or villages, or highways leading to towns or vills, the right of carrying from town to town, in the other of carrying from one point to an- other, all who are going to use the highway to the nearest town or vill to which the highway leads on the other side." The statement that a ferry is "a public highway of a special description" refers rather to the rights of the grantee of a ferry franchise than to the nature of the ferry itself, that is to say, as Lord Abin- ger further observes, "It does not follow from this doctrine, that, if there be a river passing by several towns or places, the existence of a franchise or a ferry over it from a certain point on one side to a point on the other, precludes the King's subjects from the use of the river as a public highway from all the towns on its banks, and obliges them, upon all occa- sions, to their own inconveniences, to pass from one terminus of the ferry to the other. ' "° These two cases show that a licensed ferry is merely a public highway across another public highway between termini in pub- lic highways on land or at landings where the public have rights. But rights in a ferry are not confined strictly to its landing places,^^ that is to say, not to the very points of termini on land and to a direct course between them. It has been said that: "Where a stream crosses a public highway the continuity of the highway is not broken. . . . But as a physical obstruction inter- venes it is necessary that some convenient means of w Tripp V. Frank, 4 T. R. 666. 11 Charles River Bridge v. Warren Bridge, 36 U. S. (11 Pet.) 420, 556, 9 L. Ed. 773. 25 § 14 COMMON EIGHTS IN HIGHWAYS transportation shall be furnished and the simplest and most economical in many cases is a ferry. '"^ The case here cited shows a statute giving preference in establishing a public ferry to the owners of the soil where it is to be established.^^ '■A ferry franchise, whether granted to the owner of the land or another, is incidental to the title of so much of the land."" "A highway comes to the water on one side and crosses a ferry to the other side."^^ A ferry also has been defined to be "A public high- way or thoroughfare across a stream of water or river by boat instead of by a bridge;"" "a moving public highway upon water, "^^ and "merely the continuance of a road across a river. "^^ § 13. Public Scjuare as a Highway. — ^A public square may be a highway, where lying around a court because it is used by carriages, wagons, carts, horses, etc., though, generally speaking, it is a "public com- mon."^' <§ 14. Railroads and Street Railways as Highways. — ^Railroads and street railways have come into being since common law times and need not be further re- ferred to here, except to say that the principle applied to toll roads of those times, mutatis mutandis, would seem to include them. 12 Sullivan v. Supervisors, 58 Miss. 790, 799. 13 People V. Mayo, 69 Hun. 559, 561, 23 N. Y. Supp. 938. 14 Richmond, etc., Tunrnpike Co. v. Rogers, 1 Duv. (Ky.) 135, 140. 15 New York v. Stamm, 106 N. Y. 1, 17, 12 N. E. 631. 18 Chilvers v. People, 11 Mich. 43, 51. 17 Patterson v. Wollman, 5 N. D. 608, 612, 67 N. W. 1040, 33 L. R. A. 536. 18 United States v. Fanning, Morr. (Iowa) 348, 351. 19 State V. Eastman, 109 N. C. 785, 13 S. E. 1019. 26 COMMON EIGHTS IN HIGHWAYS § 15 § 15. Toll Roads as Highways. — '*A turnpike road means a road having toll gates or bars on it, wMch were originally called ' turns ' and were first constructed (in England) about the middle of the last (18tb) cen- tury. Certain individuals, with, a view to the repair of particular roads, subscribed among themselves for that purpose and erected gates upon the roads, taking tolls from those who passed through them. These were violently opposed at first and petitions were pre- sented to Parliament against them, and acts were ac- cordingly passed for their regulation. This was the origin of turnpike roads. The distinctive mark of a turnpike road is the right of turning back any one who refuses to pay toll.'"" This case considered a rail- way act which spoke of turnpike roads being raised or lowered at the expense of the railway company, and acts of Parliament were construed as defining what roads were turnpike roads. It appears, from discussion in the case, that a stat- ute, 13 Geo. 3 gave this definition. This statute be- coming a law in 1773 would seem therefore to consti- tute a part of our common law. This law was a ''Gen- eral Turnpike Act," and seems to have been the first on this subject, other acts being passed later than 1776, a date when such acts ceased to be a part of our common law. "Turnpike road is nomen generalissimum. It in- cludes, as well, gravel and plank road and companies which have the right to coUeot tolls from persons passing over their roads, and enforcing the collection 'by erecting turnpikes or gates, or both, to obstruct the 20 Northam Bridge Co. v. London, etc., Ry. Co., 4 Jur. 892, 9 L. J, Exch. 165, 6 M. & W. 428, 437. 27 § 15 COMMON EIGHTS IN HIGHWAYS passage until the tolls are paid."" This case also says: "A turnpike is a highway differing neither in proper responsibility for its proper maintenance, nor in any other particular from an ordinary highway, save in the mode of constructing and maintaining it. An ordinary public road is maintained and repaired by taxes. A turnpike is supported and maintained by the tolls exacted. A turnpike is regarded in law as a pub- lic easement and not as private property. Every trav- eler has the same right to use it, paying the tolls es- tablished by law, as he would have to use any other highway. ' ' Justice Shaw siaid : "We think that a turnpike road is a public highway, established by public authority for public use and is to be regarded as a public ease- ment and not as private property. The only difference between this and a common highway is, that instead of being made at the public expense in the first in- stance, it is authorized and laid out by public au- thority and made at the expense of individuals in the first instance, and the cost of construction and main- tenance is reimbursed by a toll levied by public au- thority for the purpose. Every traveler has the same right to use it, paying the toll established by law, as he could have to use any other public way."^^ Au- thority might be greatly extended along this line, but not very much from common law sources, because toll roads are not ancient, but American decision has read- ily applied common law principle to their establish- ment. 21 state V. Hannibal, etc.. Gravel Road Co., 138 Mo. 332, 341, 39 S. W. 910, 36 L. R. A. 457. 22 Com. V. Wilkinson, 16 Pick. 175, 26 Am. Dec. 654. 28 COMMON RIGHTS IN HIGHWAYS § 16 § 16. Rivers and Towpaths as Highways. — ^In tMs section it is desired to speak, not of ports, wharves and other landings, but of water and the right of the public freely to go from place to place thereon, other than by ferry routes, as this right was recognized at common law. A very instructive case, decided by the House of Lords long after our separation from the mother country, yet seems to present quite well the common law of England, as existing prior to our separa- tion, on the subject of navigable waters.^^ This case held, that, as the title to the bed of all navigable rivers was in the Crown for the benefit of all the people, this included the right of anchorage. It was said by Lord Chancellor "Westbury that: "This own- ership of the Crown is for the benefit of the subject and cannot be used in any manner so as to derogate from, or interfere with, the right of navigation, which belongs by law to the subjects of the realm. The right to anchor is a necessary part of the right of navigation, because it is essential for the full enjoy- ment of that right. If the Crown, therefore, grants part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right and he cannot, in respect of his ownership of the soil, make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoy- ment of the public right." There is suggested in this statement a question to be hereafter considered of the right to exact tolls for anchorage to reimburse for improving a harbor or other part of a navigable water. It- was held, how- 23 Ganstable v. Whitsable Free Pighers, 20 C. B. N. S. 1, 11 H. L. Cas. 192. 29 § 16 COMMON RIGHTS IN HIGHWAYS ever, that the establisliment of an oyster bed for the emoluinent, purely, of the grantee, gave no right to exact tolls or interfere in any way with anchorage of vessels using this "highway of the sea," as Lord Chelmsford, in this case called it. The toll resisted in this case in 1865 had been enforced since 1775, but this was held not to save it. In 1879 Court of King's Bench considered the ques- tion whether the public had the right to tow on the banks of an ancient navigable river."* BuUer, J., dis- tinguishes as follows: "Callis compares a navigable river to an highway, but no two cases can be more dis- tinct. In the latter case, if the way be f ounderous and out of repair, the public have to go on adjoining land; but if a river be choaked up with mud, that would not give the public the right to cut another passage through the adjoining lands." He does not, in this, deny that generally a river might be a highway. He merely spoke of a dissimilar- ity from an ordinary highway. The case held that there was no common law right of towage, and thus it differed from the anchorage case supra, showing, at least, that a towpath, "although it would be highly convenient to the persons using the navigations," is not deemed a necessary incident to the right of naviga- tion. It is to be observed that a navigable river in common law might be esteemed a greatly different thing from that in these times. But, however, a river may be deemed a highway, it is not so in England, where it is a non-navigable stream. If it is not tidal it is not deemed navigable, and if tidal not above where the tide would reach."^ This common right in a 24 Ball V. Herbert, 3 T. R. (Durnford & East.) 253. 25 Bourke v. Davis, 44 Ch. D. 110. 30 COMMON EIGHTS IN HIGHWAYS § 18 navigable stream is illustrated by decisions, at com- mon law, in proceedings against fishermen,^" but it was held in 1878 that this common right is prima facie only and not an exclusive right, as fishery may be ac- quired by grant or by prescription.^' § 17. Tidal Not Test of Navigable Water. — The common law as to tidal streams only being open and free to the public was early held not to be suited, in this restrictive sense, to this country. Navigable streams are such as were so in England and in which, also, there may be any "flow or reflow of the tide.'"* This case said: "But the common law principle con- cerning rivers, even if extended to America, would not apply to such a river as the Susquehanna, which is a mUe wide and runs several hundred miles through a rich country, and which is navigable and which is actually navigated by large boats. If such a river had existed in England no such law would have been ap- plied to it. Their streams, in which the tide does not ebb and flow, are small." § 18. Inland Lakes as Highways. — As to highways in inland lakes and ponds, early decision at common law seems uncertain. Thus, in 1863 it was said: "Whether the soil of lakes, like that of fresh water rivers, prima facie belongs to the owners of the land or of the manors on either side ad medium filum aquae, or whether it belongs prima facie to the King, in right of his prerogative, it is not in this case necessary to 26 Anonymous, 1 Mod. 105. 27 Carton v. Murcot, 6 Mod. 2162. 28 Carson v. Blazer, 2 Bin. (Pa.) 475, 4 Am. Dec. 463. 31 § 19 COMMON EIGHTS IN HIGHWAYS determine," showing that opinion on this question was not settled.'" In a later case, however, it was said by Lord Cairns, Lord Chancellor: "The Crown has no de jure right to soil or fisheries of a lough like Lough Neagh. Lough Neagh is, as your Lordships are aware, the largest inland lake in Europe. It is from fourteen to sixteen miles long and from six to eight miles broad. It con- tains nearly 100,000 acres ; but though it is so large, I am not aware of any rule which would, prima facie, connect the soil or fishings with the Crown, or discon- nect them from the private ownership either of ri- parian proprietors or other persons.'"" Title to a several fishery in this lake was traced to 1660. As England likens lakes to fresh water rivers, holding none of the latter navigable, so in this country lakes and rivers are on the same footing as to navigability and of public rights therein. But as to this question, later on, when there is considered the question of com- mon rights in things under American law, § 19. Canals at Common Law. — Canal companies were often established by acts of Parliament, but in- variably these acts concerned the making navigable streams otherwise unnavigable and for the expense of this certain tolls were allowed to be charged. They were considered to be distinguishable from ferries as they are not occupiers of the highway, but have merely a special power in it.^^ The tolls they were allowed to charge were to be without discrimination "because the public have an interest that the canal be 29 Marshall v. TJUeswater Steam Navigation Co., 3 Best. & S. 732. 30 Bristow V. Cormican, 3 App. Cas. 641, 652. 31 Rex V. Mersey & Irwell Navigation, 4 Mann. & Ryl. 84. 32 COMMON EIGHTS IN HIGHWAYS § 20 kept Tip," and "have also an interest that the tolls shall be equal upon all, for if any are favored the in- ducement to the company to reduce the tolls below the statute rate is diminished. ' "^ An illustration strongly showing the theory in in- corporating acts — namely, the making navigable an unnavigable stream— is found in a case decided in 1810.^^ In America canals have been authorized very much as railroads have been — enterprises purely for public good — and are built with right to condemn land wherever needed. § 20. Easement of Public in a Highway.— At com- mon law so strong was the principle, that the public acquired nothing more than the bare right of passage thereover, that any use by another of the highway ex- cept for that purpose gave to the owner of the soil a right of action in trespass. Thus, in A. D. 1735, it was decided that for one to lay a bridge over a ditch from his land to a highway dedicated by plaintiff as a street was a trespass on plaintiff's land.'* In 1757 this case was referred to in an action of ejectment for an encroachment on a street and Lord Mansfield gave judgment for plaintiff, saying: "I see no ground why the owner of the soil may not bring ejectment as well as trespass, . . . 'Tis true, indeed, that he must recover the land, subject to the way, but surely he ought to have a specific remedy to recover the land it- self notwithstanding its being subject to an easement upon it.'"^ So strictly was this theory of mere ease- 32 Lees V. Manchester & Ashton Canal Co., 11 East. 648. 33 Rex V. Inhabitants County of Kent, 13 East. 220. siLade v. Shepherd, 2 Stra. 1004. 3B Goodtitle t. Alker, 2 Burr. 133, 143. 33 § 20 COMMON EIGHTS IN HIGHWAYS ment in the public enforced that it was held by English Court of Common Pleas that in a suit of replevin for cattle taken on the highway, it was allowable to de- fendant owner of the soil to plead that he took them damage feasant where they were not passing and re- passing, but had broken into a highway from a close.^" Also it has been held that where plaintiff entered on a highway, not to use it for the purpose of going to any particular place but to shoot game on the moor of the owner of the soil in that highway, an assault upon him by the servants of the owner was justified, the plaintiff being a trespasser.^' As to rivers which are navigable streams, the soil beneath the water as well as the water itself, was in the King, and whatever might be the right to insist that use be strictly for navigation, no right of action for departure from such use arose to any subject as owner of several rights in such a stream. 36 Dovaston v. Payne, 2 H. Black. 527. 37 Harrison v. Rutland (1893), 1 Q. B. 142, 62 L. J. Q. B. 117. 34 CHAPTER IV. Common Eights in Landings § 21. Ports at common law. 22. Wharves in ports — Docks and quays. 23. Jus publicum emphasized hy Lord Hale. 24. Jus regium defined. 25. Warehouses in ports. 26. Legal and virtual monopoly. ^ 21. Ports, at Common Law. — Modern conditions have greatly extended the theory enforced at common law of common rights in public landings, as appears from the landmark case of Munn v. Illinois.^ This case, however, and the principle upon which it pro- ceeds, will be treated hereinafter. At present con- sideration is confined to what were deemed public landings at common law. These were places to which access was had by reason of their relation to the navi- gable waters of the British realm. They were places in its public ports, to establish which it was the pre- rogative of the King.^ It has been said that from what was called a trinoda necessitas there was derived the principle that: "The King has the prerogative of appointing potts and havens, or such places only for persons and merchan- dise to pass into and out of the realm, as he in his wisdom sees proper," and **by the feudal laws all navigable rivers and havens were computed among 1 94 V. S. 113, 24 L. Ed. 77. 2 Ball V. Herbert, 3 T. R. 253, 261. 35 § 21 COMMON EIGHTS IN LANDINGS the regalia, and were subject to the sovereign of the state.* It was further said that: "In England it hath al- ways been holden, that the King is lord of the whole shore, and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm, and therefore so early as the reign of King John we find ships seized by the King's oiEficers for putting in at a place that was not a legal port." Lord Hale said: ''Every public port is a franchise or liberty, as a market or fair and much more; for, first; it is a common resort for merchants and ship- ping, within itself a franchise. And, secondly, every port had of necessity a market belonging to it, as well for the vent of merchandises that were imported or to be exported, as for the vent of victuals, and pro- vision for the supply of mariners and the victualing of ships, and if any did erect any victualing houses between the port town and the sea, it was punishable. And, thirdly, to every public port there were certain common tolls incident, as for wharfage and land leave and the like, which by law cannot be taken without a lawful title by charter or prescription."* Lord Hale then cites cases where it was held that a subject may not erect a common port without the King's charter or a lawful prescription, or a port for those of a particular precinct or place, that is to say, a restrained port. It is also recited that a subject might not, so as to defeat collection of customs, set up a port on his own land. "Now, as we have seen in whose power it is not to erect or create a port, it SI Black. Com. 264. *Hargraves Law Tracts — De Portibus Maris — 50, 51. 36 COMMON EIGHTS IN LANDINGS § 21 easily lets us see in whose power it is. It is a part of the jus regale or royalty of the Crown of England originally and de novo to erect pnblio ports in this Kingdom. ' " It seems unnecessary here to note the particular features in erection of ports by charter or prescrip- tion, because, whether the erection was by one way or the other, the result is the same. Thus, Lord Hale, after considering the different ways of establishing ports, says : "In all publick sea-ports in England, there are three kinds of rights that meet . . . whether the ports belong in point of franchise or property to the King or to a subject. (1) Jus privatum, interest of property or franchise; (2) jus publicum, the common interest that all persons have to resort to or from pub- lick ports, or publick sea-marts or markets with their goods and wares or merchandizes; and (3) jus regium, or the right of superintendency and preroga- tive that the King hath for the safety of the realm or benefit of commerce or security of the customs. "* There is then set out at some length the distinction in owner- ship of the soil in the shore and ownership of fran- chise in a port, with the conclusion that: "In the creation of a new port either by proclamation or charter, it hath been the course to secure the interest of the shore beforehand for the building of wharfs and keys for the application of the merchandise and for the building of houses of receipt. It is possible, though not ordinary, that the interest of propriety (in the soil) and the interest of franchise may be divided, but it is usual and best in conjunction.'" ^nid, 53, 54. 6 76i(J, 72. ■!IUd, 73. 74. 37 § 22 COMMON EIGHTS IN LANDINGS § 22. Wharves in Ports— Docks and Quays.— Lord Hale proceeds to speak of tolls for anchorage, ballast- age, keelage, and other tolls, besides shore duties, which are various, that is to say, towage, moorage, terrage, unloading goods before they reach the com- mon key (quay). Then come other tolls, such as cranage, wharfage, houselage, tronage or pesage. As to these latter tolls it was said: "If the King or sub- ject have a publick wharf, unto which all persons that come to that port must come and unlade or lade their goods or for the purpose, because they are the wharfs only licensed by the Queen, according to the statute 1 El. Cap. 11, or because there is no other wharf in that port, as it may fall out, where a port is newly created, in that ease there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc., neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate though settled by the King's license or charter. For now the wharf and crane and other conveniences are affected with a publick interest and they cease to be juris privati only, as if a man set out a street in new building on his own land, it is now no longer bare private interest, but it is affected with a publick in- terest."* In 1800 Lord Kenyon applied this principle, say- ing the public right to use of cranes on public quays in no way depended on immemorial usage.' In 1810 there was elaborate consideration in King's Bench of the London Dock Act, enacted in 1779, of the general warehousing act of 1803, and an act for sihid, 77, 78. a Bolt V. Stennet, 8 T. R. 606. 38 COMMON EIGHTS IN LANDINGS § 22 warehousing in London Dock warehouses passed in 1804." This was not a case of only one wharf in a part, but whether the London Dock Company, given alone the warehousing of certain wines, could fix its own prices therefor. Lord EUenborough thought that, according to Lord Hale, the act of Parliament requiring these wines to be warehoused at a particu- lar place, made this place ijease to be juris privati only at the time of this suit. But even were there other places at present lawfully authorized for the warehousing of wines, yet, if in these other places there were any restrictions of law as to bonding goods which placed them on a different footing from the warehouses of the Dock company, ''there exists . a virtual monopoly, making the principle stated by Lord Hale apply." Le Blanc, J., said: "The principle of bonding these wines being at present confined by the act of Parlia- ment to the company's warehouses, is it not the privi- lege of the public, and shall not that which is for the good of the public attach to the monopoly, that they shall not be bound to pay an arbitrary but only a rea- sonable rent?" The fact that this is the creation of a monopoly, and, therefore, a business which enjoys a monopoly which is affected with a public use, it is not a monopoly in the sense spoken of in The Case of Monopolies." There does not seem any rational distinction in this as to a port or wharf and a highway or ferry. Justice Story said: "In the ease of a ferry there is a public charge or duty. The owner must keep the ferry in loAllnut V. Inglis, 12 East. 527. "11 Coke 84b. 39 § 24 COMMON RIGHTS IN LANDINGS good repair upon the peril of an indictment. He must keep sufficient accommodations for all travelers, at all reasonable times. He must content liimself with a reasonable toll. Such is the jus publicum."^' § 23. Jus Publicum Emphasized by Lord Hale. — In no book has the jus publicum been more strongly spoken of than in Hale's de Portibus Maris. As to a port it was said: "When a port is fixed or settled by such means, though the soil and franchise or domiuion thereof prima facie be in the King, or by derivation from him in a subject, yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this Kingdom are interested by reason of common commerce, trade and intercourse. And this public right consists, among other things, principally in these: first, they ought to be free and open for sub- jects and foreigners to come and go with their mer- chandise."" § 24. Jus Regium Defined. — As to the jus regium. Lord Hale said this "bfelongs to the King jure pre- rogativae, and it is a distinct right from that of prop- erty, for as before I have said, though the dominion of franchise or propriety be lodged either by prescrip- tion or charter in a subject, yet it is charged or af- fected with that jus publicum which belongs to all men, and so it is charged or affected with that jus regium or right of prerogative of the King, so far as the same is by law invested in the King."" 12 Charles River Bridge v. Warren Bridge, 36 U. S. (11 Pet) 420, 630, 9 L. Ed. 773. 13 Hale de Portibus Maris 8'4. "7Bi(?, 89. See also 10 Price 460. 40 COMMON EIGHTS IN LANDINGS § 25 Here we see enforced botli the right of any member of the public in a port and of public law to compel the owner of the jus privatum to submit to regulation. What was known to the common law as the King's prerogative right is known to our law as the right of regulation. The jus puhlicum, meaning the equal right of every citizen in a thing as to which or the use of which there may be, as to the use of a particu- lar citizen, called jus privatum, looks for its preserva- tion to the jus regium. As this latter right may pre- serve the entire jus puhlicum, it, of course, includes the right to impose rules to prevent deterioration or decay of that in which the jus puhlicum exists or to prevent invasion, and, consequently, ultimate destruc- tion, of the equal rights of all citizens therein. § 25. Warehouses in Ports. — As, seen in Allnut v. Inglis, supra, a landing, to be subject to the jus pub- licum, when it is in a port, need not be an ordinary wharf or pier or quay, and its use need not be entirely dedicated to the public like a highway or a ferry. As said by Lord EUenborough, C. J., the test is, as to a warehouse connected with the port of London: "Whether, circumstanced as this company is by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable com- pensation for such warehousing." He then goes on to speak of one having "a legal monopoly of landing goods in a public port" and thereby being "confined" according to Lord Hale, "to take reasonable com- 41 § 26 COMMON EIGHTS IN LANDINGS pensation only for the use of the wharf." From this it results that "the wharf and crane and other con- veniences are affected with a public interest and they cease to be juris privati only." ^ 26. Legal and Virtual Monopoly. — ^Arguing that the warehouse of the London Dock Company came under this principle, Lord EUenborough recites that goods arriving in London could only be warehoused in this company's warehouse under an act "passed not merely for the benefit of the company but for the good of the trade." Stating, then, that the only ware- houses in London dock premises were "at present lawfully authorized for the warehousing of wines," he then states: "But if those warehouses were licensed in other hands, it would not cease to be a monopoly of the privilege of bonding there, if the right of the pub- lic were still narrowed and restricted to bond their goods in those particular warehouses, though they might be in the hands . of one or two others besides the company's. ... If the crown should hereafter think it advisable to extend the privilege more gen- erally to other persons and places, 'So far as that the public will not be restrained from exercising a choice of warehouses for that purpose, the company may be enfranchised from the restriction which attaches upon a monopoly; but at present, while the public are re- stricted to warehouse their goods with them for the purpose of bonding, they must submit to that restric- tion; and it is enough. that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches, as laid down by Lord Hale in the passage referred to, which includes the good sense as well as the law of the subject." 42 COMMON RIGHTS IN LANDINGS { 26 The fact that the warehouses were in a port helped to make the privilege granted amount to a monopoly. In this way these warehouses became public landing places for wines coming into London. But the broad lines marked out for the application of the principle shows, that, if highways or ferries or rivers, tidal or non-tidal, over which persons travel or goods are transported, have a natural tendency to end at a com- mon center, there no privilege may accrue to one that may not be enjoyed by another, or which will restrain hiTn from the exercise of free choice in seek- ing accommodations. He may have to pay a reason- able price there, but no more may be exacted. And it appears, that no individual rendering service at that center may offer and charge for any service not in the power of another also to render, or at least not in the possible power of another. Thus the privilege declared to create an unlawful monopoly was the exclusive right to bond wines com- ing into a certain port. Other warehouses might charge for warehousing, but only this company could bond imported wines. Some might wish their wines bonded and others not. Those who did so wish must resort to a company warehouse. This case shows, that there may be virtual monopoly as to a single commodity and that this may depend on a mere incident with regard to that commodity. It is to be noted, however, that the "monopoly" spoken of was not condemned as an illegal monopoly, like a monopoly in grain, or foodstuffs, or even in wine, but a monopoly in the sense of a privilege, to which was attached the jus publicum of equal treatment to all members of the public desiring the services of these warehouses. 43 CHAPTER V. Rights in Commons, Maekets and Faibs I 27. Commons as existent at common law. 28. Markets and fairs at common law. 29. Parks and recreation grounds. § 27. Commons as Existent at Common Law. — This subject is unimportant in view of the present purpose of this work. There was no common or right of com- mon in English law in the sense that every inhabitant had a right there for recreation or in any indirect way. It was in the way of a direct right, as for ex- ample, "to feed his beasts, to catch fish, to dig turf, to cut wood and the like," that is to say, "common of pasture, of piscary, of turbary and of estovers, ' ' from land, the soil of which is generally in the lord of the manor.^ These rights depended generally on some relationship of those claiming them to the lord of the manor. § 28. Markets and Fairs at Common Law. — Mar- kets and fairs in old phraseology came to mean prac- tically the same thing. They were "public marts or places of buying and selling" and the King in virtue of his prerogative could authorize their being set up and give to the owner of a franchise therein certain exclusive privileges.' Blackstone said: "The limita- tion of these public resorts to such time and such place as may be most convenient for the neighborhood, 12 Black. Com. 32. 2 1 Black. Com. 274. 44 EIGHTS IN COMMONS, MARKETS AND FAIRS § 29 forms a part of economies or domestic policy, which considering the Kingdom as a large family, and the King as the master of it, he clearly has a right to dis- pose and order as he pleases." In this country, there seems nothing of this kind in the genius of our government. If there is common right in a street, on a wharf or anywhere else, our rights may he qualified insofar as general equal good is aimed at, hut not otherwise. Insofar as a market or fair is concerned anyone may enter as an- other, yet he may require license to conduct therein a business for his profit. It seems useless, however, to pursue this subject and refer to the many fine dis- tinctions old common law pleaders evolved in its con- sideration. It has been held in this country that while the establishment of markets was "a part of the royal prerogative" in England, "they never crossed the seas to this country in that capacity," because "our ancestors, when they transplanted on these shores the principles of English freedom, left behind them all royal prerogatives except such as were to be, in the hands of the people, the necessary instruments of the free government which they here established. I am not aware that it has ever been supposed or main- tained in Pennsylvania that no man or association of men could set up a market house without a grant of the legislature.* And such is thought the rule in all of the other states." § 29. Parks and Recreation Grounds. — Parks as public places for recreation must depend on the principles we find as to highways, as to all of which 3 Twelfth St. Market Co. v. Phila. R. Co., 142 Pa. St. 580, 591, 21 Art. 902. 45 § 29 EIGHTS IN COMMONS, MARKETS AND PAIES there seems enougli already said, so far as the rule at common law is concerned. These are dedicated to public uses and like other such property are controlled by the trustees of the public. All of these come under an enlarged view of the common weal in the preserva- tion of health, morals, good order and quiet of the community. The distinction between a public park under the American idea and that at common law is well illustrated in two Pennsylvania cases.* *Coin. V. Hazen, 20 Pa. Super. Ct. 487; Laird v. City of Pittsburg, 205 Pa. 1, 54 Atl. 324, 61 L. R. A. 332. 46 CHAPTER VI. Jus PtTBLICUM IN DEDICATION TO PtTBLIC PxjEPOSB § 30. Preliminary. 31. Carrier devoting vehicles to public use. 32. Innkeepers engaged in public employment. 33. Grist mills at common law. 34. Summary of this chapter. § 30. Preliminary. — In preceding pages there lias been considered the jus publicum insofar as private use of a thing of common right already existing made the latter cease to be juris privati. To collect tolls on a highway changed to a plank road or a turnpike, or to have a franchise of ferriage over a river or to collect for wharfage in a port, is to use a facility in which a public use is to be preserved. This is ef- fected by making the private right therein subject to limitations not attaching to private right in ordinary property. It is purposed in this chapter to speak of those things in which the jus publicum arises out of their being devoted by private owners to public uses. In the former situation the jus publicum is never ex- tinguished, but inheres in the jus privatum. In the latter situation the jus privatum adds to itself the obligations of jtis publicum. In the former, the pub- lic, for a consideration, grants a privilege to the in- dividual; in the latter the individual, for a considera- tion, grants rights to the public. Essentially it may be, that the easement in the former situation is the jus privatum, while in the latter the jus privatum is 47 § 30 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES in tlie property itself. Both situations, however, eventuate in equal rights in all members of the public in those things which are of common right in their nature or have become so by dedication to public use. Mr. Justice Story said, in Dartmouth College v. "Woodward: "A bank, whose stock is owned by private^ persons, is a private corporation, although it was erected by the government and its operations partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge and turnpike companies. In all these cases, the uses may, in a certain sense, be called public, but the corporations are private, as much so, indeed, as if the franchises were vested in a single person." The learned justice here mingles indiscriminately uses essentially public and those made so by property being dedicated to the public, for example, insurance and canal companies. The first of these devotes its property to a public use, the second may do this or it may convert a stream that is of common right to its use, while the last two use things of common right for their and the public's advantage. He said, also, that "this reasoning ap- plies in its full force toeleemosynarycorporations,"but he did not say that either of such companies subjected itself to regulation, but that it did seems true from regulation long practiced. Insurance has been quite recently decided^ to be a public use, because it affects so great a part of the public, and canals, bridges and turnpikes may for other reasons be thought to be pub- lic uses. The Lewis case is considered hereinafter as 117 U. S. (4 Wheat.) 518, 669. 2 Gterman Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C 1189. 48 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES § 31 in importance representing a distinct advance as to business subject to regulation. § 31. Carrier Devoting Vehicles to Public Use.— An ordinary traveler using a public highway for his pleasure or profit, no more subjects his conveyance or the horse hitched thereto to public use, than were he to travel on his own land. And a common carrier is not held to be engaged in a public employment be- cause in his carriage he uses the highways on land or water, which are common to all. It is one's holding himself out as a carrier of goods thkt brings a severe accountability — one "against all events but acts of God, and of the enemies of the King.'" Holt, 0, J., said: "This is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of those affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an op- portuflity of undoing all persons that had any deal- ings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered." That this is the sole reason for this stringent liabil- ity appears from the distinction at common law be- tween carriers of goods and carriers of passengers.* In the Astor case the contention was made that coach owners should be liable in all cases, except where in- jury happens from the act of God or of the King's enemies. Eyre, Chief Justice, said: "I am of opinion sCoggs y. Bernard, 2 Ld. Raym. 90, 2 Smith's L. C. 9 Am. Ed. 955, 965. * Astor T. Heaven, 2 Esp. 533; Christie v. Griggs, 2 Camp, 79; Sharps v. Grey, 9 Bing. 457. 49 I 31 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES the cases of loss of goods by carriers and tte present (injury to passenger) are totally unlike. When that case does occur, he will be told that carriers of goods are liable by the custom to guard against frauds they might be tempted to commit by taking goods en- trusted to them to carry, and then pretending they had been lost or been robbed of them, but there is no such rule in the case of the carriage of the persons. This action stands on the ground of negligence only." In the Christie case Sir James Mansfield, C. J., said: "There was a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was answerable at all events. But he did not warrant the safety of the passengers." The rule as to carriers of goods was the same, whether the carriage be by land or water ;^ and whether the carrier plied or not between fixed termini.® In none of the cases is any point made upon the fact, that a carrier, w^hether of goods or passengers, uses public facilities for the conduct of his business, but the thing of holding himself out in a public employment is the ground of his peculiar or stringent liability. The rule of necessity obliging persons to trust them- selves or their goods is the basis of stringency, more severe as to the entrusting of goods than of persons. If the mere use of a public facility in the doing of business created any relationship between one citizen and another, then the casual as well as the ordinary or general use of that facility would create that re- lationship. But it has been held that a carman who 5 Rich V. Kneeland, 3 Cro. Jac. 330; Morse v. Slue, 2 Lev. 69, 1 Vent. 190, 238. 6 The Diner Alkali Co. v. Johnson, 9 Bxch. 338, 43 L. J. Rep. Exeh. 216. 50 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES § 32 undertakes casual jobs and does not ply from one fixed terminus to another is not a eommon carrier/ The principle in the cases holding that there is jus publicum in the employment of a common carrieT, plainly show that it is the holding out that is the basis therefor, and not the use of any public highway, such as is by a bridge, ferry, turnpike or wharf owner. § 32. Innkeepers Engaged in Public Employment. — ^A New York case decided in 1842 summarized the common^ law as to innkeepers as follows: "The inn- keeper is bound to receive and entertain travelers and is answerable for the goods of the guest although they may be stolen or otherwise lost without any fault on his part. Like a common carrier, he is an insurer of the property, and nothing but the act of God or public ene- mies will excuse a loss. On account of this extraordi- nary liability the law gives the innkeeper a lien on the goods of the guest for the satisfaction of his reason- able charges. It was once held that he might detain the person of the guest, but that doctrine is now ex- ploded and the lien is confined to the goods." It is to be said, however, that this doctrine was not ex- ploded until 1838.® This case asserts that there is no precedent for such a ruling, except a doctrine of a single judge.^" A leading authority in this country as well as in England on the liability of innkeepers was a case reported by Lord Coke," the decision being rendered TBrind v. Dale, 2 M. & Rob. 80. sGrinnell v. Cook, 3 Hill. 485, 38 Am. Dec. 663. » Sunbolf V. Alford, 3 Mees. & W. 247. 10 Newton v. Trigg, 1 Shower, 269. iiCalyes case, 8 Coke 32, 1 Sm. L. C. 246. 51 5 32 JXJS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES in the time of Elizabeth, This shows that the strict liability of innkeepers and their rights, as well, arose out of statutes. The first of these statutes runs back to the time of Edward III, which provides that an innkeeper is liable for everything that comes into his inn along with his guest, whether animate or inanimate, that is to say his money, goods or horse or vehicle. To understand how rigidly this liability is enforced a case decided in 1792" presents an excellent illustration. In this case plaintiff had taken his goods to mar- ket at Manchester and not being able to dispose of them he went to defendant's inn and asked permission to leave them there. Defendant's wife said the inn was very full of parcels. Plaintiff ordered some liquor, placing the goods on the floor immediately be- hind him. After sitting a little while, the goods were missing. He had judgment, which was upheld. It was said that, though his request to leave the goods was not complied with, yet he was entitled to protection of them while he continued in the inn as a guest. ' ' If the defendant had taken the goods upon that request, he could only have been liable as a bailee, but that pro- posal was not accepted, and then his case stands on general grounds." These cases show, that there is the closest refine- ment in reasoning, because of statutory terms and the compulsion placed upon any innkeeper to accept as guests travelers and wayfarers, to determine who are to be considered guests. An English author has remarked upon the strict responsibility as follows: "Rigorous as this rule may seem and hard as it may izBennet v, Mellor, 5 T. R. 273. 52 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES § 32 actually be in one or two particular instances, it is founded on the great principle of public utility, to which, all private considerations ought to yield. For travelers, who must be numerous in a rich and com- mercial country are obliged to rely almost implicitly on the good faith of innholders, whose educaition and morals are none of the best, and who might have fre- quent opportunities of associating with ruffians and pilferers, while the injured guest would seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been com- mitted by them.'"^ Justice Story says: "This is the very reasoning of the Eoman law on the same subject founded on motives of public policy."" Many early American cases consider this liability and the duty of innkeepers to extend hospitality to all travelers and wayfarers, but very greatly the rights and liabilities of innkeepers are now regulated and mitigated by legislation, which receives construc- tion under the rule of its being in derogation of the common law. Conditions now and at the common law are very different, and there is far less reason for differentiating one applicant, as being a way-. farer from another, when both apply to be accom- modated at a hotel. And the contracts of innkeepers seem to partake greatly less of a public character now than in common law times. It was never a busi- ness that was not open to any one to pursue." In the early legislation of this country there are found statutes for the licensing of inns and taverns, whether 13 Jones on Bailments, 95, 96. ■ 1* Story on Bailments, Sec. 471. 15 Bae. Abr. Title Inns and Innkeepers, 226. 53 § 33 JUS PUBLICUM IN DEDICATION TO PUBLIC PUBPOSES or not intoxicating liquors were sold therein. For example, in Alabama there was an act passed in 1807 requiring a bond by an innkeeper with condition to provide good, clean, wholesome diet and lodging for travelers and stabling and provender for horses, with his rates to be regulated by the county court. It was said that: "It is a matter of great public concern- ment, that those who keep houses of public enter- taimnent, should be fit and proper persons, that the persons and property of travelers may be safe — that they should be required to make suitable provision for their accommodation and their rates be known and fixed."" This will not be adverted to further, but is instanced here to show that at common law inns could have been treated as public utilities and in a moderate degree were so treated, and our early legis- lation went on the common law theory. But like a common carrier, it is the holding himself out, that gave the innkeeper his lien and affixed to him a severe responsibility. § 33. Grist MiUs at Common Law. — There are a number of early American cases which show that in Colonial days there were statutes providing for grist mills. In Massachusetts case^'^ it was said that: "The old statutes speak of mills as greatly beneficial to the public. The preamble of Prov. St. 8 Anne, ch. 8, an act for the upholding and regulating of mills, recites that they "sometimes fall into despair and are rend- ered useless and unserviceable, if not totally demol- ished to the hurt and detriment of the public, as well as loss to the partners who are ready to rebuild." So 18 state V. Cloud, 6 Ala. 628. See also State v. Stone, 6 Vt. 295. 17 Boston & Roxb. Mill Dam Corp. v. Newman, 12 Cush. 467, 478. 54 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES § 33 the Prov. St, 12 Anne, ch. 8, speaks of mills service- able to the public good and the benefit of the town!" In a Virginia case^' the owner of a mill and dam traced his title back to 1765, originating in an order of a county court, and the opinion of the court refers to Lord Hale's Tract de Jure Maris to show that this title was "subject to the jus publicum." The opinion further says: "The whole course of our legislation (partly before American Independence) shows that mills have at all times been considered great public conveniences and benefits and as such taken under the protection, encouragement and regulation of the laws, made, in fact, public establishments. In proof of this various laws may be cited such as those regulating their tolls, their weights and measures, that they shall grind the grist in due turn, etc. Particular privileges, too, are given them. The miller is exempt from militia duty. They have a right to condemn an acre of land for an abutment. They may overflow the land of another. These privileges are forfeited, if a miller fails to keep up his mill for the ease and use of his customers. A mill not regularly established by law is forbidden to grind for toll." A concurring judge said: "Mills have always been treated as public es- tablishments, subject to public control in various ways." Legislation so treating mills runs back t6 1667, all of it being particularly applicable when a dam was necessary to be constructed. In another Massachusetts case," decided in 1808, it is stated that : "The right to build a dam for the use of a mill was under several implied limitations. One was to pro- is Crenshaw v. State River Co., 6 Rand, 245. isStoughton V. Baker, 4 Mass. 522. 55 § 33 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES tect private rights by compelling him (sic) to make compensation to the owners of land above for and damages occasioned by overflowing their lands; an- other was to protect the rights of the public to the fishery. This limitation being for the benefit of the pubHc is not extinguished by any inattention or neglect, in compelling the owner to complying with it." The right to erect a dam is called a "mill-privilege." At common law, however, the right of fishery as a jus publicum applied only to navigable rivers.^" But it has been held that in this country this principle has been modified.^^ Speaking of Massachusetts, in the Cottrill case it was said: "By the common law in England fisheries in streams not navigable belong to the riparian prop- rietor. In Massachusetts from its earliest settlement this principle has been modified. . . . Our ances- tors were understood to have brought with them such parts of the common law as were applicable to their circumstances, claiming, however, and exercising the right through every period of their history, to change or qualify it. It was competent for the Colony Prov- ince or Commonwealth of Massachusetts, haying a legislature of its own, to appropriate to private use, that which was held in common in the Mother Coun- try, or to provide, that what is there private property should here be enjoyed in common." It is on the theory that the states have regulated mills from the start both as interests affected by the jus publicum from their nature and as affecting streams 20 Carter v. Murcott, 4 Burr. 2162, Lord Fitzwalter's case, 1 Mod. 105. 21 Cottrill V. Mysick, 12 Me. 222; Stoughton v. Baker, supra; Nick- erson v. Bracket, 10 Mass. 212 56 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES § 34 non-navigable that the right of regulation exists. These American cases, showing our colonial legislation, are deemed sufficiently conclusive of these utilities in their treatment by the Mother Country. § 34. Summary of this Chapter. — It may be that there were other callings at the common law, which its policy declared to be affected with a jus publicum, but common carriers, innkeepers and owners of grist mills illustrate well that it was not a conclusive test of a public right in a business or calling, that it used a public facility, as to which there was common right in all the public. If the citizen was virtually com- pelled to rely on a common carrier or innkeeper or the right of eminent domain was accorded to a mill owner, this created a jus publicum, giving peculiar privileges and imposing stringent liabilities. How far this idea has been extended in American law is suggested in a noted insurance case, to which I will advert hereinafter." It may be well, however, to note at this place the remark of associate Justice Lamar, in his dissent in this case. He said: "The right to fix prices depends on the concurrence of public in- terest and the employment of property devoted to a public use." I do not think this is true as to a com- mon carrier, an innkeeper or a mill owner. Neither of these occupations consider the use "of property devoted to a public use, ' ' and many rate statutes con- cern common carriers. There is some early au- thority in this country sustaining the validity of an ordinance "establishing the assize and regulating the 22 German Alliance Ins. Co. v. Lewis, 233 Ct. S. 389, 34 Sup. Ct. 612. 58 L. Ed. 1011, L. R. A. 1915 C1189. 57 § 34 JUS PUBLICUM IN DEDICATION TO PUBLIC PURPOSES weight and inspection of bread.^^ There it was stated that statutes passed in 1807 and in 1814 conferred the power to regulate the price of butchers' meat and bakers' bread and these statutes were regarded as constitutional. Whether at common law this was done or not I find no cases bearing on the question, but can conceive that there may have been recognized regula- tions as to such occupations, sustained on principles analogous to those in conamon carrier, innkeeper and grist mill cases. In Alabama^* an ordinance under legislative power to regulate the weight and price of bread was sustained as constitutional, the court say- ing: "The practice has prevailed too long and has been too generally, not to say almost universally, ac- quiesced in, to permit us to doubt that some regulation on this interesting subject is necessary and proper." A very recent ease in the Supreme Court of Alabama in which a cotton gin devoted to a public use was in- volved, is very instructive upon the line hereinbefore treated." 23 Gulllotte V. City of New Orleans, 12 La. Am. 432. 2* Mobile V. Yuille, 3 Ala. 137, 36 Am. Dec. 441. 25Tallassee Ore & F. Co. v. Holloway (Ala.), 76 So. 434. 58 CHAPTER VII. Title to Jus Publicum is in Trust § 35. Preliminary. 36. Use of inalienable public property. 37. Summary. § 35. Preliminary, — I think there is no better method of closing examination of the effect at com- mon law of use by a private citizen of any convenience, facility or property in which all have an equal right, than to investigate the nature of the title of the King to such convenience, facility or property. There is found in English decision regarding tide waters more frequent expression as to such nature than else- where, for the obvious reason, that these waters lying open, as nature placed them, riparian owners have claimed exclusive rights therein, when as to ordinary highways there exists little opportunity for such con- tentions to arise. Adjacent property is not affected by a road or a street as it is by a navigable stream. The public uses the former in a strictly defined method and those remote from it as well as those in prox- imity have, generally speaking, the same rights and owners of adjacent land have no peculiar status thereto, except on the theory of nuisance therein working special harm. But tidal waters bear both a general relation to all the surrounding country and a particular relation to riparian owners and to owners of privileges on, or adjacent to, their shores. Claims of these own- ers have raised questions which have evoked decisions 59 § 36 TITLE TO JUS PUBLICUM IS IN TRUST as to the nature of the King's title in these waters, but that the description of title therein applies to any- other public property seems too evident to need dis- cussion. Incidentially this nature has appeared in some of the cases hereinbefore considered, but I have thought the question deserved independent treat- ment. § 36. Use of Inalienable Public Property. — It has been said that: "In tidal streams, although the King has the property, the people have likewise the use necessary. Rex habet proprietum, sed populus habet usum ibidem necessarium."^ Lord Hale said: "The King hath the propriety as well as the jurisdiction of the narrow seas, for he is in a capacity of acquiring the narrow and adjacent sea to his dominion by a kind of possession which is not compatible to a sub- ject,'" meaning that as no subject can hold in the same capacity as the king holds, there is no one to whom public property in the narrow seas may be aliened. Lord Chancellor Westbury said:' "The bed of all navigable rivers where the tide flows and reflows and all the estuaries or arms of the sea, is by law vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm," The Lord Chancellor, there- fore, said : "If the Crown grants part of the bed iCallis, Sewers, 13; Hall, Rights of the Crown, 14. 2 De Jure Maris, ch. 6, p. 31. 8 Garm v. Free Fishers, etc., 11 H. L, 192, 207. 60 TITLE TO JUS PUBLICUM IS IN TRUST § 36 or soil of an estuary or navigable river, the grantee takes subject to the public right, and he cannot in respect to his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right." Lord Denman said:* "The right of soil in arms of the sea and public navigable rivers which the Crown prima facie has, independently of any ownership in adjoining lands, must in all cases be considered as subject to the public right of pas- sage however acquired, and any grantee of the Crown must, of course, take subject to such right." These cases were decided since our separation from the Mother Country, but long prior to that time Lord Hale, who died in 1676, in speaking of nuisances, said: "Not every building below the high-water mark, nor every building below the low-water mark is ipso facto in law a nuisance. For that would de- stroy all the Keyes that are in all the ports of Eng- land. . . . Where the soil is the King's soil, which he may demolish or seize or arrent at his pleasure; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation."' In 1819 there was a proceeding to restrain a pur- presture on the Eiver Thames and defendants relied on aflSdavits showing grants and licenses from the Corporation of London and the Court of Conservancy of the River for more than a century past to differ- ent persons to embank parts of the soil of the Thames between high and low-water mark. The Lord Chan- cellor said: "I consider it quite immaterial whether * Mayor of Colchester v. Brooke, 7 Q. B. 339. 6 Hale de Portibus Maris, p. 85. 61 § 36 TITLE TO JUS PUBLICUM IS IN TRUST the title to the soil between high and low-water mark be in the Crown or in the City of London ... or whether either Lord Grosvenor or Mr. Johnson (de- fendant) have any derivative title by grant from any one having the power to grant. This is a record call- ing upon me to prevent a nuisance ; and if the Court has jurisdiction to prevent nuisances, it is a jurisdic- tion which may be exercised, whatever may be the title to the soil. It is my present opinion, that the Crown has not the right either itself to use its title to the soil between high and low-water mark as a nuisance, or to place upon that soil what will be a nuisance to the Crown's subjects."^ This case afterwards came on for trial under an- other title, and the Lord Chancellor instructed' the jury that: "The question here is, whether a public right has not been infringed. An embankment of considerable extent has been constructed for the pur- pose of building a wharf. Much evidence has been adduced on the part of the defendants for the purpose of showing that the alteration affords greater facility and convenience for loading and unloading; but the question is not whether any private advantage has resulted from the alteration to any particular in- dividuals, but whether the convenience of the public at large, or of that portion of it which is interested in the navigation of the Eiver Thames has been af- fected or diminished by this alteration." One of the defendants was acquitted and the rest convicted.* « Attorney General v. Johnson, 2 Wils. Chan. 87. '■Rex V. Lord Grosvenor, et al., 2 Stark. 511. 8 See also Attorney General v. Ridrow, 2 Anstr. 603, decided In 1795. 62 TITLE TO JUS PUBLICUM IS IN TRUST § 37 § 37. Summary. — Tlie above cases, wMcli are in- stanced out of their chronological order, follow the principles laid down by Lord Hale and apply them to concrete questions. They are crystallized in the statement by Lord Chancellor Abbott in the Gros- venor case supra, that: "The question is not whether any private advantage has resulted ... to any particular individuals, but whether the convenience of the public at large . . . has been affected or diminished by this alteration," and if so it mattered not whether the defendants derived title from the Crown or not. An interesting review of the common law on this subject is found in an American case,* in which it was held, that a town holding under a grant from the Crown to land under the waters of a tidal bay, held it subject to the right of riparian owners to construct wharves from their upland to reach the navigable water, provided they do not erect structures interfering with navigation, thereby creating nui- sances. This case recognizes the same as does English law, that the Crown's title was held in trust, but the jus privatum of the Crown above low-water mark passed to riparian owners, the common law of Eng- land to the contrary not being deemed suitable to our conditions. This, however, in no way derogates from the general principle that what of title in pub- lic property was deemed the jus regium in the Crown had annexed thereto by way of trust the jus publicum, that is to say, "although the King has the property, the people have likewise the use neces- sary."" 9 Brockhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, 11 Ann. Cas. 1. 10 Hall's Rights of the Crown, 14. 63 CHAPTER VIII. Common Law Ebmedies by and Against Public Employments § 38. Preliminary. 39. Lien on goods in bands of public agency. 40. Ordinary procedure against public agencies. § 38. Preliminary. — That employment affected with a public use is not of itself a public or governmental use is demonstrated with, strict consistency all through the common law. All of the power that is exercised arises out of a franchise, not to govern- mental officers, but to individuals or corporations, these franchises originating in express grant or created by prescription which presumes a grant. The profits, which arise out of the franchise, belong not to the government but to grantees. The exercise of the franchise is cum onere_ the right of the public therein. A business conducted under such franchise is a private business strictly, but is subject as to the service it performs to the impartial demand of all and to regulation for the common benefit. This is all, no more and no less. A claim against one served by another exercising an employment affected with a public use was dis- posed of according to ordinary law, except where a statute additionally gave to the latter a lien, as, for example, to an innkeeper on the goods of his guest.^ So a claim against one exercising such employment 1 Proctor V. Nicholson, 7 C. & P. 67; Sneed v. Watkins, 1 C. B. N. S. 267; Angus v. McLacblan, 23 Ch. D. 330. 64 COMMON LAW REMEDIES § 40 is similarly referable to general law,^ but the rigbt of the claimant to sue may depend on the existence of a jtis publicum in such employment.' <§ 39. Lien on Gfoods in Hands of Public Agency. — At a very early day (1702) it was held by Lord Coke that a carrier could retain goods carried for his hire,* and this right of lien arises out of the fact that by delivery to the carrier he acquires a special prop- erty in the goods.^ If the carrier is of passengers, there is a lien upon their luggage or of baggage, not extending, however, to the passenger or the clothes he has on.® All of these liens are lost by the carrier giving up possession of the goods.' The privilege of lien is given to an innkeeper for board, lodging and liquor supplied to a guest, upon his goods,® and upon the horses of a guest for their keep.' The same rule exists as to a wharfinger.^" These privileges are given greatly because of the obligation to serve all who apply and also because of the extraordinary liability imposed, but it is a privi- lege for the protection of individuals serving the pub- lic and in no way a protection to the public itself. <§ 40. Ordinary Procedure Against Public Agen- cies. — Just as because of the stringent liability zBlackett v. Smith, 12 East. 518. sAllnut T. Inglis, 12 East. 527. * Skinner v. Upshaw, 2 Ld. Raym. 752. « Hlgglns V. Bretherton, 5 C. & P. 2. « Wolf V. Summers, 2 Camp. 631. TKinloch v. Craig, 3 T. R. 119; Sweet v. Pym, 1 East. 4. 8 Thompson v. Lacy, 3 Barn & Aid. 287; Jones v. Thurloe, 8 Mod. 172. 8 Allen V. Smith, 12 C. B. N. A. 638. "Johnston v. The Schooner Macdonough, Gilfine 101; Naylor t. Mangles, 1 Esp. 109; Holderness v. CoUlnson, 7 B. & C. 212. 65 § 40 COMMON LAW REMEDIES of owners of property affected with a public interest at common law they were given remedies referred to supra^'^ a relation giving to claimants against them a status in law, which they might not otherwise have possessed, yet ultimate liability was ascertained and judgment rendered thereon as in ordinary procedure. If a partnership was to be formed to carry on the business of a common carrier, or of an inn or as wharfingers, the members stood to each other and to the public as in any other partnership. If a company or corporation was to be organized to do like things, generally its ofificers and directors were as those of any other company or corporation. And so as to shareholders in their rights and liabilities and to its agents and servants the same principles as or not fix- ing liability on their principal as were the company or corporation engaged in a purely private business. An illustration of the general truth of the above observations is afforded by two cases referred to in section 31 supra}'^ Both of these cases were in as- sumpsit, and defendants were two dock companies. Presumptively the business of each was affected with a public interest. One was so held to be and copious excerpts from the opinions in this case furnished the main staple for argument in Munn v. Illinois,^' here- inafter referred to at considerable length. In the Blackett case there was claim that the "West India Dock Company was liable to pay extra expenses of laborers for pumping out a leaky ship and for de- livering its cargo into another dock. It was held that the rate per ton for ships allowed to the Dock Com- 11 Sec. 31, ante. 12 Blackett v. Smith, 12 East. 518 ; AUnut v. Inglls, Id. 527. 13 94 U. S. 113, 24 L. Ed. 77. 66 COMMON LAW REMEDIES § 40 pany did not include what was sued for. In the AUnut case there was assumpsit for refusal by the London Dock Company to receive plaintiff's goods, into its warehouses for a reasonable reward offered to it. To plea by defendant that plaintiff refused to pay the prices fixed in its table of rates there was general de- murrer, which was by the court sustained. The grava- men of plaintiff's suit was the obligation of the Dock Company to accept a reasonable hire and reward, be- cause defendant's business was affected with a publio interest. As against each of the companies a money judgment was claimed, recovery being desired in the former case and right of action sustained in the lat- ter. In the second year of the reign of Queen Anne, 1702, in action on the case, the question was whether the action would be for loss of goods by one not a common carrier," but he was held, under the facts, to the like responsibility of a common carrier. This case shows that the public relation only concerns the question of liability vel non and does not affect the form of action. In an action against a common carrier for trover for goods delivered to him to carry, the form of ac- tion was not contested, but a ruling made in 1702 by Lord Holt was adhered to that the carrier could re- tain the goods for his hire.^^ It was also ruled in an- other case^® that trover lies against a common car- rier for refusal to deliver goods on demand, "or an action upon the case lies against him upon the cus- tom." 1* Coggs V. Bernard, 2 L. Raym. 909. 15 Skinner v. Upshaw, 2 L. Raym. 752. 16 Taylor v. , 2 L. Raym. 792. Defendant's name is not given in the report. 67 I 40 COMMON LAW REMEDIES In a suit decided in 1772" by Lord Mansfield in a case against a wharfinger, for goods lost or stolen, it was held that trover would not lie, but only case, be- cause thus it had been held as to a carrier and "it is im- possible to make a distinction between a wharfinger and a common carrier." Each of them is sued as an ordi- nary bailee and defendant is liable or not according to the nature of the bailment. The above cases are suflficient to show that so far as any liability to another is concerned it is sued upon just as if it were owing by any other, citizen or part- nership or company; in other words, both contracts and torts are resolvable upon general and not particu- lar principles of law. This it is evident would not have been so were the functions of an owner of prop- erty affected by a public use in any governmental way and its agents were in any sense officers of the govern- ment. That such rulings are in strict accord not only with decision in America is manifestly true, and also it is true, that the very genius of our institutions is opposed to any other way of treating suits by or against such agencies of the public. But if any doubt should be entertained as to this conclusion, the many English acts granting to companies exercising public employment the right to condemn property for their use should clear the matter. Under these acts the power of condemnation was required to be strictly followed." This power was granted for the public good and it was held, that it was premature to ask for its exercise before a company should first have " Ross V. Johnson, 5 Burr. 2825. 18 Webb V. Manchester & Leeds Ry. Co., 4 Myl. & C. 116, 1 Emg. Ry. & C. Cas. 576. 68 COMMON LAW REMEDIES § 40 shown, that the project which would redound to such good, proved itself capable of completing the enter- prise.^® But what is directly to the point these acts generally, if not always, conditioned the rights of en- forcing a compulsory purchase of land proposed to be condemned by a company treating with the owner for its purchase.*" 19 Gray v. Liverpool & Bury Ry. Co., 9 Beav. 391, 10 Jur. 364, 4 Eng. Ry. & C. Cas. 235. 20 Pincbin v. London & Blackwall Ry. Co., 5 De G. M. & G. 851. 69 CHAPTER IX. Common Law as Paet of Oxtb System § 41. Preliminary. 42. Extent of American common law. § 41. Preliminary. — ^A great part of tte preceding pages has been taken up in an endeavor to show what for a long time had been the practice in England in regard to the use of property in which the public had an interest and in the following of callings in which owners held themselves out to the public in a certain way. The principle upon which the right of regulation was exercised, in the former class of cases, was pro- tection of the public in property which the King held in trust. As to the latter class the right of regula- tion was more in the way of a situation arising out of the necessity of individuals of the public trusting themselves to the mercy of the owners of such call- ings. This also involved the right to demand their services for a reasonable reward therefor. In the former class of cases there was something in the way of an implied agreement, that the users of public property, allowed by franchise emanating from the public's trustee, the King, should respect the limit of the King's power in granting such franchise. This power could work no discrimination between members of the public nor operate any injustice to those, who, while seeking their own advantage, at the same time would be turning it to general benefit in utilizing resources of the people. In the other class 70 COMMON LAW AS PART OF OUR SYSTEM § 42 of cases there seems more an estoppel in one enjoy- ing privileges in the securing of compensation for his services, above that granted to the ordinary citizen, using his advantage to the detriment of any member of the public or to favor another member. It is the purpose of the author of this treatise to consider whether the common law of England in regard to the above things became a part of our common law and how far, if at all, it has been affected by our theory of Constitutional right of contract and the tenure of title in property. § 42. Extent of American Common Law. — In an early Maryland case^ there was an indictment for conspiracy at common law. The case being on writ of error, in behalf of the state, it was first objected that the state had no right to such a writ and, next, that the common law of England as it existed at the time of emigration and as then established by judicial precedents must be looked to. A very learned opinion was delivered, in which common law authority only was looked to for both propositions, it being conceded that there was no Maryland statute defining con- spiracy. Both the right of writ of error and the sufficiency of the indictment were sustained. It was said: "That our ancestors did bring with them the laws of the Mother Country, so far at least as they were applicable to their situation and the condition of an infant colony, cannot be seriously questioned. The rule that in conquered or ceded countries that have laws of their own, these laws continue in force, until actually altered, etc., is for the benefit and convenience of the conquered, who submit to the government of the 1 state V. Buchanan, 5 Harr. & J. 317, 9 Am. Dec. 534. 71 § 42 COMMON LAW AS PART OF OUR SYSTEM conquerors, or in the case of cession, for the benefit of the people, who by treaty submit to the government of those to whom their country is ceded, and was not applicable to the condition of our ancestors, as the Indians did not submit to their government, but with- drew themselves from the territory they acquired. They were, therefore, in the predicament of a people discovering and planting an uninhabited country, and as they brought with them all of the rights and privi- leges of native Englishmen, they consequently brought with them, also, as their birthright, all the laws of England, which were necessary to the preservation and protection of those rights and privileges." After saying that adjudications since such emigra- tion could be looked to subsequent to as well as be- fore emigration, as to what the law was, it is said: "That clause is the third section of the Bill of Eights, which declares the inhabitants of Maryland to be en- titled to the benefit of such British statutes made since the emigration, as had been introduced, used and practiced by the courts of law or equity, and thus virtually inhibits the use of all such as had not been so introduced, furnishes a clear exposition of the whole section, and shows that it was not the intention of the framers of that instrument to exclude any part of the common law, merely because it had not been introduced and used in the courts here, and strongly implies, that there were portions of that valuable system which had not been actually practiced upon. And the judicial proceedings of our courts furnish no evidence of any prosecution before the revolution, for a cheat effected by false public tokens; and yet it is not pretended, that from the non-user, it is not now an indictable offense." 72 COMMON LAW AS PART OP OUB SYSTEM § 42 In a still earlier American case,* decided in 1812, it was said : "Every country has its common law. Ours is composed of the common law of England, and partly of our own usages. When our ancestors emigrated from England, they took with them such of the Eng- lish principles as were convenient for the situation in which they were about to place themselves. It re- quired time and experience to ascertain how much of the English law would be suitable to this country." In speaking of the seventh amendment of the Fed- eral constitution and of its adoption in 1789-1791, it was said: "At this time there were no states in the Union, the basis of whose jurisprudence was not es- sentially that of the common law in its widest mean- ing; and probably no states were contemplated, in which it would not exist." But the phrase 'common law' found in this clause (providing for right of trial by jury) is used in contradistinction of equity, ad- miralty and maritime jurisprudence."* There are distinctions drawn in some state consti- tutions and state statutes between common law as the lex non scripta and English statutes enacted during colonial days, but as the principles, with which con- cern here exists, are derived from the law of Eng- land as shown either by the lex non scripta or shown by statute prior to all emigration to this country, the distinction above alluded to is not important. 2 Guardians of the Poor v. Greene, 5 Binn. (Pa.) 534. s Parsons v. Bradford, 28 U. S. (3 Pet.) 446, L. ev. 73 CHAPTER X. Peopeety, Not Business, Affected With Public Inteeest. § 43. Location as test of public interest. 44. American common law as to navigable waters. 45. Magna Charta as enforcing trust theory in jus publicum. 46. Navigable waters, fresh or salt. 47. Public rights in floatable streams. 48. Public rights in lakes under American law. 49. Public rights in public landings. 50. Public rights in warehouses as public landings. 51. Stockyards as public landings. 52. Public rights in wharves, docks and piers. § 43. Location as Test of Public Interest. — In this chapter the purpose is to speak of navigable waters and the use of structures on their shores, and of land- ings not on navigable waters, but which by reason of advantages, which circumstances create, possess a status greatly resembling landing on navigable waters, as evolved from common law principle. Necessarily we ascertain what are navigable waters in American view and proceed afterwards to the landings not sit- uated on navigable waters. § 44. American Common Law as to Navigable Wa- ters. — In the early history of this country a question arose as to the right of protection in a fishery in a river^ and it was held that: "The river being a pub- lic navigable river, it is free for all the citizens, to navigate their vessels in and to draw seine for the 1 Pitkin V. Olmstead, 1 Root (Oonn.) 217. 74 PROPERTY AFFECTED WITH PUBLIC INTEREST § 44 purpose of taking fish — that the hed of the river is the private property of no one, but remains as public as the waters that flow in it — ^whoever therefore by labor and expense cleans a fish place in its bed, ac- quires a right to occupy and enjoy it in preference to any other; and by a long continued possession and occupation, in the proper seasons, the right is strengthened and confirmed; and the defendants had no right to disturb or interrupt the plaintiffs in the exercise of their right in their own proper fishing place, so long as they did not go upon their land." This case was decided in 1790 and the fishing place was cleaned in 1774. In the meantime riparian own- ers had given a lease to defendants to draw seines on their lands so as to interrupt plaintiff's right to his fishery. The decision, therefore, is a plain negation of the right of riparian owners to so authorize what they attempted and it is also a recognition of the right to acquire a franchise for a fishery or, as is by long use, presumed, provided that navigation be not in- terfered with. This was a decision by the Superior Court of Connecticut and the Supreme Court of Er- rors of that state, where the question was as to the right to sea-weed on the seashore and navigable rivers, said: "The doctrine of the common law is, that the right to the soil of the proprietors of land on navigable rivers extends only to the high-water mark — all be- low is publici juris — ^in the King in England. That is the law of Connecticut, for we have no statute abro- gating it. It was the law brought by our ancestors; it is our law, the soil being not indeed owned by the King, hni by the state. "^ Further along the Court 2 Chapman v. Kimball, 9 Conn. 38, 21 Am. Dec. 707. 75 § 44 PKOPERTY AFFECTED WITH PUBLIC INTEREST says: "I am well aware that there may be an indi- vidual right to a navigable river, but it must be ac- quired by a grant from the King or sovereign au- thority, or by prescription." This shows clearly the principle now insisted on, and there is cited Lord Hale's treatise as found in Hargrave's Law Tracts, 16, 17. It was said that: "This sea-weed was not collected on the shores, but grew and accumulated be- low low-water mark," and the riparian owner had no exclusive right to interfere with navigation in case an individual right in a navigable stream were ac- quired, but it is to be inferred, and hereafter will b© shown, that the jus publicum cannot be displaced by the acquiring of an individual right. That navigable rivers in which the tide ebbs and flows and all the ports, bays and sea coasts within the boundaries of a state and the rights of fishery annexed thereto belong to the people in their sovereign capacity, for the com- mon use of all the inhabitants was ruled in 1821 in New Jersey^ in an opinion replete with learning, that whatever may have been held or considered as to ex- clusive rights from the time of William the Conqueror in the way of derogation from this common right, was corrected by Magna Charta. This charter is said to be nothing more than a restoration of the ancient common law. It, as passed in the time of King John, enacts that where the banks of rivers had been de- fended in his time (that is when they had first been fenced in and shut against the common use) they should be from thenceforth laid open. . . . By this char- ter it has been understood, and the words fairly im- port, that all grants of rivers and rights of fishery in 3 Arnold v. Mundy, 1 Halsted (N. J.) 1, 21 Am. Dec. 356. 76 PROPERTY AFFECTED "WITH PUBLIC INTEREST § 44 rivers or arms of the sea made by the Kings of Eng- land before the time of Henry II. were established and confirmed, but that the right of the Crown to make such royal grants and by that means to appropriate to individuals what before was the common right of all, and the means of livelihood for all, for all future time, was wholly taken away. Wherefore it was held that a grant by Charles II. in the year 1664 to his brother, the Duke of York, in the land, soil, seas, bays and rivers, was unavailable in plaintiff holding by title derived from the Duke to show right to maintain trespass against one taking away oysters in the bed of a navigable river, though the plaintiff owned the adjacent shore. This ruling was affirmed by a ma- jority of U. S. Supreme Court.* Conceding, however, that there is diversity of opinion as to the right of the Crown to grant exclusive rights in navigable waters, especially since Magna Charta, the next following section considers American interpretation of that great instrument as respects the grant of such rights. Before, however, coming to this consideration I refer to a very recent case by Virginia Supreme Court of Appeals as summarizing American view of the jus publicum in navigable waters.^ This ease was in trespass against a city emptying its sewage into the waters of Hampton Creek and pol- luting its waters "whereby the oyster bed of the plain- tiff was materially damaged." The State of Virginia had granted a license to the plaintiff of oyster plant- ing ground. The city defended, upon the claim, "that 4 Martin v. Waddell, 41 U. S. (16 Pet.) 367, 10 L. Ed. 997; Smith T. Maryland, 59 U. S. (18 How.) 71, 15 L. Ed. 269. s City of Hampton v. Watson, 119 Va, 95, 89 S. B. 81. 77 § 44 PROPERTY AFFECTED WITH PUBLIC INTEREST the beds and waters of Hampton Greet below low- water mark, being tidal, navigable salt waters are held in trust by the State of Virginia for the public and cannot be granted to an individual, so as to im- pair the public interest therein or the use thereof." Plaintiff had a verdict and this was reversed. The Court, after stating that plaintiff had cited cases show- ing recovery for the pollution of non-navigable streams, says: "There is, however, a marked and well established distinction between the pollution of a small non-navigable stream and the pollution of large tidal, navigable bodies of salt water, for the reason, that in the first case the bed of the stream and waters are owned by the riparian owners, while in the latter case it is well settled, that the bed of the navigable, tidal salt water and the waters themselves are owned and controlled by the state for the use and benefit of all the public, subject only to navigation. It is for the state to say what uses shall be made thereof and by whom, subject always to the right of the public, and for the State, through the legislative branch of the government, to say how much pollution it will permit to be emptied into and upon its waters, so long as the owners of the land between low-water and high- water are not injured. From the early English deci- sions to the present time, and repeatedly by this court, it has been held that the tidal, navigable salt waters and the beds thereof, belong to the commonwealth, in a sovereign capacity, for the benefit of all the public, and cannot be disposed of to the detriment of the pub- lic interest." For this are cited cases in note hereto.' e Taylor v. Commonwealth, 102 Va. 768, 47 S. E. 875, 102 Am. St. Rep. 865; N. S. B. & D. D. Co. v. Jones, 105 Va. 503, 54 S. E. 314, 6 78 PROPERTY AFFECTED WITH PUBLIC INTEREST § 45 'As instancing a public purpose tlie opinion goes on to say, that "the City of Hampton has the right to use the waters of Hampton Creek for the purpose of carrying off its refuse and sewage to the sea, so long as such use does not constitute a public nuisance, and as such be discontinued by the legislature which has control over the extent to which these waters may be so used. The sea is the natural outlet for all the im- purities flowing from the land and the public health demands that our large and rapidly growing sea coast cities should not be obstructed in their use of this great outlet, except in the public interest. . . . How- ever, the owner of any lands bordering upon the sea may lawfully throw refuse matter into it, provided he does not create a nuisance to others. And there can be no doubt that public bodies and ofl&cers, charged by law with the power and duty of constructing sewers and drains for the benefit of the public health have an equal right." In Sayre v. Newark, supra, it was said: "The history of sewers shows that from time immemorial the right to connect them with navigable streams has been regarded as part of the jus pub- licum." § 45. Magna Charta as Enforcing Trust Theory in Jus Publicum. — Magna Charta has been said to be "re- garded as a historical monument of right and it is called the 'palladium of English liberty.' '" But "the grant of Magna Charta did not make the English a L. R. A. (N. S.) 247; 111. Cent. R. Oo. v. Illinois, 146 N. S. 387, 36 L. Ed. 1018; Sayre v. Newark, 60 N. J. Eq. 361, 45 Art. 985, 48 L. R. A. 722, 83 Am. St. Rep. 629; Coxe v. State, 144 N. Y. 396, 39 N. E. 400. 7McKinston v. Sayer, 163 Ind. 67, 62 N. E. 854, 106 Am. St. R. 268, 68 L. R. A. 273. 79 § 45 PROPERTY AFFECTED WITH PUBLIC INTEREST constitutional monarcliy; it was only after repeated violations and confirmations of that instrument, and when a further disregard of its provisions had become dangerous to the Crown, that fundamental rights could be said to have constitutional guaranties and the government to be constitutional."* In Sydney on Government® it was said: "Magna Charta was not made to restrain the absolute authority, for no such thing was in being or pretended, but it was to assert the native and original liberties of our nation that neither he (the King) nor his successors should 'any way encroach upon them.' It was therefore pro- mulgated when the legislative power was exercised by the King alone and so were its confirmations, as for example in the Petition of Eight and the Bill of Eights." It has been said, indeed, that: "The maxims of Magna Charta and the common law are the interpreters of (our) constitutional grants of power. "^'' In Mar- tin V. Waddell" it was contended that as Magna Charta was adopted in the ninth year of the reign of Henry III., A. D. 1224-5, it was a mere statute of local appli- cation to the realm of England. Taney, C. J., though referring to Magna Charta, does not allude to this contention, but takes it for granted, that it does apply to this country, because he refers to English authority, in which it was stated that "in England our ancestors put the public rights in rivers under the sole guard of Magna Charta." And to^^ another case where it 8 Cooley's Cons. Limitations, 5, note. 9 Ch. 3, Sec. 27. 10 Cooley's Cons. Limitations, p. 244. 11 Sec. 38, ante. i2Blundell v. Catterall, 5 Brn. & Aid. 268, 287. 80 PEOPERTT AFFECTED WITH PUBLIC INTEREST § 46 was stated that a royal franchise for an exclusive fishery "could not be created after Magna Charta."^' Martin v. Waddell held that whatever might be thought as to the construction to be placed on Magna Charta as to the right of the public to the sea, yet "the ex- istence of a doubt as to the right of the King to make such (exclusive) a grant after Magna Charta, would of itself show how fixed has been the policy of that government on the subject for the last six hundred years, and how carefully has been preserved this com- mon right for the benefit of the public." If this is not saying that the policy enforced by Magna Charta became a part of the common law of this country it is difficult to say what is meant. From this great docu- ment, wrung from King John in 1215, was "fashioned the Massachusetts Bill of Eights," the forerunner of similar provisions in other State Constitutions and in the Federal Constitution." The many references in American cases to Magna Charta shows with what regard the "Great Charter" has ever been held by American jurists, especially in cases affecting the lib- erty of the citizen and his property not being taken otherwise than by the law of the land {per legem terrae). § 46. Navigable Waters, Fresh or Salt. — There is some discussion to be found in American cases as to whether at common law a navigable stream was that in which there was an ebb and flow of the tide. But whatever may be thought of English rulings on this subject, it seems, that at this time, at least, if not entirely recognized as true in the early history of 13 Duke of Sumerset v. Fogwell, 5 Barn. & Crefeswell, 875, 884. 14 1 Black. Com. 114, note. 81 § 46 PROPERTY AFFECTED WITH PUBLIC INTEREST American decision, the rule of what is a navigable stream or body of water depends upon no such test. Thus Chief Justice Taney said in 1851/^ in speaking of admiralty jurisdiction that: "It would be con- trary to th© first principles on which the Union was formed to confine these rights (of prize in admiralty law) to the states bordering on the Atlantic, and to the tide-water rivers connected with it, and to deny them to the citizens who border on the lakes and the great navigable streams which flow througb. the western states. ... In England, undoubtedly, the writers upon the subject and the decisions in its courts of ad- miralty always speak of the jurisdiction as confined to tide-water. And this definition in England was a sound and reasonable one, because there was no nav- igable stream in the country beyond the ebb and flow of the tide. ... In England, therefore, tide- water and navigable water are synonymous terms, and tide-water, with a few small and unimportant excep- tions, meant nothing more than public rivers, as con- tradistinguished from private rivers, and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river." Later on this court said in an admiralty case" that: "The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. There no waters are navigable in fact, or at least to any con- siderable extent, which are not subject to the tide. IB Genesee Chief v. Fitzhugh, 53 V. S. (12 How.) 443, 454 13 L Ed. 1058. 18 The Daniel Ball, 77 U. S. (10 Wall.) 557, 563, 19 L. Ed. 999. 82 PROPERTY AFFECTED WITH PUBLIC INTEREST § 47 . . . But in this country the case is widely differ- ent. Some of our rivers are as navigable for many hundreds of mUes above as they are below the limits of tide-water. ... A different test must, there- fore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact." In the Genessee Chief case, supra, prior decisions^'^ were overruled, the Chief Justice saying that the court, "under the natural influence of precedents and estab- lished forms, a definition (of a navigable stream) originally correct was adhered to and acted on, after it had ceased, from a change in circumstances, to be a true description of public waters." Early cases from North Carolina,^^ Pennsylvania,^" Tennessee,"" New York^^ and from many other states could be cited to the above as the American doctrine. In the Canal Appraisers' case, supra, there is very elaborate con- sideration of the entire subject and much citation of authority. This doctrine is scarcely now denied in any state. § 47. Public Rights in Floatable Streams.— The rule is general that when a stream is a boundary, the ri- parian owner holds only to high-water mark when it is navigable and to mid-stream when it is non-nav- igable, yet it does not follow necessarily, that it is only in the former that the public have rights. In a Massa- 17 Thomas Jefferson, 10 Wheat. 428; Steamboat Orleans v. Phoe- bus, 11 Pet. 175. 18 Wilson V. Forbes, 13 N. C. 30. 19 Carson v. Blazee, 2 Binn. 475, 4 Am. Dec. 463. 20 Elder v. Buenes, 6 Humpt. 366. 21 People V. Canal Appraisers, 33 N. Y. 461. 83 § 47 PROPEETY AFFECTED WITH PUBLIC INTEEEST cliusetts ease,^^ decided in 1851, it was said by Shaw, CMef Justice, that: "We are not aware that the right of navigation for boats, etc., in inland rivers, above tide-waters, though technically not navigable, has ever been denied or seriously drawn in ques- tion, . . . Many judicial decisions have declared the right of passage with boats and vessels on rivers not navigable, to be a public right and many acts of legislation have been passed authorizing dams across rivers, and wing-dams, connected with locks and side canals, to secure and facilitate their public right of in- land navigation." Chief Justice Shaw in this excerpt may not have accepted the doctrine laid down in the Daniel Ball case, supra, that in this country the test of navigability was not as at common law, and by "rivers not navigable" he may have been referring only to those non-tidal. But other cases show that in fresh water streams not generally navigable there exists public rights. In a prior Massachusetts case,^' in which it was complained, that in a non-navigable part of Connecticut river there were obstructions hin- dering the passage of fish, it was said there was a pub- lic right which could be regulated and enforced by statute. The court referred to an English case de- cided by Lord EUenborough in 1806.^* This casd con- cerned weirs in a river which emptied into another river. It was said: "The erection of weirs across rivers was reprobated in the earliest periods of our law. They were considered as public nuisances. The words of Magna Charta are that 'all weirs from hence- 22 Com. V. Alger, 7 Cush. 53, 99. 28 Com. V. Phapln, 5 Pick. 199. 2* Weld V. Hornby, 7 East. 194. 84 PROPERTY AFFECTED WITH PUBLIC INTEREST § 47 forth shall be utterly pulled down by Thames and Med- way and through all England, etc.,' the right to have fish run was a, common right, so in this country the right to float logs is of public right, though in a stream only navigable in this sense. " As to this kind of stream it has been said: "The third class of public high- ways, floatable streams, are not, so far as I know, recognized in England, and I doubt whether they in point of fact exist in England. But they are very common in the United States, and, as we have seen, while they are the private property of riparian own- ers, yet the public has a right to use them as public highways, to float their lumber and other product of their land to mill or market, and the riparian pro- prietor cannot so use these streams as unreasonably to incommode and hinder the public from using them for such floating purposes.'"' Chief Justice Kent in 1805 referred to Sir Matthew Hale as holding *' gen- erally that fresh rivers, as well as those that ebb and flow, may be under the servitude of the public inter- est and may be of common or public use for the car- riage of boats, etc., and in that sense may be regarded as common highways of water, "^* and there are nu- merous American cases, that the purposes of com- merce in the floating of boats, rafts and logs give to streams capable of being so used the character of a public highway. Legislation declaring streams "pub- lic highways for all the purposes of floating and raft- ing lumber, logs and timber upon their waters" fre- quently has been upheld." And generally it may be 25 Gaston V. Mace, 33 W. Va. 14, 10 S. E. 60, 5 L. R. A. 392, 25 Am. St. Rep. 848. 26 Palmer v. Mulligan, 3 Caines 307, 318, 2 Am. Dec. 270. 27 Harold v. Jones, 86 Ala. 274, 5 So. 438, 3 L. R. A. 406. 85 § 47 PEOPEKTY AFFECTED WITH PUBLIC INTEREST said, in accordance witli many decisions, that in tMs country there is a servitude of the public interest in streams and waters where they may be made serv- iceable to the public, notwithstanding there is no im- memorial usage or custom therefor.^^ In a Maine case^' the principle applicable to this country is embodied in the following language: "If a stream could be subject to public servitude by long use only, many large rivers in newly settled states and some in the interior of this state, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of these rivers which nature has plainly declared to be public highways. The true test, therefore, to be applied in such cases is whether a stream is inherently and in its nature capable of being used for purposes of com- merce for the floating of vessels, boats, rafts or logs. Where a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it." In a Michigan case'" it is said: "It is of the first impor- tance that the rights of the public be recognized to the free use of all streams susceptible of any valuable floatage. In this commerce our lumbering interests sustain and will continue to sustain an important part and their success depends to a vast if not entire ex- tent upon this principle. A moment's reflection will convince us that a liberal application and extension of the common law rule and its adoption to our condi- 28 Spooner v. McConnell, 1 McLean 250; Spooner v. Crawford, 10 Johns. 237; Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525; Scott V. Willston, 3 N. H. 321. 29 Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641. 30 Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209. 86 PEOPEETY AFFECTED WITH PUBLIC INTEREST § 48 tion and want lies at the bottom of this branch of our trade. '"^ But this principle has its limitations in not being applicable to streams which in their ordinary state are not capable of being made to serve any pub- lic interest.^* § 48. Public Right in Lakes Under American Law. — In 1830 Chancellor Walworth of New York Supreme Court of Judication speaking of the common law rule as to navigable water said: "The principle itself does not appear to be sufficiently broad to embrace our large fresh water lakes or inland seas, which are wholly unprovided for by the common law of Eng- land." But here he was speaking of the rights of riparian owners and not as to any public rights in fresh water lakes. The Supreme Court of the United States as to one of the Great Lakes, said:'* "The state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under tide- water, by the common law, and that title necessarily carries with it control over the waters above them, whenever the lands are subjected* to use. But it is a title different in character from that which the state holds in lands intended for sale. It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them and have liberty of fishing therein freed from the obstruction or interference of private parties." Chief Justice Kent said that: "In this country our siFor other cases supporting this view, see Morgan v. King, 18 Barb. 277; Rowe v. Granite Bridge Corporation, 21 Pick. 344. 32 Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439, and cases cited. 33 III. Cent. Railroad v. Illinois, 146 U. S. 387, 452, 13 Sup. Ct. 110, 36 L. Ed. 1018. 87 § 48 PROPERTY AFFECTED WITH PUBUC INTEREST great navigable lakes are properly regarded as public property and not susceptible of private property any more than tbe sea.'"* In Ohio it was said :'= "That fishery in such waters as Lake Erie and its bays should be as free and com- mon as upon tide waters and alike subject to control by public authority is obviously just. The reasons for regarding the right as public is as great in the one case as in the other ; and we have no hesitation in say- ing that the right of fishing in these waters is as open to the public as if they were subject to the ebb and flow of the tide.'"* The same distinction that pre- vailed at common law between navigable and non-nav- igable streams as boundaries and also recognized in this country, that is to say as to former, the riparian owner holds to low-water mark and as to the latter ad medium filum aquae, is observed as to inland lakes which are navigable.^^ It is otherwise, where bounded on small lakes or ponds.^* Where the boundary stops at low-water mark, this leaves the bed of the lake the property of the state, in trust for the people, and sub- ject to common right of all, under right of regulation. In Massachusetts from very early colonial days the question of public rights in "Great Ponds" has inter- ested the people. An ordinance of 1641-47 seems to 34 3 Kent Com. 429, note a. 85 Sloan V. Biemiller, 34 O. St. 492, 514. This case was expressly approved in a very recent case, Winous Point Shooting Club v. Slaughterbeck, — Ohio — , 117 N. E. 162. 86 To the same effect, see State v. Franklin Falls Co., 49 N. H. 240, 250. 87 Waterman v. Johnson, 13 Pick. 261; Canal Commissioners v. People, 5 Wend. 423; Fletcher v. Phelps, 257, 262. ss state V. Gilmanton, 9 N. H. 461; Hathom v. Stinson, 1 Fairf. 238. 88 PROPERTY AFFECTED WITH PUBLIC INTEREST § 49 be the foundation of the law of that state on this sub- ject and ponds not granted prior to that ordinance that were "Great Ponds" were held to be, like tide- waters, subject to reasonable use for all lawful pur- poses, such as fishing, boating, bathing and the taking of ice.^' It may well be thought that, if these things could be allowed, navigation would be included. The same test of a lake being public property is made to a stream, that is to say its being made useful in and for § 49. Public Rights in Public Landings. — In Amer- can decision, both in colonial days and in the time prior to and since 1870, there has been declared jus publicum in navigable waters. Not, however, until the Illinois constitution adopted in that year provided that elevators for grain stored for a compensation should be public warehouses and the general assembly should pass laws for their regulation, was the prac- tical application of the theory of jus publicum in- voked. In the following year the general assembly of Illinois passed an act to carry this provision of the Constitution into effect. In 1872 there was filed an information for a violation of this act and from con- viction of the lessees of a warehouse declared public, for not having taken out a license, there was writ of error to Illinois Supreme Court.*'^ The conviction was affirmed, among other reasons, because the exercise of 39 West Roxbury v. Stoddard, 7 Allen 158; Paine v. Woods, 108 Mass. 160; Hittinger v. Eames, 121 Mass. 539. See also Brastow v. Eockport Ice Co., 77 Me. 100; McFadden v. Haynes, etc., Co., 86 Me. 319. *o Hodges V. Williams, 95 N. C. 331. *i Munn, et al. t. The People, 69 111. 80. 89 § 49 PROPERTY AFFECTED WITH PUBLIC INTEREST the power claimed was illustrated in ''familiar in- stances found in regulating public ferries and publio mills and fixing the compensation in the shape of toll," and "in delegating power to municipal bodies to regulate charges of hactmen and draymen and the weight and price of bread." None of these things, however, show, necessarily, any use of a landing or place belonging to the state in trust for the people, and its being used by private persons for their own advantage. Illinois Supreme Court appeared to view the statute as attempting to do no more than regulate one of the common callings as known to the common law, as to services which anyone had the right to de- mand upon tender or payment of reasonable compen- sation. Defendants going by writ of error to the Fed- eral Supreme Court, there caused to be proclaimed the principle that the warehouse in suit came under the rule of property "affected with a public interest" and "ceasing to be juris privati only."" It is to be noted that all of the common law au- thority cited in the opinion as to property affected with a public interest is as to ports and wharves and cranes, while as to a common ferry the excerpt from Lord Hale's treatise "De Jure Maris" shows that it is not property that is originally "affected with a public interest," but which "doth in consequence (of being set up as a ferry) tend to a common charge and is become a thing of public interest and use." There is here merely use of property belonging to indi- viduals and a servitude in favor of the public thence arising. The ferryman is using his private property in a way that makes it "a thing of public interest and « Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77. 90 PROPERTY AFFECTED WITH PUBLIC INTEREST § 49 use," because to do that a franchise or privilege to be granted by the King was necessary. Ferrymen were but common carriers for whom a franchise from the King was necessary, but otherwise they seem, gener- ally, like common carriers. As to ordinary common carriers a prior ruling of the Supreme Court*^ says "common carriers exercise a sort of public oflSce," and the Munn case adds that: "Their business is, therefore, 'affected with a public interest' within the meaning of the doctrine which Lord Hale has so forcibly stated. ' ' But Lord Hale did not use that expression except in reference to ports, wharves and cranes, and when he did use it he spoke of property, and not business, being "affected with a public interest." Thus Lord Hale said: "For now the wharf and crane and other conveniences are af- fected with a public interest and they cease to be juris privati only, as if a man set out a street in new build- ing on his own land, it is now no longer bare private interest." If he dedicates land to the public, there is an easement of servitude in its favor. The citation of an English case decided in 1800** is where it was held that the public have a right to use cranes erected on public quays. The opinion said: "It is obvious that Lord Hale considered a public quay to be like a public street, common to all the King's subjects." Plaintiif was therefore denied all right to recover for the use of his crane, because he did not show the terms were reasonable. The Supreme Court, however, appears particularly *3 New Jersey Nav. Co. v. Merchants Bank, 47 U. S. (6 How.) 344, 382, 12 L. Ed. 465. ** Bolt V. Stennett, 8 T. R. 606. 91 § 50 PROPERTY AFFECTED WITH PUBLIC INTEREST to rely on an English case decided in 1810.** This was like the case hefore the court in that it concerned a warehouse. Otherwise the two resemble very little. Lord EUenborough regarded the warehouse like a wharf in a public port and further that, it being given the exclusive right to bond the goods it was "invested with the monopoly of a public privilege," which creat- ing a virtual monopoly in the wharf, made Lord Hale's principle apply. Le Blanc, J., thought the warehous- ing act "expressed to be for the encouragement of trade" affected the "private property" with a pub- lie interest and Bayley, J., took the same view. So, that being a warehouse which was the "private prop- erty affected with a public interest" was a mere in- cident in decision. While the rule thus declared in the Munn case ap- pears to me purely obiter, and the case ought to have been decided on the common callings principle, yet the court argues, that warehouses for the storage of grain stand to "the great producing region of the West and Northwest" in the port of Chicago just as if they were in a port of the sea. But the AUnut case would have failed but for the monopoly of legislative privilege, and an ordinary warehouse did not appear in any of the cases cited to be among the common callings. § 50. Public Rights in Warehouses as Public Land- ings. — The Munn case, as hereinafter will be shown, has been generally indorsed by state courts as to the principle of property affected with a public interest becoming subject to regulation. But this principle was extended in the Munn case to business thereby *6 AUnut V. Inglis, 12 East. 527. 92 PROPERTY AFFECTED WITH PUBLIC INTEREST § 50 affected. If a landing place, by whatever name it be called, is so circumstanced that one doing business there has a virtual monopoly, that business or calling becomes affected with a public interest. Thus in a New York case,** affirmed by U. S. Supreme Court,*'^ it was said: "The elevators in Chicago had no legal monopoly in the business of elevating grain. Tfhe business was open to all comers, but the location of the elevators, their connection with the railroads, on which most of the grain from the grain producing states and territories of the West and Northwest was brought to Chicago, the necessity of using them in the transfer, storing and transshipment of grain created,, as was held by the court, a virtual and practical monop- oly, which affected the business of the property (note it is not said the property but "the business of the property")** with a public interest and subjected them to regulation by law." The situation in the Budd case was quite the same as in the Munn case. In the affirm- ing case, supra, many warehouse cases decided by state courts, all of them citing the Munn case, are re- ferred to. In a Kentucky case*® a warehouse was looked on as a public landing place under a statute for licensing tobacco warehouses. In the case, relying on the Munn case, it was said: "If the fourteen warehouses in Chicago can be regulated in their charges because of their relation to the public, the ten warehouses in the *o People V. Budd, 172 N. Y. 1, 22 N. E. 670, 5 L. R. A. 559, 15 Am. St. Rep. 460. 47 Budd V. New York, 143 U. S. 517, 12 Sup. Ct. 467, 36 L. Ed. 247. See also Brass v. North Dakota, 153 TJ. S. 391, 14 Sup. Ct. 857, 38 L. Ed. 757. «8 Words in parentheses supplied by this author. 49 Nash V. Page, 80 Ky. 539. 93 § 51 PROPERTY AFFECTED WITH PUBLIC INTEREST City of Louisville can be regulated in the same man- ner. . . . It is a conceded fact that more than five millions in value of tobacco annually finds its way from the producer to the warehouses in that city. The greater part of this product is grown within the state, and the producer almost of necessity (is) compelled to place his tobacco under the control of and for sale by these several warehousemen at public auction. AH this tobacco must necessarily pass through these ware- houses, subject to such charges as are reasonable and proper, and to say that the proprietors, with such re- lations to the public, can forbid buyers to enter their auction room and deny to any members of the board of trade the right to make purchases is a palpable dis- regard of the duty they owe to the individual patron as well as to the public, and in the absence of any stat- ute, is in violation of the rule of the common law." The idea of location to which necessity compels resort is here strongly stressed. § 51. Stockyards as Public Landings.— In New Jer- sey^" the question was of compelling a stockyards com- pany to receive cattle in its pens. The court said the business "bears a closer resemblance to the business carried on by warehousemen than to any other busi- ness known to the law," the difference being only in the character of the property bailed, but the court thought, that as such a business merely resembled warehousing and there was no statute providing about stockyards, it was going to an unnecessary length to include a new instrument of business, merely by force of analogy, in another statute. It well appears, how- 50 Delaware L. & W. R. Co. v. Central Stockyards & T. Co., 45 N. J. Eq. 50. 94 PEOPERTT AFFECTED WITH PUBLIC INTEREST § 51 ever, that had there been a statute as to such a busi- ness and were its location as in the Munn case, it would have been deemed a public landing for live stock. But this question came before the Federal Supreme Court where a statute for the regulation of public stockyards had been passed." It was said: "The stockyards are situated in one of the gateways of commerce, and so located they furnish important fa- cilities to all seeking transportation of cattle. While not a common carrier, nor engaged in any distinctively public employment, it is doing a work in which the public has an interest, and, therefore, must be consid- ered as subject to governmental regulation." Her© business at a landing place is again made emphatic. In a Texas case,^^ decided in 1880, it was claimed that a; cotton compress was of general public interest, be- cause of the necessities of trade and the Munn case was invoked, but the court refused to apply the prin- ciple, because there was no statute specifically cover- ing the business of compressing cotton, as there was in the Munn case as to warehouses. "The conclusion to be drawn from it (that case) is, as we think, that the legislature may declare a particular business pub- lici juris, if the facts and circumstances under which it is conducted justify and the good of society requires it; but not that the court may so treat it in advance of legislative recognition or declaration." The universal application of this principle is greatly to be doubted, and as the suit at bar was to recover back charges al- 51 Getting V. Kansas City Stockyards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92. 52L,add V. So. Cotton Press Mfg. Co., 53 Tex. 172, 191. See also Oklahoma Gin Co. v. State Okla., 158 Pac. 629. 95 § 52 PEOPEBTY AFFECTED WITH PUBLIC INTEREST leged to be extortionate, but which, were paid volun- tarily, what was said may be regarded as obiter, there being another principle, as expressly held by Oklahoma court which forbade their recovery.^* § 52. Public Rights in Wharves, Docks and Piers.— To build a wharf upon a navigable stream does not, ipso facto make it a public landing place, but "piers or landing places, and even wharves may be private, or they may be in their nature public, although the property may be in an individual owner; or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon pay- ment of a reasonable compensation as wharfage"" And the right to build a wharf is subject always "to the paramount public right of navigation.'"^ This case draws a distinction as to the ruling in the Munn case by saying that: "In that case and in those cited therein the discussion was in regard to the rights of owners of property of the nature described to charge what they pleased for the doing of the business in which they were engaged. Their property was being used with their consent by and its use devoted to the public to any extent desired, and the only question was in regard to the compensation which they were entitled to ask for the business thus done." But a distinction between , a landing place on a navigable B3 Shawnee Gas & Elec. Co. v. State, 35 Okla. 454, 130 Pac. 127. e« Dutton v. Strong, 66 V. S. (1 Block) 23, 17 L. Ed. 29. EeWeems Steamboat Co. v. Peoples Steamboat Co., 214 U. S. 345, 29 Sup. Ct. 661, 53 L. Ed. 1024. 96 PROPERTY AFFECTED WITH PUBLIC INTEREST § 52 stream and a landing place not on a navigable stream is very broad. For the latter to become a public land- ing place for commerce generally, as authorities, supra,^^ show, is whether by particular necessity others are constrained or compelled to use such landing place. For the former there is appeal to the users of a nat- ural highway open to every one to take advantage of what may be not more than a convenience. In a comparatively recent decision" the facts pre- sented a very close case, whether a wharf built by a carrier was merely a convenience for forwarding goods beyond its own line to their terminus, or was a pub- lic wharf. There was every presumption against this being a private wharf, because it was used for trans- portation of goods "in the navigable waters of the Bay of Pensacola in aid of commerce." Justice Peck- ham, speaking for the court, with Justice Harlan dis- senting without opinion, said: "We are of opinion that the wharf was not a public one, but that it was a mere facility, erected by and belonging to defendant and used by it, in connection with that part of its road forming an extension from its regular depot and yards in Pensacola, to the wharf, for the purpose of more conveniently procuring the transportation of goods beyond its own line, and that defendant need not share such facility with the public or with any carriers other than those it chose for the purpose of effecting such further transportation. Neither the public nor the plaintiff had such an interest in the wharf as would give to either the right to demand its use on the pay- ment of reasonable hire." Here it is held that one 58 Sees. 43, 44. 5T Louisville & N. R. Co. v. West Coast Naval Stores Co., 198 U. S. 483, 25 Sup. Ct. 745, 49 L. Ed. 1135. 97 § 52 PEOPEETY AFFECTED WITH PUBLIC INTEREST may erect a private wharf and if he raay do this he raay use it for his own purposes exclusively in resort- ing to navigable waters for individual use as a com- mon right. This case did not go any further than Lord Hale in his treatise De Portibus Moris^' states or even that far. There it is said: "A man for his own private advantage, may in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housel- lage, pesage," but if "there is no other wharf in that port, as it may fall out where a port is newly erected" then "the wharf and crane and other conveniences are affected with a public interest, and they cease to be 'juris privati only."^' A wharf, therefore, on the banks of a navigable stream is prima facie affected with a public interest, and burden of proof is on the owner to show it is not the only wharf in a port and that it has been built and maintained solely for the owner's private advantage. This is precisely on the theory of users of an ordi- nary highway or land. The owner of a vehicle may haul for a particular customer or customers at agreed rates without his becoming a common carrier, and in similitude to the duty upon owners of the sole wharf in a port, a sole carrier for hire on an ordinary high- way might be declared a common carrier. Whether, however, a wharf, pier or other landing place be pub- lic or private it must not be an "obstruction to the paramount right of navigation,""" the right to con- B8 1 Harg. Law Tracts 78. 69 Statement approved in Miinn v. Illinois, 94 U. S. 113, 24 L. Ed. 77. «o Button V. Strong, supra. 98 PEOPEETT AFFECTED WITH PUBLIC INTEREST § 52 struct subject to sucli limitation being from a very early period in colonial times by riparian owners of navigable waters. The mere building of a private wharf, so as to reacb out to the navigable waters of a stream or charge on particular occasions for its use, does not constitute a dedication to public use.*^ This case rejected the contention, however, that because complainant owned or controlled all of the wharves this made them juris puhlici. It was said: "We see no sufficient reason for subjecting a private wharf to the public use, which may frequently include that of a competitor with the owner, simply because there is no other wharf at that place," a declaration not in accord with the view expressed by Lord Hale, which view appears to have been approved in Munn v. Illi- nois, supra. The prima facie presumption of public right in a dock is illustrated in an early New York oase,^'' tried before Chief Judge Kent, who charged a jury in an action on the case against owner of the dock to re- cover the value of a vessel cast loose from the dock and rendered worthless. The Judge said to the jury: "That if the owner of lands adjacent to arms of the sea build a dock for landing purposes, if it be unoc- cupied and if there be no previous prohibition or no- tice to the contrary, the owner of a vessel may attach the same to such dock and let her remain there, pay- ing reasonable wharfage, until he should receive no- tice to remove her, and that the proprietor of the wharf had no right to set her adrift without giving 61 Weems Steamboat Co. v. Peoples S. Co., 214 TJ. S. 345, 29 Sup. Ct. 661, 53 L. Ed. 1024, 16 Ann. Cas. 1222, «2Heaney v. Heaney, 2 Denio 625. 99 § 52 PEOPEETT AFFECTED WITH PUBLIC INTEEEST such notice and allowing a reasonable time for her to be removed." TMs charge was sustained, the Su- preme Court saying: "The keeping of such dock, like keeping an inn, confers a general license to all persons to occupy it for lawful purposes." But a landing on a navigable river though public does not make it a place of deposit of anything, but only of such freight as vessels using the landing usually transport.** But an early New York case"* went further than this and held that, though a wharfinger holds himself out to the public as such, he may by giving notice to a particular individual forbid his en- trance upon his wharf. It was said: "He was under no legal obligation to allow the use of his wharf to every person applying, even if he had suitable accom- modations and a reasonable reward was offered to him. . . . An innkeeper is bound to admit all per- sons who apply peaceably to be admitted as guests, when he has accommodations; and a common carrier is bound to receive and carry all goods offered for transportation, or all passengers which he can con- veniently carry, upon the usual price being paid or tendered ; but this obligation rests upon consideration of public policy applicable to those cases, . . . The cases are numerous, that the principles of public policy referred to do not embrace wharfingers. And no good reason is preceived, why they should be bound to receive on their premises any persons against their will, after reasonable notice." This principle seems to have been later approved by New York Court of 03 Compton v. Hawkins, 90 Ala. 411, 8 So. 75, 24 Am. St. Rep. 823, 9 L. R. A. 387. «* Bogert V. Haight, 20 Barb. 251. 100 PROPERTY AFFECTED WITH PUBLIC INTEREST § 5^ Appeals.*® But it does not seem to be tlie law. Thus in Compton v. Hawkins, supra, it is said: " Wharves or landings may be either private or pub- lic in their nature. If public, the owner is under ob- ligations to concede to others the privilege of landing their goods." Again: "The owner (of a wharf) may have the right to the exclusive enjoyment of the structure (wharf), and to exclude all other persons from its use; or he may be under obligation to con- cede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage."** In a Washington case,*^ the suit was to compel the owner of a wharf to permit its use by plaintiff. Plaintiff had judgment upon the principle in the Munn case. Along with the principle that the building of a wharf or dock or other landing, that it is always sub- ject to the paramount right of navigation, a private wharf is also subject to use by vessels resorting there from necessity or to escape danger.*' Thus it was said by Justice Holroyd that: "It is not by the common law, nor is it by statute, lawful to come with, or land, a ship of customable goods in creeks or havens, or other places out of the ports, unless in cases of danger or necessity." And in New Jersey it has been said: "The better opinion seems to be that by the common law, except in cases of danger or necessity, no one 65 Swords V. Edgar, 59 N. Y. 28, 31. «6 Button V. Strong, 66 V. S. (1 Black.) 32, 17 L. Ed. 32. «7Barrington v. Commercial Dock Co., 15 Wash. 170, 45 Pac 748 33 L. R. A. 116. asBlundell v. Caterall, 5 Barn. & Aid. 268, 7 Eng. Com. L. 91. 101 § 52 PROPERTY AFFECTED WITH PUBLIC INTEREST has a right to land goods upon the private property of another on the shore of a navigable river.^" When danger or necessity brings to vessels plying in water highways a lawful right to use the shore, this implies that there remains a jus publicum which may over- ride private interest therein. 69 O'Neill V. Annett, 27 N. J. L. (3 Dutchen) 291, 72 Am. Dec. 364. 102 CHAPTER XL Calling Affected With a Public Inteebst § 53. Property and calling affected with public interest. 54. Highways by water and those on land. 55. Common carriers affected with a public interest. 56. Same — Nature of holding out. 57. Innkeepers affected with a public interest. 58. Dealers in articles of general necessity. 59. Grist and sawmills of public interest. 60. Insurance affected with public interest. § 53. Property and Calling Affected with Public In- terest. — ^As just seen, the use of private property so sit- uated as to make that use in business draw to it an advantage amounting to a sort of constraint on the general public seeking services there offered or at hand, invests such property with a public interest and makes it cease to be juris privati only. But cer- tain callings, as distinguished from the property em- ployed therein have, under the common law, had at- tached to them the same burden of public interest as the property above referred to. How far this princi- ple has been recognized and applied in American jurisprudence and decision and what it embraces of avocations and pursuits unknown to the times prior to our separation from the Mother Country, it is the purpose of this chapter to treat. In approaching this principle it is well to take into consideration some preliminary matters, so that the application of the principle may the better be apprehended. § 54. Highways by Water and Those on Land.— Highways by water as well as highways on land, may 103 § 54 CALLINGS OF PUBLIC INTEREST be common or public or tbey may be private. But, whether public or private highways by water are such in their natural state, while highways on land are public or private accordingly as dedicated to, or re- served from, common use. Thus as to the former it has been said:^ "By the common law, some streams are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the King's people. Again there are other rivers, as well fresh as salt, that are of com- mon or public use for the carriage of boats and light- ers ; and then, whether they are fresh or salt, whether they flow or reflow or not, are prima facie publici juris, common highways for men or goods or both, from one island town to another. Harg, L. T., ch. Ill, pp. 8, 9. They are, it is said, highways by water, and all things of public safety and convenience, be- ing, in a special manner, under the Bang's care, super- vision and protection." This case is a leading one in American decision and has been cited approvingly by our Federal Supreme Court,^ and by many State courts. But highways on or over land are established by human agency or on presumption of such establish- ment, as say, by prescription.^ It is to be remem- bered, too, that the only right the public has in a high- way over land is not a right in the land itself, but in 1 Enfleld Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Com. 40, 63, 42 Am. Dec. 716. 2 West River Bridge Co. v. Dix, 47 U. S. (6 How.) 507, 12 L. Ed. 535. sBiy V. Parsons, 55 Conn. 83, 10 AO. 499; Clark v. Hull, 184 Mass. 164, 68 N. E. 60; Longworth v. Sedevic, 165 Mo. 221, 65 S. W. 260, et passim. 104 CALLINGS OP PUBLIC INTEREST § 55 an easement thereover. TMs is different, especially as to navigable waters, the surface of which and the soil thereunder belong to the public* Highways over land being established as conveniences do not tend to affect, generally speaking, property bordering there- on with a public use, but property on the shore of a navigable stream when used in connection therewith is a convenience to users of the streams and may make the property partake of a public character. Of call- ings or businesses using public highways are those of common carriers, and these are considered in the section next following: § 55. Common Carriers Affected With a Public In- terest. — There are common carriers by water highways and by land highways and with the signs of progress now at hand there may be in the near future common carriers by subterranean routes, horizontally or per- pendicularly, and by aerial ways. As, however, there exists no essential distinction between carriers by water and those by land, or partly by one and partly by the other, so far as their public character is con- cerned, it may be anticipated, that new forms of loco- motion and new spheres in the rendering of service will partake of the like character. The essence, at common law, of that in which the author is here con- cerned is spoken of ante^ where it is shown there is a jus publicum in one holding himself out as a com- mon carrier and not because he uses a public high- way, whether that be by land or water. Is this princi- ple imbedded in American law? 4 Bird V. Smith, 8 Watts (Pa.) 434, 34 Am. Dec. 483; Sec. 39, ante. ^Sec. 28. 105 § 56 CALLINGS OF PUBLIC INTEREST § 56. Same— Nature of Holding Out. — A holding out as a carrier for liire may be conclusively evi- denced by its being incorporated as such, so that it may be treated as being affected with a public in- terest.* This case, independently of its recognizing the principle in the Munn case as controlling, shows also that the common law as to common carriers be- came part of our law. Thus it states that: "In 1691, during the third year of the reign of William and Mary, Parliament provided for the regulation of the rates of charges by common carriers. This statute remained in force, with some amendments, until 1827, when it was repealed and it has never been re-enacted. No one supposes that the power to restore its pro- visions has been lost. A change of circumstances seemed to render such a regulation no longer neces- sary, and it was abandoned for the time. The power was not surrendered. That remains for future exer- cise when required.'" Mr. Justice Story says: "To bring a person under the description of a com- mon carrier he must exercise it as a public employ- ment ; he must undertake to convey goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation pro hac vice.^ And this is true whether he holds himself out as a com- mon carrier on land,® or by water." These cases pre- « Chicago B. & Q. R. Co. v. Iowa, 94 V. S. 155, 161, 24 L. Ed. 94. 7 See also Winona & St. P. R. Co. v. Blake, 94 TJ. S. 180, 24 L. Ed. 99. 8 Story on Bailments, Sec. 495. See also Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393. 9 Robertson v. Kenedy, 2 Dana (Ky.) 430, 26 Am. Dec. 466; Beck- man V. Shouse, 5 Rawle (Pa.) 179, 28 Am. Dec. 653. wMcClures v. Hammond, 1 Bay (S. C.) 99, 1 Am. Dec. 598; Craig 106 CALLINGS OP PUBLIC INTEREST § 56 f erably have been cited as showing how from the very beginning in our jurisprndence, what is necessary to constitute one a common carrier. That these rulings still hold good it is only necessary to cite one or moro recent cases." A common carrier exercises "a sort of public office and has public duties to perform in which the public is interested,'"^ and this applies as well to carriers of passengers as carriers of goods." Wo might not be much concerned this time about the rea- sons instanced by Lord Holt set forth in Coggs v. Bernard,^* indicating that it was "the policy of the law for the safety of all persons the necessity of whose affairs" compelled resort to those holding themselves out as common carriers, that they should be held to a very stringent liability. It is sufficient, that they are deemed to hold "a sort of public office," as our Supreme Court wells declares and that we per- ceive that from a very early day our common law undertook to regulate their affairs. The theory of a common carrier holding "a sort of public office" and having "public duties to perform in which the publie is interested" seems far more satisfactory than that advanced by a very recent case.^* There the right V. Childress, Peck. (Tenn.) 270, 14 Am. Dec. 751; Turney v. Wilson, 7 Yeager 340, 27 Am. Dec. 515; Williams v. Branson, 1 Murphey (N. C.) 417, 4 Am. Dec. 562. 11 Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 38, 52 N. E. 665, 70 Am. St. Rep. 432; Collier v. Langan & Taylor S. & M. Co., 147 Mo. App. 700, 127 S. W. 435. i2Munn V. Illinois, 94 U. S. 113, 130, 24 L. Ed. 77; New Jersey Steam Nav. Co. v. Merchants Bank, 47 U. S. (6 How.) 344, 382, 12 L. Ed. 465. 13 6a. Cent. R. Co. v. Lippman, 110 Ga. 665, 36 S. E. 202, 50 L. R. A. 673. 14 Sec. 28, ante. 15 Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, P. U. R. 1915 E. 93. 107 § 56 CALLINGS OP PUBLIC INTEREST to compel the owner of a jitney to take out a license was disputed. The Court said: "The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and husiness, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and or- dinary right of a citizen — a common right — a right common to all; while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but as to the latter, its power is broader, the right may be wholly denied, or it may be permitted to some and denied to others because of its extraordinary nature. This dis- tinction, elementary and fundamental in character, is recognized by all the authorities." If this principle is good as to highways on land, it ought to be good as to highways on water. The authorities cited by the opinion do not bear out the text, as they do not show that, if a common carrier observes the same rules of the highway that an ordinary citizen observes, his more constant use becomes "special, unusual and extraordinary. Thus we find text books stating^' that "special or exceptional use of the public highway" cannot be given one except by grant from the sover- eign power, and it is stated that a special and peculiar use is made by hackmen, drivers of express wagons and omnibusses. It does not seem, however, that the owners of these have to be common carriers for their vehicles to be controlled. It is the character of the isMcQuillin Mun. Corp., Sec. 1620; Tiedeman Mun. Corp., Sec 299. 108 CALLINGS OF PUBLIC INTEREST § 56 vehicle and not of the business that is regarded. If an omnibus is used by one in his own business or by one holding himself out as a common carrier, it may be controlled" as an omnibus. The theory that it is the character of the vehicles and not the kind of busi- ness in which it is employed, is well illustrated in a Massachusetts case, where the constitutionality of a statute giving to a city the right to exclude auto- mobiles from certain streets was upheld.^' Infinite are the ways in which the business of a common car- rier is carried on. In some of them the public high- ways, whether by land or water, are used, as for ex- ample, by stage coach, express wagon, ferry or steam- boat, and in others they build their own ways, as for example, railroads and tramways, permission to ac- quire the right to build being obtained by voluntary purchase or by means of eminent domain. This diver- sity in means by a public agency shows that it is not what it may use in the way of a highway, but the man- ner of its being held out, that constitutes the test of its being "a sort of public office." The proprietor of a dray,^' a ferry boat,^" a telegraphic line,^^ and, as seen supra, a railroad may be a common carrier ac- cording to the way he holds himself out and soon may be deemed the owner of an aeroplane, a Zeppelin, a subway or a submarine, holding itself out to carry all packages or passengers. 17 Com. V. Stodder, 2 Cush. 562. 18 Com. V. Kingsbury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513. 19 Arkadelphia Milling Co. v. Smoker Merch. Co., 100 Ark. 37, 139 S. W. 680. 20 Sanders v. Young, 38 Tenn. (1 Head) 219, 73 Am. Dee. 175. 21 Primrose v. W. U. Tel. Co., 154 V. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883. 109 § 57 CALLINGS OF PUBLIC INTEREST § 57. Innkeepers Affected With a Public Interest". — The rule, as to the way a carrier holds himself out determining whether or not he is affected with a pub- lic interest applies, mutatis mutandis, to innkeepers. Like the carrier he subjects his property to the serv- ice of the public. In sec. 32, supra, it was ascertained how the innkeeper stood in England, as the common law regarding this relation was summarized in an early New York case.^^ In a Tennessee case''* inn- keepers are placed among the exceptions to the gen- eral rule, that one "may at his election and without good reason refuse to deal with some other person." It is said this exception is "based upon the public nature" of his business, and being "charged with public duties." In an early (1837) New Hampshire ease^* it was said: "An innkeeper holds out his house as a public place to which travelers may resort, and, of course, surrenders some of the rights which he would otherwise have over it. Holding it out as a place of accommodation for travelers, he cannot pro- hibit persons who come under that character, in a proper manner, and at suitable times, from entering, so long as he has the means of accommodation for them," and "as he is bound to admit travelers, under certain limitations, to admit those who have business with them as such." A still earlier (1815) New York case ^^ held that while entering a dwelling house with- out a license constituted trespass this was not so as to one entering an inn, as there is a general license 22 Grinnell v. Cook, 485, 38 Am. Dec. 663. 28 Crumley v. Watanga Water Co., 99 Tenn. (15 Pick.) 420, 41 S. W. 1058, 63 Am. St. Rep. 841. 24 Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209. 25 Adams v. Freeman, 12 Johns. 408, 7 Am. Dec. 327. 110 CALLINGS OF PUBLIC INTEREST § 57 to all to enter. It has been ruled that if an innkeeper refuses to receive a guest apparently responsible he becomes "liable alike to an indictment and an action by the party aggrieved.'"* From the very beginning in this country, the practice has been to license and regulate inns, there has been given a lien of the goods of the guest to secure the compensation of the inn- keeper,^'^ and he has been held as to the goods of a guest lost at his inn to the extraordinary liability im- posed on common carriers.^^ It was said in Mason v. Thompson, supra, that: "Innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by act of God or the common enemy or neglect or fault of the owner of the property. It is not denied that this is the law of England, but it is said that here the same motives of policy do not exist, the innkeep- ers here being generally trustworthy and men of integrity. If this were true without any exception, it would by no means show that the same favorable state of things would continue under a more lax sys- tem of policy. . . . The law, therefore, rests on the same principle of policy here as it does in England and other countries, and it is wise and reasonable. Innkeepers have peculiar privileges and great facili- ties to abuse their trust, if they are so disposed, and therefore, it is that some peculiar liabilities are im- 28 Watson V. Cross, 2 Duv. (Ky.) 147. 27 Pollock V. Landls, 36 la. 561; Singer Mfg. Co. v. Miller, 52 Minn. 516, 55 N. W. 56, 21 L. R. A. 229, 38 Am. St. Rep. 568. 28 Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471; Shaw V. Berry, 31 Me. 478, 52 Am. Deo. 628; Wlllard v. Relnhardt, 2 E. D. Smith (N. Y.) 148; Cunningham v. Bucky, 42 W. Va. 671, 26 S, E. 442, 35 L. R. A. 850, 57 Am. St. Rep. 878. Ill § 58 CALLINGS OP PUBLIC INTEREST posed upon them in order to prevent, as far as pos- sible, any such abuse." It may be sufficient, however, to show the interest of the public in the calling of innkeepers to quote from Chief Justice Kent, who said: "In New York and throughout the Union, inns and taverns are under statute regulations and their definition and character are contained in the stat- ute.'"" This regulation is from a very early day and continued down to the present reflects the American view to be that of common law times. That inns come under the principle in the Munn case, just as that has been held to include common carriers, may not reasonably be doubted. § 58. Dealers in Articles of General Necessity. — In Munn V. Illinois,*" the Court in speaking of the princi- ple declared by Lord Hale of private property being affected with a public interest said: "In later times, the same principle came under consideration in the Supreme Court of Alabama.*'^ That court was called upon in 1841 to decide whether the power granted to the City of Mobile to regulate the weight and price of bread was unconstitutional and it was contended that 'it would interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate," but the court said: "there is no motive ... for this interference on the part of the legislature with the lawful actions of individ- uals, or the mode in which private property shall be enjoyed, unless such calling affects the public in- terest, or private property is employed in a manner 29 2 Kent Com. 597. 30 94 U. S. 113, 129, 24 L. Ed. 77. 81 Mobile V. Yuille, 3 Ala. (N. S.) 137, 140. 112 CALLINGS OF PUBLIC INTEREST § 58 ■whieh. directly affects the body of the people. Upon this principle, in this State tavern keepers ar© licensed . . . and the county court is required at least once a year to settle the rates of innkeepers. Upon the same principle is founded the control which the legislature has always exercised in the estahlish- ment and regulation of mills, ferries, bridges, turn- pike roads and other kindred subjects." Taking it, that the Munn case approved this statement and there is deduced the conclusion, that whatsoever has been the practice in our early history to consider callings to be affected with a public interest, this is at least persuasive, if not conclusive, interpretation of the common law applicable to our condition. In a very early case (1825), decided in North Carolina,^^ it appears that defendant was proceeded against by a common law indictment for selling un- wholesome meat and his conviction was affirmed. The court said: ''In 4 Black. 162, it is said that it is an offense against public health to sell unwholesome provisions. From this it might be inferred that un- less the public were concerned in the act it was not a public offense; . . . that it is a misdemeanor at common law to give to any person unwholesome food not fit for man to eat lucri causa, or from malice or deceit. ... It seems upon the whole that the public health, whether affected through the medium of unwholesome food, or poisoning the atmosphere or introducing infectious diseases is anxiously guarded by the common law. There ought to be judg- ment for the State." In a Massachusetts case*' it was held that it was not necessary under a statute 32 state V. Smith, 10 N. C. (3 Hawks) 578, 14 Am. Dec. 594. 33 Commonwealth v. Parren, 9 Allen 489. 113 § 58 CALLINGS OF PUBLIC INTEREST making the sale of adulterated milk a misdemeanor, to show that defendant knew the milk to be adulter- ated, the court saying: "It is of the greatest im- portance that the community shall he protected against the frauds now practised so extensively and skillfully in the adulteration of articles of diet by those who deal in them, and if the legislature deem it important that those who sell them shall be held absolutely liable, notwithstanding their ignorance of the adulteration, we can see nothing unreasonable in throwing this back upon them.'"* And the legisla- ture may fix a standard for milk as taken from cows, whether a foreign substance has been added to what has been drawn from a cow or not,^' The same peril is in the sale of adulterated milk — ^want of knowledge of adulteration not excusing — ^has been held as to the slaughter for sale of a calf less than four weeks old, as forbidden by a statute.^® And so as to the sale of oleomargarine.^^ From the very earliest times in this country there have been statutory regulation of markets and the sale of food therein or intended to be sold therein. Thus there was a by-law of the District of Columbia passed in 1802,^^ prohibiting buying food during market hours for the purpose of reselling in the market or elsewhere in the city. But 3* This case affirmed in Commonwealth v. Waite, 11 Allen 264, 87 Am. Dec. 711. 35 State V. Smyth, 14 R. I. 100, 51 Am. Rep. 344; State v. Newton, 45 N. J. L. 463. 38 Commonwealth v. Raymond, 97 Mass. 567. 37 State V. Smith, 10 R. I. 258; Commonwealth v. Gray, 150 Mass 327, 23 N. E. 47. 38 Botelor v. Washington, 2 Craneh C. C. 676, Fed. Gas. 1685. 114 CALLINGS OF PUBLIC INTEREST § 59 wlietlier food be offered in a market as sucli or by- dealers elsewhere its sale or keeping for sale is gen- erally under statutory regulation and these statutes have been interpreted as following the common law.*' While in this country the power to establish and regu- late markets seem well settled, yet there is a division of opinion as to whether the grant of such power, standing alone, carries with it the right to prohibit the sale of articles elsewhere. This question, however, remotely if at all relates to what we have in mind at this place. § 59. Grist and Sawmills of Public Interest. — ^From the very earliest days in America there have ap- peared statutes similar to much older English stat- utes for the upholding and regulating of mills. For example, as said in a Connecticut case,*" in answer to a contention that taking land for a millpond was not a public purpose : "Upon this point we can enter- tain no doubt. From the first settlement of the coun- try, grist mills of this description have been in some sense peculiar institutions invested with a general in- terest. Towns have procured them to be established and maintained. The State has regulated their tolls. In many instances they have been not merely a con- venience, but almost a necessity in the community." The United States Supreme Court*^ said: "The stat- ute of Kansas upon the subject of grist mills is based upon the idea, and, indeed, upon the declaration that all grist mills are public institutions. . . . Under 3» state V. Buckner, 8 N. H. 203, 29 Am. Dec. 646; State v. Sny- der, 44 Mo. App. 429. onable rate." This was held insufficient authority to fix maxi- mum rates on all commodities : "This language is not apt by which to confer power to establish schedule of rates applicable in all cases to all commodities and on all roads." And yet it necessarily may be thought, that it is plainly unfair to say the commission should i2.Siler T. L. & N. R. R. Co., 213 U. S..175, 29 Sup. Ct. 451, 53 L. Ed. 753. 13 Interstate Com. Com. v. Cin. N. O. & T. P. Ry., supra. 408 STATUTES CREATING COMMISSIONS § 172 be confined in its view to tlie rate on a particular com- modity, and that the general schedule of charges should not be looked at. This restricted method of view would seem not able to avoid preferences and discriminations. Indeed, it might be impossible for adequate considera- tion of any complaint or of any particular rate. But it would appear, that had the commission have acted on a complaint as to a particular rate as this statute pro- vided, its finding and order would be sustained, as "the rate-making power necessarily implies a range of legis- lative discretion; and so long as the legislative action is within its proper sphere, the courts are not entitled to interpose and upon their own investigation of traffic conditions and transportation problems to substantiate their judgment with respect to the reasonableness of rates for that of the legislature or of the railroad com- mission exercising its delegated power."" For other cases showing denial of commission's authority to ex- ercise jurisdiction see those cited at the end of the next preceding section. Where the constitution provided that a commission: has legislative, executive, administrative and judicial powers courts will distinguish their exercise according to the nature of the act performed.^^ It is a question of law for a commission to claim jur- isdiction as regards a subject or question, where the highest court in the state has held it can exercise no jurisdiction.^® 14 L. & N. R. R. Co. V. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. 229. 15 Oklahoma Gin Co. v. State (Okla.), 158 Pac. 629; St. Louis & S. P. R. Co. V. Williams, 25 Okla. 662, 107 Pac. 428. 16 People T. Peoria & P. U. Ry. Co., 273 111. 440, 113 N. E. 68. 409 CHAPTER XXXV. Commissions as Special Teebtjnals § 173. All questions of law jurisdictional. 174. Commission with legislative, judicial, executive powers. 175. Test necessary to demonstrate unconstitutionality. 176. Exercise of jurisdiction by a commission. § 173. All Questions of Law Jurisdictional. — There are questions of law in procedure by commis- sions, as for example, that fair notice has not been given, or that a particular power has not been con- ferred, or that the statute conferring the power is un- constitutional, or that it has been misinterpreted, or that the regulation does not permit the railroad or other public utility earning fair compensation or that orders of a commission are arbitrary or not within reasonable discretion. We have seen that when a com- mission acts within its powers there is to be accorded to its findings, rulings and orders a prima facie pre- sumption of correctness the same as where the Con- gress or legislature acts directly.^ The Grand Trunk case is an excellent illustration of orders by a commis- sion operating on prior contracts just as a statute would, when rights acquired by contract are subject to the police power or regulatory methods in their modi- fication or abolition. Thus the Indiana commission made an order for the installation and use of an inter- locking plant at a railroad crossing and apportioning the expense of compliance therewith. There was a contract whereby the expense of guarding the crossing 1 Grand Trunk Ry. Co. v. Indiana R. R. Com., 221 TJ. S. 400, 403, 31 Sup. Ct. 537, 55 L. Ed. 786; Prentis v. Atlantic C. L. Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150; Knoxville v. Knoxville Water Co., 212 U. S. 1, 29 Sup. Ct. 14. 53 L. Ed. 371, 410 COMMISSIONS AS SPECIAL TRIBUNALS § 174 in a certain way was to be borne by a certain otber railroad, but it did not include all of tbe ways for guarding that the commission's order called for. The court adds: "But to avoid any misapprehension that might otherwise arise, we deem it well to observe that we do not, by what is here said, suggest or imply that the contract, if its terms were broad enough to include the expense in question, would be an obstacle to the apportionment of that expense under the statute, cit- ing cases referred to in note here appended/ ^ 174. Commission With Legislative, Judicial, Ex- ecutive Powers. — In the Prentis case, supra, which re- lated to a constitutional provision the constitution of Virginia defining the powers of the State Corporation Commission, and construed by the courts of that state as vesting it with those that are legislative, judicial and executive,^ Justice Holmes said: "We shall assume that when, as here, a state constitution sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder so far as the constitution of the United States is concerned." It before was said that:* "A local statute investing a collection of powers not of the judicial department, with powers that are judicial and authorizing them to exercise the pardoning power, which alone belongs to the governor of the state, pre- sents no question under the constitution of the United 2 Chicago, B. & Q. R. R. Co. v. Nebraska, 170 IT. S. 57, 71, 8 Sup. Ct. 513, 42 L. Ed. 948; N. Y. & E. R. R. Co. v. Bristol, 151 U. S. 556, 567, 14 Sup. Ct. 437, 38 L. Ed. 269. 3 Norfolk & P. B. R. Co. v. Commonwealth, 103 Va. 289, 49 S. E. 39; Atlantic C. L. Co. v. Commonwealth, 102 Va. 599, 46 S. E. 911. *Dreyer v. Illinois, 187 U. S. 71, 23 Sup. Ct. 28, 47 L. Ed. 79. See also Satterlee v. Matthewson, 2 Pet. 380, 7 L. Ed. 458; Lieber- mann v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305. 411 I 175 COMMISSIONS AS SPECIAL TRIBUNALS States." The Prentis case goes on to say tliat that court would assume without deciding that, if the com- mission was proceeding to enforce one of its orders and punish for its breach, it would be acting as a court, and would be protected from interference by the court of the United States. As to the action excepted to, however, in that case the commission was acting in a legislative way. "A judicial inquiry investigates, de- clares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing condi- tions by noting a new rule to be applied thereafter to all or some part of those subject to its power. The es- tablishment of a rate is the making of a rule for the future and therefore is an act legislative and judicial in its kind as seems to be fuUy recognized by (Vir- ginia) Supreme Court of Appeals.® § 175. Test Necessary to Demonstrate Unconstitu- tionality. — The theory that a regulation is a legislative act looking only to the future appears not to have been regarded by two of the dissentients in the Eight-Hour Day decision.® Thus Justice Pitney said : ' ' Congress, although confessedly not in possession of the informa- tion necessary for intelligent and just treatment of the pending controversy" provides for an investigation into the justice of experimental legislation. Of course 5 Com. V. Atlantic C. L. Co., 106 Va. 61, 55 S. E. 572; Winchester & S. R. R. Co. T. Com., 106 Va. 264, 55 S. B. 692. See also Interstate Com. Com. v. Cin. N. O. & T. P. Ry. Co., 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243; San Diego L. & T. Co. v. Jasper, 189 U. S. 439, 23 Sup. Ct. 571, 47 L. Ed. 892; Oklahoma Gin Co. v. State (Okla.), 158 Pac. 629. 6 Wilson V. New, (U. S.), 37 Sup. Ct. 298, 61 L. Ed. — . 412 COMMISSIONS AS SPECIiL TRIBUNALS § 175 if this were sound it would apply to any legislative order by a commission confessedly experimental. If, however, legislation is the making of a new rule for the future, the act of legislation has in it the quality of a prophecy, that the rule will be a just rule, and the suggestion carries the thought, that when it is pro- posed as to a property with a guaranty, that its consti- tutional right to earn a fair compensation be regarded such legislation is differently based. This view seems not to have been recognized in deci- sion. Thus in the Minnesota Rate Cases,' we find the court saying that the burden to show confiscatory rates had not been borne, but matters were left in such a doubtful situation, that experience in the future should be appealed to demonstrate whether the rates really were confiscatory. In a still later case* the court dis- cusses the practice of deciding rate cases "without pre- judice ' ' to apply for relief in regard to a decree which looks forward to the future and "providing for condi- tions which might then arise." On its face, then, no rate could be determined to be intrinsically confiscatory. It works out in a doubtful way and only in the light of experience to be had can it be judged. Therefore, every rate must be deemed compensatory until experience thereunder demon- strates to a moral certainty that it cannot be compen- satory. To declare it confiscatory is for a court to take into consideration future prospects, and not alone past tests. This is illustrated again by Justice Moody in a case where the question was as to enforcing a city ordinance 7 230 IT. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511. 8 Missouri v. Chicago, B. Q. R. Co., 241 U. S. 533, 36 Sup. Ct. 715, 60 L. Ed. 1150. 413 § 175 COMMISSIONS AS SPECIAL TRIBUNALS fixing a water rate.® There the Justice spoke of the ordinance as "an exercise of legislative power," and said that to deny its enforcement, "its constitutional invalidity should be manifest." After much discus- sion about valuation and earning capacity there ap- pears the following significant statement: "The case is peculiar. The company has never observed the ordinance. The suit was begun nine months after its enactment and tried considerably later. In the mean- time the company's gross income had largely in- creased. But the decision in the court below was based solely on the operations of the fiscal year ending March 31, 1901, ' ' the ordinance having been enacted on March 30, 1901. This method was held erroneous because "the precise subject of inquiry was what would be the effect of the ordinance in the future. The operations of the preceding fiscal year or of any other past fiscal year, were valueless if the year was abnormal, and were only of significance so far as they foretold the future. If, as in this case, suflScient time was passed, so that certainty instead of prophecy can be obtained, the cer- tainty would be preferable to the prophecy. In this case there could be no absolute certainty, because the ordinance had never been put into operation." Then it is remarked, that evidence as to later years is relevant, because that affords a greater degree of cer- tainty. As that evidence was excluded the decree find- ing that the rate was confiscatory was reversed. If the necessary conclusion from this language is not, that an order fixing rates is purely one of prophecy and not of experience, it is difficult to say what it is, a Knoxville v. Knoxville Water Co., 211 U. S. 1, 29 Sup. Ct. 6, 53 L. Ed. 65. 414 COMMISSIONS AS SPECUL TRIBUNALS § 175 and as prophecy it may only be overturned by testing it reasonably. In the next case,*" in the same volume Justice Peck- ham, citing the Knoxville case, said: "The case must be a clear one before the courts ought to be asked to interfere with state legislation upon the subject of rates, especially before there has been any actual ex- perience of the practical result of such rates.^^ On this case the rates have not been enforced as yet, be- cause the bill herein was filed and an injunction ob- tained restraining their enforcement before they came into actual operation." In Des Moines Gas Co. v. Des Moines,*^ the actual ex- perience theory is recognized because it was said: "Ordinarily time alone can satisfactorily demonstrate in a case like this whether or not the rates established will prove so unremunerative as to be confiscatory in the sense in which that term has been defined in rate- making cases." In a telephone rates case*^ Justice Holmes refused to declare an ordinance unconstitutional, because it was "considered how speculative every figure is that we have set down with delusive exactness," The court was "of opinion that the result is too near the dividing line not to make actual experiment necessary." It easily may be conceived that other regulations, as for example the supplying of facilities, showing ex- pense of a railroad crossing, as in the Grand Trunk case, supra, look as much to the future as a rate making 10 Wilcox V. Consol. Gas Co., 212 U. S. 19, 29 Sup. Ct. 192, 53 L. Ed. 382. 11 Italics by this author. 12 238 U. S. 153, 35 Sup. Ct. 811, 59 L. Ed. 1244. 13 Louisville v. Cumberland T. & T. Co., 225 U. S. 430, 32 Sup. Ct. 753, 56 L. Ed. 1151. 415 § 176 COMMISSIONS AS SPECIAL TRIBUNALS regulation and presumptively are constitutional, until demonstration proves the contrary. In a gas company case" it was said: "A just and reasonable rate is necessarily rather a question of busi- ness judgment than one of legal formula, and must often be tentative, since the exact result cannot be fore- told. Like so many questions in the law that involve the reasonableness of conduct, it is a question of fact to be settled by the good sense of the tribunal it may come before." § 176. Exercise of Jurisdiction by a Commission. — To say that a commission is a tribunal of conferred powers is to say also that if it transcends those powers it acts without jurisdiction. It is a truism to declare that it is not the sole judge of when it so transcends. Thus an Illinois case" shows review by the Supreme Court of its jurisdiction from several points of view. First it was complained, that notice was not served upon all interested parties; that the order made was not in the form required by law; that it violated due process of law, and that the proceedings in which the order was made did not give all interested parties op- portunity to be heard. In this case the order made by the commission was sustained, but the course of discussion pursued by the court shows the questions raised were all entertained, but all adversely ruled against the railroad. Thus it was conceded that no presumption was to be indulged that the tribunal acted within its powers, but 14 Pub. Serv. Gas Co. v. Public Utility Board, 84 N. J. L. 463, 87 All. 651. 15 Chicago, M. & St. P. R. Co. v. State, 267 111. 544, 108 N. E. 737, P. U. R. 1915 D 141. 416 COMMISSIONS AS SPECIAL TRIBUNALS § 176 its proceedings must affirmatively show it did." But as it appeared that this railroad had been given due notice it had no right to urge that other so-called in- terested parties had not been notified, unless such omission injuriously affected its rights.^'' The order was made upon this railroad and under service upon it and just as the notice on it was sufficient for action, so far as said persons were concerned, its making was within jurisdictional power. As to observance of due process of law the ruling was defended under decision by U. S. Supreme Court,^* where the same claim of taking property without due process of law was determined adversely to the rail- road. In the Grand Trunk case the order of the com- mission was that railroad companies entering Detroit should receive cars from another at junction points or where there was physical connection.^® But the rule that jurisdiction is not a matter of consent is distin- guished in the Illinois case, just above referred to, by showing that a proceeding to take hold at all cannot be by consent, but where it takes hold incidental omis- sions may be waived. Thus as to changes made in reciprocal rates under a certain tariff, it was said: "Appellant knew then (when notified) as well as it knows now, that if any change was to be made in the switching rates established by the Lowery (speed) tariff, all other railroads having switching connections with it would be affected by such changes in rates and 16 Payson v. People, 175 111. 267, 51 N. E. 588. 17 Chicago V. Gilsdorff, 258 111. 212, 101 N. E. 546. 18 Grand Trunk B. Co. v. Michigan R. Co., 231 U. S. 457, 34 Sup. Ct. 152, 58 L. Ed. 310. 19 See also Wis. M. & P. R. Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. 115, 45 L. Ed. 194; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 22 Sup. Ct. 900, 46 L. Ed. 1151. 417 § 176' COMMISSIONS AS SPECIAL TRIBUNALS were necessary parties to the proceedings. Appellant did not ask to have them made parties, but proceeded with the hearing to its final adjudication without com- plaint." Also it is a proper question for judicial review where a commission has ordered a railroad to establish a railway station,^" The question in this class of cases has come up for review in the courts, some of the cases proceeding on the theory, that unconstitutionality of the order depended on whether the cost was a justifi- able imposition on a railroad as being or not a rea- sonably necessary facility. This question is quite well cleared up by a very recent decision,^* which declares, in effect, that a commission does not have to take into consideration alone the cost of such an equipment, but its judgment fairly may be exercised, whether it rea- sonably may be demanded as an adequate facility de- mandable by the public." Abundance of other cases might be cited along this line, but to save duplication of authority, it is con- sidered preferable to instance the kind of procedure in which rightfulness of action by a commission is chal- lenged by a public service corporation or asserted by commission and the assistance of courts is invoked. 20 Chicago, R. I. & P. R. Co. v. Nebraska S. R. Com., 85 Neb. 818, 124 N. W. 477, 26 L. R. A. (N. S.) 444; Mobile & O. R. Co. v. People, 132 111. 559, 24 N. E. 643, 22 Am. St. Rep. 556; Morgans L. & T. R. & S. S. Co. V. Railroad Com., 109 La. 247, 33 So. 214. 21 Chesapeake & O. R. Co. v. Pub. Ser. Com. (West Virginia), 242 U, S. 603, 37 Sup. Ct. 234, 61 L. Ed. — . 22 See also Atlantic C. L. R. Co. v. North Carolina Corp. Com., 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933, 11 Ann. Cas. 398; Mia- Bourl P. R. Co. V. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472; Washington ex rel. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535, 56 L. Ed. 863; Chicago, B. & Q. R. Co. v. Railroad Com., 237 U. S. 220, 35 Sup. Ct. 560, 59 L. Ed. 926, P. U, R. 1915 C 309. 418 CHAPTER XXXVI. Remedies fob and Agaiksx Okdbbs by Commissions § 177. Acts within conferred powers. 178. Mandamus by commission to enforce order. 179. Mandamus against a commission. 180. Injunction against commission. >§ 177. Acts Within Conferred Powers. — It lias been held^ that a legislature or a commission has the power to make a rate or rule that is not obliged to be based on past experience, and it amounts, therefore, to a mere prophecy that it will work out fairly and reasonably. The conclusion follows, necessarily, that a legislative act, or whatever a commission, acting by virtue of a conferred power, prescribes as a regu- lation, has the force of law until shown to violate some overriding law. This seems evident as to everything apparently within constitutional or conferred power. How stands the matter, however, when an order or regulation is, on its face, not within a commission's power? Does it have to be objected to or challenged, or may it be ignored by a public service company? In speaking of the powers of the Interstate Commerce Commission, the United States Supreme Court said:^ "It has been settled that the orders of the commission are final unless (1) beyond the power which it could constitutionally exercise; or (2) beyond its statutory power; or (3) based upon a mistake of law." Then iSec. 172, supra. 2 Interstate Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. Ed. 308. 419 § 177 REMEDIES FOE AND AGAINST ORDERS BY COMMISSIONS there are referred to mixed questions of law and fact, as to which it is said that: "The findings of the com- mission are made by law prima facie true, and this court has ascribed to them the strength due to the judg- ments of a tribunal appointed by law and informed by experience," for which see case cited.^ By the rule expressio unius, exclusio alterius the prima facie rule goes no further. It is conceivable, for example, that, if a state railroad commission were to make an order which overstepped the control it exercised as to intra- state traffic and invaded that which was in the control of Congress, carriers engaged in interstate commerce might pay no heed to it — ^indeed it might be unlawful for them to do otherwise. Is it the same, however, in a case where there merely is question of the existence of conferred statutory power? Is there not color of jurisdiction in a commission assuming to act? And may a public service company waive question of legal- ity and third persons, members of the public, be bound by such waiver, if a statute could have conferred the power? Be these queries answered as they may it is certain at least that, where a commission applies to a court to enforce its orders their legality will be in- quired into, whether from the standpoint of prima facie validity or otherwise. It has been held, that the enforcement of a void order by a railroad commission may be enjoined, though there was failure to seek relief from it in the regular way.* If this is true as to a court a fortiori should it be deemed true as to a special tribunal. 8 Illinois Central R. Co. v. Inters. Com. Com., 206 U. S. 441, 27 Sup. Ct. 700, 51 L. Ed. 1128. * Southern Ind. R. Co. v. Railroad Com., 172 Ind. 113, 87 N. E. 166. 420 REMEDIES FOR AND AGAINST ORDERS BY COMMISSIONS § 178 § 178. Madamus by Commission to Enforce Order. — By Interstate Commerce Act a court may be applied to by Interstate Commerce Commission for a man- damus to compel railroads engaged in interstate com- merce to submit inquiries by the commission regarding such business. Its power has been held not unlimited." In this case there was an order by the Circuit Court, obtained by mandamus, applied for by the commission, that Harriman and Kahn answer certain questions put during an investigation by the commission. Justice Holmes said the commission's power to require testi- mony is limited to the obtaining of information and data that may be considered of value in the determina- tion of questions connected with the regulation of com- merce, and the questions asked were held not to come within such limitation. And it was ruled that this pro- vision, in its general language, does not include confi- dential correspondence of a railroad company between itself and its counsel.* As to a state commission, it was held, that validity of an order may be questioned in mandamus for its enforcement against a company which had taken no steps to install a connection between two telephone companies.' This case cited authority to the effect that, if an order is void and there was failure to appeal from it so as to obtain a review, yet the company af- fected is not deprived of the right to defend, when the order is attempted to be enforced, in a court of equity.* 5 Harriman v. Inters. Com. Com., 211 U. S. 407, 29 Sup. Ct. 115, 53 L. Ed. 253. See note 41, end of this chapter. 6 United States ex rel. v. Louisville & N. R. Co., 236 U. S. 318, 35 Sup. Ct. 363, 59 L. Ed. 598, P. U. R. 1915 B 247. 7 Public Service Com. v. Skagit River Tel. & Tel. Co., 85 Wash. 29, 147 Pac. 885, P. U. R. 1915 C 902. 8 Southern Indiana R. Co. v. Railroad Com., supra. 421 S 178 REMEDIES FOE AND AGAINST ORDERS BY COMMISSIONS Where a railroad company was operating under a franchise, and doing what it was contemplated it should do, mandamus by a commission may be applied for and granted, notwithstanding it suffers loss from com- plying with a duty lawfully required,® But for a com- mission to institute a proceeding by mandamus it must be specially authorized, as such a writ is of preroga- tive character and can be brought only by a party in interest." And it is necessary for a commission to be entitled to mandamus, that there be a clear right thereto." Thus, in this case, where the evidence showed that the order sought by mandamus to be enforced was indisputably contrary to evidence it loses the pre- sumption of prima facie reasonableness and, thus, the status of a lawful demand. If there is a plain, adequate and complete remedy at law otherwise, mandamus will not be granted.^^ Manadmus has been held not an appropriate remedy by a commission to compel the performance of a con- tinuing duty," because: "The proper function of the writ of mandamus is to compel the doing of a specific « Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472; Chesapeake & O. R. Co. v. Pub. Service Com., 242 U. S. 603, 37 Sup. Ct. 234, 61 L. Ed. — ; Rowland t. Railroad Co., 119 Ark. 239, 177 S. W. 896, P. U. R. 1915 E 191; Oklahoma City v. Oklahoma R. Co., 20 Okla. 1, 93 Pac. 48, 16 L. R. A. (N. S.) 651. 10 State ex rel. v. Vandalia R. Co., 183 Ind. 49, 108 N. E. 47, P. U. R. 1915 B 981. 11 State ex rel. Commission v. Florida E. C. R. Co., 69 Fla. 165, 67 So. 906, P. U. R. 1915 C 207. 12 Oklahoma Nat. Gas Oo. v. State ex ret West (Okla,), 150 Pac. 475, P. U. R. 1915 F 731. 13 New York Pub. Ser. Com. v. Interborough R. T. Co., 158 N. Y. Supp. 480 (App. Div.), P. U. R. 1916 E 343; S. C. affirmed 219 N. Y. 355. 114 N. E. 387, P. U. R. 1917 B 323. 422 EEMEDIES FOR AND AGAINST ORDERS BY COMMISSIONS § 178 thing based upon a legal right."" Nor where it is not in the power of defendant to perform the act sought to be enf orced.^^ If a commission is vested with power to initiate a proceeding on its motion or upon petition of a certain number of persons, the failure of requisite number of signers does not prevent action by the com- mission of its own motion.^* Where there is vested in a commission the machinery for an investigation into all questions affecting the character and sufficiency of service to be rendered by a public service company, it is premature for it to apply for mandamus, until it has exhausted its power and there has been refusal of the company to comply." It has been held that in a mandamus proceeding the court may inquire into rates as being or not confisca- tory, and if the court so finds mandamus by the com^ mission will be denied.^* This ruling is greatly to be doubted. The right of a public service commission to man- damus so as to enforce legal duties or to prevent viola- tions of its order, as conferred by statute, is in no way affected by the right of the Attorney General to begin proceedings for forfeiture by an offending public util- ity. '^^ Where statute authorizes commission to order 14 People ex ret. v. Interurban St. R. Co., 177 N. Y. 296, 69 N. E. 596. 15 People ex rel. Dwight v. Chicago R. Co., 270 111. 278, 110 N. E3. 394. 16 Ue Milwaukee B. Ry. & L. Co., (Wis. R. Com.), p. U. E. 1915 E 113. 17 State, ex rel. Coster v. Flannelly, 97 Kan. 833, 154 Pac. 235, . U. R. 1916 C 56. 18 State ex rel. Coster v. Independence Gas Co., 96 Kan. 372, 152 Pac. 22, P. U. R. 1916 C 810. 19 Public Service Co. v. Richmond L. & R. Co., 163 N. Y. Supp. 64; see also City of New York v. Bryan, 196 N. Y. 158, 89 N. E. 467. 423 § 179 EEMEDIES FOE AND AGAINST ORDERS BY COMMISSIONS a service to be rendered, it may have mandamus for its order to be complied witb.^" § 179. Mandamus Against a Commission. — ^When a ministerial duty is to be performed by a commission, as for example that it is its duty to hear and determine the facts upon a question within its jurisdiction, man- damus may be applied for to compel it to act. Thus, the statute of Indiana gives to a public utility the right to apply to the Public Service Commission for author- ity to issue and sell bonds. It was said: "The act re- quired is ministerial and not discretionary. To hold that such act is discretionary would enable the commis- sion, after the facts were determined, to grant.the cer- tificate of authority or to withhold it at its will, or to grant such a certificate to one pub- lic utility and withhold it from another under the same state of facts. Such is not the purpose of the statute. A duty is none the less minis- terial because the person who is required to perform it may have to satisfy himself of the existence of a state of facts under which he is given his right or war- rant to perform the required duty. ' '" If this language means that the judgment of the commission may be reviewed and the court's judgment be substituted for the commission's, the statement is right or wrong ac- cording to the commission statute of Indiana. As the court, also, says there is no remedy given by appeal from the action by the commission in such a matter, 20 state ex rel. State Ry. Com. v. Missouri Pac. R. Co., (Neb.), 161 N. W. 270. 21 Public Service Com. v. State, ex rel., 184 Ind. 273, 111 N. E 10, P. U. R. 1916 C 42. 424 BEMEDIES FOR AND AGAINST OBDERS BY COMMISSIONS § 179 there is deduced the conclusion that the court's judg- ment may be substituted for that of the commission. So far as Interstate Commerce Commission is con- cerned it has been ruled that mandamus will not lie to review what lies in the fair and reasonable exercise of authority under the Hepburn Act, see 20,^'' which concerns reports by commissions and what shall be em- braced therein of information to be supplied railroads. The court, after considering regulations prescribed by the commission for exercising a conferred power as being "so unreasonable and arbitrary as to constitute an abuse rather than exercise of the powers conferred by 20, and consequently that they ought to be set aside by judicial action," as being within the power con- ferred, the court said: "But did we agree with appel- lant that the abandonments ought to be charged to surplus or profit and loss rather than to operating ex- penses, we still should not deem this a sufficient ground to declare that the commission had abused its power. So long as it acts fairly and reasonably within the grant of power constitutionally conferred by Congress, its own orders are not open to judicial review." This is on the familiar principle that mandamus can never be invoked to control discretion. Of course if an order is broader, as matter of law, than is within con- ferred power to grant, mandamus should be allowed and a petition for mandamus should not be allowed, where a petition asks for relief in broader terms than allowed by law to be granted.^* Justice Miller of the United States Supreme Court, 22 Kansas City So. Ry. Co. v. United States, 231 U. S. 423, 34 Sup. Ct. 125, 58 L. Ed. 296. 23 United States v. Louisville & N. R. Co., 236 U. S. 318, 35 Sup. Ct. 363, 59 L. Ed. 598. 425 § 180 REMEDIES FOE AND AGAINST ORDERS BY COMMISSIONS has said:^* "Mandamus is essentially and exclusively a common law remedy and is unknown to the equity practice. But if this were otherwise it is the well set- tled doctrine of this court that the circuit courts cannot use this writ of mandamus as an original and independent remedy, but are limited to its use as a process in the enforcement of rights when jurisdiction has already been acquired for other purposes." In other words, it will control inferior bodies or tribunals so far as to compel action, when there is arbitrary re- fusal to keep within well-defined limits, but not to sub- stitute the judgment of one jurisdiction for that of an- other in the exercise of discretion. § 180. Injunction Against Commission. — Since a rule, regulation or order of a commission is presump- tively lawful, courts have become increasingly cautious against arresting its enforcement. Thus, Sanborn, Circuit Judge, said : "It has frequently been the prac- tice of the courts when one came to it to ask such equitable relief as is here sought (complaint against alleged confiscatory rate) to require as a condition to listening to the application, that the rates fixed by the commission should be first tested, and then the matter should be determined as to whether or not they were confiscatory." But injunction in a Federal court is not necessarily excluded by the fact that a state statute affords a remedy by mandamus, as that may not be as complete and adequate as may be granted by a court of equity. ^^ The practice thus referred to was followed 2*Hein v. Levee Com'rs, 86 U. S. (19 Wall.) 655, 22 L. Ed. 223. 25Landon v. Pub. U. Com., 234 Fed. 162, P. U. R. 1917 A 120; see also Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 35 Sup. Ct. 811, 59 L. Ed. 1244, P. U. R. 1915 D 577. 426 REMEDIES FOR AND AGAINST ORDERS BY COMMISSIONS § 180 lately by another Federal court,^® it being said : "There is a presumption that the challenged act of the Michi- gan legislature is constitutional. These considera- tions . . . forbid the issue of the temporary writ, unless it is made reasonably clear that, upon the record as it stands, plaintiff is entitled to the relief sought." Indeed, by a provision of Louisiana constitution it is provided, that every order fixing rates for passengers or freight made by the state commission shall remain in effect until set aside by the commission or final judg- ment of a court of competent jurisdiction."" This state holds also to the doctrine that if officers of a state are invested with discretionary duties, and other ade- quate process may be invoked against them, this ex- cludes injunction,^* a doctrine impliedly admitted by Circuit Judge Sanborn, swpra.^^ But the issuance of an injunction against a commis- sion is a matter of wise discretion. As, for example, where an order is for physical connection between rail- roads, temporary injunction was held proper, because, if final relief were extended, a grave injury would have been suffered.^" And if the case is of great importance to a city and public utility, arrangements will be made for its early disposition where injunction has been de- 26 Ann Arbor R. Co. v. FeUows, 236 Fed. 387, P. U. R. 1917 B 523. 27McAdams v. Wells Fargo & Co. Express, 139 La. 681, 71 So. 945, P. U. R. 1916 E 464. 28 Kansas City S. R. Co. v. Railroad Commission, 106 La. 583, 30 So. 131. 29 See also High on Injunctions, 3rd Ed. p. -035; see also Rail- road Co. V. City of Englewood, Col., 161 Pac. 151, P. U. R. 1916 E 134. 30 Seaboard A. L. R. Co. v. Hampton, 103 S. C. 455, 88 S. E. 5, P. U. R. 1916 E 349. 427 § 180 REMEDIES FOE AND AGAINST ORDERS BY COMMISSIONS nied.^^ Where the very validity of a regulation is as- sailed and its enforcement will be destructive of prop- erty rights, injunction is properly granted until final hearing/^ If an injunction is applied for to arrest the enforce- ment of an order fixing rates and plaintiff has not ex- hausted his remedy before a commission, it will be de- nied.^* An averment merely that a rate is discrimina- tory presents no reason for an injunction for not every discrimination is unlawful.^* Nor will a court by in- junction fix a rate.^^ It has been said also that for practical reasons courts will not enjoin at the instanc© of consumers a public service corporation from put- ting into effect a schedule of rates fixed by a commis- sion.^^ Nor will they anticipate the action of such a body by enjoining a rate and staying an order's ef- fect.^' Where there is an abuse of power in an order compelling operation of trains, injunction is properly granted.^^ Where temporary injunction has been is- sued restraining the enforcement of rates fixed by 31 Trenton & M. Traction Co. v. Utility Com'rs of N. J., 229 Fed. 140, 143 C. C. A. 416, P. U. R. 1916 C. 599. 32 Auto Transit Co. v. City of Ft. Worth, (Tex. Civ. App.), 182 S. W. 685, P. U. R. 1916 C 565. 33 Palermo Land & W. Co. v. Railroad Com. of California, 227 Fed. 437, P. U. R. 1916 B 437. 34 Pennsylvania R. Co. v. Towers, 126 Md. 59, 94 Atl. 330, P. U. R. 1915 D 398. 35 St. Paul B. & S. Co. V. St. Paul G. L. Co., 130 Minn. 71, 153 N. W. 262, P. U. R. 1915 D 474; Union Pac. R. Co. v. Pub. Ser. Com., 95 Kan. 604, 148 Pac. 667, P. U. R. 1915 D 377. 36 St. Paul B. & S. Co. V. St. Paul G. L. Co., supra. 37 State ex rel., v. B. & O. Ry. Co., 76 W. Va. 399, 85 S. E. 714, P. U. R. 1915 D 558. 38 Rowland v. Saline River R. Co., 119 Ark. 239, 177 S. W. 896, P. U. R. 1915 E. 191. 428 REMEDIES FOR AND AGAINST ORDERS BY COMMISSIONS § 180 statute or commission, its effect is to suspend their op- eration until the termination of the litigation.'" And where a statute imposes penalties, those which accrue while the question of the validity of the rates is being determined, are uncollectible,*" though the action be finally dismissed. Of course it requires no authority to show, or if so, it has been shown abundantly, in discussion and citation of authority hereinbefore, that, if constitutional rights are invaded, as by prescribing rates that are confisca- tory, appropriate courts may be appealed to, and if the writ of injunction is needful a court of equity may grant it." 38 state V. Chicago, M. & St. P. R. Co., 130 Minn. 144, 153 N. W. 32C, L. R. A. 1916 B 764, P. U. R. 1915 D 797. 40 Coal & Coke R. Co. v. Conley, 67 W. Va. 132, 67 S. E. 613; Wad- ley So. R. Co. V. Georgia, 235 U. S. 651, 35 Sup. Ct. 214, 59 I,. Ed. 405, P. U. R. 1915 A 106. 32 Auto Transit Co. v. City of Ft. Worth, (Tex. Civ. App.), *i A decision, handed down on Nov. 5, 1917, hy TJ. S. Supreme Court and not yet officially reported, regards inquiry hy Interstate Commerce Commission into "supposed political activities and ef- forts to suppress competition." Reliance was hased hy the rail- road on Harriman v. Interstate Commerce Commission, supra, as forbidding the investigation, hut the court showed that the Com- merce Act had been broadened since that case was decided. Now it is authorized by statute to institute inquiry "relating to the en- forcement of any of the provisions" of the Commerce Act. The court thought there was power to inquire as to the expenditure of funds for any purpose whatever. Smith v. Interstate Commerce Com'n, (U. S.), 38 Sup. Ct. 30. 429 CHAPTER XXXVII. Judicial Eeview op Findings by Commissions § 181. Preliminary. 182. Prior resort to oommission. 183. Exhausting remedy before commission. 184. Notice and hearing in making legislative orders. 185. Findings involving questions of law. 186. Limitation in review by presumption of correctness. 187. Illustration showing questions of law or fact. 188. No unlawful denial of right to jury trial. 189. Prima facie correctness of findings. 190. Findings by commissions like legislative declarations. 191. Technical rules not to be observed in hearings by commis- sion. 192. Essential right to hearing reserved. 193. Commission not a court, but tribunal of experts. 194. Judgment of court of review. § 181. Preliminary. — The next preceding chapter treated of the methods or remedies seeking to review or enforce orders, but the general reviewability of such orders or findings of commissions was not touched upon. In this chapter there are spoken of those things done by a commission which a court will or will not entertain as questions before it, when its acts are com- plained of. As to findings or orders within its appar- ent power, when deciding upon questions of fact, there is but one method of securing judicial review and that is to raise a constitutional issue, such as that by the order or finding the property of a railroad or other public service company fair remuneration from the use of its property has been denied to it. The many cases in which claim has been made of confiscatory rates being imposed are illustrations of judicial review 430 JtTDICIAL REVIEW OP FINDINGS BY COMMISSIONS § 182 of such, questions. But due process of law is denied in other ways by a commission, than in the regulation of rates. Some of these ways will be alluded to in this chapter. § 182. Prior Resort to Commission. — It has been said that: "The (Interstate Commerce) Commission is an administrative board and the courts are only to be resorted to when the commission prefers to en- force the provisions of the statute by a direct proceed- ing in the court, or when the orders of the commission have been disregarded. The theory of the act evi- dently is, as shown by the provision, that the findings of the commission shall be regarded as prima facie evidence, and that the facts of the case are to be dis- closed before the commission. We do not mean, of course, that either party, in a trial in the court, is to be restricted to the evidence, that was before the com- mission, but that the purposes of the act call for a full inquiry by the commission into all the circumstances and conditions pertinent to the questions involved.^ And so when this administrative board is given control over a matter, resort may not be made to a court, in the first instance for relief." Thus, where a coal com- pany sought to restrain alleged discrimination by a railroad in the distribution of coal cars it was said: "When the situation is thus defined we see no escape from the conclusion, that the grievances complained of were primarily within the administrative competency of the Interstate Commerce Commission and not sub- ject to be judicially enforced, at least until that body, clothed with authority on the subject, has been af- 1 Cincinnati, N. O. & Tex. Pac. R. Co. v. Inters. Com. Com., 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935. 431 § 182 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS forded, by a complaint made to it, tlie opportunity to ■exert its administrative functions.'" The reason for this rule is elaborately considered in a prior case' to those last cited. This prior case considered the estab- lishment of a rate and the complaint by a shipper to a court against its enforcement, in that it worked an un- just discrimination. After premising by the court "that the Act to Eegulate Commerce was intended to afford an effective means for redressing the wrongs resulting from unjust discrimination and undue prefer- erence is undoubted," and then arguing that if a court might be resorted to without application to the com- mission for relief, "it would come to pass that a ship- per might obtain relief upon the basis that the estab- lished rate (by the commission) was unreasonable, in the opinion of a court and jury and that such shipper would receive a preference or discrimination not en- joyed by those against whom the schedule of rates was continued to be enforced, ... in other words, the established schedule might be found reasonable by the commission in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the enforcement of the act impossible." The court, therefore concluded, that shippers, notwithstanding the commerce act states that "Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in 2 Baltimore & 0. R. Co. v. Pltcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292; see also Inters. Com. Com. v. Illinois Cent. R. Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280. 3 Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1071; see also Texas & Pae. R. Co. V. Cisco Oil Mill, 204 U. S. 449, 27 Sup. Ct. 358, 51 L. Ed. 562. 432 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 182 addition to sucli remedies," yet, "this clause cannot in reason be construed as continuing in shippers a com- inon law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words the act cannot be held to destroy itself." The Abilene case was affirmed in a reparation suit* where it was said: "When the purpose of the (Inter- state Commerce) Act and the means selected for the accomplishment of that purpose are understood, it is altogether plain that the act contemplated that such an investigation and order by the designated tribunal, the Interstate Commerce Commission, should be a pre- requisite to the right to seek reparation in the courts because of exactions under an established rate alleged to be violative of the prescribed standards."^ The last cited of the above cases was an action for recovery by a shipper for what he had paid out for constructing inside doors or bulkheads in cars to make them suitable for transporting grain and which the railroad accepted but refused to pay expense of such doors or bulkheads. The suit being brought without preliminary resort to the Interstate Commerce Com- 4 Robinson v. Baltimore & O. R. Co., 222 V. S. 506, 32 Sup. Ct. 114, 56 L. Ed. 288. 5 See also United States v. Pacific & A. R. & Nav. Co., 228 U. S. 87, 33 Sup. Ct. 443, 57 L. Ed. 742; Mitchell Coal & C. Co. v. Pennsyl- vania R. Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446; Morrisdale Coal Co. V. Pennsylvania R. Co., 230 U. S. 304, 33 Sup. Ct. 938, 57 L. Ed. 1494; Texas & Pac. R. Co. v. American Tile & Timber Co., 234 U. S. 138, 34 Sup. Ct. 885, 58 L. Ed. 1255; Pennsylvania R. Co. V. Purutan Coal M. Co., 237 U. S. 121, 35 Sup. Ct. 484, 59 L. Ed. 867; Pennsylvania R. Co. v. Clark Bros. Coal & M. Co., 238 U. S. 456, 35 Sup. Ct. 896, 59 L. Ed. 406; Loomis v. Lehigh Valley R. Co., 240 IT. S. 43, 36 Sup. Ct. 228, 60 L. Ed. 517; Procter & Gamble v. United States, 225 U. S. 282, 32 Sup. Ct. 761, 56 L. Ed. 1091. 433 § 182 JUDICIAL REVIEW OP FINDINGS BY COMMISSIONS mission, the jurisdiction of the court was challenged. The court said: "An adequate consideration of the present controversy would require an acquaintance with many intricate facts of transportation and a con- sequent appreciation of the practical effect of any at- tempt to define services covered by a carrier's pub- lished tariffs, a character of equipment which it must provide, or allowances which it may make to shippers for instrumentalities supplied or services rendered. In the last analysis the instant cause presents a prob- lem which directly concerns rate-making and is pecu' liarly administrative. And the preservation of uni- formity and prevention of discrimination render es- sential some appropriate ruling before it may be sub- mitted to a court. ' ' While the precise ruling, that preliminary resort to a commission is not necessary before relief may be granted as to any matter within its jurisdiction, is not made by a West Virginia court," there is so much of admirable discussion in regard to the limitation in judicial inquiry, in a case where there is appeal from a commission's order, that the irresistible inference arises that preliminary complaint to it is a condition precedent to any relief being granted. Thus the case shows that petitioner complained of an order of the commission pronounced against it on three complaints by agreement heard together and its holding that this petitioner was "violating the law by maintaining . . . two rates for natural gas for domestic pur- poses," and its order that the gas company shall dis- continue its "practice in discriminating between the United Fuel Gas Co. v. Public Service Com., 73 W. Va. 571, 80 S. B. 931. 434 JUDICIAL REVIEW OP FINDINGS BY COMMISSIONS J 183 two classes of domestic consumers." There was in the case, therefore, preliminary resort to the commis- sion, and its order was objected to. The court said: "Apart from the Public Service Commission Act, we think it must be conceded, as several times decided, that the appellate jurisdiction of this court is limited to judicial matters in judicial proceedings." But inde- pendently of appellate jurisdiction of a Supreme Court, there is discussed the authority of courts where applied to in such a case. It was said: "We cannot construe the statute as intended to give us power and authority to substitute our judgment for that of the commission in a matter purely legislative or adminis- trative. Such a construction would practically emascu- late the statute and rob it and the commission of their proper authority and jurisdiction. The salaries which the statute attaches to the offices of the commissioners, and the nature of the subjects to be dealt with by them, all imply that only persons of the requisite qualifica- tions should be appointed and that after appointment they should by investigation and study become further qualified by learning and experience, indeed should be- come experts upon all subjects and business coming within their jurisdiction." § 183. Exhausting Remedy Before Commission. — That state commissions must dispose fully of a question before resort can be had to a court for relief is ruled by the Federal Supreme Court.^ As to an order by a commission which is merely er- roneous, it must be reviewed in the way pointed out by the statute even though it be conceded that where TPrentis v. Atlantic C. L. Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150. 435 I 183 JUDICIAL REVIEW OP FINDINGS BY COMMISSIONS an order is absolutely void relief may be had against it in a court of equity.® In Indiana it was held that a decision within its jurisdiction by a railroad commis- sion must be appealed from as by statute provided and that a suit after the time allowed to take this course amounts to a collateral attack upon its judg- ment and will not be entertained.® In California it was held that where by the consti- tution it was provided that no limitation in the author- ity of the legislature to confer powers on the railroad commission is to be considered and the power of the legislature to this end is plenary, its limiting review of commission decision to the Supreme Court is lawful,^" and it was held afterward that no review at all could be had unless application therefor be made within the time fixed by statute, after petition for rehearing by the commission has been made.^^ In a District Federal Court there was a suit^^ to enjoin the enforcement of 8 state ex rel. v. Skagit River Tel. & Tel. Co., 85 Wash. 29, 147 Pac. 885, P. U. R. 1915 C 902. 9 Southern Ind. R. Co. v. Railroad Com., 172 Ind. 113, 87 N. E. 966; see also Stone v. Fritts, 169 Ind. 361, 82 N. E. 792, 15 L. R. A. (N. S.) 1147; see also Pennsylvania Utilities Co. v. Lehigh Nav. & El. Co., 254 Pa. 289, 98 Atl. 950. 10 Pacific Tel. & Tel. Co. v. Bshleman, 166 Cal. 640, 137 Pac. 1119, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915 C 822. 11 demons v. Railroad Commission, (Cal.), 159 Pac. 713, P. U. R. 1916 P 469; see also Louisville & Nashville R. Co. v. Green- hrier Distilling Co., 170 Ky. 775, 187 S. W. 296; McChow v. Louis- ville & N. R. Co., 183 U. S. 483, 22 Sup. Ct. 165, 46 L. Ed. 289; Public Service Gas Co. v. Public U. Com'rs, 84 N. J. L. 46, 87 Atl. 651; Sayers v. Montpelier & W. R. R., (Vt.), 97 Atl. 660; Hocking Valley R. Co. v. Public Utilities Com. 91 Ohio 365, 110 N. E. 952; Re Selectmen of Hadley, 178 Mass. 319, 59 N. E. 805. 12 Palermo Land & Water Co, v. R. R. Commission, 227 Fed. 708, P. U. R. 1916 B 437. 436 JUDICIAL EEVIEW OP FINDINGS BY COMMISSIONS j 183 an order by tlie California Eailroad Commission fix- ing water rates, upon the claim that they were confis- catory, there being no prior application to the commis- sion for a rehearing. The court held, applying Su- preme Court ruling,^* that defendant's motion to dis- miss the suit as premature should have been granted. It was said : ' ' This is rested, not only upon well settled principles of equity, but upon the dictates of comity as well; that where a state has provided, as its right, a complete legislative scheme for the fixing of rates, those rights should not be interfered with, nor the pro- ceeding of the state arrested, until the last legislative step has been taken, and it may be definitely seen whether the act of the state as a finality ignores or im- poses upon the rights of the complaining party; that until that stage is reached it is not within the province of the Federal courts to interfere." In Ninth Circuit Court of Appeals it was held that the Eshelman case, supra, did not apply to a suit for separation under the long and short haul clause of Cal- ifornia constitution." The charge was claimed to be in violation of a constitution provision that was self- executing, and, therefore, the rule under California Commission law did not apply. Where the commission statute provides that unless specifically stated it shall not alter or abridge existing rights of action or remedies in equity as under the common or statute law it is merely cumulative and does not oust jurisdiction of the court.^^ Nor may a isPrentls v. Atlantic Coast Line Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150. 1* Southern Pac. Co. v. California Adjustment Co., 237 Fed. 954, 150 C. C. A. 604. 15 Bethlehem City Water Co. v. Bethlehem, 253 Pa. 333, 98 Atl.646. 437 § 184 JUDICIAL REVIEW OF FINDINGS BT COMMISSIONS municipality apply to a court in the first instance to enjoin a telephone company from charging penalties for failure to promptly pay its charges, where the commission has jurisdiction over which are charges in any contract between the company and the municipal- ity." Where one has a contract with a public service company whereby he is served with it by electricity, he may enjoin it from cutting him oE," without mak- ing prior application to a commission. <§ 184. Notice and Hearing in Making Legislative Orders. — The distinction between a legislative act by a commission vested with executive, legislative and judicial functions is thus stated by Keith, J.^^ "The commission, in the exercise of those powers, must ac- quire jurisdiction over the parties to be affected by its action by due process of law and conform its proceed- ings to the law of the land. When, in the exercise of its legislative functions, it has, in obedience to the law of the state, summoned persons, natural or artificial, before it to protect their rights, it has done what is not required to be done by the Fourteenth Amendment to the United States Constitution and what it might have omitted to do, so far as that instrument is concerned; but when it comes to enforce its rules and regulations, and to adjudge the penalties for their violation, a stage has been reached at which the Fourteenth Amendment throws its cegis over the litigant, who must be sum- moned and permitted to defend in accordance with the law of the land, and this right to be summoned to 16 Traverse City v. Citizens Telephone Co. (Mich.), 161 N. W. 983. i7Richey v. Omaha L. Ry. Co., (Neb.), 161 N. W. 575. 18 Winchester & S. R. Co. v. Com., 106 Va. 264, 55 S. E. 692. 438 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 184 answer is not satisfied by the antecedent summons and appearance before the commission at a time when the adoption of the rule or regulation was under consider- ation." In this case there was a particular order in- volved and it was held it was a regulation as to the making of which no process or notice had been served or given. The United States Supreme Court held that there was nothing in the Federal constitution that forbade such a union of powers in a single hand,^'' and so New ^ork Court of Appeals,''" but in the latter case the court argues concerning the power of a commission to fix rates in a regulatory rather than in a purely legis- lative way. Thus it is said : "As is well settled in the able prevailing opinion in the court below, the real question in the case is not whether making a tariff of rates is legislative, but whether it is so exclusively legislative that it cannot be conferred on any other tribunal. ' ' The power to fix reasonable rates as shown in the opinion above referred to,^^ and what that opin- ion reaUy said was : * ' The pivotal contention here is as to whether this function is so purely legislative that it cannot in any degree be delegated to an administra- tive body as a commission named as provided in the statute." That the function was not "purely legislav tive," but rather administrative, is sustained' by a great abundance of authority which this opinion cites. In this case, too, it appears that there was complaint laPrentis v. Atlantic C. L. Co., 211 U. S. 210, 29 Sup. Ct. 67, 63 L. Ed. 150. 20 Trustees Saratoga Springs v. Saratoga Gas & E. Co., 191 N. Y. 123, 83 N. E. 693, 7 L. R. A. (N. S.) 713, 14 A. & B. Ann. Cas. 606. 21 Trustees Saratoga Springs v. Saratoga Gas & E. Co., 122 N. Y. Supp. (App. Div.) 203. 439 § 184 JUDICIAL REVIEW OP FINDINGS BY COMMISSIONS made by the trustees to the Commission of Gas and Electricity, against excessive charges for gas and elec- tricity, notice given, order made fixing a maximum price and appeal taken from that order. It was af- firmed in the appellate division but reversed in the Court of Appeals, because the statute forbade the com- pany applying for a readjustment of a rate reason- able at the time it was fixed. lUogically, therefore, it is thought, the court vacated the commission's order instead of declaring that part of the statute separable as unconstitutional. But the question recurs whether any commission acting not in a purely legislative way may, without notice, be Vested with power to fix or make a schedule of maximum rates. The Supreme Court held" that a legislature could not vest in a railroad commission the power, even upon notice and after hearing, to fix a rate "not simply advisory, not merely prima facie equal and reasonable, but final and conclusive as to what are equal and reasonable charges." In other Vfords, 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." The court further said of the statute that: "No hearing is provided for, no summons or notice to the company before the commis- sion has found what it is to find and declared what it is to declare, no opportunity provided for the company to introduce witnesses before the commission, in fact, nothing which has the semblance of due process of 22 Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. Ed. 970. 440 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 184 law." Justice Miller, in concurring, said: "I do not agree that it was necessary for the validity of the ac- tion that previous notice should have been given to all common carriers interested in the rates to he estab- lished, nor to any particular one of them, any more than it would have been necessary, which I think it is not, for the legislature to have given such notice, if it had established such rates by legislative enactment." He also said it was not competent for each individual having dealings with the company "to raise a contest in the courts over the questions which ought to be set- tled in this general and conclusive way."^^ It was said, however, in a recent case:^* "In the comparatively few cases in which questions have aris- en it has been distinctly recognized that administra- tive orders, quasi- judicial in character, are void if a hearing was denied ; if that granted was inadequate or manifestly unfair." It is to be said, however, that statutory commissions and even those where, as in California or Virginia, specifically refer to this kind of regulation, all provide for notice and hearing. Since the ruling in 134 U. S. supra, it would be manifestly the taking of a more than doubtful step to omit to provide for a hearing. There- fore, the observation in 227 U. S., supra,, about com- paratively few cases. So far as the patrons of a public service company are concerned, it being a legislative act to prescribe rates, its powers are the same in this as is that of the 23 Approved In re Engelhard, 231 U. S. 646, 34 Sup. Ct. 258, 58 L. Ed. 410. 2* Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 33 Sup. Ct. 185, 57 L. Ed. 431. 441 § 185 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS legislature and notice need not be given.^® All of this, of course, is subject to statutory directions regarding prooedure.^^ This court holds that a legislature may so vest legislative power in a commission as to make its findings conclusive,^^ that is to say, no provision was in the act for appeal to the Supreme Court, but it is not said that no way of reviewing such action exists. The principle that notice must be given at least to the immediate parties to any order of a commission had been repeatedly held.^' . § 185. Findings Involving Questions of Law. — ^In a recent decision by the Supreme Court it was said :^* "While a finding of fact made by the Commission con- cerning a matter within the scope of the authority del- egated to it is binding and may not be re-examined in the courts, it is undoubted that where it is contended, that an order whose enforcement is resisted was ren- dered without any evidence to support it, the consider- ation of such a question involves not an issue of fact, but one of law which it is the duty of the courts to ex- amine and decide." It is also a question of law where rates are alleged to be unreasonable from a constitu- 25 Randall Gas. Co. v. Star Glass Co., ("W. Va.), 88 S. E. 840. 28 United Fuel Gas Co. v. Public Service Com., 73 W. Va, 571, 80 N. E. 931. 27 Howell V. Public Ser. Com., (W. Va.), 90 S. E. 105. 28 Louisville & N. R. Co. v. Greenbrier Dist. Co., 170 Ky. 775, 187 S. W. 296; Randall Gas Co. v. Star Glass Co., (W. Va.), 88 S. E. 840; United Fuel Gas Co. v. Public Service Com., 73 W. Va. 571, 80 S. E. 931; Public Utilities Com. v. Illinois Cent. R. Co., 274 111. 36, 113 N. E. 162; Farmers Electric Co. v. Chicago, R. I. & P. R. Co., 266 111. 567, 107 N. E. 841. 29 Florida East Coast Line v. United States, 234 U. S. 167, 34 Sup. Ct. 867, 58 L. Ed. 1267; see also Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 33 Sup. Ct. 431. 442 JXJDICIAL REVIEW OP FINDINGS BY COMMISSIONS § 186 tional standpoint.^" This is subject to review. But not if tlie finding has substantial evidence supporting it." Essentially, however, reasonableness of a rate is a question of f act,^^ and therefore where there is a con- clusion based upon evidence, whether the commission decides a rate to be reasonable or unreasonable, the court will not substitute its opinion for that of the ad- ministrative body.^^ But where the conclusion of a commission is upon an erroneous construction of law or plainly involves an error of law in the consideration of undisputed facts, the courts will review the find- ing.==* § 186. Limitation in Review by Presumption of Correctness. — The court will not inquire into the cor- rectness of each finding of fact as 9,n indispensable link in the chain of evidence upon which an order is based.^^ Of course, if a question of law is directly involved, the right of review is evident. But where a statute pro- vides that the burden of proof merely rests on any utility company objecting to any order, act or regula- 30 Lehigh Valley R. Co. v. Meeker, 211 Fed. 785, 128 C. C. A. 311. 31 Louisville & N. R. Co. v. United States, 216 Fed. 672; Interstate Commerce Com. v. Delaware R. R., 220 U. S. 235, 31 Sup. Ct. 382, 55 L. Ed. 448. 32 Illinois R. R. Co. v. Interstate Com. Com., 206 U. S. 455, 27 Sup. Ct. 700, 51 L. Ed. 1128. 33 Los Angeles Switching Case, 234 U. S. 314, 34 Sup. Ct. 814, 58 L. Ed. 1319; Interstate Com. Com. v. Union Pac. R. Co., 222 IT. S. 541, 32 Sup. Ct. 199, 56 L. Ed. 308; Atchison, T. & S. F. R. Co. v. United States, 232 U. S. 34 Sup. Ct. 291, 58 L. Ed. 568. 34 Interstate Com. Com. v. Northern Pac. R. Co., 216 U. S. 538, 30 Sup. Ct. 417, 54 L. Ed. 608; Tap Line Cases, 234 U. S. 1, 34 Sup. Ct. 741, 58 L. Ed. 1185; Louisiana R. Co. v. United States, (Commerce Court) 209 Fed. 244. 35 Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 33 Sup. Ct. 185, 57 L. Ed. 431. 443 § 186 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS tion made by a commission, there is presented a mixed question of law and fact, that is to say, any order, act or regulation may be reviewed by a court, though the question was within the commission's jurisdiction to decide.^® And so where a statute declares that a com- mission may fix reasonable rates and service, under such a statute as that placing the burden of proof on an objector, it is held that there is merely prima facie presumption of the correctness of a commission's orders." Thus a Washington court said:'* "The legis- lature has not limited the right of review to final orders (of a commission), but has conferred that right and fixed a limit (of time) within which it may be exer- cised, upon any order of the commission which is deemed contrary to law, for the purpose of having its reasonableness and lawfulness inquired into and de- termined." But it was further said, in the above case, which involved the fixing of joint rates: "Inquiries of this nature depend altogether upon expert evidence and, we might add, expert findings, and the state has conferred the power on the commission to determine the merits of the controversy, and its findings should not be disturbed unless they show evidence of arbi- trariness and disregard of the material rights of par- ties to the controversy. Such decisions are peculiarly 36 Chicago, R. I. & P. R. Co. v. Nebraska S. R. Com., 85 Neb. 818, 124 N. W. 477, 26 L. R. A. (N. S.) 444. 37 Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Com., 136 Wis. 146, 116 N. W. 906, 17 L. R. A. (N. S.) 821. See also State ex rel. V. Minneapolis & St. L. R. Co., 80 Minn. 191, 83 N. W. 60, 89 Am. St Rep. 514; Railroad Com. v. Houston & T. R. Co., 90 Tex. 340, 38 S. W. 750. 38 Great Northern R. Co. v. Public Ser. Com., 76 Wash. 625, 137 Pac. 132. 444 JUDICIAL REVIEW OP FINDINGS BY COMMISSIONS § 187 within tlie province of the commission to make," and "its findings are fortified by presumptions of truth due to the judgment of a tribunal appointed by law and informed by experience. Interstate Com. Com. v. Chicago, R. I. & P. R. Co., 218 U. S. 88.'"" Thus again it is seen, that in the matter of reviewing findings of a commission, state courts greatly rely on expressions of the Federal Supreme Court, as well they might, because ultimately there is suggested the constitutional question of due process of law or whether the property devoted to public use is taken without being shown or fairly presumed not to be subjected to confiscatory treatment, ' Justice McKenna has added the further reason for a commission's findings being respected, that the com- mission ' ' has had the witnesses before it and has been able to judge of them and their manner of testify- ing."*" And Justice Lamar said: "In determining . . . mixed questions of law and fact, the court confines itself to the ultimate question whether the commission acted within its power. It will not con- sider the wisdom or expediency of the order, or whether in like testimony it would have made a similar ruling."" § 187. Illustrations Showing Questions of Law or Fact. — A question that is one of law and therefore re- viewable arises out of a claim that there is no evidence 39 See Puget Sound Elec. R. Co. v. Railroad Com., 65 Wash. 75, 117 Pac. 739, Ann. Cas. 1913 B 763. 40 lUinois C. R. Co. v. Interstate Com. Com., 206 U. S. 441, 27 Sup. Ct. 700, 51 L. Ed. 1128. *i Interstate Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. Ed. 308. 445 § 187 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS to support a finding.*^ But a contention that a finding is opposed to "the admitted physical facts" is not,** otherwise the commission would become but a mere in- strument for the purpose of taking testimony to be submitted to the court for their ultimate action.** A finding that a railroad has held itself out to carry oil in tank cars is reviewable as presenting an issue of law.*' This was upon a question of classification. Where it was contended that a state commission, in ordering the installation and maintenance of scales at a stockyard, made an order wholly arbitrary and un- reasonable, this presented an issue of law.** The rul- ing was that: "Under admitted facts, unless justified by alleged unlawful discrimination, we think this was an arbitrary and unreasonable exercise of power, "*^ In Vermont** it was said that "the findings of the com- mission having the force and effect of reports of spe- cial masters in courts of equity, when the cause is in this court in appeal, are conclusive." In Ohio*' it was said: "This court will not substi- 42 Florida East Coast L. R. Co. v. United States, 234 U. S. 167, 34 Sup. Ct. 867, 58 L. Ed. 1243. 43 Los Angeles Switching Case, 234 U. S. 294, 34 Sup. Ct. 814, 58 L. Ed. 1319. 4* United States v. Louisville & N. R. Co., 235 U. S. 314, 35 Sup. Ct. 113, 59 L. Ed. 245. 45 United States t. Pennsylvania R. Co., 242 U. S. 208, 37 Sup. Ct. 96, 61 L. Ed. — . 46 Great Northern R. Co. v. Minnesota, 238 U. S. 340, 35 Sup. Ct. 753, 59 L. Ed. 1337. 47 See New Mexico Wool Growers Assn. v. Atchison, T. & S. F. R. Co., 20. N. M. 33, 145 Pac. 1077. 48 Western Union Tel. Co. v. Burlington Traction Co., (Vt.), 99 Atl. 4. 48 Settle V. Public U. Com., (Ohio St.), 114 N. E. 1036. 446 JUDICIAL REVIEW OP FINDINGS BY COMMISSIONS § 187 tute its judgment for tliat of an administrative board created pursuant to an act of the legislature, as to matters within its province, and before this court will interfere with the order of the Public Utilities Com- mission, it must appear from a consideration of the record that the action of the commission is unreason- able.'"" But if a court, though yielding regard for an order by a commission as being in relation to a matter peculiarly within its province, yet will set aside the order, if there is no testimony to sustain it."^ It lately has been held, as to an order by the Inter- state Commerce Commission, that an interstate car- rier must furnish oil in tank cars because it has held itself out thus to carry oil, that the order presented a question of law that was reviewable.®^ And so where a railroad refused to accept a certain class of freight it was competent for application to be made to a court to decide the question of law thus presented.®* Dis- trict Court of California, relying on the ruling in 242 U. S., supra, held it within the jurisdiction of a court of equity to entertain a mandamus to compel an inter- state telephone company to restore its service inter- rupted by a strike and asking the court thus to act is not to ask it to perform an administrative or legisla- tive duty.®* BO See also Hocking Valley R. Co. v. Public U. Com., 92 Ohio St. 362, 110 N. E. 521. 51 Erie R. R. Co. v. Board Pub. U. Com'rs, 87 N. J. L. 438, 95 Atl. 177. B2 United States v. Pennsylvania R. Co., 242 U. S. 208, 37 Sup. Ct. 95, 61 L. Ed. — . 53 Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355. 6* Stephens v. Ohio State Telephone Co., 240 Fed. 759. 447 § 188 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 188. No Unlawful Denial of Right to Jury Trial.— It is usual, as just said, for statutes creating commis- sions to declare for notice to all parties in interest and a hearing, investigation and a finding upon the ascer- tained facts. The requisites to the making of a find- ing being observed it is also declared, as for example in Interstate Commerce Act, that "the findings and order of the commission shall be prima facie evidence of the facts therein stated." These quoted words have been assailed in that they proclaim a rule repugnant to the constitution as an infringement upon the right of trial by jury and working a denial of due process of law. But as Justice Vandevanter said, speaking for a unanimous court :°® "This provision only establishes a rebuttable presumption. It cuts off no defense, in- terposes no obstacle to a full contestation of all the is- sues, and taking no questions of fact from either court or jury. At most, therefore, it is merely a rule of evi- dence. It does not abridge the right of trial by jury or take away any of its incidents. Nor does it in any- wise work a denial of due process of law. In prin- ciple it is not unlike the statutes in many of the states, whereby tax deeds are made prima facie evidence of the regularity of all the proceedings upon which their validity depends. Such statutes have been generally sustained." This view of the manner in which rulings and orders of a delegated special tribunal are to be held simpli- fies very greatly the way of looking at provisions for the giving of notice, the manner of hearing, the receiv- ing of evidence, or its being obtained by a commission 55 Meeker v. Lehi&h Valley R. Co., 236 U. S. 412, 35 Sup. Ct. 328, 59 L. Ed. 644, P. U. R. 1915 D 1072. 448 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 189 antecedent to tlie making of its orders and findings. It might be thought, when the iJlustratioln of the prima facie quality of a tax deed is given, that a commission could dispense with notice to interested parties and the making of any investigation at all had not the creating statute enjoined that such should precede any action adverse to interested parties. But whether the illustration is fully satisfying or not, it is the stat- utory and sometimes constitutional, requirement, that these precede the making of orders and findings of fact. § 189. Prima Facie Correctness of Findings. — Whether a statute or an act of Congress could au- thorize the making of findings of fact by a commis- sion so as to clothe them with a prima facie quality of correctness, where there is no notice or opportunity to be heard, or without the introduction of any evidence, is seriously to be doubted. Thus, Justice Lamar, in speaking for an undivided court regarding the Inter- state Commerce Act, said:^® "But Ine statute gave the right to a full hearing, and that conferred the privilege of introducing testimony and at the same time imposed the duty of deciding in accordance with the facts proved. A finding without evidence is ar- bitrary and baseless. And if the government's conten- tion is correct, it would mean that the commission had a power possessed by no other officer, administrative body or tribunal under our government. It would mean that where rights depended upon facts, the com- mission could disregard all rules of evidence and 56 Interstate Com. Com. v. Louisville & L. N. R. Co., 227 U. S. 88, 33 Sup. Ct. 185. 57 L. Ed. 431. 449 § 189 JUDICIAL EEVIBW OF FINDINGS BY COMMISSIONS capriciously make findings by administrative fiat. Sucli authority, however beneficently exercised in one case, could be injuriously exerted in another; is inconsist- ent with rational justice and comes under the constitu- tion's condemnation of all arbitrary exercise of power." Then are cited to the proposition that "ad- ministrative orders, quasi- judicial in character, are void if a hearing was denied; if that granted was in- adequate or manifestly unfair; if the finding was con- trary to the indisputable character of the evidence. Or, if the facts found do not, as a matter of law, sup- port the order made.'"^ In the Fairchild case, supra, there was an order by a state commission and it was contended that the creating statute was unconstitutional because, as al- leged, there was no opportunity for testing the validity of the commission's order in the state courts, that is to say, it prevented the state courts "from receiving com- petent and non-cumulative testimony tending to prove that there was no public necessity for making the track connection." Justice Lamar said: "This posi- tion would be true if the defendant had not been put on notice as to what order was asked for and then given ample opportunity to show that it would be un- just and unreasonable to grant it. . . . The act further provided that after the administrative body had acted the carrier should have the further right to E7 United States v. B. & O. S. W. R. Co., 226 U. S. 14, 33 Sup. Ct. 5, 57 L. Ed. 104; Atlantic C. L. v. N. Carolina Corp. Com., 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933; Oregon R. R. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535, 66 L. Ed. 863; Interstate Com. Com. v. Illi- nois Cent. R. Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280; South- ern Pac. Co. V. Interstate Com. Com., 219 U. S. 433, 31 Sup. Ct. 288, 55 L. Ed. 283; Sayers v. Montpelier & W. R. R., (Vt.), 97 Atl. 660. 450 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 189 test tlie lawfulness and reasonableness of the regula- tion in the Superior Court, where every error in re- jecting or excluding evidence, or otherwise, could be corrected." In the Baltimore & 0. S. W. case Justice Holmes said: "We remark that it is stated in the commis- sion's report that they base their conclusion more largely upon their own investigation than upon the testimony of the witnesses. It would be a very strong proposition to say that the parties were bound in the higher courts by a finding based on specific investi- gations made in the case without notice to them. Such an investigation is quite different from a view by a jury taken with notice and subject to the order of a court, and different again from the question of the right of the commission to take notice of results reached by it in other cases, when its doing so is made to appear in the record and the facts thus noticed are specified, so that matters of law are saved." But none of the cases go to the question of denying the essential validity of a statute which is based on rightful investigation after notice declares the conclu- sion of a special tribunal has a presumption of cor- rectness. The broad statement, however, in the Meeker case, does not excuse necessity for a quasi- judicial tribunal to proceed along the same lines, in effect, that one strictly judicial would have to follow. In Illinois Supreme Court there was rendered a de cision,** following soon after the ruling in 134 U. S. 418, supra, and distinguishing that ruling so as not to con- demn a statute that merely provides for the making 68 Chicago, B. & Q. R. Co. v. Jones, 149 111. 361, 37 N. E. 247, 24 L. B. A. 141, 41 Am. St. Bep. 683, 4 I. C, C. Bep. 683. 451 § 189 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS of findings by a commission as being prima facie equal and reasonable. The Illinois court said: "Wbere the legislature creates a commission to regulate the rates of charges, such commission has no power to make a schedule of rates which shall be final and con- clusive evidence as to the reasonableness of the charges because judicial inquiry is thereby cut off. We do not understand, however, the Federal cases to hold that an act of a state legislature may not be valid, if while omitting to itself fix the maximum rates, it creates a commission with authority to make schedules which shall be prima facie evidence of the reasonableness of the rates. Where the schedule is only made prima facie evidence, the court, in a suit against a carrier, can inquire and determine what is a reasonable rate; and the defect which was found in the Minnesota law (considered in 134 U. S. 418, supra) is thus obviated. Such is the character of the Illinois act of 1873, which provides in Section 8, that the schedules made, pub- lished and certified by the commissioners shall, in all suits brought against the railroad corporations, in- volving their freight and passenger charges, etc., be deemed and taken, in all courts of this state, as prima facie evidence that the rates therein fixed g,re reason- able maximum rates of charges, etc. ' '°* This case was 59 See also Burlington, C. R. & N. Co. v. Dey, 82 Iowa 312, 12 L. R. A. 436; Public Utilities Com. v. C. W. & T. Ry. Co., 275 111. 555, 114 N. E. 325; Chicago, R. I. & Pac. Ry. Co. v. Nebraska State Com., 85 Neb. 818, 124 N. W. 477, 26 L. R. A. (N. S.) 444; Minneapolis, St. P. & S. S. M. R. Co. V. Railroad Com., 136 Wis. 146, 116 N. W. 905, 17 L. R. A. (N. S.) 821; Western U. Tel. Co. v. Burlington Traction Co., (Vt.), 99 Atl. 4; Oklahoma Gin Co. v. State, (Okla.), 158 Pac. 629; Railroad Com. v. St. Louis & S. F. R. Co., 195 Ala. 527, 70 So. 645. 452 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 190 taken to the United States Supreme Court on writ of error and dismissed on motion of plaintiff in error,*" the railroad company. It was said in the Meeker case, supra, that: "In Chicago, etc.. Railroad v. Jones, 149 HI. 361, 382, a like ruling was made in respect of a statutory provision similar to that now before us," and thus by a very recent decision of the United States Supreme Court what has been set forth above from that case is approved. <§ 190. Findings by Commissions Like Legislative Declarations. — By New York Supreme Court in Appel- late Division it was as to the value of findings by a commission said: "Public service commissions do not exercise judicial functions.*^ The consent of the com- mission is the consent of the several sovereigns to whom the constituent companies are amenable, so far as the commission represents the state and has au- thority to do the act. The decision is not res adjudi- cata in the sense that it is judicial, but it is final in the sense that through it the State speaks. But there is this limitation upon the determination of the commis- sions. They, or even the legislature, could not permit a consolidation offending the anti-trust laws of the United States or the constitution or statutes of the state for which they act. . . . The legislature em- powering consolidation could repeal existing statutes, but not so the commissions. They must act within the law as they find it." There is here perceived a very 60 C. B. & Q. V. Jones, 17 Sup. Ct. 992. 61 Citing State Com. v. 111. Cent. R. R. Co., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup Ct. 48, 58 L. Ed. 229; Prentis v. Atlantic C. L., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150. 453 § 191 JUDICIAL BEVIEW OP PESTDINGS BY COMMISSIONS narrow distinction between a statute and tlie act of a commission, which does not seem altogether well ap- prehended. But, if to a commission is left discretion in the doing or not doing of an act, its judgment ought to represent the state as fully as a statute does.*^ The fact that a rule or order of a commission is of like dig- nity and regard as a statute in declaring a policy is shown by a decision rendered by the Supreme Court of Alabama.*^ This case held that the state rule which refused to stipulations as to unrepeated messages any recognition, must no longer obtain as to interstate messages because these are within the regulatory power of Interstate Commerce Commission. And no court in reviewing a ruling by a commission may sub- stitute its view, merely, for that of the latter.®* § 191. Technical Rules Not to be Observed in Healings by Commission. — The United States Su- preme Court has said:"' "The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by technical rules as to the admissibility of proof. Its function is largely one of investigation and it should not be ham- pered in making inquiry pertaining to interstate com- merce by those narrow rules which prevail in trials at common law where a strict correspondence is required 82Venner v. New York C. & H. R. R. Co., 164 N. Y. Supp. 626, (App. Div.)- See also People ex rel. Gas. Co. v. McCall, 219 N. Y. 84, 113 N. E. 795, Ann. Cas. 1916 E 1042. 63 Western U. Tel. Co. v. Hawkins, (Ala.), 73 So. 973. 6* Hocking Valley v. Public Utilities Com., 92 Ohio St. 362, 110 N. E. 952. 65 Interstate Com. Com. t. Baird, 194 U. S. 25, 24 Sup. Ct. 563, 48 L. Ed. 460. 454 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 192 between allegation and proof." And tMs commission itself has said:*' "It is well understood that the com- mission does not enforce in proceedings before it the strict rules of evidence which obtain in courts of law, but it is obvious that in order to determine questions of this character the commission must have before it information of such definite character as will warrant a finding in respect of disputed questions of fact, and ordinarily this requires the testimony of a witness who is acquainted with the facts which from a trans- portation standpoint, are material to the proceedings." And: "While its procedure is to some extent judicial in its nature, the commission is essentially an admin- istrative body; and in the adjustment of contentious proceedings ... it ought to examine into the real substance of the matter unembarrassed by considera- tions that are purely technical."*^ § 192. Essential Right to Hearing Preserved. — This view, however, must not be held in so broad a way as practically to nullify the right to a hearing'^ "for manifestly there is no hearing when the party does not know what evidence is offered or considered and is not given an opportunity to test, explain or refute," and though a commission "is not limited by the strict rules as to the admissibility of evidence, which prevail in suits between private parties," yet "the more liberal the practice in admitting testimony, the more impera- tive the obligation to preserve the essential rules of 88 Brown Bros. Mfg. Co. v. Chicago, B. & Q. R. Co., 21 I. C. C. 513. 87 Missouri & Kansas Shippers Assn. v. Missouri K. & T. R. Co., 12 I. C. C. 483. es Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 33 Sup. Ct. 185, 57 L. Ed, 431. 455 § 192 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS evidence by whicli rights are asserted or defended. In such cases the commissioners cannot act upon their own information as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered and must be given op- portunity to cross-examine witnesses, to inspect docu- ments and to offer evidence in explanation or rebut- tal.'"' Justice Holmes said, in speaking of a hearing by a commission: "Such an investigation is quite dif- ferent from a view taken by a jury with notice and subject to order by a court.'"" In accord with the above rulings and citing some of the above cases in support is the Supreme Court of Illinois.''^ It was said: "This reasoning as to hear- ings under the interstate commerce law applies with peculiar force to hearings of this nature under the act here being considered. Allowing the testimony to be heard by the commission, or one of its members, with- out any opportunity to cross-examine the witnesses presenting it, amounts to a practical denial of the vital parts of the hearing required by this statute." Where a court on appeal hears the evidence and ar- rives at its judgment it will not regard mere technical objections, and at all events, the strict observance of form is not required.^'' And in other jurisdictions, if 63 See also Whitfield v. Hanges, 222 Fed. 745, 138 C. C. A. 199, where this is cited as a general principle governing hearings before special tribunals. 70 United States v. Baltimore & O. S. "W. R. Co., 226 U. S. 14, 33 Sup. Ct. 5, 57 L. Ed. 104. 71 Farmers Elevator Co. v. Chicago, R. I. & P. R. Co., 266 111. 567, 107 N. E. 841, P. U. R. 1915 B 872. 72 New Britain G. L. Co. v. Root, (Coon.), 99 Atl. 559, 456 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS § 193 not made before commissions they are deemed waived." § 193. Commission Not a Court, But Tribunal of Experts. — ^By the Missouri statutes for the creation of a Public Service Commission'* it was ruled that under constitutional restrictions upon the legislature in the creation of the courts, it was held that such a commis- sion is merely "a representative agency" of the legis- lature, and its findings and orders "though bearing some resemblance to some of the judicial actions of a court of law and equity, are yet merely incidents of the work of investigation and determination of facts and questions devolved upon that body by the legislature." Indeed the act provides that any of its orders and de- cisions may be reviewed, tried and determined as suits in equity.^^ It was therefore said that the determina- tion of the correctness of any finding by such a com- mission "turns solely on the question of the prepon- derance of the competent evidence adduced in the orig- inal hearing" before it. Such a commission is a far way from being the kind of body whose judgments are respected because by a quasi-judicial tribunal com- posed of expert men." This court appears somewhat in trouble as to how to regard its Public Service Commission. At the April Term, 1914 it handed down a unanimous opinion" in- 13 Re Public Service Commission, 164 N. Y. Supp. 310, (App. Div.) 7* Laws 1913, p. 641. 73 Lusk V. Atkinson, 268 Mo. 109, 186 S. W. 703. See also Atchi- son, T. & S. F. R. R. Co. V. Public Ser. Com., (Mo.), 192 S. W. 460. 78 See also State ex ret. v. Public Ser. Com., (Mo.), 192 S. W. 86. 77 State ex rel. v. Public Ser. Com., 259 Mo. 704, 168 S. W. 1156. 457 § 193 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS terpreting it and holding, generally, it to show a con- stitutional delegation of power, but nothing particu- larly was said as to the prima facie effect of its find- ings. Then occurred the cases above mentioned. Now is referred to the very latest expression, a decision handed down March 30, 1917.'* The opinion in this case is very elaborate and threshes over the question of delegation of power and as to the necessity of a railroad commission it is said: "No legislature has the time, nor is it equipped with the machinery neces- sary to investigate matters of ratemaking in any man- ner which will serve to prevent its enactment of laws fixing alleged 'reasonable maximum rates' from being other than a mere guess." But this opinion, like the others, attributes no particular value to a fixing of rates by a commission, except that it is to be inferred that what it does in this way has not the same value as where the legislature acts directly. Nor does the court claim that it could do any more with a legislative act than declare it void, but as to findings by a commis- sion, they are regarded merely as those by a master or a lower court in suits in equity. Of a far more liberal view of a commission for the regulation of public service companies, is the Supreme Court of the State of Washington. Thus, that court, in a case where an order of the State Commission was sought to be reviewed,''' where question of a joint rate was involved, set forth the reasoning of the commis- sion and said: "We have given the foregoing quota- tion from the decision of the commission in this case 78 state ex rel. Rhodes v. Public Ser. Com., (Mo.), 194 S. W. 287. 79 State ex rel. R. Co. v. Pub. Ser. Com., (Wash.), 163 Pac. 1143. 458 JUDICIAL REVIEW OP PXNDINGS BY COMMISSIONS § 193 for the reason that, besides stating some of its argu- ments, the quotation also contains some findings of fact which we think the commission, as an administra- tive body, has peculiar powers to determine. It is not bound, as is a court, to acquire its information con- cerning all matters involved in the proceeding before it wholly and entirely from the evidence of witnesses or other evidence produced before it, but may take into consideration the results of its general investigations, general information upon a given subject within its powers and all matters which affect the matter and concerning which it must determine the facts." The United States Supreme Court and other courts have often referred to these commissions as tribunals composed of expert men, and some of them have gone so far as to predicate delegation of power on this very fact. The Missouri Supreme Court seems to have raised a specter of its being the creation of a court if there is accorded to a commission any such presump- tion. In New York*" it has been held that it was not in- tended that the courts should interfere with the com- missions or review their determinations, further than to keep them within the law and to protect the lawful rights of the corporations over which they are given control. It was said that to view the matter otherwise would hamper the commissions and go far toward de- feating the efforts of legislatures in establishing these agencies for the regulation of great public service cor- porations. While there is variation in constitutional language, 80 state ex rel. v. Public Ser. Com., 219 N. Y. 84, 113 N. E. 795, Ann Cas. 1916 E 1042. 459 § 194 JUDICIAL REVIEW OF FINDINGS BY COMMISSIONS wMch has a more or less serious effect on statutes cre- ating utility commissions, the Rhodes case, supra, shows that the principle of delegation has no "reput- able exception" among the courts. § 194. Judgment of Court of Review. — ^As a court has no administrative or legislative functions, in an original proceeding, so where a commission having exercised such functions, the court, in acqijiring jur- isdiction to review its ruling, is limited as to the judg- ment it may render. Thus, the Supreme Court of New Jersey,*^ as to a statute which provided that the Supreme Court is given jurisdiction to review an order of the state com- mission and set it aside when there is no evidence reasonably to support it, or its making was not within the commission 's jurisdiction, held it could do nothing but direct in such a case that the order be set aside. It, in any case, may affirm or set aside an order of the commission as a whole.*^ And this is so under a stat- ute which requires the court on appeal to hear the parties and the evidence they may submit.*^ On certiorari to review an order by a commission no question of the exercise of its discretion can be de- termined.** 81 Erie R. Co. v. Pub. U. Com'rs, (N. J. L.), 100 Atl. 346. 82 See also Public Service Gas Co. v. Public U. Com., 84 N. J. L. 463, 87 Atl. 951. 83 New Britain Gas L. Co. v. Root, (Conn.), 99 Atl. 559. Si Ex parte Birmingham, Ala., 74 So. 51. 460 CHAPTER XXXVIII. Commission Control to Peevent Monopolies. § 195. Preliminary. 196. Certificates of necessity or convenience. 197. Controlled monopoly and restricted competition. 198. Indeterminate permits protection from competition. 199. Unregulated competition of public utilities serious evil. 200. Privilege to use streets and highways. 201. Instances of denial of certificates of convenience and neces- sity. 202. Grants of certificates of convenience and necessity. ■^ 195. Preliminary. — In this work attention has been paid to monopoly arising out of the use of what is for the common benefit. The Munn case^ elaborated this idea and repeatedly it has been referred to in the pages ante and one of the very latest expressions by the Federal Supreme Court, in an opinion rendered March 6, 1917,^ which aflfirmed a judgment for triple damages under the Anti-Trust Act, spoke of the "Rule of Eeason" doctrine, announced in the Standard Oil and American Tobacco cases^ as excusing a com- bination between foreign ocean carriers working in- jury in this country. It was urged that several cases following after those in which the "Eule of Eeason" 1 Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77. 2 Thomsen v. Cayser, 243 U. S. 66, 37 Sup. Ct. 353, 61 L. Ed.. 3 Standard Oil Co. v. United States, 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912 D 734; United States V. American Tobacco Co. 221 U. S. 106, 31 Sup. Ct. 632, 55 L. Ed. 663. 461 § 196 COMMISSION CONTROL TO PREVENT MONOPOLIES doctrine was declared, exemplified its application.* It was urged indeed, that in this carrier combination there was even greater warrant for applying the doc- trine. But the court said: "The rule condemns the combination of defendants, indeed, must have a stricter application to it than to the combinations passed on in the cited cases. The defendants were common car- riers and it was their duty to compete, not combine; and their duty takes from them palliation, subjects them in a special cause to the policy of the law." Commissions represent legislative delegation of power, nationally, in interstate commerce, and as to states, both in the exercise of their police power and in their proprietary rights as trustees, in that which a public service company uses in a way not open to each individual to use.® The legislature /strikes a mo- nopoly, when it declares the use such a company makes is to be without favoritism or discrimination and at uniform price. But also there is need for further control. These public service companies must not un- duly interfere with each other. This feature it is par- ticularly the purpose of this chapter to develop. § 196. Certificates of Necessity or Convenience. — In the laws, the statute or constitution, of many states creating public service commissions, certificates by the commission are required to be obtained for the construction by a public service company of its *Nash V. United States, 229 U. S. 373, 33 Sup. Ct. 780, 57 L. Ed. 1232; Eastern States Retail Lbr. Dealers Asso. v. United States, 234 U. S. 600, 34 Sup. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915 A 788; International Harvester Co. v. Missouri, 234 U. S. 199, 34 Sup. Ct. 859, 58 L. Ed. 1276, 52 L. R. A. (N. S.) 525. E Lake Shore & M. S. R. Co., 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702. 462 COMMISSION CONTROL TO PREVENT MONOPOLIES § 197 works.* Others require certificates of convenience and necessity before any such company can begin or carry on business/ These provisions have challenged the attention of the courts and commonly have been sus- tained. A full list of the states are not given, but th© commission acts generally as the necessity for this kind of control by aid of commissions exercising pow- ers specially conferred develops. All commission legislation contains or soon may contain these pro- visions. Where a telephone company is a private concern it cannot be required to take out a certificate of conve- nience.* But if such a company, though private, in- terferes with regulation of a public service company, it may be required to procure certificate of conveni- ence.' ^ 197. Controlled Monopoly and Restricted Com- petition. — One of the first if not the first, states adopt- ing a public utility act said by its Supreme Judicial Court,^" in speaking of companies supplying light to 8 Arizona Laws 1912 Ch. 90 Sec. 50; California Laws 1911, Ch.. 14 Sec. 50; Idaho Laws 1913, p. 247; Illinois Laws 1913, H. B. No. 907, Sec. 55; Missouri Laws 1913, p. 557, Sec. 53; Pennsylvania Laws 1913, p. 1374, Art. Ill, Sec. 2; Maine R. S. 1903, Ch. 51, Sec. 3. 7 Connecticut Laws 1902, Sec. 3846; Maryland Laws 1910, ch. 180, Sees. 26, 33; Michigan Laws 1911, ch 138, Sec 7; New Hampshire Laws 1911, ch. 164, sec. 13; Ohio Laws 1911, No. 325, Sec 54; South Dakota Laws 1907, ch, 217, Sees. 1, 2; New York Laws 1910, ch. 480, See. 33. 8 Public Utilities Commission v. Bethany Mut. Teleph. Asso. 270 111. 183, 110 N. E. 334. See also Public Service Com. v. Spokane, Wash. 154 Pac. 1110. 9 Ashley & C. Mut. Teleph. Co. v. New Ashley Teleph. Co., 92 0. St. 391, 110 N. E. 959. 10 Weld V. Board Gas & Elee. Light Comrs., 197 Mass. 556, 84 N. E. 101. 463 § 197 COMMISSION COSlTEOL TO PREVENT MONOPOLIES communities, that: "We have adopted in this state, legislative regulation and control as our reliance against the evil effects of monopoly, rather than com- petitive action between two or more corporations, where such competition will greatly increase the ag- gregate cost of supplying the needs of the public, and perhaps cause other serious inconvenience. , . . Our statutes are founded on the assumption that to have two or more competing companies running lines of gas pipe and conduits for electric wires through the same street would often greatly increase the necessary cost of furnishing light as well as cause great incon- venience to the public and individuals from the un- necessary digging up of streets from time to time and the interfering with pavements, street railway tracks, water pipes and other structures. ... In reference to some kind of public service and under some condi- tions, it is thought by many that regulation by the state is better than competition." A later case" said that regulated monopoly "is an advantage accruing to defendant (gas company) be- yond and in addition to those enjoyed at the time its charter was granted," this being in support of the conclusion that a corporation organized to manu- facture and sell gas and heat in one city cannot part with its franchise and its physical property to an- other company under some general scheme for improv- ing the facilities for providing gas for that city, where such a scheme would amount to an evasion of the commission statute. In a New York case^^ speaking of a permit by the M Atty Gen. v. Haverhill Gas L. Co. 215 Mass. 394 101 N. E. 261. 12 People ex rel N. Y. Edison Co. v. Wilcox, 207 N. Y. 86, 100 N. E. 705, 45 L. R. A. (N. S.) 629. 464 COMMISSION CONTROL TO PREVENT MONOPOLIES § 197 commission to a public service company to issue bonds, it was said: "It is the settled policy of the state, arising through an extended and instructive experi- ence, to withdraw the unrestricted right of competi- tion between corporations occupying, through special consents or franchises, the public streets and places and supplying the public with their products or utili- ties, which are well nigh necessities." The New York public service commission alludes^' to this question in saying a maximum rate for gas is not of necessity based upon cost, because state policy is that public regulation takes the place of competi- tion and unnecessary duplication is to be avoided/* That this restriction of competition affects the rate of return in favor of patrons is well shown by a deci- sion by Wisconsin Railroad Commissions^ where it was said: "One view that may be held is that during periods when no public regulation of utilities exists and there is little restriction as to the number of con- cerns that may enter the same field, the risks of the business are greater and utilities are therefore en- titled to larger returns during the profitable years than would otherwise be the case." It is argued then that if commissions permit duplicate investment they are responsible for increased cost of service. A statute authorizing a commission to order physical connection of telephone lines justifies certificate of convenience and necessity when the public interest is thereby sub- 13 Mayhew t. Kings Co. Lighting Co., 2 P. A. C. 1st D. N. Y., de- cided October, 1911. 1*1 Whitten Valuation Pub. Ser. Corps., Sec. 168, p. 158. 15 La Crosse Gas & E. Co., 8 Wis. R. C. R. 138. 465 § 198 COMMISSION CONTROL TO PREVENT MONOPOLIES served and subscribers of each will be served over the lines of respectively competing companies." § 198. Indeterminate Permits Protection Prom Competition. — In Wisconsin commission law it is pro- vided that "no municipality shall hereafter construct any such plant or equipment where there is in opera- tion under an indeterminate permit as provided in this act, in such municipality a public utility engaged in similar service, without first securing from the com- mission a declaration, after a public hearing of all par- ties interested, that public convenience and necessity require such municipal public utility." Wisconsin Supreme Court considered whether a city under the circumstances presented could build its own electric lighting plant notwithstanding there had been granted to a public service company an indeterminate permit to carry on the business which the city was about to undertake." The court went into a great deal of dis- cussion in the opinion it rendered. The judgment was that the city be enjoined. It was said: "One of the major means for attaining the end desired was elimi- nation of excessive investments and excessive expenses caused by two or more public utilities, each with its separate property and fixed charges, where the need of the consumers only required one, and elimina- tion of risk to investors by encroachments, or threat- ened encroachments, upon an occupied field of public service without any public necessity therefor."" 16 Michigan State Teleph. Co. v. Railroad Commission, Mich., 161 N. W. 240. "Calumet Service Co. v. City of Chilton, 148 Wis. 334, 135 N. W. 131. 18 See also La Crosse v. La Crosse G. & E. Co., 145 Wis. 408, 130 N. W. 530. 466 COMMISSION CONTROL TO PREVENT MONOPOLIES § 199 § 199. Unregulated Competition of Public Utili- ties Serious Evil. — ^An Idaho case^° justifies the policy of vesting power in commissions to issue or refuse permits in their reasonable discretion to public service companies where an existing company occupies the field in quite an elaborate opinion. This says: "The cry of monopoly by promoters and agitators will not be given much weight by thinking people when they come to study the question of public utilities carefully and to thoroughly consider from various viewpoints the welfare and financial interests of those who fur- nish the money for the construction of utility plants and those who are in need of and demand the products or services of such plants for their comfort and pros- perity. Those who furnish the money should be given a reasonable interest therein; the corporation should be allowed sufficient to keep the plant in good repair so as to give the patrons good service; the people who do the work should be paid a reasonable wage; the consumer should receive the product or service at a reasonable compensation or rate. The interest of these four classes are entitled to fair and just consid- eration. It is conceded at the present time by the leading thinkers of the country upon this subject that the best method of arriving at a reasonable rate to be charged for such services can be better established by a public utility commission than by competition, es- pecially that competition which must culminate in un- regulated monopoly." Further on the court speaks of a corporation without a competitor suggesting duplication of its plant so as to get better rates and 19 Idaho Power & L. Co. v. Public U. Com. 26 Idaho 222, 141 Pac. 1083, Ann. Cas. 1916 B 282. 467 § 200 COMMISSION CONTKOL TO PREVENT MONOPOLIES then it is said: "But experience shows that snch duplication must be paid for by the community," while a commission, without duplication being had, could establish reasonable rates. The court then goes into an extensive discussion of the right to delegate power to a commission, but it cites no particular case as to a legislature conferring power to restrict competition. It would seem, how- ever, that, if a reasonable means to the end of securing efficient regulation, and enabling the public to be ade- quately served at the lowest rate consistently with a. public service company's right to earn a fair return for its services, is through restricting competition, this is a constitutional policy. In the first place, a public service company cannot operate at all without a fran- chise or permit from the public, and, in the second place, if either may be refused, it can be granted on terms, and, thirdly, if no terms are expressed they are implied, because the legislature acts as trustees for the people or in the exercise of its police power. That this is the view of almost all of the states is shown by their unanimity in authorizing commissions to issue certificates of convenience and necessity. § 200. Privilege to Use Streets and Highways. — ^In a New Jersey case^" it was said: "The relator (in mandamus) argues that because certain statutes authorize municipalities to grant permission and con- sent to erect poles for the purpose of telephone opera- tions, the power of the utility board is limited to super- vising the exercise, etc., of that power, etc., etc." But the court replied that power was given the utility 20 Eastern Telephone Co. v. Public U. Board, 85 N. J. L. 511, 89 Atl. 924. 468 COMMISSION CONTROL TO PREVENT MONOPOLIES § 201 board to determine when a privilege or franoMse "is necessary and proper for the public convenience and properly conserves the public interests. . . . The right to use the public streets and highways by these private corporations is derived from the legislature and it has the power to say that while a municipality may grant a franchise, it shall not be valid until ap- proved by the board. . . . The legislature could have refused it, if application was required to be made to it." A public service company devoting its prop- erty to public use appears to come under the same rule. It was held by a Pennsylvania Superior Court^^ under same state of facts as in the next preceding case, that there was no denial of due process of law or any impairment of the obligation of a contract for a public service commission to refuse a certificate of public convenience to a light, heat and power company to occupy streets, etc., where another company was serv- ing a borough satisfactorily and at fair and reasonable rates. The court said that: "Unrestricted competi- tion in such utilities has been by experience shown to be ultimately unwholesome for the community." § 201. Instances of Denial of Certificates of Conve- nience and Necessity. — ^As illustrations of grants by public service commissions under conferred authority a few commission cases are hereinbelow referred to. New YorkPublio Service Commission Second District denied certificates of convenience for the operation of jitney busses." The commissioner refers to Public 21 Be Electric L. H. & P. Co. 63 Pa. Super Ct. 1, P. IT. R. 1916 D 592. 22 Re Ashmead P. U. R. 1916 D 10. 469 § 201 COMMISSION CONTROL TO PREVENT MONOPOUES Service Commissions Law of 1907 as to its estaWish- ing a new policy generally in competition between public utility companies. As seen in Edison Co. v. Wilcox, supra, this control of competition was between companies occupying the public streets. Alluding to the former law the commissioner said: "It has been supposed that by permitting and encouraging prac- tically unrestricted competition between privately owned companies, the state was following the course from which the largest measure of good would accrue to the public at large. The new law vested in the pub- lic service commissions power to withhold certificates of public convenience and necessity from persons or corporations who might desire to enter certain public utility fields which were already occupied by estab- lished enterprises. . . . The far reaching regula- tory powers of the new commissions were expected to be effectively used in compelling existing utility enter- prises to give the very best service possible that the circumstances of each case permitted. . . . The un- derlying thought was that, almost every case, the ulti- mate sufferer from unrestrained competition between public utilities was necessarily the public itself. . . . Since the Public Service Commission Law has been on the statute books the commissions have frequently exercised their new powers to protect existing utility companies against competition, which, if permitted, would have been ruinous to both competitors. ' ' With these prefatory observations the situation is described of the entrance into the field of urban pas- senger transportation of the "jitney" in competition with street railways, and considering its function and direct interference with street cars in Rochester, cer- tificate of convenience and necessity was denied. 470 COMMISSION CONTROL TO PREVENT MONOPOLIES § 201 Ohio Public Utilities Commission held that a tele- phone company should be denied a certificate of public convenience where a company was already occupying the field and possessed of a plant and using a service adequate to serve the public." Wisconsin Railroad Commission refused a certifi- cate of public convenience to a telephone company de- siring to enter occupied territory so as to serve an applicant merely because he was a stockholder and prefers his own company.''* New York Public Service Commission Second Dis- trict gave a restricted certificate of convenience to an auto-bus line in a case differing somewhat in its facts from Re Ashmead, supra.^^ Wisconsin Eailroad Commission refused a certifi- cate of convenience to a private telephone system so as to become a public utility, where a company in the siame field was willing to make extension to the former's prospective subscribers.^^ Wisconsin Commission also refused certificate to a telephone company to extend into occupied territory, where was existing company, there was nothing to jus- tify the conclusion that it was unable to render ade- quate service, though some of its patrons were dissat- isfied. The ruling was without prejudice to applicant to reapply. Even though inadequate service has been rendered, yet if the company can be reasonably compelled to give 23 Re Farmers Mut. Teleph. Co., P. U. R. 1916 D 930. 2* Re Hubbard Farmers' Telephone Co.. P. U. R. 1915 C 435. 25 Re Becroft, P. U. R. 1916 B 820. 28 Re Cochems P. U. R. 1916 B 841. See also South Lebanon Twp. Blec. Co. (Pa. Pub. Service Commission ) P. U. R. 1916 B 430. 471 § 202 COMMISSION CONTROL TO PREVENT MONOPOLIES adequate service, a rival will not be granted a certifi- cate of convenience.^'' § 202. Grants of Certificates of Convenience and Necessity. — Where a municipal waterworks was re- quired by public convenience a village was granted a certificate to construct same, wbere the existing sys- tem was insufficient and unable to meet the reasonable demands of the village.^* And so where the Pocatello Water Company did not make proper extensions and was not adequate to meet the necessary and reasonable demands of the inhabitants of that city,^* On the theory that Iowa law prefers competition to regulated monopoly, its Board of Railroad Commis- sioners granted a franchise to an electric transmis- sion line outside of cities, although the commission might believe the line unnecessary and competitive.^" And if in the judgment of the commission the busi- ness of the occupying plant will not be encroached upon or any serious active competition result, a certifi- cate of public convenience will be granted.^^ 27jee Red Oak Telephone Asso. (Wisconsin Railroad Com.) P. U. R. 1916 B 131. 28i?e McCammon (Idaho Pub. U. Commission) P. U. R. 1916 D 500. 29 Be City of PocatlUo (Idaho Pub. U. Com.) P. U. R, 1916 D 176. 30 Schmidt Bros & Co. v. Clayton County P. U. R. 1916 C 49. 31 Re Towamencin Elec. Co. (Penna P. S. Com.) P. U. R. 1916 C 118. 472 Appendix of Procedural Parts, Annotated, of Commission Laws of States. PREFACE TO APPENDIX. In the early history of the principle of regulation of property devoted to a public use as that principle found concrete application in the Illinois statute upheld in the case of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, legislation on this subject was an unchartered sea. It soon began to spread, however, among the states, but its expression was as to common carriers as repre- sented by railroad corporations. In some of the states it still is confined to such. As thus manifested many of the states had enacted railroad commission legislation prior to the Commerce Act and there is little doubt this was the inspiration and, to a great degree, it influenced the form and phraseology of that enactment by Congress. The principle, however, in the Munn ease was broader than that of control of common carriers. In fact, it was not applied in the Munn case to such, but to a warehouse for grain so situated as to make its opera- tions of public concern, like business conducted by the owner of a wharf in a port. Favors and franchises were taken into view in the great argument the court used to sustain the statute. As business awoke to the possibilities afforded in making every calling contrib- ute for the special favors it enjoyed other than were common to the people, it was seen that for the protec- tion of the public and the protection of property de- 473 PREFACE TO APPENDIX voted to such callings, a systematic control was nec- essary through boards and commissions. Legislatures were unequal to such task for many reasons. Chiefly among them was there were needed representatives of the public in constant session, and expert men must exercise administrative functions and on occasion act both legislatively and judically. Indeed, a survey of the whole field of effort reveals that there should be co-ordination between competitors in particular callings and between callings subject to regulation. Therefore, commission control, it was thought by many states, ought to be as comprehensive as the principle authorizing it. Therefore, as supplementary to the treatise in the foregoing pages there is added an appendix showing the procedural parts of commission legislation in the states, with annotation showing decision by the courts respectively of the states, this annotation also citing cases on general lines as applied to particular legisla- tion. As seen there has grown up a sort of code formula in many of the states, which necessitates much repeti- tion of language. Instead, however, of this being a disadvantage, it ought to be esteemed a benefit, as thus it serves to make applicable both to help the rule of statutes taken from other states bringing over prior contraction, and, also, it aids persuasiveness of decis- ion in other states. It is to be remembered that a com- mission is confined strictly to the statutory power that is conferred and the parts reproduced in this appendix may be read for aid in determining nice questions whether there has been an overstepping of the limits of power. 474 RULES ALABAMA COMMISSION ALABAMA Alabama Code 1907, sees. 5632-5725; title changed in 1915 to Alabama Public Service Comission. § 5651. Jurisdiction. — To supervise and regulate all transportation companies.^ Peocedueal Sections, § 5667. Complaints Against Railroads — Upon com- plaint of any person, firm, corporation or association, or of any mercantile, agricultural or manufacturing society or body politic or municipal organization, that any of the rates, fares or classifications or any joint rate or rates, are in any respect unreasonable or un- justly discriminatory, or that any regulation or prac- tice whatsoever affecting the transportation of per- sons or property, or any service in connection there- with, are in any respect unreasonably or unjustly dis- criminatory, or that any service is inadequate, the com- mission may notify the transportation company com- plained of that complaint has been made and ten days after such notice has been given, the commission may iAuthoritjf. of commissioners Is merely advisory and not compul- sory. N. C. & St. L. Ry. Co. v. State, 137 Ala. 439, 34 So. 401. Dele- gation of power is constitutional. Ex parte Birmingham, Ala., 74 So.- 51. Delegation of Power. — ^Power to determine sale of public utility property as consistent with public interest, lawful. (Ex parte City of Birmingham, Ala., 74 So. 51, P. U. R. 1917 C 667.) But review- ing court has no power to render judgment to settle the rights of opposing parties. Ibid. Where power is given commission to fix maximum rates lawful to forbid railroad cancelling latter while .the commission is not In session. (State ex rel. Martin v. Louisville &"N. R. Co., (Ala.), 72 So. 494.) 475 KULES ALABAMA COMMISSION proceed to investigate the same as hereinafter pro- vided. § 5671. Hearings by Commission of Own Motion. — Whenever the commission may believe that any rate or charge may be unreasonable or unjustly discrim- inatory, or that any service is inadequate and that an investigation relating thereto should be made, it may of its own motion investigate the same. If after mak- ing such investigation the commission becomes satis- fied that sufficient grounds exist to warrant a hearing to determine whether the rate or charge so investi- gated is unreasonable or unjustly discriminatory, or whether the service investigated is inadequate, it shaU furnish the transportation company or companies in- terested a statement setting forth the rate, charge or service investigated, which said statement shall be accompanied by a notice fixing the time and place for hearing on such rate, charge or service as the case may be. Notice shall also be given to other parties in inter- est, and shall be given at least ten days in advance of any hearing, and thereafter proceedings shall be had and conducted the same as where complaints are made under sec. 5667, supra. § 5681. Refusal of Railroad to Fix Joint Rates. — "Whenever any transportation company shall refuse or neglect to establish a joint rate or rates for the transportation of persons or property, the commission may upon notice to such transportation company or companies, and after an opportunity to be heard ... fix and establish such joint rate or rates, and if the transportation companies, parties, thereto shall fail to agree upon apportionment thereof within twenty 476 RULES ALABAMA COMMISSION days after the service of such orders, the commission may, upon like hearing, issue a supplemental order, de- claring the apportionment of such joint rate or rates, and the same shall take effect of its own force as part of the original order. § 5683. Rates Prima Facie Reasonable. — All rates, fares, charges, classifications and joint rates and or- ders establishing rules, regulations, practice or serv- ices fixed by the commission shall be in force and shall be prima facie reasonable until finally found otherwise in an action brought for that purpose ... or until changed by the commission. (The Railroad Commis- sion Act was amended in 1915 and from this later act we give the sections showing the inclusion of utilities other than "transportation companies," to which jurisdiction of the commission was extended, also the change of the name of the commissions, supra.) Act. 1915, p. 865, Sec. 3. — Additional Powers and Utility Companies. — That in addition to any powers under the laws of this state, now conferred upon or ex- ercised by the railroad commission of Alabama, the Alabama Public Service Commission, upon which has herein been conferred all the authority, rights, powers, duties, privileges and jurisdiction thereof, shall have and exercise exclusive jurisdiction, supervision and authority over the rates and charges, with full power to regulate, supervise and control said rates and charges of all street railway companies, telephone companies, electric companies, gas companies, water companies, hydra electric or water power companies, heating companies, combination gas and electric com- panies, combination electric and water companies, com- bination electric and heating companies, combination 477 RULES ALABAMA COMMISSION electric heating and gas companies, combination elec- tric heating, gas and water companies, operating and doing business for hire in this state, either as a person, firm or corporation, but nothing herein shall be construed as a regulation of or interfering with interstate commerce; provided that the provisions of this act shall not apply to municipally owned utilities. That the Alabama Public Service Commission is charged with the duty of supervising, regulating and controlling of such persons, firms and corporations do- ing business as aforesaid in this state in all matters relating to their rates and charges and of correcting abuses therein by such persons, firms or corporations. And the commission shall from time to time, in the manner now, or that may hereafter be authorized by law, for prescribing and enforcing the rates and charges of railroads in this state prescribe and enforce against such persons, firms or corporations such rates and charges as may be reasonable and just and shall require such persons, firms and corporations to estab- lish such rates and charges as may be reasonable and just, which said rates and charges the commission may from time to time amend,^ etc. 2 The commission has no power to enter an order without hearing evidence. Railroad Commission v. Louisville & N. R. Co., Ala. 72 So. 397, P. U. R. 1916 F 356. But there is a presumption that orders are made upon proper evidence and that they are reasonable. Rail- road Commission v. Alabama G. S. R. Co., 186 Ala. 364, 64 So. 13, L. R. A. 1915 D 98. An order must clearly appear to be unjust and unreasonable or it will be upheld. Railroad Commission V. St. Louis & S. F. R. Co., 195 Ala. 527, 70 So. 645 P. U. R. 1916 C 451. Where evidence is not reported, judicial inquiry Is limited to question whether commission has jurisdiction, ex parte City of Birmingham, Ala. 74 So. 51. Ginning cotton for public is dedica- tion to public use. Tallahassee Oil & F. Co. v. HoUoway, Ala. 76 So. 434. 478 RULES ABIZONA COMMISSION ARIZONA (Constitution of Arizona Art. XV and R, S. Arizona 1913, sees. 2277-2360.) Title: Corporation Commission. § 2307. Jurisdiction. — The supervision and regula- tion of all public service corporation.^ Peocedueal Sections § 2308. Making Orders After Hearing. — ^Whenever tlie commission, after a hearing had upon its own mo- tion or upon complaint, shall find, that the rates, fares, tolls, rentals, charges or classifications, or any of them demanded, observed, charged or collected by any pub- lic service corporation for any service or product or commodity, or in connection therewith, including the rates or fares for excursion or commutation tickets, or that the rules, regulations, practices or contracts or any of them, affecting such rates, fares, tolls,rental,charges or classifications or any of them, are unjust, unreas- onable, discriminatory or preferential, or in anywise in violation of any provision of law, or that such rates, fares, tolls, rentals, charges or classifications are in- sufficient, the commission shal determine the just reasonable or sufficient rates, fares, tolls, rentals, charges, classifications, rules, regulations, practices or contracts to be thereafter observed and in force and shall fix the same by order as hereinafter provided. I A water system operated to supply a part of the residents of a part of a town site is a public utility subject to regulation by the commission. Van Dyke v. Geary, 244 U. S. 39, 37 Sup. Ct. 483, 61 L. Ed. — . 479 RULES ARIZONA COMMISSION § 2340. Rescission and Alteration. — The commis- sion may at any time, upon notice to the public service corporation affected and after opportunity to be heard as provided in case of complaints, rescind, alter or amend any order or decision made by it. Any order rescinding, altering or amending a prior order or de- cision, shall when served upon the public service cor- poration affected have the same effect as is herein pro- vided for original orders or decisions. § 2342. Application for Rehearing. — ^After any or- der or decision has been made by the commission, any party to the action or proceeding or any stockholder or bondholder, or the party pecuniarily interested in the public service corporation affected, or the attorney general on behalf of the state, may apply for a rehear- ing in respect to any matters determined in said ac- tion or proceeding and specified in the application for rehearing and the commission may grant and hold such rehearing on said matters, if in its judgment suf- ficient reason therefor be made to appear. (a) Condition Precedent to Suit. — No course of ac- tion arising out of any order or decision of the com- mission shall accrue in any court to any corporation or person or the state, unless such corporation or per- son or the state shall have, before the effective date of said order or decision, application to the commission for a rehearing. (b) Grounds of Application. Such application shall set forth specifically the grounds on which the appli- cant considers said decision or order to be unlawful. No corporation or person or the state shall in any court urge or rely on any ground not set forth in said application. 480 RULES ARIZONA COMMISSION Xe) Time for Filing Application. Any application for a rehearing made ten days or more before the ef- fective date of the order as to which a rehearing is sought, shall he either granted or denied before such effective date or the order shall stand suspended until such application is granted or denied. Any applica- tion for a rehearing made within less than ten days be- fore the effective date of the order as to which a re- hearing is sought and not granted within twenty days, may be taken by the party making the application to be denied, unless the effective date of the order is ex- tended for a perio,d of the pendency of the application. (d) Forthwith Hearing if Application Granted. If any application for a rehearing be granted without a suspension of the order involved, the commission shall forthwith proceed to hear the matter with all dispatch and shall determine the same within twenty days after final submission, and if such determination is not mad© within said time, it may be taken by any party to thei rehearing that the order involved is affirmed. (e) Stay of Order. An application for rehearing shall not excuse any corporation or person from com- plying with and obeying any order or decision or any requirements of any order or decision of the commis- sion theretofore made, or operate in any manner to stay or postpone the enforcement thereof, except in such eases and upon such terms as the commission may, by order direct. (f) Abrogation or Change of Order. If after such rehearing and a consideration of all the facts, includ- ing those arising since the making of the order or de- cision the commission shall be of the opinion that the original order or decision or any part thereof is in 481 RULES ARKANSAS COMMISSION any respect unjust, or unwarranted, or should be changed, the commission may abrogate, change or modify the same. (g) Effect of Order Upon Rehearing. Any order or decision made after such rehearing abrogating, chang- ing or modifying the original order for decision shall have the same force and effect as an original order, but shall not affect any right or the enforcement of any right arising from or by virtue of the original order or decision unless so ordered by the commission. Judicial Review § 2343. Action to Vacate Order. — This section pro- vides for the bringing of an action in the Superior Court within thirty days by any party dissatisfied with the decision of the commission, the complaint to be served on the commission and it to file its answer in 20 days thereafter. In all trials under this section the burden of proof is on the plaintiff who must show ' ' by clear satisfactory evidence" that the decision of the commission is unreasonable or unlawful. The court must enter judgment affirming, modifying or setting aside the decision of the commission. (Abstract.)" ARKANSAS Kir by 's Digest of Arkansas Statutes 1904, sees. 6787-6831. Title: Railroad Commission of Arkansas. Jurisdiction under constitution to correct abuses 2 Enforcement of order fixing water rates upon basis of return will be upheld where it cannot be said that a fair minded board would not reach this result. Van Dyke v. Geary, 244 U. S. 39, 37 Sup. Ct. 483, 61 L. Ed. 482 RULES CALIFORNIA COMMISSION and prevent nnjnst discrimination and excessive charges by railroads, canals and turnpike companies. The statute passed to carry this constitutional power into effect does not in detail set forth rules of procedure and practice before the commission.* CALIFORNIA Statutes and Amendments to the Codes 1915, ch. 91, pp. 115, 169, sees. 1-86. Title of Act: Public Utilities Act. Title of Commission: Eailroad Commission of the State of California. The commission has jurisdiction over public utilities which include every common carrier, pipe line, gas, electrical, telephone, telegraph and water corporation, wharfinger and warehouseman, where service is per- formed for the commodity delivered to the public or 1 One operating an incline for hire and holding himself out to carry cargoes of vessels to a railroad is a common carrier. Joest T. Clarendon & R. Packet Co., 122 Ark. 353, 183 S. W. 759. If statute requires petitions to he signed by individuals rather than corporations, this must he complied with. St. Louis & S. P. B. Co. V. State, 120 Ark. 182, 179 S. W. 342, P. U. R. 1916 A 868. Telephone service may he denied to a suhscriber refusing to ohey reasonable rules and regulations. S. W. Teleg. & Teleph. Co. v. Danaher, 102 Ark. 574, 144 S. W. 925. It may require payment of charges in advance, or extend credit to whom it may deem desir- able. Yancey v. Batesville Teleph. Co. 81 Ark. 486, 99 S. W. 679, 11 Ann. Cas. 135. And to avoid being imposed upon it may require a subscriber to pay for long-distance messages originating on his phone. S. W. Teleg. & Teleph. Co. v. Sharp & White, 118 Ark. 541, 177 S. W. 25 L. R. A. 1915 B 323. The statutory duty of a railroad may be enforced though loss is entailed thereby. Railroad Commission v. Saline River R. Co., 119 Ark. 239, 117 S. W. 896, P. U. R. 1915 E 191. 483 RULES CALIFORNIA COMMISSION any portion thereof and any person whose service is of the same kind or nature/ Pbocbdubal Sections § 60. Complaint in Writing. — Complaint may be made by the commission of its own motion or by any corporation or person, chamber of commerce, board of trade, or any civic, commercial, mercantile, traffic, ag- ricultural or manufacturing association or organiza- tion, or any body politic or municipal corporation, by petition a complaint in writing, setting forth any act 1 Automobile carriers of freight and passengers over routes on public highways are transportation companies subject to regulation by the commission. Western Asso. of S. L. R. v. Railroad Commis- sion, 173 Cal. 802, 162 Pac. 391, P. U. R. 1917 C 178. Conferred Power. — Grants to commission are strictly construed. Atchison T. & S. F. R. Co. v. Railroad Commission, 173 Cal. 577, 160 Pac. 828, P. U. R. 1917 B 336. Devotion to public use does not destroy ownership nor justify taking away all management of private property. Pacific Teleph. & Teleg. Co. v. Bshleman 166 Cal. 640, 137 Pac. 1128, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915 C 882. Irrigation company supplying water to purchasers of land is public utility and its rates may be controlled. Palermo Land & W. Co. V. Railroad Commission, 173 Cal. 380, 160 Pac. 288, P. U. R. 1917 A, 447 A telephone company operated for use of all persons at a resort for public entertainment is a public utility. Camp Rincon R. Co. v. Eshleman, 172 Cal. 561, 158 Pac. 186, P. U. R. 1916 E 418. Jitney Busses. — It is not an arbitrary classification of vehicles to subject jitney busses to regulation. Ex parte Cardinal, 170 Cal. 519, 150 Pac. 348, P. U. R. 1915 E 282. Extension of Service. — No absolute duty of water company to extend its mains but this is conditioned on reasonableness. Luk- rawka v. Spring Valley Water Co.. 169 Cal. 318, 146 Pac. 640, P. U. R. 1915 B 331. Conduits. — Private contracts are subject to right of state in regu- lation. Limoneiva Co. v. Railroad Commission, (Cal.), 162 Pac. 1033. 484 RULES CALIFORNIA COMMISSION or thing done or omitted to be done by any public utility in violation or claimed to be in violation of any provision of law or of any order or rule of the commission. (a) Joinder Misjoinder and Nonjoinder. All mat- ters upon which complaint may be founded may be joined in one hearing and no motion shall be enter- tained against a complaint for misjoinder or causes of actions or grievances or misjoinder or nonjoinder of parties and in any review by the courts of orders or de- cisions the same rule shall apply with regard to the joinder of causes and parties as herein provided. (b) Service of Notice. — Service in hearings, inves- tigations and proceedings may be made upon any per- son upon whom a summons may be served in accord- ance with the provisions of the Code of Civil Proced- ure, and may be made personally or by mailing in a sealed envelope registered with postage prepaid. (c) Time and Place of Hearing. — The commission shall fix the time when and place where a hearing will be had upon the complaint and shall serve notice there- of not less than ten days before the time set for such hearing, unless the commission shall find that public necessity requires that such hearing be .held at an earlier date. § 61. Opportunity to be Heard. — ^At the time fixed for any hearing before the commission or a commis- sioner, or the time to which the same may have been continued, the complainant and the corporation or per- son complained of, and such corporations or persons as the commission may allow to intervene shall be en- titled to be heard and introduce. The commission shall issue process to enforce the attendance of witnesses. 485 RULES CALIFORNIA COMMISSION (a) Making and Service of Order. — After the con- clusion of the hearing the commission shall make and file its order containing its decision. A copy of such order certified under the seal of the commission shall be served upon the corporation or person complained of, or his or its attorney. (b) Taking Effect and Continuance of Order. — Said order shall of its own force take effect and become op- erative twenty days after the service thereof, except as otherwise provided and shall continue in force either for a period which may be designated therein or until changed or abrogated by the commission. If an order cannot, in the judgment of the commission be com- plied with within twenty days, the commission may grant and prescribe such additional time as in its judg- ment is reasonably necessary to comply with the order, and may on application and for good cause shown ex- tend the time for compliance fixed in its order. (c) Application Condition Precedent to Other Re- lief. — No cause of action arising out of any order or decision of the commission shall accrue in any court to any corporation or person unless such corporation or person shall have made, before the effective date of said order or decision, application to the commission for a rehearing.^ (d) Grounds Set Forth in Application. — Such ap- plication shall set forth specifically the ground or grounds on which the applicant considers said decision or order to be unlawful. No corporation or person 2 This is a condition that goes to the jurisdiction of reviewing court, Clemmons v. Railroad Commission, 173 Cal. 254, 159 Pac. 713, P. U. R. 1916 F 469; Pacific Teleph. & Teleg. Co. v. Bshleman, 166 Cal. 640, 137 Pac. 119, 50 L. R. A. (N. S.) 652, Ann. Cas, 1915 C 822. 486 RULES CALIFOENIA COMMISSION shall in any court urge or rely on any ground not so set forth in said application. (e) Timely Filing of Application.^Ajaj application for a rehearing made ten days or more before the ef- fective data of the order as to which a rehearing is sought, shall be either granted or denied before such effective date, or the order shall stand suspended until such application is granted or denied, (f ) Application Taken as Denied. — Any application for a rehearing made within less than ten days before the effective date of the order as to which a rehearing is sought and not granted within twenty days, may be taken by the party making the application to be de- nied, unless the effective date of the order is extended for the period of the pendency of the application.* (g) Granting Application Without Suspension of Order. — If any application for a rehearing be granted without a suspension of the order involved, the com- mission shall forthwith proceed to hear the matter with all despatch and shall determine the same within twenty days after final submission, and if such deter- mination is not made within said time, it may be taken by any party to the rehearing that the order involved as affirmed. (h) Application No Stay of Order. — ^An application for rehearing shall not excuse any corporation or per- son from complying with and obeying any order or decision of the commission theretofore made, or oper- ate in any manner to stay or postpone the enforcement thereof, except in such eases and upon such terms as the commission may by order direct. 3 This provision is directory more than jurisdictional. Mt. Knochti L. & P. Co. v. Thelen, 170 Cal. 468, 150 Pac. 359, P. U. R. 1915 B 291. 487 RULES CALIFORNIA COMMISSION (i) Abrogation of Order. — If after sucli reHearing and a consideration of all the facts, including those arising since the making of the order or decision, the commission shall be of the opinion that the original order or decision or any part thereof is in any respect unjust or unwarranted, or should be changed, the com- mission may abrogate, change or modify the same. (j) Effect of Abrogation of Order. — An order or de- cision made after such rehearing abrogation, chang- ing or modifying the original order or decision shall have the same force and effect as an original order or decision, but shall not affect any right or the enforce- ment of any right arising from or by virtue of the orig- inal order or decision unless so ordered by the com- mission. Judicial Eeview § 62. Application for Judicial Review. — ^Within thirty days after the application for a rehearing is de- nied, or, if the application is granted, then within thirty days after the rendition of the decision on re- hearing, the applicant may apply to the Supreme Court of this state for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original order or decision or the order or decision on rehearing in- quired into and determined. (a) Writ of Review, when Returnable. — Such writ shall be made returnable not later than thirty days af- ter the date of the issuance thereof, and shall direct the commission to certify to its record in the case of the court. On the return day the cause shall be heard by the Supreme Court, unless for a good reason shown the same be continued. 488 RULES CALIFORNIA COMMISSION (b) Review Upon Certified Record. — No new or ad- ditional evidence may be introduced in the Supreme Court, but the cause shall be heard on the record of the commission as certified to by it. (c) Extent of Review. — The review shall not be ex- tended further than to determine whether the commis- sion has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of petition under the consti- tution of the United States or of the state of Cali- fornia. (d) Complete Record of Formal Hearing. — A full and complete record of all proceedings had before the commission or any commissioner on any formal hear- ing had and all testimony shall be taken down by a reporter appointed by the commission and the parties shall be entitled to be heard in person or by attorney. (e) Record on Review. — ^In case of an action to re- view any order or decision of the commission, or tran- script of such testimony, together with all exhibits or copies thereof introduced, and of the pleadings, record and proceedings in the cause shall constitute the record of the commission; provided that on review of an order or decision of the commission, the petition and the commission may stipulate that a certain ques- tion or question alone and a specified portion only of the evidence shall be certified to the Supreme Court for its judgment, whereupon such stipulation and the question or questions and the evidence therein speci- fied shall constitute the record or review. § 62. Complaint by Public Utility.— Sny public utility shall have a right to complain on any of the grounds upon which complaints are allowed to be filed 489 RULES CALIFOENIA COMMISSION by other parties and the same procedure shall he adopted and followed as in other cases, except that the complaint may he heard ex parte by the commission or may he served upon any parties designated by the commission. -^ 66. Rehearing, Application for. — After any or- der or decision has been made by the commission, any party to the action or proceeding or any stockholder or bondholder or other party pecuniarily interested in the public utility affected, may apply for a rehearing in respect to any matters determined in said action or proceeding and specified in the application for relief, and the commission may grant and hold such rehear- ing on said matters, if in its judgment sufficient reas- on therefor be made to appear. (a) Findings of Fact. — The findings and conclusions of the commission on questions of fact shall be final and shall not be subject to review; such questions of fact shall include ultimate facts and the findings and conclusions of the commission on reasonableness and discrimination.* (b) Appearance hy Parties. — The commission and each party to the action or proceeding before the com- mission shall have the right to appear in the review proceeding. (c) Judgment Affirming or Setting Aside Orders. — ^Upon the hearing the Supreme Court shall enter judgment either affirming or setting aside the order or decision of the commission. (d) Provisions Applicable to Writs of Review. — The provisions of the code of Civil Procedure of this 4 0ro Electric Corporation v. Railroad Commission, 169 Cal. 466, 147 Pac. 118, P. U. R. 1915 C 191. 490 RULES COLORADO COMMISSION state relating to writs of review shall, so far as applic- able and not in conflict with this act, apply to proceed- ings instituted in the Supreme Court under the pro- yisions of this section. (e) Exclusive Jurisdiction in Supreme Court. — No court of this state (except the Supreme Court to the extent herein specified) shall have jurisdiction to re- view, reverse, correct or annul any order or decision of the commission, or suspend or delay the execution or operation thereof, or to enjoin or restrain or inter- fere with the commission in the performance of its of- ficial duties, provided, that the writ of mandamus shall lie from the Supreme Court to the commission in all proper cases." COLORADO Sessions Laws 1913, pp. 464-509, and sees. 1-69. Title: Public Utilities Commission of the State of Colorado. § 14. Power and Authority.— The power and au- thority is hereby vested in the Public Utilities Com- mission of the state of Colorado, and it is hereby made its duty to adopt all necessary rates, charges and reg- ulations, to govern and regulate all rates, charges and tariffs of every public utility of this state as herein defined, the power to correct abuses and prevent un- just discriminations and extortions in the rates, charges and tariffs of such public utilities of this state 5 The overruling of a demurrer, amounting only to an interme- diate order Is not subject to review. Holabird v. Railroad Commis- sion, 171 Cal. 691, 154 Pac. 831, P. U. R. 1916 C. 458. Court will not review order as to priority between consumers, where no right is interfered with. Hooper, etc., v. Railroad Commission (Cal.), 165 Pac. 689, P. U. R. 1917 E 997, 491 RULES COLORADO COMMISSION and to generally supervise and regulate every public utility in this state and to do all things, whether here- in spefically designated, or in addition thereto, which are necessary or convenient in the exercise of such power, and to enforce the same by penalties provided in this act, through proper courts having jurisdiction.^ Peocedtjeal Sections § 15. Schedules by Public Utilities to be Filed With Commission. — Under such rules and regulations as the commission may prescribe, every public utility shall file with the commission within such time and in such form as the commission may designate, and shall print and keep open to public inspection, schedules showing all rates, tolls rentals, charges and classifications col- lected or enforced, or to be collected and enforced, to- gether with all rules, regulations, contracts, privileges and facilities which in any manner affect or relate to rates, tolls, rentals, classifications or service. The rates, tolls, rentals and charges shown on such sched- ules when filed by a public utility, as to which the com- mission acquires the power by this act to fix any rates, tolls, rentals or charges, shall not within any portion of the territory as to which the commission acquires as to such pubic utility such power, exceed the rates, tolls, rentals or charges in effect on the tenth day of October, 1912, the rates, tolls, rentals and charges shown on such schedules, when filed by any public utility as to any territory as to which the commission does not by this act acquire as to such public utility such power, 1 Where city was not given express power to contract as to a rate its making a rate in a contractural way does not bar commission from disregarding tliat. Denver & S. P. R. Co. v. City of Englewood (Colo.), Pac. P. U. R. 1916 B 134. 492 RULES COLORADO COMMISSION shall not exceed tlie rates, tolls, rentals and charges in effect at the time the commission acquires as to such territory and as to such public utility, the power to fix rates, tolls, rentals or charges. Nothing in this section contained shall prevent the commission from approving or fixing rates, tolls, rentals or charges, from time to time, in excess of or less than those shown by said schedules. ■^ 23. Power to Determine Rates. — ^Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that the rates, tolls ren- tals, charges or classifications or any of them demand- ed, observed, charged or collected by any public utility for any service, or product or commodity, or in con- nection therewith, including the rates or fares for ex- cursion or commutation tickets, or that the rules, regu- lations, practices or contracts, on any of them affecting such rates, fares, tolls, rentals, charges, or classifica- tions, or any of them, are unjust, unreasonable, dis- crimatory or preferential, or in any wise in vioation of any provision of law, or that such rates, fares, tolls, rentals, charges or classifications are insufficient, the commission shall determine the just, reasonable or sufficient rates, fares, tols, rentals, charges, rules, reg- ulations, practices or contracts to be thereafter ob- served and in force, and shall fix the same by order as hereinafter provided. (a) Single Fare or Schedule of Fares. — The com- mission shall have the power, upon a hearing had upon its motion or complaint, to investigate a single rate, fare, toll, rental, charge, classification, rule, regula- tion, contract or practice, or any number thereof, or the entire schedule or schedules of rates, fares, tolls, 493 RULES CONNECTICUT COMMISSION rentals, charges, classifications, rules, regulations, con- tracts and practices, or any thereof, of any public util- ity, and to establish new rates, fares, tolls, rentals, charges, classifications, rules, regulations, contracts or practices, or schedule or schedules, in lieu thereof. § 24. Facilities and Service. — ^Whenever the com- mission after a hearing upon its own motion or upon complaint, shall find that the rules, regulations, prac- tices, equipment, appliances, facilities or service of any public utility, or the methods of manufacture, dis- tribution, transmission, storage or supply employed by it, are unjust, unreasonable, unsafe, improper, in- adequate or insufficient, the commission shall deter- mine the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, ap- pliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed and shall fix the same by its order, rule or regulation. The com- mission shall prescribe rules and regulations for the performance of any service or the furnishing of any commodity of the character furnished or supplied by any public utility, and upon proper tender of rates such public utility shall furnish such commodity or render such service within the time and upon the con- ditions provided in such rules. CONNECTICUT Public Acts 1911, ch. 128, pp. 1387-1399, sees. 1-39. Title: Public Utilities Commission. » § 1. Jurisdiction over Common Carriers and rail- road, street railway, electric, gas, telephone, telegraph 494 RULES CONNECTICUT COMMISSION and water 'companies and their plants and equip- ment.^ Peocedueal Sections § 23. Maximum Rates and Adequate Service.— Any town, city or borougli within wMch, or between wMcli and other town, city or borough in this state, is fur- nishing service, or any ten patrons of any such com- pany furnishing service in accordance with, or at rates prescribed by an order of the commission, may bring a written petition to the commission alleging that the rates or charges made by such company or prescribed by the commission are unreasonable, or that the ser- vice furnished by such company is inadequate, or that the service ordered by the commission exceeds, pub- lic necessity and convenience. Thereupon the com- mission shall fix a time and place for a hearing upon such petition and shall mail notice thereof to the par- ties in interest and give due public notice thereof at least one week prior to such hearing. Upon said hear- ing the commission may, if it finds such rates and charges to be unreasonable, or such service to be inad- equate or excessive, determine and prescribe an ade- quate service to be thereafter furnished or just and reasonable maximum rates and charges to be there- after made by such company, and such company shall thereafter furnish the service so prescribed, and shall ''^ Extension of Service. — There is jurisdiction in commission to entertain petition for extension of service in territory public util- ity is authorized by its charter to serve. New Brittain Gas. L. Co. T. Root, (Conn.), 99 Atl. 559, P. U. R. 1917 C 102. Delegation of Power. — Legislature could constitutionally delegate power to a commission to determine number of railway tracks to he laid on a city bridge used as a public highway. In Be Connecti- cut Company, 89 Conn. 528, 94 Atl. 992, P. U. R. 1915 E 490. 495 RULES CONNECTICUT COMMISSION not thereafter demand any rate or charge in excess of the maximum rate or charge prescribed.^ §24. Rates and Service for Single Person. — ^If any water, gas, electric or telephone company shall un- reasonably fail or refuse to furnish adequate service at reasonable rates to any person within the ter- ritorial limits within such company has, by its charter, authority to furnish such service, such per- son may bring his written petition to the com- mission alleging such failure or refusal. There- upon the commission shall fix a time and place for a hearing upon said petition and shall mail notice to the parties in interest at least one week prior to such hearing. Upon said hearing the commission may, if it finds that such company has unreasonably failed or .refused to furnish such person with adequate ser- vice at reasonable rates, prescribe the service to be furnished by such company to such person and the con- ditions upon which, and maximum rates at which such service shall be furnished. Such company shall there- after furnish such service to such person in accordance with the conditions so prescribed and shall not there- after demand or collect any rate or charge for such service in excess of the maximum rate or charge so prescribed. § 29. Appeals to Superior Court. — ^Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the com- mission in any matter to which he or it was or ought 2 statements in petition should not be looked at in a techni- cal way. New Brlttain Gas L. Co. v. Root, (Conn.), 99 Atl. 559, P. U. R. 1917 C 102, 496 RULES CONNECTICUT COMMISSION to Kave been made a party, may appeal therefrom to the Superior Court within fifteen days after the filing of such order, authorization or decision, but said com- mission may extend the time for the filing of such ap- peal for an additional period of not more than fifteen days. (Appellant to give bond.) § 31. Complaint or Appeal. — ^Each appeal shall be brought by a complaint in writing stating fully the reasons therefor, with a proper citation, signed by competent authority, to all parties to said proceedings having an adverse interest to the appellant and shall be served upon such parties at least twelve days be- fore the return day. (a) Appeal When Returnable. — Such appeals shall be brought to the next return day of said court after the filing of said appeal, if there be sufficient time for giving the notice provided for by this act, otherwise the return day next but one after such filing.^ (b) Decision on Appeal. — Said court shall hear such appeal and re-examine the question of the legality of the order, authorization or decision in so far as said court may properly have cognizance of such subject, either by itself or a committee and shall proceed there- on in the same manner as upon complaints for equit- able relief and the decision of such court, subject how- ever, to review on appeal to the Supreme Court or er- rors on questions of law, shall be final and conclusive upon the parties.* s Court not justified in setting aside order as unreasonable, be cause testimony as to future prospects was not definite. New Brit- tain Gas L. Co. V. Root, — Conn. 99 Atl. 559, P. U. R. 1917 C 102. 4 Administrative orders will not be interfered with where regu- larly made and supported by evidence. Appeal of City of Norwalk 89 Conn. 537, 94 Atl. 988, P. U. R. 1915 E 294. 497 RULES PLOEIDA COMMISSION DELAWAEE This state has no public service statute. FLOEIDA Florida Compiled Laws (Annotated) 1914, Title IV, eh. 5, sees. 2882-2995. Title : Railroad Commission of the State of Florida. JUEISDICTION § 2893. Duty of Commission. — To make reasonable and just rates of freight ; rules and regulations to en- force observance of tariffs, to make reasonable and just rates for use and transportation of railroad cars and reasonable and just rules against unjust discrim- ination. They have the power to make reasonable joint rates ; to compel railroads to construct switches ; to provide for physical connection; to compel inter- change of traffic and cars ; to require establishment of stations; to establish train schedules; to regulate ter- minal companies; to require union depot; to require connection with side tracks; to regulate charges for storage, wharfage, demurrage; to regulate feharges for refrigeration; to regulate receiving, handling and delivery of freight and to prescribe rules and regula- tions for carrying out its powers.^ 1 Conferred Power. — Commission conlined to powers expressly conferred. State v. Atlantic C. L. R. Co., 56 Pla. 617, 47 So. 969, 32 L. R. A. (N. S.) 639. But this does not require specific enumera- tion of powers. State v. Atlantic C. L. R. Co., 61 Fla. 799, 54 So. 900. If an order is arbitrarily made it is not within conferred power. State ex ret. v. Florida E. C. R. Co., 69 Fla. 165, 67 So. 906, P. U. R. 1915 C 207. Discretion. — ^Must be exercised in good faith and is subject to 498 bules florida commission Peocbdtjeal Sections § 2899a. Commission to Furnish Schedules oF Rates. — Said commissioners shall make and furnish to each common carrier doing business in this state, as soon as practicable, a printed or written schedule of just and reasonable rates and charges for transporta- tion of freights, passengers and cars on its transporta- tion line or lines under its control or management.^ (b) Schedules Prima Facie Reasonable. — And such schedule, certified by the chairman of the commission- ers shall be admitted in evidence without necessity for other proof and shall in all suits brought against any common carrier wherein is involved the rates of any such common carrier for the transportation of freight of any description or charges for the transportation or use of any car upon the tracks of any railroad or any of the branches thereof, or for the transportation of any passenger or passengers, or for any unjust dis- review by the courts. State v. Florida East Coast Ry. Co., 57 Fla. 522, 49 So. 43. Specific Complaint. — Not necessary for initiation of proceedings. State V. Louisville & N. R. Co., 62 Fla. 315, 57 So. 175. Burden of Regulation. — "The burden of lawful regulation is as- sumed by the carrier in engaging in the public service of a com-- mon carrier." State ex rel. v. Florida B. C. R. Co., 69 Fla. 480, 68 So. 729, P. U. R. 1915 D 105; State ex rel. v. Florida B. C. R. Co., 57 Fla. 522, 49 So. 43. Absence of Necessary Evidence in Burden of Proof. — In such event court will not determine an order of commission deprives a carrier of reasonable compensation for service rendered the pub- lic. State ex rel. y. Florida E. C. R. Co., 69 Fla. 473, 68 So. 727, P. U. R. 1915 D 114. 2 This section is specific grant of power. State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969, 32 L. R. A. (N. S.) 639. There is no power to make rates for particular persons. State v. Atlantic C. L. R. Co., 51 Fla. 578, 40 So. 875. 499 RULES FLORIDA COMMISSION crimination in relation thereto, be deemed and taken in all the courts of this state as prima facie evidence that the rates fixed in such schedule or schedules are just and reasonable rates of charges for the transporta- of freight, cars and passengers upon the transportation lines of said carrier.* (c) Revision of Schedule. — ^And said commissioners shall, as often as circumstances may require, change or revise any schedule or schedules and furnish all com- mon carriers doing business in this state with notice of such changes or revisions and such notice shall state the time when such changes or revisions shall go into effect.* § 2900. (a) Public Notice of Change of Rates or Rules. — The said commissioners before changing, re- 3 This does not establish conclusiveness of schedules, but merely a mode to show reasonableness, prima facie correct in the absence of proof to the contrary. Pennsacola R. Co. v. State, 25 Fla. 310, 5 So. 833, 3 L. R. A, 661; Cullen v. Seaboard A. L. R. Co. 63 Fla. 122, 58 So. 182. Thus admissions in pleadings that rate was not estab- lished in proper way or admission of unreasonableness or without evidence or due consideration Is such proof. State v. Florida Bast Coast Ry. Co. 64 Fla. 112, 59 So. 385. If there may be difference of opinion whether a schedule will prove remunerative or not, courts will affirm what commissioners have decided. Stows v. Pennsa- cola & A. R. Co., 29 Fla. 617, 11 So. 226. If a rate is claimed to work an unjust discrimination, burden is on one so claiming to sustain the claim by clear and convincing evidence. State, ex rel., V. Louisville & N. R. Co., 62 Fla. 315, 57 So. 175; State, ex rel. v. Florida E. C. R. Co., 69 Fla. 480, 68 So. 729, P. U. R. 1915 D 105. The charge for rendering a particular service is not confined to its actual cost. State ex rel. v. Florida E. C. R. Co. 69 Fla. 491, 68 So. 761, P. U. R. 1915 D, 355. *If actual experience demonstrates that rates are confiscatory carrier may apply to reopen inquiry therein. Florida B. C. R. Co. Fla. 73 So. 171, P. U. R. 1917 B 1023; State ex rel. v. Louisville & N. R. Co., 63 Fla. 274, 57 So. 673. £500 EXJLES FLORIDA COMMISSION vision, fixing, adopting or allowing any such schedule or prescribing any such rules and regulations, shall give public notice to their intended action in such newspa- pers and for such time as shall be deemed fair and rea- sonable by said commissioners, to all common carriers to be affected and to the public generally, of the times and places of their meetings. (b) Opportunity for Hearing. — ^And all common carriers and persons interested shall be entitled to a just and fair hearing before said commissioners and whenever any full schedule shall have been made, changed or revised, adopted or allowed, or any rule or regulation prescribed as aforesaid, the commission shall in every instance give the date on which the same will go into effect/ § 2908 (a) Enforcement of Orders. — If any railroad, railroad company or other common carrier doing bus- iness in this state shall by any officer, agent or em- ployee be guilty of a violation or disregard of any rate, schedule, rule or regulation provided or prescribed by said commission, or shall fail to make any report required to be made under the provisions of this chap- ter, such company or common carrier shall thereby in- cur a penalty for each such offense of not more than five thousand dollars, to be fixed and imposed by said commissioners after not less than ten days' notice of 5 Unless every requirement of statute for a fair hearing is given, orders of commission lose presumption of their reasonableness. State ex rel. v. Florida E. C. R. Co., 69 Fla. 165, 67 So. 906, P. U. R. 1915 C 207. Opportunity to be heard is necessary to be given. State ex rel. v. Atlantic C. L. R. Co., 70 Fla. 102, 70 So. 941, P. U. R. 1916 C 519. If an order is not based on any evidence it is not made in due course of law and will be set aside. State ex rel. v. Florida E. C. R. Co., 69 Fla. 165, 67 So. 906, P. U. R. 1915 C 207. 501 RULES FLORIDA COMMISSION tHe charge of such, violation or disregard of the pro- visions of this chapter, and upon which charge such company or common carrier shall have had an oppor- tunity to be heard by said commissioners.^ (b) Answer Under Oath. — The common carrier charged shall file its defense or defenses in writing under oath, specifically setting forth each. (c) Amendments to Pleadings. — The commissioners may permit amendments to charges and defenses upon such terms and conditions and with such postpone- ments of hearing, if any, as in their opinion the ends of justice may require. They may also adopt rules to regulate the proceedings before them. (d) Action by State for Penalty. — The said penalty in the amount so imposed, if not promptly paid to the State Treasurer, shall be recovered with interest there- on from the date of the order, in a civil action brought by the said commissioners in the name of the state of Florida in any county in the state, where such viola- tion has occurred, or in any other county through or in which such common carrier runs or does business. (e) Averments in Petition. — The declaration shall be deemed sufiicient if it recites fully or sets forth the order in which suit is brought with an averment that the defendant is indebted to the plaintiff thereon in the amount of the penalty imposed with interest there- on. (f) Special Pleas Required. — ^In such cases there shall be no general issue, but the plea or pleas shall specifically set forth the particular defense or defenses to the action. «If it clearly appears from the pleadings that a regulation is just the court need not take any testimony. State v. Atlantic C. L. R. Co., 61 Pla. 799, 54 So. 900. 502 BULKS FLORIDA COMMISSION (g) Defenses Isfot Presented to Commission Barred. — ^And no defense which existed prior to the day of hearing before the commissioners and which was not made before them shall be permitted in the action/ (h) Fines by Commission Prima Facie Valid. — TE^ fact of the fixing and imposing of such fine by the com- missioners shall constitute prima facie evidence of ev- erything necessary to create the liability or require the payment of the fine or penalty as fixed and imposed, and to authorize a recovery thereon in any actions or, proceedings brought by the commissioners.* § 2923. Appeals as in Ordinary Cases. — Appeals by either party shall be from judgments, orders and de- crees of inferior courts in all suits and cases brought under the provisions of this chapter to the same ex- tent that appeals lie in similar suits and cases brought under any other law in this State and not otherwise. (a) Precedence over Other Cases. — But all such ap- peals shall be taken to the Appellate Court, returnable within thirty days, and shall be advanced to the head of the docket and given precedence over. all other ap- peals except habeas corptis proceedings and shall be heard and determined as soon as practicable after the filing of the appeal in the said court. 7 This does not prevent resistance to an unconstitutional order. Railroad Comrs. v. Atlantic C. L. R. Co., 56 Fla. 525, 47 So. 870; Louisville & N. R. Co. v. Railroad Comrs., 63 Fla. 491, 58 So. 543, 44 L. R. A. (N. S.) 189. 8 Orders not to be interfered with unless invalidity clearly ap- pears. State V. Louisville & N. R. Co., 63 Fla. 274, 57 So. 673. The burden of proof is on carrier to show by convincing evidence that a rate is unremunerative. State ex rel. v. Florida B. C. R. Co., 69 Fla. 473, 68 So. 727, P. U. R. 1915 D 114; State ex ret v. Florida E. C. R. Co., Fla. 73 So. 171, P. U. R. 1917 B, 1023. 503 RULES GEORGIA COMMISSION (h) Court to Adopt Rules to Expedite Hearing. — And Appellate Courts are hereby authorized and re- quired to establish such reasonable special rules and regulations forthe speedy trial and disposition of such appeals as may be necessary or advisable to secure the prompt hearing and disposition of such appeals. (c) No Supersedeas from Judgment. — But no sup- ersedeas shall be granted from any order, decree or judgment of any court rendered in favor of said com- missioners upon any proceeding instituted or caused to be instituted by the commissioners by or for man- damus, injunction, mandatory injunction, prohibition or procedento to compel the* observance of the pro- visions of this chapter, as to any rule, rate or regula- tion of the commission made thereunder, but any such order, decree or judgment shall be respected and obeyed until finally disposed of by the Appellate Court. GEOEGIA 1 Code of Georgia 1911, sees. 2615-2670. Title: Eailroad Commission. The same may be said about this act as of the Flor- ida act, except that the jurisdiction and powers of the commission is more extensive. Thus by sec. 2663 it is given "general supervision of all common carriers, railroads express corporations or companies, street railroads, railroad corporations or companies, dock or wharfage corporations or companies, terminal or terminal station corporations or companies, telephone and telegraph corporations or companies within this S'tate ; gas or electric light and power companies with- in this state. It is also provided by this section that 504 RULES IDAHO COMMISSION "wliile it may hear complaints, yet tHe commission is authorized to perform the duties imposed upon it of its own initiative, and to require all common car- riers and other public service companies under their supervision to establish and maintain such public ser- vice and facilities as may be reasonable and just, either by general rules or by special orders in particular cases." There are, therefore, no provisions in the act as to procedure before the commission.^ IDAHO Idaho Sessions Laws 1913, ch. 61, pp. 247-296, sees. 1-80. Title: Public Utilities Commission. Jurisdiction over every common carrier, pipe line, gas, electrical, telephone, telegraph and water corpor- ation, wharfinger and warehouseman.^ Peocedueai, Sections § 56. Complaint, by Whom. — Complaint may be toade by the commission of its own motion or by any corporation or person, chamber of commerce, board ^Power Upheld. — City of Dawson v. Dawson Telephone Co., 137 Ga. 62, 72 S. E. 508. It contemplates the giving of notice and hearing by a rule of the commission. Wadley So. Ry. Co. v. State, 137 Ga. 497, 73 S. E. 471. This case affirmed. Wadley So. R. Co. v. Georgia, 235 U. S. 651, Sup. Ct. 214, 60 L. Ed. 1, P. U. R. 1915 A 106. 2 Conferred Powers. — Commission has no concern in the fact that a public utility pays exorbitant salaries to officers and small divi- dends on stock. City of Coeur D'Alene v. Public Utilities Commis- sion, 29 Idaho 508, 160 Pac. 751, P. U. R. 1917 B, 348. One utility may take by eminent domain the property of another, provided it is not to be devoted to the same purpose and in the same way as before. Marsh Mining Co. v. Inland B., M. & M. Co., Idaho, 165 Pac. 1128. 505 EULES IDAHO COMMISSION of trade or any civic, commercial, mercantile, traffic, agricultural or manufacturing association or organ- ization, or any body politic or municipal organization, by petition or complaint in writing, setting forth any act or thing done or omitted to be done by any public utility, including any rule, regulation or charge here- tofore established or fixed by or for any public utility in violation, or claimed to be in violation of any pro- vision of law or of any order or rule of the commission. (a) Complaint against Municipal Utility. — Pro- vided that no complaint shall be entertained by the commission except upon its own motion as to the rea- sonableness of any rate or charges of any gas, elec- trical, water or telephone, corporation unless the same be signed by the mayor or the president or chairman of the board of trustees or a majority of the council, commission or other legislative body of the city or county or town, if any, within which the alleged viola- tion occurred, or not less than 25 consumers or pur- chasers of such gas, electricity, water or telephone service. (b) Joinder, Misjoinder and N on- joinder. — ^AU mat- ters upon which complaint may be founded may be joined in one hearing and no motion shall be enter- tained against a complaint for misjoinder of causes of grievances or misjoinder or nonjoinder of parties and in any review by the courts of orders or decisions of the commission, the same rule shall apply with regard to the joinder of causes and parties as herein provided. The commission shall not be required to dismiss any complaint because of the absence of direct damage to the complainant. (c) Service of Complaint and Manner Thereof.— 506 EULES IDAHO COMMISSION Upon the filing of a complaint tlie commission shall cause a copy thereof to be served upon the corporation or person complained of. Service in all hearings, in- vestigations and proceedings pending before the com- mission may be made upon any person upon whom any summons may be served in accordance with the pro- visions of the Code of Civil Procedure in this state and may be made personally or by mailing in a sealed en- velope, registered, with postage prepaid. (d) Fixing Time and Place of Hearing. — The com- mission shall fix the time when and place where a hear- ing will be had upon the complaint and shall serve no- tice thereof, not less than twenty days before the time set for such hearing, unless the commission shall find that public necessity requires that such hearing be held at an earlier date. § 57. Opportunity to be Heard. — ^At the time fixed for any hearing before the commission or a commis- sioner, or the time to which the same may have been continued, the complainant and the corporation or the person complained of, and such corporation or persons as the commission may allow to intervene, shall be en- titled to be heard and to introduce evidence. The com- mission shall issue process to enforce the attendance of all necessary witnesses. (a) Making and Serving Order of Commission. — After the conclusion of the hearing the commission shall make and file its order containing its decision. A copy of such order, certified under the seal of the com- mission shall be served upon the corporation or person complained of, or its or his attorney. (b) Taking Effect of Order. — Said order shall of its own force take effect and become operative twenty 507 RULES IDAHO COMMISSION days after the service thereof, except as otherwise pro- vided, and shall continue in force, either for a period which may be designated therein or until changed or abrogated by the commission. If an order cannot in the judgment of the commission be complied with with- in twenty days, the commission may grant and pre- scribe such additional time as in its judgment is reas- onably necessary to comply with the order, and may, upon application and for good cause shown, extend the time for compliance fixed in its order. (c) Complete Record by Reporter of Commission. — A full and complete record of all proceedings had be- fore the commission or any commission or any formal hearing had, and all testimony shall be taken down by a reporter appointed by the commission and the par- ties shall be entitled to be heard in person or by at- torney. (d) Record on Review. — ^In case of an action to re- view any order or decision of the commission a tran- script of such testimony, together with all exhibits or copies thereof introduced and of the pleadings, record and proceedings in the cause shall constitute the rec- ord of the commission ; provided that on review of an order or decision of the commission the parties and the commission may stipulate that a certain question or questions alone and a specified portion only of the evidence shall be certified to the court for its judg- ment, whereupon such stipulation and the question or questions and the evidence therein specified shall con- stitute the record on review. § 58. Complaint by Public Utility.— Any public utility shall have a right to complain on any of the grounds upon which complaints are allowed to be filed 508 RULES IDAHO COMMISSION by other parties, and the same procedure shall he adopted and followed as in other cases, except that the complaint may be heard ex parte by the commission or may be reviewed upon any parties designated by the commission. § 60. Rescinding and Altering Orders. — The com- mission may at any time, upon notice to the public util- ity affected, and after opportunity to be heard as pro- vided in the case of complaints, rescind, alter or amend any order or decision made by it. Any order rescind- ing, altering or amending a prior order or decision shall when served upon the public utility affected have the same effect as is herein provided for original or- ders or decisions. § 62. Rehearing and Grant Thereof. — ^After an or- der has been made by the commission any corporation, public utility or person interested therein shall have the right to apply for a rehearing in respect to any matter determined therein and the commission shall grant and hold such rehearing if in its judgment sufi&- cient reason therefor be made to appear. If a rehear- ing shall be granted, the same shall be determined by the commission within 30 days after the same shall be finally submitted. (a) No Stay Pending Application for Rehearing. — An application for such a rehearing shall not excuse any corporation, public utility or person from com- plying with or obeying any order or requirement of any order of the commission or operate in any manner to stay or postpone the enforcement thereof, except as the commission may by order direct. (b) Order Made on Rehearing. — ^If after such re- hearing and a consideration of the facts including 509 BULES IDAHO COMMISSION those arising since the making of the order, the com- mission shall be of opinion that the original order or any part thereof is in any respect unjust or unwar- ranted or should be changed the commission may abro- gate or change the same. An order made after any such rehearing, abrogating or changing the original order, shall have the same force and effect as an orig- inal order, and shall not effect any right or the en- forcement of any right arising from or by virtue of the original order. Judicial Eevibw § Writ of Review. — ^Within thirty days after the ap- plication for a rehearing is denied, or, if the applica- tion is granted, then within thirty days after the ren- dition of the decision on rehearing, the applicant may apply to the Supreme Court of this state for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original order or decision or the order or de- cision on rehearing inquired into and determined. (a) Writ Returnable and Cause When Tried. — Such writ shall be made returnable not later than thirty days after the isuance thereof, and shall direct the commission to certify its record in the case of the court. On return day the cause shall be heard by the Supreme Court, unless for a good reason shown the same be continued. (b) Cause Heard On Record Before Commission. — No new additional evidence may be introduced in the Supreme Court, but the cause shall be heard on the record of the commission as certified by it. (c) Limitations in Review by Court. — The review shall not be extended further than to determine wheth- 510 RULES ILLINOIS COMMISSION er the commission has regularly pursued its authority, including a determination of whether the order or de- cision under review violates any right of the petition under the Constitution of the United States or of the state of Idaho and whether the evidence is sufficient to sustain the findings and conclusions of the commis- sion. (d) Findings of Fact Prima Facie Correct. — ^The findings and conclusions of the commission on ques- tions of fact shall he regarded as prima facie just, reasonable and correct. Such questions of fact shall include ultimate facts and the findings and conclusions of the commission or reasonableness and discrimina- tion." (e) Judgment Affirming or Reversing. — Upon the hearing the Supreme Court shall enter judgment eith- er affirming or setting aside the order or decision of the commission.^ ILLINOIS Hurds R. S. Illinois 1915-16, ch. Ilia, sees. 1-101, pp. 2016-2052. Title: State Public Utilities Commission. Peocedubal Sections § 60. Investigations and Hearings. — The commis- sion or any commissioner, or officer of the commission designated, shall have power to hold investigations, in- 2 City of Coeur D'Alene v. Public Utilities Commission, 129 Idaho 508, 160 Pac. 751, P. U. R. 1917 B 348. 8 The court may prescribe rules for a commission to follow in fixing valuation of property of a public utility, that Is to say, it may set aside an order where rates are not based on proper valu- ation. Murray v. Public Utilities Commission, 27 Idaho 603, 150 Pac. 47, P. U. R. 1915 F 436. 511 RULES ILLINOIS COMMISSION quiries and hearings concerning any matters covered by the provisions of this act, or by any other acts relating to public utilities subject to such rules and regulations as commission may establish. In the conduct of any investigation, inquiry or hearing neither the com- mission nor any ^commission or officer of the commis- sion shall be bound by the technical rules of evidence, and no informality in any proceeding as in the manner of taking testimony before the commission, any com- missioner or officer of the commission shall invalidate any order, decision, rule or regulation made, approved or confirmed by the commission. All hearings con- ducted by the commission shall be open to the public.'- 1- Delegation of Power by Legislature. — The commission may ex- ercise power of eminent domain to secure public safety. Chicago, B. & Q. R. Co. T. Cavanaugh, 111., 116 N. E. 128. And, generally in the regulation of public service companies. City of Chicago v. O'Connell (111.), 116 N. E. 210, P. U. R. 730. And to do this Is not a taking of private property for public use -without just compen- sation, nid. And -when as in case of contracts between city and street railroads they are superseded by commission regulation, this does not impair the obligation of said contracts, they being subject to police power. Ibid. Nor where it is provided that con- sent of local authorities, as was formerly the case, need not be obtained to construct and operate a street railway. State Pub. TJ. Com. V. Chicago & W. T. R. Co., 275 111. 555, 114 N. B. 325, P. U. R. 1917 B 1046. Conferred Power. — Order made by commission without evidence to support it, is beyond its jurisdiction. State Pub. U. Com. v. Chicago & "W. T. Ry. Co., supra. And so where it as an administra- tive body attempts to act where a court of competent jurisdiction had passed on the question to the contrary. People ex rel. v. Peoria & P. Union R. Co. 273 lU 440, 113 N. E. 68 P. U. R. 1916 B 795. Power must be conferred specifically and not by general terms. Public Utility Com. v. Chicago & N. W. R. Co., 270 111. 232, 110 N. E. 321, P. U. R. 1916 A 992. Property of Private Telephone Asso- ciation not within jurisdiction. P. U. Com. v. Bethany M. Teleph. Co., 270 111. 183, 110 N. E 334, P. U. R. 1916 A 997. But secns 512 RULES ILLINOIS COMMISSION § 64. Complaints. — Complaint may be made by the commission, of its own motion or by any person or cor- poration, chamber of commerce, board of trade, or any individual, commercial, mercantile or manufacturing society, or any body politic or municipal corporation by petition or complaint in writing, setting forth any act or thing done or omitted to be done in violation or claimed violation, of any provision of this act, or of any order or rule of the commission. All matters upon which complaint may be founded may be joined in one hearing, and no motion shall be entertained against a complaint for misjoinder of complaints or grievances or misjoinder of parties, and in any review by the courts of orders of the commission, the same rule shall apply and pertain with regard to the joinder of complaints and parties as herein provided. No com- plaint shall be dismissed because of the absence of direct damage to the complainant.^ (a). Notice and Service. — ^Upon the filing of a com- plaint the commission shall cause a copy thereof to be served upon the person or corporation complained of, which shall be accompanied by a notice requiring that ■where it has connection with other telephone companies In mutual exchange of service. State Pub. U. Com. v. Noble M. Teleph. Co., 268 111. 411, 109 N. E. 298, P. U. R. 1915 D, 770. Powers. — Fact that similar service for interstate transportation is rendered as for local service does not affect power of state com- mission to regulate. Chicago, M. & St. P. R. Co. v. P. TJ. Com'n, 268 111. 49, 108 N. E. 729, P. U. R. 1915 D 133. 2 Where there was general prayer for relief and utility appeared and defended, complaint will not be looked at closely. Chicago, M. & St. P. R. Co. V. P. U. Com'n, 268 111. 49, 108 N. B. 729, P. U. R. 1915 D 133. Or if utility was instrumental in bringing hearing about and acted on benefit of the order it will be bound thereby. Chicago, M. & S. P. R. Co. v. Com'n, 267 111. 544, 108 N. E. 737, P. U. R. 1915 D 141. 513 KULES ILLINOIS COMMISSION tHe complaint be satisfied and answered within a reas- onable time to be specified by the commission, or with- in the discretion of the commission by a notice fixing a time and place where a hearing will be had upon such complaint. Notice of the time and place shall also be given to the complainant and to such other persons as the commission shall deem necessary. The commis- sion shall have authority to hear and investigate any complaint, notwithstanding the fact that the person or corporation complained of may have satisfied the complaint.^ (b). Fixing Time of Hearing Service How Made. — The time fixed for such hearing shall not be less than ^n days after the date of service of such notice and complaint except as herein provided. Service in all hearings, investigations and proceedings before the commission may be made upon any person upon whom a summons may be served in accordance with the pro- visions of an Act entitled: "An Act in relation to practice and procedure in courts of record" approved June 3, 1907, in force July 1, 1907 and may be made personally or by mailing same in the United States mail in a sealed envelope, registered, with postage pre- paid. The provision of this section as to notice shall apply to all hearings held by the commission or under its authority. (c). Complaint hy Public Utility. — Any public util- ity shall have a right to complain on any of the grounds upon which complaints are allowed to be filed by other parties and the same procedure shall be adopted and 3 Where utility appears and offers evidence it cannot object to the form of notice received. Chicago, M. & St. P. R. Co. v. Com- mission, 268 111. 49, 108 N. E. 729, P. U. R. 1915 D 133. 514 RULES ILLINOIS COMMISSION followed as in other cases except that the complaint may be heard ex parte by the commission or may be served upon any parties designated by the commission.* § 65. Hearing on Complaint. — ^At the time fixed for any hearing upon a compaint, the complainant and the person or corporation complained of and such persons or corporations as the commission may allow to inter- vene, shall be entitled to be heard and to introduce evi- dence. The commission shall issue process to enforce attendance of all necessary witnesses.^ (a) Making Findings and Orders. — ^At the conclu- sion of such hearing, the commission shall make and render findings concerning the subject-matter and facts inquired into and its order based thereon.^ (b) Service of Order and Going into Effect. — A copy of such order, certified under the seal of the com- mission, shall be served upon the person or corporation complained of, or his or its attorney, which order shall, of its own force, take effect and become operative twen- ty days after service thereof, except as otherwise pro- vided, and shall continue in force either for a period which may be designated therein or until changed or abrogated by the commission. Where an order cannot, * Voluntary Bates. — ^Utility cannot attack reasonableness. Chi- cago, M. & St. P. R. Co. V. Commission, 267 lU. 544, 108 N. E. 737, P. U. R. 1915 D 141. 5 Where rates are voluntarily established between several util- ities all parties to agreement must be notified when change is desired. Chicago, M. & St. P. R. Co. v. Commission, 267 111. 544, 108 N. E. 737, P. U. R. 1915 D 133. 6 No need that findings recite refusal of utility to establish a rate. It may be a mere direction. Chicago, M. & St. P. R. Co. v. Commission, 267 111. 544, 108 N. B. 737, P. U. R. 1915 D 141. Notice to file schedule is not fixing rates. Pub. Util. Com. v. Monarch Re- frig. Co., 267 111. 528, 108 N. E. 716, P. U. R. 1915 D 119. 515 RULES ILLINOIS COMMISSION in the judgment of tlie commission, be complied witli within twenty days, the commission may prescribe such additional time as in its judgment is reasonably necessary to comply with the order and may on appli- cation for good cause shown, extend the time for com- pliance fixed in its order (c) Preservation of Record. — ^A full and complete record shall be preserved of all proceedings had before the commission, or any member thereof, on any formal hearing had and all testimony shall be taken down by a stenographer appointed by the commission, and the parties shall be entitled, to be heard in person or by at- torney/ (d) Record on Appeal. — ^In case of an appeal from any order or decision, under the terms of sections 68 and 69 of this act, a transcript of such testimony to- gether with all exhibits or copies introduced and aU in- formation secured by the commission on its own initia- tive and considered by it in rendering its order or de- cision, and of the pleadings, record and proceedings h\ the case, shall constitute the record of the commission : Provided, that an appeal from an order or decision of the commission, the person or corporation taking the appeal and the commission may stipulate that a cer^ tain question or certain questions alone and a specified portion only of the evidence shall be certified to the court for its judgment, whereupon such stipuation and the question or questions, and the evidence therein specified shall constitute the record or appeal. (f) Notifying Third Persons. — ^In any matter con- T Unless full opportunity is given order is void. Farmers Ele^ vator Co. v. Chicago, R. I. & P. R. Co., 266 111. 567, 107 N. B. 841, P. U. R. 1915 A 872. 516 RULES ILLINOIS COMMISSION cerning which tlie commission is authorized to hold a hearing upon complaint or application or upon its own motion, notice shall be given to the public and to such other interested persons as the commission shall deem necessary in the manner provided in the preceding sec- tion and the hearing shall be conducted in like manner as if complaint had been made to or by the commission. But nothing in this act shall be taken to limit or restrict the power of the commission summarily, of its own mo- tion, or without notice, to conduct any investigations or inquiries authorized by this act, in such manner and by such means as it may deem proper, and to take such action as it may deem necessary in connection there- with.« (g) Rules on Decisions Made Without Rearing. — With ];espect to any rules, regulations, decisions or or- ders, which the commission is authorized to issue with- out a hearing, and so issues, any public utility or other person or corporation affected thereby and deeming such rules, regulations, decisions or orders of any of them, improper, unreasonable, or contrary to law, may apply for a hearing thereon, setting forth specifically in such application every ground of objection which the applicant desires to urge against such rule, regulation, decision or order. The commission may, in its disretion, grant or deny the application and a hearing, if had, shall be subject to the provisions of this and the pre- ceding sections. § QQ. Service of Orders. — ^Every order of the com- mission shall be served upon every person or corpora- 8 Opportunity to introduce evidence at a preliminary hearing will not avoid any right of utility to full hearing in formal proceedings. Farmers Elevator Co. v. Chicago, R. I. & P. R. Co., 266 111. 567, 107 N. E. 841, P. U. R. 1915 B 872. 517 EXILES ILLINOIS COMMISSION tion to be affected thereby, either by a personal deliv- ery of a certified copy thereof, or by mailing in the United States mail a certified copy thereof, in a sealed package with postage prepaid, to the person to be af- fected thereby, or, in case of a corporation, to any offi- cer or agent thereof npon whom a summons of a court of record may be served in an action at law. It shall be the duty of every person and corporation to notify the commission forthwith, in writing, of the receipts of the certified copy of every order so served, and in case of a corporation such notification must be signed and acknowledged by a person or officer duly authorized by the corporation to admit such service. Within a time specified in the order of the commission every person and corporation upon whom it is served must, if so re- quired in the order, notify the commission in lil^e man- ner whether the terms of the order are accepted and will be obeyed. § 67. Modification of Order. — The commission may at any time, upon notice to the public utility affected, and after opportunity to be heard as provided in case of complaints, rescind, alter or amend any rule, regu- lation, order or decision made by it. Any order re- scinding, altering or amending a prior rule, regulation, order or decision, shall, when served upon the public utility affected, have the same effect as is herein pro- vided for original, rules, regulations, orders or deci- sions. (a) Applying for Rehearing. — ^After any rule, regu- lation, order or decision has been made by the commis- sion, any party to the action or preceeding, or any stockhoder or bondholder or other party pecuniarily interested in the public utility affected, may apply for 518 RULES ILLINOIS COMMISSION a reliearing, in respect to matters determined in said action or proceeding, and specified in the application for reliearing, and the commission may grant and hold such rehearing on said matters, if in its judgment rea- son therefor be made to appear." (b) Suspension Pending Rehearing. — ^An applica- tion for rehearing shall not excuse any corporation or person from complying with or obeying any rule, reg- ulation, order or decision or any requirement of any rule, regulation, order, or decision of the commission theretofore made, or operate in any manner to stay or postpone the enforcement thereof, except upon such cases and upon such terms as the commission may by order direct. (c) Order for Rescission or Amendment. — ^If, after, such rehearing and consideration of all the facts, in- cluding those arising since the making of the rule, reg- ulation, order or decision, the commission shall be of the opinion, that the original rule, regulation, order or decision or any part thereof is in any respect unjust or unwarranted or should be changed, the commission may rescind, alter or amend the same. A rule, regula- tion, order or decision made after such rehearing, re- scinding, altering or amending the original rule, regu- lation, order or decision shall have the same force and effect as the original rule, regulation, order or decision, but shall not affect any right or the enforcement of any right arising from or by virtue of the original rule, reg- ulation, order or decision, unless so ordered by the commission. 9 This precludes claim that one not made party to original pro- ■ceeding is deprived of a hearing. City of Chicago v. O'Connell, 278 111. 591, 116 N. B. 210, P. U. R. 1917 E 730. 519 KULES ILLINOIS COMMISSION (d) Number of Rehearings. — Only one reHearing shall be granted by the commission ; but this shall not be considered to prevent any party from filing a peti- tion setting up a new and different state of facts after two years, and invoking the action of the commission thereon. § 68. Action to Set Aside Orders.— Within thirty days after the service of any order or decision of the commission made after a final hearing, or within thirty days after a hearing or refusal of a hearing upon any rule, regulation, order or decision which the commis- sion is authorized to issue without a hearing and has so issued, any person or corporation affected by such rule, regulation, order or decision may appeal to the circuit court of Sangamon County for the purpose of having the reasonableness or lawfulness of the rule, regula- tion, order or decision inquired into and determined: Provided, that no proceeding to contest any rule, reg- ulation, decision or order which the commission is au- thorized to issue without a hearing and has so issued, shall be brought in any court unless application shall have been first made to the commission for a hearing thereon and until after such application has been acted upon by the commission, nor shall any person or cor- poration in any court urge or rely upon any grounds not set forth in such application for a hearing before the commission.*" (a) Record on the Trial. — No new or additional evi- dence may be introduced upon appeal from a rule, reg- 10 The remainder of this subsection refers to details in regard to expedition, serving notice of appeal and the circuit court obtaining jurisdiction of the cause, a certified transcript as provided for by section 65. 520 RULES ILLINOIS COMMISSION ulation, order or decision of the commission issued or confirmed, but the appeal shall be heard on the record of the commission as certified by it. (b) Findings hy Commission Prima Facie Correct. — The findings and conclusions of the commission on questions of fact shall be held prima facie to be true and as found by the commission; and a rule, regulation, order or decision of the decision shall not be set aside unless it clearly appears that the finding of the com- mission was against the manifest weight of the evi- dence presented to or before the commission for and against such rule, regulation, order or decision or that the same was without the jurisdiction of the commis- sion." (c) Failure of Commission to Receive Evidence. — If it appears that the commission failed to receive evi- dence properly proffered, on a hearing or on a rehear- ing, or on application therefor, the court shall remand the case with instructions to receive the testimony so proffered and rejected, and to enter a new order upon the evidence theretofore taken, and such new evidence as it is directed to receive. (d) Burden of Proof. — ^Rules, regulations, orders or decisions of the commission shall be held to be prima facie reasonable and the burden of proof upon all is- sues raised by the appeal shall be upon the person or 11 This provision has been upheld in many jurisdictions as well as in Illinois. State Pub. U. Com. v. Chicago & W. T. Ry. Co., 275 111. 555, 114 N. E. 325, P. U. R. 1917 B 7046. But if shown to be arbitrary or unreasonable findings will be set aside. Fixing Rates Administrative Function. — It is not a judicial to fix rates. Chicago, M. & St. P. R. Co. v. Commission. 268 III. 49, 108 N. E3, 729. P. U. R. 1915 D 133. 521 RULES ILLINOIS COMMISSION corporation appealing from sucli rules, regulations, or- ders or decisions.^^ (e) Form of Judgment. — ^Upon hearing any such appeal, the court shall enter judgment either affirming, or setting aside the rule, regulation, order or decision of the commission/^ (f) Limiting Scope of Review. — ^When no appeal is taken from a rule, regulation, order or decision of the commission, as herein provided, parties affected by such rule, regulation, order or decision, shall be deemed to have waived the right to have the merits of said con- troversy reviewed by a court and there shall be no trial of the merits of any controversy, in which such rule, regulation, order or decision was made, by any court to which application may be made to enforce the same, in any other judicial proceeding/* § 69. Review by Supreme Court. — Appeals from final orders and judgments entered by the said circuit court, in review of rules, regulations, orders or deci- sions of the commission, may be taken directly to the Supreme Court by either party to the action within sixty days after service of a copy of the order or judg- ment of said Circuit Court and shall be governed by 12 Court cannot substitute its opinion for that of the commission on a question of fact. Cleveland C. C. & St. L. R. Co. v. State Pub. U. Com., 273 111. 210, 112 N. B. 689, P. U. R. 1917 A 1064; Alton & S. R. Co. V. Vandalia R. Co., 268 111. 68, 108 N. E. 800, P. U. R. 1915 D 941. That an order or regulation is confiscatory, utility must show. State Pub. U. Com. v. Toledo St. L. & W. R. Co., 267 111. 93, 107 N. B. 774, P. U. R. 1915 B 879. 13 Chicago M. & St. P. R. Co. v. Commission, 268 111. 49, 108 N. E. 729, P. U. R. 1915 C 133. 1* Statutory method of review is exclusive. City of Chicago v. O'Connell, 278 111. 591, 116 N. E. 210, P. U. R. 1917 E 730. 522 RULES INDIANA COMMISSION the rules applying to chancery cases appealed to said. Supreme Court, except that formal pleadings shall not be required." INDIANA 4 Burns' Anno. Indiana Statutes 1914, ch. 124 A. 10052 a to 10052 z4, Acts 1913 p. 167. This act consists of 131 sections. Title: Public Service Commission of Indiana. Peocedural Sections § 10052e2. Complaints — Ex parte Investigation. — Upon a complaint against any public utility by any mercantile, agricultural or manufacturing society or by any body politic or municipal organizatisn only ten persons, firms, corporations or associations, or ten complainants of all or any of the aforementioned classes, or by any public utility, that any of the rates, tolls, charges or schedules or any joint rate or rates in which such petition is directly interested are in any re- spect unreasonable or unjustly diserimatory, or that any regulation, measurement, practice or act whatso- ever affecting or relating to the service of any public utility or any service in connection therewith is in any respect unreasonable, unsafe, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained, the commission shall proceed, with 15 If order by commission is not based on any evidence before the commission, it will not be sustained. State Pub. U. Com. v. Chicago & W. T. Ry. Co., 75 111. 555, 114 N. B. 325, P. U. R. 1917 B, 1046. If there is substantial basis in the evidence, order of commission must be sustained. Chicago, M. & St. P. R. Co. v. P. U. Com'n, 268 III. 49, 108 N. B. 729, P. U. R. 1915 D 133. 523 RULES INDIANA COMMISSION or without notice, to make sucli investigation as it may deem necessary or convenient. But no order affecting said rates, tolls, charges, schedules, regulations, meas- urements, practices or act complained of shall be en- tered by the commission without a formal hearing.^ § 10052f2. Notice of Formal Hearing.— The com- mission shall, prior to such formal hearing, notify the public utility complained of, that a complaint has been made, and ten days after such notice has been given the commission may proceed to set a time and place for a hearing and an investigation as hereinafter provided. §10052g2. Notice Returnable. — The commission shall give the public utility and the complainant, if any, ten days ' notice of the time and place when and where such hearing and investigation will be held and such matters considered' and determined. Both the public utility and complainant shall be entitled to be heard and shall have process to enforce the attendance of witnesses. § 10052h2. Separate or Omnibus Hearing. — The commission may, in its discretion, when complaint is made of more than one rate or charge, order separate 1 Conferred Power. — Commission must act within its statutory powers. Chicago & E. I. R. Co. v. - Public Service Commission, (Ind.), 114 N. E. 414, P. U. R. 1917 B 876. Public Service Com. v. Vandalia R. Co., 183 Ind. 49, 108 N. E. 97, P. U. R. 1915 B 981. Where it acts within express statutory authority, its findings will be up- held. Vandalia R. Co. v. Pub. Service Com., (Ind.), 114 N. E. 412, P. U. R. 1917 B 879. Ministerial Duties. — Mandamus will tie to compel perform- ance. Pub. Ser. Com. v. State ex rel, 184 Ind. 273, 111 N. B. 10, P. U. R. 1916 C 42. Delegation of Power. — This delegation is lawful. Chicago Ry. Co. T. Commission, 38 Ind. App. 439, 78 N. E. 338. 524 EULES INDIANA COMMISSION hearings thereon, and may consider and determine the several matters complained of separately and at such times as it may prescribe. No complaint shall at any time be dismissed because of the absence of direct dam- age to the complainant. § 1005212. Ex Mere Motu Investigation. — ^When- ever the commission shall believe that any rate or charge may be unreasonable or unjustly discrimina- tory or that any service is inadequate or cannot be ob- tained or that an investigation of any matters relating to any public utility should for any reasons be made, it may on its motion summarily investigate the same with or without notice. § 10052J2. Ex Mero Motu Notice of Formal Hear- ing. — If after making such investigation, the commis- sion becomes satisfied that sufficient grounds exist to warrant a formal hearing being ordered as to the mat- ters so investigated, it shall furnish such public utility interested, a statement notifying the public utility of the matters under investigation. Ten days after such notice has been given the commission may proceed to set a time and place for a hearing and an investigation, as hereinbefore provided. § 10052k2. Notice and Proceedings Same as on Complaint. — Notice of the time and place of such hear- ing shall be given to the public utility and to such other interested person as the commission shall deem neces- sary as provided in section 10052g2, and thereafter proceedings shall be had and conducted in reference to the matter investigated in like manner as though com- plaint had been filed with the commission relative to the matter investigated, and the same order or orders 525 RULES INDIANA COMMISSION may be made in reference thereto as if sncli investiga- tions liad been made on compaint. § 10052t2, Findings as to Rates. — ^Wbenever, upon an investigation, the commission shall find any rates, tolls, charges, schedules or just rate or rates, to be un- just, unreasonable, insufficient or unjustly discrimiaa- tory or to be preferential, or otherwise in violation of any of the provisions of this act, the commission shall determine and by order fix just and reasonable rates, tolls, charges, schedules or joint rates to be imposed, observed and followed in the future in lieu of those found to be unjust, unreasonable, insufficient or unjust- ly discrimatory or preferential or otherwise in viola- tion of any of the provisions of this act.^ § 10052u2. Findings as to Service, etc. — ^Whenever, upon investigation under the provisions of this act, the commission shall find any regulations, measurements, practices, acts or service to be unjust, unreasonable, unwholesome, unsanitary, unsafe, insufficient, prefer- ential, unjustly discriminatory or otherwise in viola- tion of anyf of the provisions of this act, or shall find that any service is inadequate, or that any service which can be reasonably demanded cannot be obtained, the commission shall determine and declare and by or- der fix just and reasonable measurements, regulations, acts, practices or service to be furnished, imposed, ob- served and followed in the future in lieu of those found to be unjust, unreasonable, unwholesome, unsan- itary, unsafe, insufficient, preferential, unjustly dis- criminatory, inadequate or otherwise in violation of 2 That the question of a proper rate may be a complex one, is no reason for setting aside a finding. Vandalia R. Co. v. Pub. Serv, Com., (Ind.), 114 N. E. 412, P. U. R. 1917 B 879. 526 RULES INDIANA COMMISSION tMs act, as the case may be, and shall make such order respecting such measurement, regulation, act, practice or servise as shall be just and reasonable.* § 10052x2. Rescinding Orders on Notice. — The commission may at any time, upon notice to the public utility and after opportunity to be heard, rescind, alter or amend any order fixing any rate or rates, tolls, charges or schedules or any other order made by the commission, and certified copies of the same shall be served and take effect as herein provided for original orders. § 10052y2. Orders by Commission Prima Facie Lawful. — All rates, tolls, charges, schedules and joint rates fixed by the commission shall be in force and be prima facie lawful, and all regulations, practices and services prescribed by the commission shall be in force and shall be prima facie reasonable, unless finally found otherwise in an action brought for that purpose.* § 10052z2. Action to Set Aside or Enjoin Orders. — Any public utility and any person or corporation in in- terest, being dissatisfied with any order of the com- mission fixing any rate or rates, tolls, charges, sched- ules, joint rate or rates, or any order fixing any regu- lations, practices, acts or service, may commence an action in the Circuit or Supreme Court of any county in which such order of the commission is operative against the commission as defendant, to vacate or set 3 There is no want of due process of law, when opportunity is given to be heard and utility exercise right to judicial review. Van- dalia R. Co. v. Pub. Serv. Com., 242 U. S. 255, 37 Sup. Ct. 93, 61 L. Ed. , P. U. R. 1917 B 1004. 4 Where a particular rate is not attacked, its validity will not be passed on by the courts. Vandalia R. Co. v. Pub. Serv. Com., (Ind.), 114 N. E. 412, P. U. R. 1917 B 879. 527 RULES INDIANA COMMISSION aside any sueli order or enjoin the enforcement tHere- of, on the ground that the rate or rates, tolls, charges, schedules, joint rates or rates fixed in such order is in- sufficient, unreasonable, or unlawful, in which action a copy of the complaint shall be served with the sum- mons. The answer of the commission to the compaint shall be filed within ten (10) days after serive of the summons. All such actions shall have precedence over any civil cases of a different nature pending in any such court and the Circuit or Supreme Court shall al- ways be deemed open for the trial thereof and the same shall be tried and determined as other civil ac- tions.^ § 10052a3. Time Within Which to Bring Action.— This section provides for the bringing of such action within sixty days after rendition of such order unless rehearing has been asked for and then within thirty days after order or rehearing.® (abstract) 10052b3. Injunction to Stay Order.— No injunction shall issue suspending or staying any order of the com- mission, except upon application to the Circuit or Su- perior Court of any county in which such order is oper- ative, or judge thereof, notice to the commission and hearing. § 10052c3. Notice to Commission When New Evi- dence Introduced.— This section provides that if upon 5 Appeals cannot be taken piecemeal from a judgment as against only one of the parties. Northern Indiana & M. T. & C. Co. v. Peo- ple's Mutual Teleph. Co., 184 Ind. 267, 111 N. E. 4. P. U. R. 1916 C 534. « Where utility abandons application for rehearing, it cannot urge Indeflniteness of order. Vandalia R. Co. v. Pub. Serv. Com., 242 U S. 255, 37 Sup. Ct. 93, 61 L. Ed. — , P. U. R. 1917 B 1004. 528 RULES KANSAS COMMISSION the trial new, different or additional evidence is intro- duced by plaintiff it must be transmitted to the com- mission and it shall report its action thereon to the court within ten days, (abstract) § 10052d3. Action of Commission on New Evi- dence. — If the commission shall rescind its order com- plained of, the action shall be dismissed, if it shall al- ter, modify or amend the same, such altered, modified or amended order shall take the place of the original order complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original order shall not be rescinded or changed by the commission, judgment shall be ren- dered upon such original order. § 10052e3. Appeal to Supreme Court. — ^Either par- ty may appeal to Supreme Court from the trial court where the cause is to be placed on the advance docket. The Supreme Court is given the right to transfer any such cause to Appellate Court of Indiana, which is giv- en jurisdiction to determine it. (abstract) IOWA Code of Iowa 1907 and supplement thereto 1913. Chapter 6 provides for the Constitution of a Board of Eailroad Commissioners, but no procedural sections are given for the hearing and disposition of compaints or any judicial review of its action. KANSAS Laws of Kansas 1911, ch. 238, sees. 1-43, pp. 417-436. Title: Public Utilities Commission. 529 RULES KANSAS COMMISSION JUEISDICTION § 1. Powers. — Such commission is given full power authority and jurisdiction to supervise and control public utilities and all common carriers doing business in the State. § 2. Public Utilities Defined. — ^Every corporation, company, individual, etc. owning, managing or control- ling plant for telephone, telegraph, pipe lines for oil or gas, street railway lines, but not such as are owned by municipalities.^ (abstract) Peocedtjbal Sections § 14 (a) Complaint in Writing. — ^Upon a com- plaint in writing made against any common carrier or public utility governed by the provisions of this act by any mercantile, agricultural, or manufactur- ing organization or society, or by any body politic or municipal organization, or by any taxpayer, firm, cor- poration or association, that any of the rates or joint rates, fares, tolls, charges, rules, regulations, classi- fications or schedules of each public utility or com- mon carrier are in any respect unreasonable, unfair, unjust, unjustly discriminatory or unduly preferen- tial or both, or that any regulation, practice or act whatsoever affecting or relating to any service per- formed or to be performed by such public utility or common carrier for the public is in any respect un- 1 Conferred Powers. — Commission lias no jurisdiction regarding crossings. Union P. R. Co. v. Pub. U. Com., 98 Kan. 667, 158 Pac. 863. Commission has jurisdiction to regulate rates for natural gas delivered to utility though piped from another state. State ex rel V. Landon, (Kan.), 165 Pac. 1111. 530 RULES KANSAS COMMISSION reasonable, unfair, unjust, unreasonably inefficient, insufficient, unjustly discriminatory or unduly prefer- ential, or that any service performed or to be per- formed by such public utility or common carrier for the public is unreasonably inadequate, inefficient, unduly insufficient or cannot be obtained, the com- missioners shall proceed, with or without notice, to make such investigation as they may deem necessary. (b) Ex Mero Motu Investigation. The commis- sioners may, upon their own motion and without any complaint being made, proceed to make such investi- gation, but no order affecting such rates, joint rates, tolls, charges, rules, regulations and classifications, schedules, practices or acts complained of shall be made or entered without a formal public hearing, of which due notice shall be given by the commission to such public utility or common carrier or to such com- plaint or complaints, if any. (c) Public Hearing Defined. Any public investi- gation or hearing which such commission shall have power to make or to hold may be made or held before any one or more, and all investigations, hearings, de- cisions and orders made by a commsisioner shall be deemed and held to be the investigations, hearings, decisions and orders of the Public Utilities Commis- sion, when approved and filed by such commission and filed in their office, and the commission shall have power to require such public utility and common car- rier to make such improvements and do such acts as are or may be required by law to be done by such public utility or common carrier. § 15 (a). Notice — Time and Manner of Service. — "Whenever notice shall be required by the provisions 531 RULES KANSAS COMMISSION of this act to be given any common carrier or public utility governed by the provisions of this act, and the complainant or either of them, thirty days' written or printed notice of the time and place when and Avhere such investigation or hearing will be had shall be given, such notice to be served by mailing a copy thereof to the public utility or common carrier and complainant. (b) Statements in Notice. Such notice shall em- body in substances the complaint, if any, made against the public utility or common carrier upon which the hearing, investigation and decision of the Public Utilities Commission is requested or on which it will be given. (c) Entitled to Hearing and Process. The public utility or common carrier to the complainant or com- plainants, if any, shall be entitled to be heard, and shall have process to enforce the attendance of wit- nesses, and the production of books, papers, maps, contracts, reports and records of every description affecting the subject matter of the investigation. (d) Notice to Produce Papers, etc. The Public Utilities Commission may, without notice or demand therefor, require the production of any books, papers, contracts, records or other documents in the posses- sion or under the control of the common carrier, pub- lic utility, complainant or complainants affecting the subject matter of the controversy § 16 (a). Fixing Reasonable Rates.— If upon such hearing and investigation the rates, joint rates, fares, tolls, charges, rules, regulations, classifications or schedules of such common carrier or public utility governed by the provisions of this act are found to be 532 RULES KA.NSAS COMMISSION unjust, unreasonable, unfair, unjustly discriminatory or unduly preferential or in any wise in violaion of the provisions of this act or of any of the laws of the State of Kansas, the Public Utilities Commission shall have the power to fix and establish and to order substituted therefor such rates, joint rates, fare, tolls, charges, rules, regulations, classifications or schedules as it shall find, determine or decree to be just, reasonable and necessary." (b) Substitutive Just Regulations. If it shall be found that any regulation, practice or act whatso- ever, relating to any service performed or to be per- formed by such public utility or common carrier for the public in any respect unreasonable, unjust, unfair, unreasonably inefficient, insufficient, unjustly discrim- inatory or unduly preferential, or otherwise in viola- tion of any of the provisions of this act or of any of the laws of the State of Kansas, the Public Utilities Commission shall have full power, authority and juris- diction to substitute therefor such other regulations, practice, service or act as they find and determine to be just, reasonable and necessary.* (■c) Service of Order on Public Utility. All orders and decisions of the Public Utilities Commission whereby any rates, joint rates, fares, tolls, charges, 2 This gives commission jurisdiction to prevent discrimination and favoritism. Union P. R. Co. v. Pub. U. Com., 95 Kan. 604, 148 Pac. 667, P. IT. R. 1915 D 337; State ex rel. Caster v. Kansas Postal Teleg. Cable Co., 96 Kan. 298, 150 Pac. 544, P. U. R. 1915 E 222; MoUohan v. Atchison T. & S. F. R. Co., 97 Kan. 51, 154 Pac. 248, P. U. R. 1916 C 537. 3 In rulings upon mere administrative matters, determination of the commission is to be respected. State ex rel v. Caster, 96 Kan. 298, 150 Pac. 544, P. TJ. R. 1915 E 222; City of Scammon v. American Gas. Co., 98 Kan. 812, 160 Pac. 316, P. U. R. 1916 E 531. 533 RULES KANSAS COMMISSION rules, regulations, classifications, schedules, practice or acts relating to any service performed or to be per- formed by such public utility or common carrier for the public are altered, changed, modified, fixed or established, shall be reduced to writing and a copy thereof duly certified shall be served on the public utility or common carrier affected thereby by regis- tered mail. (d) Order Effective in Thirty Bays. And such order and decision shall become operative and effect- ive within thirty days after such service, and such public utility or common carrier shall, unless an action is commenced in a court bf proper jurisdiction to set aside the findings, orders and decisions of said Public Utilities Commission, or to review and correct the same, carry the provisions of said order into effect. § 18. Orders Prima Facie Reasonable. — ^AU orders, regulations, practices, services, rates, fares, charges, classifications, tolls, and joint rates fixed by the com- mission shall be in force and effect on and after thirty days from the making thereof and expiration of thirty days after service aforesaid, shall be prima facie rea- sonable, unless or until, changed or modified by the commission or in pursuance of proceedings instituted in court as provided in this act. § 19. Stay of Findings.— All findings, rates, joint rates, fares, tolls, charges, rules, regulations, classifica- tions and schedules fixed and established by the Public Utilities Commission shall be in full force and effect, and regulations, practices, services and acts prescribed or required by the Public Utilities Commission to be done or carried into effect, unless otherwise found and 534 RULES KANSAS COMMISSION determined or stayed by a court of competent jurisdic- tion as hereinafter provided. § 21 (a). Action to Set Aside Order. — Any common carrier or public utility governed by the provisions of this act, or other party in interest, being dissatisfied with any order of the commission fixing any valuation, toll, rate, joint rate, fare, charge or findings, rules, regulations, classifications, schedules or any order or ruling relating to the issuance of stocks, bonds or other securities hereinafter provided may within thirty days from the making of such order, commence an action in a court of competent jurisdiction against the Public Utilities Commission, as defendant, to va- cate and set aside any such order, finding or decision of the Public Utilities Commission, on the ground that the valuation, toll, rate, joint rate, fare, charges, orders, rules, regulations, findings, classifications or schedules in such decisions are unlawful, or unreason- able, or that any such regulation, valuation, practice or service fixed in such order or decision is unreason- able.* (b) Precedence Over Other Civil Actions. All actions brought under this section shall have prece- dence in any court and on motion shall be advanced over any civil cause of a different nature pending in such court, and such action shall be tried and determ- ined as other civil actions. 4 As court cannot fix a rate, it cannot indirectly do this by enjoin- ing interference with a rate, which it holds to have heen unassail- able in the past. Emporia Teleph. Co. v. Public Utilities Commis- sion, 97 Kan. 136, 154 Pac. 262, P. U. R. 1916 B 987. Whether a rate is confiscatory or not is determined by whether the doing of a par- ticular service is compensatory or not. Union P. R. Co. v. Public Utilities Commission, 95 Kan. 604, 148 Pac. 667, P. U. R. 1916 B 987. 535 RULES KENTUCKY COMMISSION '(c) Appeal to Supreme Court. Appeals from any decision of the district court shall be taken from the district court to the Supreme Court of the State of Kansas in the same manner as provided by law in other civil actions. (d) Orders in Effect Pending Action. During the pendency of any action under the provisions of this act all orders made by the Public Utilities Commis- sion prescribing rates, joint rates, tolls, fares, charges, rules, regulations, classifications or schedules or findings shall, unless temporarily stayed or en- joined, remain in full force and effect until final judg- ment is rendered therein. (e) Judgment Not Superseded Pending Appeal. — During the pendency of such appeal the judgment of the lower court shall remain in effect, unless stayed by order of the Supreme Court. (f) Service on Single Commissioner. Service of summons on any member of the board shall be suffi- cient service on the board. KENTUCKY 1 Kentucky Stats. 1915, sees. 821-834. Acts 1916, ch. 18, pp. 84-102, sees. 1-21. Title: Railroad Commission. By the statute as found in 1 Kentucky Statutes 1915 the commission was granted powers only over railroads and by Acts of 1916 (Kentucky) these powers were extended so as to apply to "express companies, telephone companies, telegraph companies, steamboats and steamboat companies and all boats and other water craft propelled by the use of oil, gasoline or other means," but the act does not extend to telephone 536 EULES KENTUCKY COMMISSION companies of any city where the rates may be regulated by local authority. There is need only of noticing here the act of 1916, as the original act prescribes no way of bringing complaints before the commission. Acts 1916, sees. 1-21 inclusive. § 14. Procedure. — This section provides that com- plaint may be made to the commission against any express, telephone or telegraph company with charg- ing or receiving extortionate rates, or where the com- mission has reason to believe that such a company is thus charging or receiving such rates, "it shall be the duty of the commission to hear and determine the mat- ter as speedily as possible," giving to the company complained of not less than ten days' notice by letter mailed to an officer or agent of said company, stating the time and place of the hearing of the same, also the nature of the complaint or the matter to be investi- gated, and shall hear such statements, arguments or evidence offered by the parties as the commission may deem relevant, and should the commission determine that the company is or has been guilty of extortion, said commission shall make and fix a just and reason- able rate, toll or compensation which such company may charge, collect or receive for like services there- after rendered. Then follow provisions about enter- ing the order in a record book, a copy thereof being mailed to the company and its being in "force and effect at the expiration of ten days thereafter and may be revoked or modified by an order likewise entered of record." (abstract) § 21. Review by Court. — To the Circuit is given "jurisdiction and authority to enforce all orders of the railroad commission" by the chairman of the com- 537 RULES KENTUCKY COMMISSION mission invoking its aid by a petition in equity and the company affected "shall be summoned and the is- sues joined by the pleadings and the cause docketed and tried, as in any other suits in equity, except that the transcript of the evidence offered before or heard by the commission . . . shall be filed in the court and made a part of the record in the cause, and no evi- dence shall be introduced in court by either party other than said evidence offered before or heard by the commission," unless it be shown by affidavits that it could not by reasonable diligence have been pro- duced before the commission "If additional testi- mony be introduced in court, the cause shall be re- manded to the Eailroad Commission with authority to alter, change, modify or affirm its original order before the recommendation of a judgment by the court in reference to the order or orders of the commis- sion." (abstract) § 22. Complaint Against Steamboats.— Where steamboats or other boats or watercraft propelled by the use of oil, gasoline or other means are complained against for "charging or collecting any unreasonable or extortionate rate or rates for the transportation of property over its line or lines, or when said commis- sion shall receive information or have reason to be- lieve" this to have been done, "it shall be the duty of said commission to hear and determine the matter, as speedily as possible." It shall proceed as in § 14.^ 1 statute limiting evidence in a court to that heard by a commls- Bion or such as could by ordinary diligence be brought before a com- mission does not deny due process of law. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775, 187 S. W. 296, P. U. R. 1916 P 508; Louisville & N. R. Co. v. Railroad Commission, 235 U. S. 601, 35 Sup. Ct. 146, L. Ed. P. U. R. 1915 A 121. 538 RULES LOUISIANA COMMISSION LOUISIANA. 3 Marrs Anno. E. S. Louisiana 1915, sees. 6127, 6155, Title : Eailroad Commission of Louisiana. § 6139. Adoption of Rules and Regulations. — Said commission shall be and it is hereby vested with the power and authority, and it is hereby made its duty, to adopt, make and change reasonable and just rules, regulations and orders, affecting and concerning the service to be given and furnished by express, tele- graph and telephone companies and corporations, and persons enaged in such business in this State and their operation in this State. § 6140. Complaint, Notice, Hearing, Order. — ^Any person, firm, corporation, company, association or other organization or body politic or municipal organ- ization or any common carrier complaining of any- steamboat or other watercraft, sleeping car, express, telephone or telegraph company, or other corporation or individual subject to regulation and control by the Eailroad Commission of Louisiana, in contravention of any order, rule, regulation, rate or classification, adopted or approved by the Eailroad Commission of Louisiana, may apply to the said commission by peti- tion, which shall briefly state the facts, whereupon a statement of the complaint thus made shall be for- warded by the commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing within a reasonable time to be specified by the commission. If such rail- road, steamboat or other watercraft, sleeping car, ex- 539 RULES LOUISIANA COMMISSION press, ielepHone or telegraph company, or otHer cor- poration or individual shall make reparation for the injury alleged to have been done, the cominon carrier shall be relieved of liability to the complainant, only for the particular violation complained of. If the complaint is not so satisfied within the time specified, or there shall appear to be any reasonable ground for investigation of the complaint, it shall be the duty of the commission to investigate the matters complained of in such manner and by such means as it shall deem proper. § 6141. Award of Damage. — After hearing on com- plaint made as provided in § 6140, the Railroad Com- mission of Louisiana shall determine that any party complainant entitled to an award of damages for viola- tion of any of the orders, rules, regulations, rates or classifications adopted or approved by it, the Railroad Commission shall make an order directing the rail- road, steamboat or other watercraft, sleeping car, ex- press, telephone or telegraph company or other corpo- ration under its control, to pay the complainant the sum to which he is entitled on or before a day named. §§ 6142, 6143. Suit on Award. — These sections pro- vide for suit in any court of competent jurisdiction to enforce orders of the commission for payment of mon- ey, together with an attorney's fee, and the order "shall be prima facie evidence of the facts therein stated." (abstract)^ I The findings of railroad commission are inconclusive and rea- sonable. Texas & P. R. Co. v. Railroad Comjnlssion, 137 La. 1059, 69 So. 837, P. U. R. 1916 A 334. 540 RULES MAINE COMMISSION MAINE Public Utilities Commission Laws of Maine 1913, cli. 129, pp. 133, 156, sees. 1-71, incl. § 1. Title : Public Utilities Commission. § 9. Definitions and Jurisdiction. — The term "pub- lic utility," when used in this act, includes every com- mon carrier, gas company, electrical company, tele- phone company, telegraph company, water company, wharfinger and warehouseman . . . and each there- of is hereby declared to be a public utility and to be subject to the jurisdiction, control and regulation of the commission and to the provisions of this act.^ Peoceduhal Sections ^ 41. Initiating Proceedings Against Public Util- ity. — Upon written complaint made against any public utility by ten persons, firms, corporations or associa- tions aggrieved, that any of the rates tolls, charges or schedules or any joint rate or rates of any public util- ity are in any respect unreasonable or unjustly dis- criminatory, or that any measurement, practice or act of said public utility is in any respect unreasonable, in- suflScient or unjustly discriminatory, or that any ser- vice is inadequate or cannot be obtained, the commis- sion, being satisfied that the petitioners are responsible and that a hearing is expedient, shall proceed with or without notice to make an investigation thereof. But 1 Powers are limited by statute. City of Augusta v. Lewistown A. & W. St. Ry. Co., 114 Me. 24, 95 Atl. 267, P. U. R. 1915 B 260. 541 RULES MAINE COMMISSION no order affecting said rates, tolls, charges, schedules, regulations, practices or acts complained of shall be entered by the commission without a formal public hearing. § 42. Notice of Complaint. — The commission im- mediately upon the filing of such complaint shall noti- fy in writing the public utility complained of that a complaint has been made and of the nature thereof; and if at the expiration of ten days therefrom such public utility shall not have removed the cause of com- plaint to the satisfaction of the said commission shall proceed to set a time for a hearing as hereinafter pro- yided § 43. Notice of Hearing. — The commission shall give the public utility and the complainants at least ten days ' notice of the time and place when and where such formal public will be held. Both the public utility and the complainants shall be entitled to be heard and have process to enforce the attendance of witnesses as in the civil actions in the Supreme Judicial Court. <§ 44. Final Order on Public Hearing. — If upon such formal public hearing the rates, tolls, charges, sched- ules or joint rates shall be found to be unjust, unrea- sonable, insufficient or unjustly discriminatory or oth- erwise in violation of the provisions of this act, the commission shall have power to fix and order substi- tuted therefor such rates, tolls, charges or schedules, as shall be just or reasonable. If upon such public hearing it shall be found that any regulation measure- ment, practice, act or service complained of as unjust, unreasonable, insufficient, or unjustly discriminatory or otherwise in violation of any of the provisions of 542 RULES MAINE COMMISSION tHs act, of if it be found tliat any service is inadequate, or that any reasonable service cannot be obtained, the commission shall have power to establish and substi- tute therefor such other regulations, measurements, practice, service or acts, and to make such order re- specting and such regulations, measurements, practice, service and acts as shall be just and reasonable.^ § 45. Conformity to Order of Schedules. — ^Every public utility to which such order applies shall make such changes in its schedules on file as may be neces- sary to make the same conform to said order ; and no change thereafter shall be made by any public utility in any such rates, tolls, charges or in joint rate or rates without the approval of the commission. Copies of all, orders of the commission, certified by the clerk, shall be delivered to the public utility affected thereby and the same shall take effect within such time thereafter as the commission shall prescribe. § 46. Summary Investigation. — Whenever the com- mission believes that any rate or charge is unjust or unreasonable or that any service is inadequate or can- not be obtained, or that any investigation of any mat- ter relating to any public utility should for any reason be made it may on its own motion summarily investi- gate the same with or without notice. If after making such summary investigation, the commission becomes satisfied that sufficient exist to warrant a formal pub- lic hearing being ordered as to matters so investigated, it shall furnish such public utility interested or writ- 2 It is not unlawfully discriminatory to furnish free water to the public. Belfast v. Belfast Water Co., (Me.), 98 Atl. 738, P. U. R. 1917 A 313. 543 RULES MAINE COMMISSION ten statement giving notice of the matter under inves- tigation. Ten days after such notice has been given the commission may proceed to set a time and place for a formal public hearing as hereinbefore provided. § 47. Notice to Utility and Interested Persons. — ^Notice of the time and place of such hearing shall be given to the public utility and to such interested per- sons as the commission shall deem proper as provided in section 43 of this act; and thereafter proceedings shall be had and conducted in reference to the matter investigated in like manner as though complaint had been filed with the commission relative thereto; and like orders may be made in reference thereto as if such investigation had been made on complaint. § 48. Complaint by Public Utility. — ^Any public utility may make complaint as to any matter affecting its own product, service or charges with like effect as though made by any ten persons, firms, corporations or associations. § 53. Questions of Law and Exceptions. — Questions of law may be raised by alleging exceptions to the rul- ings of the commission on an agreed statement of facts, or on facts found by the commission, and such excep- tions shall be allowed by the chairman of the commis- sion and certified by the clerk thereof to the chief jus- tice of the Supreme Judicial Court with the arguments of counsel, if any have been received by him, within sixty days after such exceptions have been allowed. The party raising such questions shall within thirty days thereafter deliver a copy of his argument to the approving counsel who shall within twenty days' after receiving same furnish a copy of his answers to the 544 RULES MAINE COMMISSION counsel for the other party, who shall in turn make reply thereto within ten days thereafter and deliver said arguments to the clerk of the commission to be fol- lowed with the exceptions to the chief justice § 54. Staying Order of Commission. While ques- tions of law are pending on exceptions to a ruling ... no injunction shall issue suspending or staying any order of the commission and said exceptions shall not excuse any person or corporation from complyiag and obeying any order or decision, or any requirement of any order or decision of the commission or operate in any manner to stay or postpone the enforcement thereof, except in such cases and upon such terms as the commission may order and direct. § 55. Altering or Amending Orders. — The commis- sion may at any time upon notice to the public utility and after opportunity to be heard as provided in sec- tion 43, rescind, alter or amend any order fixing any rate or rates, tolls, charges or schedules or any other order made by the commission, and certified copies of the same shall be served and take effect as herein pro- vided for original orders. § 56. Burden of Proof in Reviewing Court.— In all trials, actions and proceedings arising under the pro- visions of this act or growing out of the exercise of the authority and powers granted herein to the commis- sion, the burden of proof shall be upon the party ad- verse to the commission or seeking to set aside any de- termination, requirement, direction or order com- plained of, as unreasonable, unjust or unlawful as the case may be. And in all original proceedings before 545 RULES MARYLAND COMMISSION said commission where an increase in rates, tolls, charges or schedules or joint rate or rates in com- plained of, the burden of proof shall be upon the pub- lic utility to show that such increase is just and reas- onable. MAEYLAND Annotated Code 1911, Art. 23, sees. 413-468. Title: Public Service Commission. Pbocedueal Sections § 422. Rules for Hearings. — All hearings before the loommission or commissioner shall be governed by rules to be adopted and prescribed by the commission. And in all investigations, inquiries or hearings the commis- sion or a commissioner, shall not be bound by the tech- nical rules of evidence. § 423. Rehearings, Staying Order. — After an or- der has been made by the commission, any party inter- ested therein may apply for a rehearing in respect to any matter determined therein, and the commission may grant and hold such rehearing, if, in its judgment, sufficient reason therefor be made to appear, if a re- hearing shall be granted, the same shall be determined by the commission within thirty days after the same shall be finally submitted. Any application for such a rehearing shall not excuse any common carrier, rail- road corporation, or street railroad corporation or any other corporation or company or person, subject to any of the provisions of this (Act) from complying with or obeying any order or any requirements of any order 546 RULES MARYLAND COMMISSION of the commission, to operate in any manner to stay or postpone the enforcement thereof, except as the commission may by order direct. If, after such re- hearing and consideration of the facts, the commission shall be of opinion that the original order, or any part thereof, is in any respect unjust or unwarranted, the commission may abrogate, change or modify the same. An order made for any such rehearing, abrogating, 'Changing or modifying the original order, shall have the same force and effect as an original order. The rest of this section provides for service by the mailing of certified copy of order stating when it is to go into effect, and the right is given for any party in interest to proceed in the courts to vacate, set aside or have modified any order of said commission on the grounds that such order is unreasonable or unlawful.^ 1 Findings of the commission are prima facie correct, and are not to be interfered witli unless clear and satisfactory evidence shows them to he unreasonahle or unlawful, and where there is conflicting evidence the commission rate should before injunction issues have the test of a practical trial. Maryland R. Co. v. Towers, 126 Md. 59, 94 Atl. 330, P. U. R. 1915 D 398; citing Wilcox V. Consol. Gas Co., 212 TJ. S. 19, 29 Sup. Ct. 192, 53 L. Ed. 382, 48 li. R. A. (N. S.) 1134, 15 Ann. Cas. 1034. Commission no power to substitute its judgment merely for that of a street railway as to the mere desirability of an extension. Towers v. United R. & E. Co., 126 Md. 478, 95 Atl. 170, P. U. R. 1915 F 474. Interstate rail- road company may under state's police power be required to apply to commission for leave to issue bonds so that it may determine •whether the proposed issue may create a iona fide indebtedness. Laird v. Bait. & O. R. Co., 121 Md. 179, 88 Atl. 347, 47 L. R. A. (N. S.) 1167, Ann. Cas. 1915, 728. See also People v. Chicago, etc., R. Co., 231 111. 581, 79 N. B. 144, 7 Ann. Cas. 1; Buckley v. New York, etc., R. Co., 216 Mass. 432, 103 N. E. 1033. Public Service Company must serve the public without discrimination or favor. Chesapeake & P. Teleph. Co. v. Bait. & O. Teleg. Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167. 547 RULES MASSACHUSETTS COMMISSION MASSACHUSETTS Acts and Resolves 1913, oh. 784, sees. 1-30, pp. 815, 833. Title : Public Service Commission. The jurisdiction of the commission is over railroads, street railways, electric railroads, steamships, express and car service and facilities and equipment connected therewith and telephone and telegraph lines, all called common carriers. Peooedueal Sections § 21. Public Hearing, Minimum Rates. — Whenever the commission receives notice of any change or changes proposed to be made in any schedule filed un- der the provisions of this act, it shall have power, eith- er upon complaint or upon its own motion, and after notice, to hold a public hearing and make investigation as to the propriety of such proposed change or changes. Pending any such investigation and the decision there- on, the commission shall have power, by any order served upon the common carrier affected, to suspend the taking effect of such change or changes, but not for a longer period than six months beyond the time when such change or changes. After such hearing and in- vestigation, the commission in reference to any new rate, joint rate, fare, telephone rental, toll, classifica- tion, charge, rule, regulation or form of contract or agreement proposed, as would be proper in a proceed- ing initiated after the same has taken effect. At any such hearing involving any proposed increase in any rate, joint rate, fare, telephone rental, toll or charge, the burden of proof to show that such increase is ne- 548 EULES MASSACHUSETTS COMMISSION cessary in order to obtain a reasonable compensation for the service rendered shall be upon the common car- rier. If at a hearing involving any proposed decrease in any rate, joint rate, fare, telephone rental, toll or charge demanded by any common carrier, it shall ap- pear to the commission that the said rate, joint rate, fare, telephone rental, toll or charge is insufficient to yield reasonable compensation for the service ren- dered, the commission shall have power to determine, what will be the just and reasonable rate or rates, fare or fares, telephone rental or rentals, toll or tolls, charge or charges, to be thereafter observed in such case as the minimum to be charged and to make an or- der that the common carrier complained of shall not thereafter demand, charge or collect any rate, fare, telephone rental, toll or charge lower than the mini- mum so prescribed without first obtaining the consent of the commission, not to be given without a publie hearing.^ § 22. Discriminatory and Preferential Rates. — Whenever the commission shall be of opinion, after a hearing had upon its motion or upon complaint, that the rates, fares or charges or any of them demanded, exacted, charged or collected by any common carrier now or hereafter subject to its jurisdiction, for any services to be performed within the commonwealth, or 1 Common carrier mtist serve all the public without discrimina- tion. Marconi Wireless Teleg. Co. v. Com., 218 Mass. 558, 108 N. B. 310, Ann. Cas. 1916 C 214. And this is so as to a telegraph com- pany furnishing stock tinker service to subscribers, which service does not constitute interstate commerce. Public Service Commis- sion V. Western U. Teleg. Co., 224 Mass. 365, 113 N. E. 192, P. U. R. 1916 F 176; citing Mutual Film Corp. v. Industrial Com., 236 U. S. 230, 35 Sup. Ct. 390, 59 L. Ed. 561. 549 BULES MASSACHUSETTS COMMISSION the regulations or practices if such common carrier af- fecting such rates, are unjust, unreasonable, unjustly discriminatory or unduly preferential or in anywise in violation of any provision of law, or that the rates, fares or charges or any of them chargeable by any such common carrier are insuflScient to yield reasonable compensation for the services rendered, and are un- just and unreasonable, the commission shall determine the just and reasonable rates, fares and charges to be charged for the service to be performed, and shall fix the same by order to be served upon every common carrier, by whom such rates, fares and charges to be charged for the service to be performed and shall fix the same by order to be served upon every common carrier by whom such rates, fares and charges or any of them are thereafter to be observed. It shall be the duty of every such common carrier to observe and obey every requirement of every order so served upon it and to do everything necessary or proper in order to secure absolute compliance with and observance of every such order by all its officers, agents and em- ployees. The commission may, after investigation, au- thorize a common carrier in special cases to charge less for larger than for shorter distances for the transpor- tation of passengers or property, whenever in the opin- ion of the commission such authorization is consistent with the public interests and the commission may from time modify or revoke such authorization.'' 2 Commission has ample powers to prevent discrimination. Pub- lic Service Com. v. Western U. Tel. Co., 224 Mass. 365, 113 N. B. 192, P. U. R. 1916 P 176. Discrimination in absorbing switching rates is such as to rates and not as to regulations or practices and commission must make a finding as to reasonable rates. National Dock & S. W. Co. V. Boston & M. R. R., (Mass.), 116 N. E. 544. 550 RULES MASSACHUSETTS COMMISSION § 23. Equipment and Appliances. — Whenever tHe commission shall be of opinion, after a hearing had up- on its own motion or upon complaint, that the regula- tions, practices, equipment, appliances or service of any common carrier, now or hereafter subject to its jurisdiction, are unjust, unreasonable, unsafe, improp- er or inadequate, the commission shall determine, the just, reasonable, safe, adequate and proper regulations and practices, thereafter to be in force and to be ob- served, and the equipment, appliances and service thereafter to be used and shall fix and prescribe the same by order to be served upon every common car- rier to be bound thereby. The commission shall have power after such a hearing to order from time to time that a railroad company shall operate its lines at standard guage, or such parts thereof as the commis- sion shall prescribe by electric power instead of steam power, and in its order shall prescribe the time within which electrification shall be done. Before making such order the commission shall consider the relative importance and necessity of the changes in any speci- fic regulations, practices, equipment and appliances proposed to be included therein and of other changes which may be brought to its attention in the course of the hearing, the financial ability of the carrier to com- ply with the requirements of the order, and the effect of the carriers compliance therewith, upon its financial ability to make such other changes if any, as may be deemed by the commission of equal or greater impor- tance and necessity in the performance of the service, which the carrier has preferred to render to the public. It shall be the duty of every such common carrier to observe and obey every requirement of every such or- 551 RULES MINNESOTA COMMISSION der so served upon it, and to everytMng necessary or proper in order to secure absolute compliance with and observance of every such order by all its officers, ageiits and employees. MICHIGAN Howell's Michigan Statutes 1913, ch. 106. Title: "Michigan Railroad Commission" has no rules of procedure for hearings before it set forth. MINNESOTA Gen. Statutes Minnesota 1911, eh. 28, sees. 4171-4246. Title : Eailroad and Warehouse Commission Juris- diction over all carriers and warehousemen extended in 1915 to warehouses other than grain and cold stor- age and to telephone companies, chs. 210, 152. Peocedueal Sections § 4179. Complaint. — ^Proceedings before the Com- mission against any such carrier or public warehouse- man shall be instituted by complaint, verified as a pleading in a civil action, stating in ordinary language the facts constituting the alleged omission or offense. The parties to such proceeding shall be termed respect- ively "complainant" and "respondent."^ Conferred Powers. That a commission is not given any standard as to rates or joint rates except reasonableness, does not make delegation of power unconstitutional. St. Paul Asso. v. Chicago, R. & Q. R. Co. (Minn.), 158 N. W. 982. There was conferred on the commission the power to order a railroad com- pany to substitute a new and suitable depot for one not suitable. Re New Depot at Ada (Minn.), 159 N. W. 1089, P. U. R. 1917 B 413. Police Power. State may delegate to a commission authority to 552 RULES MINNESOTA COMMISSION § 4180. Notice to Respondent. — Upon the filing sucli 'Complaint, if there appear reasonable grounds for in- vestigating such matter, the commission shall issue an order directed to such carrier or warehouseman, re- quiring him to grant the relief demanded, or show cause by answer within twenty days from the service of such notice why such relief should not be granted. Such order, together with a copy of the complaint, forthwith shall be served upon the respondent. ^ 4181. Answer. — ^The respondent may file and serve by mail upon the complainant, within twenty days after service of the order, an answer alleging that it has already granted the relief demanded, a setting up any matter of defense. If the answer allege the granting of the relief, the complainant will within twenty days reply. If he fails to reply, or admits the allegation, the proceeding may be dismissed. § 4182. (a) Setting Date of Hearing.— If the mat- ter be not adjusted to the satisfaction of the commis- sion, it shall set a time and place of hearing and give at least ten days' notice thereof to each party. The parties may appear in person or by attorney, (b) Evidence and Findings. — The commission shall bear evidence and otherwise investigate the matter and shall make findings of fact upon all matters involved and such order and recommendation in the premises as may be just. A copy of such findings and order or rec- ommendation shall forthwith be served upon each par- ty. No proceeding shall be dismissed on account of want of pecuniary interest in the complainant. require a railroad to provide side track facilities to industries adjacent to its tracks. Ochs Brick & Tile Co. v. Chicago & N. W. H. Co. (Minn.), 160 N. W. 866, P. U. R. 1917 C 235. 553 RULES MINNESOTA COMMISSION (e) Hearing Before One Commissioner. — In all pro- ceedings, except where the reasonableness of rates is Tinder consideration, hearing may be had before one commissioner, who shall decide the matter in contro- versy and make a report of his decision to the com- mission. Upon the approval of such report, it will be- come the decision of the commission. § 4185. (a) Complaint of Rate. — ^Upon the verified complaint of any person or of any corporation, private or municipal, that any tariff of rates, fares or charges or any part thereof, or if any classification is unequal or unreasonable, the commission shall proceed to in- vestigate the matters alleged in such complaint, and for the purposes of such investigation, they may re- quire the attendance of witnesses and the production of books and papers. (b) Findings and Order. — If, upon the bearing, such tariff of rates, fares or charges or any part thereof, or of such classification, is found to be unequal or unreas- onable, the commission shall make an order stating wherein the same are so unequal or unreasonable, and shall make a tariff of rates, fares, charges and classi- fication which shall be substituted for the tariff so com- plained of. (c) Order Prima Facie Reasonable. — The tariff so made by the commission shall be deemed prima facie reasonable in all courts and shall be in full force dur- ing the pendency of any appeal or other proceedings to review the action of the commission in establishing the same.^ 2 And so as to the ordering of improvements or new facilities. Be New Depot at Ada, 135 Minn. 19, 159 N. W. 1089, P. U. R. 1917 B 1089. 554 RULES MINNESOTA COMMISSION § 4186. Complaint of Rate by Attorney General— The attorney general may, whenever in his opinion the public interest requires, make complaint of the rail- road and warehouse commission charging that any rate, schedule of rates or the entire schedule of rates, or any classification, rule or regulations of any carrier is unjust, unreasonable or discriminatory. The com- mission shall investigate such complaint in the manner; provided for the investigation of complaints made un- der the provisions of section 4185.^ § 4187. (a) Ex Mero Motu Investigation. — The commission shall also, on its own motion, investigate any matiter relating to the management by any carrier or warehouseman of its business, in the reasonableness of any or all rates, schedule of rates, fares, charges, rules or classification, whenever in its judgment the public interest requires it. (b) Findings and Orders. — ^If any such rates, sched- ules of rates, fares, charges, rules, classification or reg- ulations are found unreasonable or discriminatory, the commission will find what is reasonable under the cir- cumstances, and may make an entire new schedule and adjustment of any or all rates, schedules of rates, fares, charges, rules, regulations and classifications un- der consideration in such investigation, and its order shall fix the date when such rates, schedule of rates, 8 That a change in a rule or regulation may involve expense is not conclusive of unreasonableness. State ex rel Commission v. Minneapolis & St. L. R. Co., 80 Minn. 191, 83 N. W. 60, 89 Am. St. Rep. 514; State v. Gt. Northern R. Co., 130 Minn. 57, 153 N. W. 247, P. U. R. 1915 D 467. Discrimination as to facilities is unlaw- ful. Civic & Commercial Asso. v. Chicago, M. & St. P. R. R. Co., (Minn.), 158 N. W. 817. 555 RULES MINNESOTA COMMISSION fares, charges, rules, regulations and classifications shall go into effect.* (c) Notice and Hearing. — ^Before making any order under the provisions of this section, the carrier shall have an opportunity to be heard upon such notice as the commission shall deem reasonable. (d) Effect Pending Appeal. — The rates established under proceedings instituted under this section shaU. be in force during the pendency of any appeal or other proceeding to review the action of the commission. § 4191. Right of Appeal. — ^Any party to a proceed- ing before the commission, or any party affected by any order thereof, or the state of Minnesota, by the attorney general, may appeal therefrom to the district court of the county in which the complainants, or a ma- jority reside, or in case none of them reside in the state, or in case the order is made in a proceeding com- menced by the commission on its own motion without complaint, to the district court of any county in which the carrier or warehouseman has an office, agent or place of business, at any time within thirty days after service of a copy of such order on the parties of rec- ord, as in this chapter provided, by service of a written notice of appeal on commission by its secretary shall forthwith file with the clerk of the district court to which said appeal is taken, a certified copy of the order appealed from, together with its findings of fact on which the same is based.^ * While reasonableness of rate is a judicial question, that the finding is subject to appeal relieves commission action from any illegality. State v. Gt. Northern Co., 130 Minn. 57, 153 N. W. 247, P. U. R. 1915 D 467. 5 If an order is contrary to legislative policy of the State, as for example an order commanding the operation of a Sunday train, it 556 RULES MINNESOTA COMMISSION § 4192. (a) Jurisdiction and Pleadings. — . . . Thereupon said district court shall have jurisdiction over said appeal and the same . . . shall be tried therein according to the rules relating to the trial of civil actions, so far as the same are applicable. . . . No further pleadings than those filed before the com- mission shall be necessary. (b) Findings hy Commission and Burden of Proof. — Such findings of fact shall be prima facie evidence of the matters therein stated, and the order shall be prima facie reasonable, and the burden of proof upon all issues raised by the appeal shall be on the appel- lant. (c) Judgment on the Issues. — If said court shall de- termine that the order appealed from is lawful and reasonable, it shall be affirmed and the order enforced as provided by law. If it shall be determined that the order is unlawful or unreasonable it shall be violated and set aside.® (d) Order of Commission Stayed on Terms. — Such appeal shall not stay or supersede the order appealed from unless the court upon an examination of said or- der and the return made in said appeal, and after giv- ing the respondent notice and opportunity to be heard shall so direct. (e) Order Unappealed From. — ^If such appeal is Jot taken, such order shall become final, and it shall there- will be held unreasonable. State v. Gt. Northern Co., 130 Minn. 57, 153 N. W. 247, P. U, R. 1915 D 467. 6 District court cannot substitute its findings for those of the commission. State v. Gt. Northern Co., 130 Minn. 571, 50 N. W. 247, 1915 D 407. The court ascribes to findings "the strength due to the judgments of a tribunal appointed by law and informed by experience." Be Depot at Ada, 135 Minn. 19, 159 N. W. 1089. 557 RULES MISSISSIPPI COMMISSION upon be the duty of the carriers affected to adopt and publish the rates or classifications therein prescribed/ § 4193. Dismissal for Want of Jurisdiction. — Whenever in any proceeding pending before it relat- ing to or involving the reasonableness of rates, fares, charges or classifications, the commission shall decide that it has not jurisdiction for the reason that the traffic covered by such rates, fares, charges and classi- fications is interstate commerce, it shall make an order dismissing the proceeding, stating therein the ground of such dismissal, which order may be appealed from in like manner as other appealable orders of said com- mission. And if any such proceeding one of the com- missioners shall dissent from the order of dismissal, the question of its jurisdiction shall be certified to the district court of a county to which an appeal might be taken and thereupon the commission shall notify all parties to the proceeding of such certification. § 4200. Appeal to Supreme Court. — ^Either party may appeal from judgment of district court, no bond being required, however, from the commission, but from the carrier on condition on his refunding to any; person paying an excessive charge, (abstract) MISSISSIPPI Mississippi Code 1906, sees. 4826-4899, inel. Title: Railroad Commission. Peocedukal Sections § 4849. Complaint — Hearing — ^Determination. — The 'Commission shall docket, hear and determine all com- 7 This section is valid statutory provision. State v. Gt. Northern R. Co., 130 Minn. 57, 153 W. W. 247, P. U. R. 1915 D 467. 558 BULES MISSISSIPPI COMMISSION plaints made of any time schedule, or of the tariff of rates, joint or severed, made by any railroad, — ^fixed or approved by the commission, on the ground that the . same, in any respect, is, in the case of time schedule, unnecessarily inconvenient for the public, or, in case of a tariff of rates, that the charges are for more than just compensation, or that such charges, many of them, amount to, or operate so as to effect, unjust discrimi- nation. The complaint must be in writing, and specify the grounds of complaint, or the items in the tariff against which complaint is made ; and if it appear to the commission that the matter ought to be investigat- ed, the commission shall forthwith furnish to the rail- road a copy of the complaint, together with a notice of the time and place of hearing and at the time and place named, the commission shall hear the parties to the controversy, in person or by counsel, and both, and such evidence as may be offered, oral or in writing, and may examine witnesses on oath, conforming the mode of proceedings as nearly as may be convenient to that pursued by arbitration, giving much time and latitude to each side and regulating the opening and closing of any argument as the commission may con- sider best adapted to arrive at the truth ; and when the hearing is concluded, the commission shall give notice of any change deemed proper by it to be made to the railroad and require compliance with its order. § 4890. Appeal and Review. — ^Wherever the com- mission shall make an order, the validity of which shall be disputed upon the ground that the commission was without power to make it, or whatever the commission shall refuse to make an order asked for upon the ground that it was without power to make it, any per- 559 RULES MISSOURI COMMISSION son feeling aggrieved by the action of the commission may appeal therefrom directly to the Supreme Court. Upon such appeal the Supreme Court will decide noth- ing except as to the power of the commission in the premises and all other questions which may be involved shall remain unaffected thereby.^ MISSOURI Public Service Commission Act, Laws of Missouri 1913, sees. 1-140. Title: Public Service Commission. Powers: Supervision of Common Carriers includ- ing railroads, street railroads, railroad corporations and street railroad corporations; gas, electrical and water corporations, including heating companies, and to telegraph and telephone corporations.^* 1 There is no reference to a court of any other character in which a retrial of any hearing by the commission is spoken of, hut there is a section authorizing the commission to apply to a circuit court or chancery court for aid in the enforcement of ohedienco to its process and to compel compliance with the lawful, orders and decisions of the commission. ''■^Nature of Authority of Commission. — "The public service commission is not a legislature, nor a court. It is simply a committee created by the legislature to make findings of fact and orders based on such findings, which, if reasonable and within the power of the commission, may be enforced by the action of the courts." Atchison T. & S, P. R. Co. v. Pubic Service Commis- sion, (Mo.), 192 S. W. 460, P. U. R. 1917 C 1005. Its findings are of no more effect than those of a master in chancery. Chicago B. & Q. R. Co. V. P. S. Com., 266 Mo. 333, 181 S. W. 61, P. U. R. 1916 B 367. And they may be set aside or sustained by the court's view of the preponderance of evidence. Lusk v. Atkinson, 267 Mo. 109, 186 S. W. 703. This view is not helieved to have much support in decision outside of Missouri. 560 rules missouri commission Pbocedubal Parts of the Act § 24. (a) Rules to Govern Hearings. — ^All hearings before the commission or a commissioner shall be gov- erned by rules to be adopted and prescribed by the commission. (b) Rules of Evidence Non-Technical. — ^And in all investigations, inquiries or hearings the commission or a commissioner shall not be bound by the technical rules of evidence. (o) Informal Procedure. — ^No formality in any pro- ceeding nor in the manner of taking testimony before the commission or any commissioner shall invalidate any order, decision, rule or regulation made, approved or confirmed by the commission. § 25. (a) Service of Orders. — ^Every order of the commission shall be served upon every person or cor- poration to be affected thereby, either by personal de- livery of a certified copy thereof, or by mailing a cer- tified copy thereof in a sealed package prepaid, to the person to be affected thereby, or in case of a corpora- tion, to any office or agent thereof upon whom a sum- mons may be served in accordance with the provisions of the code of civil procedure. (b) Acknowledgement of Service. — It shall be the duty of every person and corporation to notify the commission forthwith, in writing, of the receipt of the certified copy of every order so served, and, in case of a corporation, such notification must be signed and ac- knowledged by a person or officer duly authorized by the corporation to admit such service. (c) Notice of Obedience to Order. — ^Within a time specified in the order of the commission every person 561 RULES MISSOURI COMMISSION and corporation upon whom it is served must if so re- quired in the order notify the commission in like man- ner whether the terms of the order are accepted and will he obeyed. (d) Taking Effect of Orders. — Every order or de- cision of the commission shall of its own force take ef- fect and become operative thirty days after service thereof, except as otherwise provided. (e) Continued Force of Order. — And (it) shall con- tinue in force either for a period which may be desig- nated therein, or until changed or abrogated by the ■commission, unless such order be unauthorized, by this act or any other act, or be in violation of a provision of the constitution of the state or of the United States. § 106. (a) Action in Circuit Court. — ^An action to recover a penalty or a forfeiture under this act or to enforce the powers of the commission under this or any other act may be brought in any circuit court in this state in the name of the state of Missouri and shall be prosecuted to final judgment by the general conn- , sel of the commission. (b) Joinder of Penalties and Forfeitures. — ^In any such action all penalties and forfeitures incurred up to the time of commencing the same may be sued for and recovered therein. (c) Non-Waiver as to Penalties Not Sued for. — And the commencement of an action to recover a penalty or forfeiture shall not be, a waiver of the right to recover any other penalty or forfeiture. (d) Penalties Accruing Pending Action. — ^If the de- fendant in such action shall prove that during any por- tion of the time for which it sought to recover penalties in forfeiture for a violation of any order or decision of 562 RULES MISSOURI COMMISSION the commission, the defendant was actually and in good faith prosecuting a suit to review such order or decision in the manner as provided in this act, the court shall remit the penalties or forfeitures incurred during the pendency of such proceeding. § 107. (a) Parties to Complaint. — Complaint may be made by the commission of its own motion, or by any corporation, person, chamber of commerce, board of trade, or any civic, commercial, mercantile, agricul- tural or manufacturing association or organization, or any body-politic or municipal corporation, by petition. (b) Statements in Complaint. — Or complaint in writing, setting forth any act or thing done or admit- ted to be done by any corporation, person or public utility, in violation or claimed to be in violation, of any provision of law, or of any rule or order or decision of the commission. (c) Parties as to Municipal Utilities. — Provided, that no complaint shall be entertained by the commis- sion, except upon its own motion, as to the reasonable- ness of any rates or charges of any gas, electrical, wat- er or telephone corporation, unless the same be signed by the manager or the president of the board of alder- men or a majority of the council, commission or other legislative body of any city or town, village or county, within which the alleged violation occurred, or not less than twenty-five consumers or purchasers of such gas, electricity, water or telephone service.^ (d) Joinder of Grievances and Parties. — ^AU mat- 2 There is a large discretion Tested in the commission to fix rates of this character. State ex rel v. Public Service Commission, (Mo.), 191 S. W. 412, P. U. R. 1917 C 581. 563 RULES MISSOURI COMMISSION ters upon which, complaint may be founded may be joined in one hearing, and no motion shall be enter- tained against a complaint for misjoinder of causes of action or grievances or misjoinder or nonjoinder of parties, and in any review by the courts of orders or decisions of the commission the same rule shall apply with regard to the joinder of causes and parties as herein provided. (e) Direct Damage. — The commission shall not be required to dismiss any complaint because of the ab- sence of direct damage to the complainant. (f) Service of Complaint. — ^Upon the filing a com- plaint the commission shall cause a copy thereof to be served upon the corporation or person complained of. (g) Manner of Service. — Service in all hearings, in- vestigations and proceedings pending before the com- mission may be made upon any person upon whom summons may be served in accordance with the provi- sions of the code of civil procedure in this state and may be made personally or by mailing in a sealed en- velope with postage prepaid. (h) Time and Place of Hearing. — The commission shall fix the time when and the place where a hearing will be had upon the complaint and shall serve notice thereof not less than ten days before the time set for such hearing, unless the commission shall find that the public necessity require that such hearing be held at an earlier date. § 108. (a) Complaint by Utility.— Any corporation, person or public utility shall have the right to com- plain on any of the grounds upon which complaints are allowed to be filed by other parties. 564 RULES MISSOURI COMMISSION '(b) Procedure as m Other Cases. — Tlie same pro- cedure shall be adopted and followed as in other cases. (c) Ex Parte Hearing. — Except that the complaint may be heard ex parte by the commission or may be served upon any parties designated by the commission. § 109. (a) Opportunity to be Heard. — ^At the time fixed for any hearing before the commission or a com- missioner, or the time to which the same may have been continued, the complainant and the corporation, person or public utility complained, and such corpo- rations and persons as the commission may allow to intervene shall be entitled to be heard and to introduce evidence. (b) Process for Witnesses. — The commission shall issue process to enforce the attendance of all necessary witnesses. (c) Findings and Report in Writing. — ^Whenever an investigation shall be made by said commission, it shall be its duty to make a report in writing in respect there- to, which shall state the conclusions of the commission, together with its decision, order or requirement in the premises.^ (d) Extensions to Comply With Orders. — ^If an or- der cannot, in the judgment of the commission be com- plied with within thirty days, the commission may 3 Findings have no more -weight than those by a master. Chicago B. & Q. R. Co. V. P. S. C, 266 Mo. 333, 181 S. W. 61, P. U. R. 1916 B 367. They are to be sustained or not according to the preponderance of evidence. Lusk v. Atkinson, 268 Mo. 107, 186 S. W. 703. But it ia not an answer to a compaint for service to show that furnishing it will entail a loss to a public utility. State ex rel. v. Atkinson, (Mo.), 192 S. W. 86, P. U. R. 1917 C 971. An actual test is a fair way to determine a rate. State ex rel. v. Public Service Commis- sion, 269 Mo. 525, 191 S. W. 412, P. U. R. 1917 C 581. 565 RULES MISSOURI COMMISSION grant and prescribe such additional time as in its judg- ment is reasonably necessary to comply with the order, and may, in application and for good cause shown, ex- tend the time for compliance fixed in its order. (e) Record of Proceedings. — ^A full and complete rec- ord of all proceedings before the commission or any commissioner in any formal hearing had, and all tes- timony shall be taken down by a reporter appointed by the commission, and the parties shall be entitled to be heard in person or by attorney. (f) Transcript on Review. — ^In case of an action to review any order or decision of the commission, a transcript of such testimony, together with all exhib- its or copies thereof introduced and all information received by the commission on its own initiative and considered by it in rendering its order or decision, and of the pleadings, record and proceedings in the cause, shall constitute the record of the commission. (g) Stipulations Shortening Record. — Provided, that on review of an order or decision of the commis- sion, the petitioner and the commission may stipulate that a certain question or questions alone and a speci- fied portion only if the evidence shall be certified to the circuit court for its judgment, whereupon such stitpulation and the question or questions and the evi- dence therein specified shall constitute the record on review. ■§ 110. Application for Hearing.— After an order or decision has been made by the commission, any corpora- tion or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, and the commission 566 RULES MISSOURI COMMISSION shall grant and hold such rehearing, if in its judgment sufficient reason therefor be made to appear. (a) Disposition of Rehearing. — ^If a rehearing shaU be granted the same shall be determined by the com- mission within thirty days after the same shall be finally submitted. (b) Application for Rehearing Necessary for Re- view. — No cause or action arising out of any order or decision of the commission shall accrue in any court to any corporation or person or public utility, unless the corporation or person or public utility shall have made, before the effective date of such order or de- cision, application to the commission for a rehearing. (c) Statements in Application. — Such application shall set forth specifically the ground or grounds on which the applicant considers said order or decision to be unlawful, unjust or unreasonable. No corporation or person or public utility shall in any court urge or rely on any ground not so set forth in said application. (d) Application not Suspensive of Order. — ^An ap- plication for such rehearing shall not excuse any cor- poration or public utility from complying with or obeying any order or decision of the commission, or operate in any manner to stay or postpone the en- forcement thereof except as the commission may by order direct. (e) Changing or Abrogating Order. — ^If after such rehearing and a consideration of the facts, including those arising since the making of the order or de- cision, the commission shall be of the opinion that the original order or decision or any part thereof in any respect unjust or unwarranted, or should be changed, 567 RULES MISSOURI COMMISSION tie commission may abrogate, change or modify tlie same. (f) Effect of Order on Rehearing. — Any order made after any sucli rehearing, abrogating, changing or modifying the original order or decision shall have the same force and effect as an original order or de- cision, but shall not affect any right or the enforce- ment of any right arising from or by virtue of the original order or decision. § 111. Time to Substitute Action for Review.— Within thirty days after the application for a rehear- ing is denied, or if the application is granted, then ■vpithin thirty days after the rendition of the decision on rehearing, the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office, for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing in- quired into or determined. (a) Writ when Returnable. — Such writ shall be made returnable not later than thirty days after the date of the issuance thereof and shall direct the com- mission to certify its record in the case to the court. On the return day the cause shall be heard by the cir- cuit court, unless for good cause shown the same be continued. (b) Hearing on Record before Commission. — No new or additional evidence may be introduced upon the hearing in the circuit court, but the cause shall be heard without the intervention of a jury on the evi- 568 RULES MISSOURI COMMISSION denoe and exhibits introduced before the commission and certified to by it. (c) Appearance of Parties. — The commission and ■each party to the action or proceeding before the com- mission shall have the right to appear in the review proceedings. (d) Form of Judgment on Review. — ^TJpon such hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. (e) Reversal for Rejection of Evidence. — ^In case said order is reversed by reason of the commission failing to receive testimony properly proffered, the court shall remand the cause to the commission with instructions to receive the testimony so proffered and rejected, and enter a new order based upon the evi- dence theretofore taken and such as it is directed to receive. (f) Remand for Further 'Action. — ^The court may, in its discretion, remand any cause which is reversed by it to the commission for further action. (g) Jurisdiction to Review Limited hy Act. — "Ho court of this state, except the circuit courts to the ex- tent herein specified and the Supreme Court on ap- peal, shall have jurisdiction to review, reverse, cor- rect or annul any order or decision of the commis- sion, or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties. (h) Courts Always Open. — The circuit courts of the State shall always be deemed open for the trial of suits brought to review orders and decisions of the 569 KULES MONTANA COMMISSION commission, as provided in this act, and the same shall be tried and determined as suits in equity.* § 114, Appeal to Supreme Caurt. — The commission, any corporation, public utility or person or any com- plainant may, after entry of judgment in the circuit court in any action in review, prosecute an appeal to the Supreme Court of this State. Such appeal shall be prosecuted as appears from judgment of the cir- cuit court in civil cases except as otherwise provided in this act. (a) Record in Supreme Court. — The original tran- script of the record and testimony and exhibits, certi- fied to by the commission and filed in the circuit court in any action to review an order or decision of the commission, together with a transcript of proceedings in the circuit court, shall constitute the record in ap- peal to the Supreme Court. MONTANA Eevised Cases — Supplement 1915, ch. 52, Laws 1913, Supplement, p. 1157. Title : Public Service Commission of Montana. This is in addition to the statute creating the Board of Eailroad Commissioners, who constitute ex-officio *This section prevents any conclusiveness In findings by the commission. Chicago, B. & Q. R. Co. v. Public Service Commission, 266 Mo. 181, 181 S. W. 61, P. U. R. 1916 B, 367; Lusk v. Atkinson, 268 Mo. 109, 186 S. W. 703. These two cases were later reviewed and their authority somewhat shaken, at least the court appears divided in opinion on the question of the legal value of an admin- istrative order by commission. State v. Public Service Coaimission, (Mo.), 196 S. W. 369. 570 RULES MONTANA COMMISSION the Public Service Commission, It lias jurisdiction over all public utilities for the furnishing heat, street railway service, light, power, water and telegraph or telephone service, control to be to the exclusion of the jurisdiction, regulation and control of such utili- ties by any municipality, town or village."^ Pbocedubal Section ^ 41. Rules of Procedure. — Said commission shall have the power to prescribe rules of procedure, and to do all things necessary and convenient in the ex- ercise of the powers by this act conferred upon the commission; provided, that nothing in this act shall be construed as vesting judicial powers on said com- mission, or as denying to any person, firm, associa- tion, corporation, municipality, county, town or vil- lage the right to test in court of competent jurisdic- tion, the legality or reasonableness of any fixed order made by the commission in the exercise of its duties or powers.^ Peocedxjeal Parts § 17. Investigating Complaints. — ^When complaint is made against any public utility by complaints di- recently affected, that any rate, toll, charge, schedule, or joint rate is unreasonable or discriminatory, or that any regulation, measurement, practice or act af- iThe fact that a city has created an indebtedness on its own waterworks does not prevent this act from applying to it. Public Service Commission v. Helena, 52 Mont. 527, 159 Pac. 24, P. U. R. 1916 P, 389. 2 This act does not create a "special commission" forbidden by Montana constitution. Pub. Service Com. v. Helena, supra. 571 RULES MONTANA COMMISSION fecting or relating to tlie production, transmission or delivery of heat, light, water or power or any service in connection therewith is unreasonable, insufficient or unjustly discriminatory, or that any -service is in- adequate, the commission shall proceed with or with- out notice, to make such investigation as it may deem necessary, but no order affecting such things shall be entered without a formal hearing, (abstract) (a) Notice of Hearing. — The commission shall give the public utility and the complainant at least ten days' notice of the time and place where such hearing will be held, at which hearing both the complainant and the public utility shall have the right to appear by counsel or otherwise and be fully heard. (The rest of this subsection relates to process for witnesses, production of books and documents and fees for witnesses.) § 19. Order Fixing Rates. — If upon such hearing and due investigation, the rates, tolls, charges, sched- ules or joint rates shall be found to be unjust, unrea- sonable or unjustly discriminatory or to be prefer- ential or otherwise in violation of the provisions of this act, the commission shall have the power to fix and order substituted therefor, such rates or rates, tolls, charges or schedules as shall be just and reason- able. If it shall in like manner be found that any reg- ulation, measurement, practice, act or service com- plained of is unjust, unreasonable, insufficient, un- justly discriminatory or otherwise in violation of the provisions of this act, or if it be found that the service is inadequate, the commission shall have the power to substitute therefor such other regulations, measure- 572 RULES MONTANA COMMISSION ment^, practices, service or acts, and make sucli order relating thereto as may be just and reasonable,^ (a) Separate Hearings. — ^Wben complaint is made of more than one rate, charge or practice, the com- mission may, in its discretion, order separate hear- ings upon the several matters complained of, and at such times and places as it may prescribe. The com- mission may at any time, upon its own motion investi- gate any of the rates, tolls, charges, rules, regulations, practice and service, and after a full hearing as above provided, by order, make such changes as may be just and reasonable the same as if a formal complaint had been made. (b) Complaint of Public Utility/. — ^Any public utility may make complaint as to any matter affecting its own product or service with like effect, as though made by any . . . person or persons. Notice of the hearing upon any such complaint shall be given to the persons interested in such manner as the commis- sion may by rule prescribe. § 26. Action to Set Aside Order. — One dissatisfied with an order by the commission fixing rates, etc., or regulation, practices or service may bring an ac- tion in the district court, within ninety days to set it aside ; no injunction shall stay enforcement of the or- der, except an application to the judge or court and hearing thereon; if additional evidence is introduced by plaintiff than that offered before the commission, the court shall transmit it to the commission, which may modify, amend or rescind and report to the court ; 3 Conclusiveness of findings by commission refers to rates and not to orders in other matters. State ex rel. Commission v. District Court, (Mont.), 163 Pac. 115, P. U. R. 1917 C 884. 573 EULES NEBRASKA COMMISSION if it rescinds the action is dismissed, and otherwise the judgment is rendered upon the modified or orig- inal order as the case may be. The burden of proof is on the party attacking the order. NEBRASKA Eevised Statutes of Nebraska 1913, Art. X, sees. 6104- 6158. Title : Nebraska State Railway Commission. JUEISDICTION § 6107. Control Over Common Carriers. — The commission shall have the power to regulate the rates and services of, and to exercise a general control over, all railroads, express companies, sleeping car compa- nies, freight and freight line companies and all other common carriers engaged in the transportation of freight or passengers within the State.^ Peocedubal Sections § 6137. Complaint. — Any person, firm, corporation, or association, or any mercantile, agricultural or man- ufacturing society, or any body politic or municipal organization, complaining of anything done or omitted to be done by any railway company or common carrier subject to the provisions of this article, or any of the laws of this State relative to the control and regula- tion of railway companies or common carriers under lAn irrigation company is a common carrier and regulation of its rates is constitutionally conferred. McCook I. & W. P. Co. t. Burtless, 99 Neb. 252, 152 N. W. 334, P. U. R. 1915 C, 587, L. R. A. 1915 B. 1205. 574 KULES NEBRASKA COMMISSION ■whicli the commission has authority to act, may ap- ply to the commission by petition, briefly stating the fact, except as to the fixing, establishing and regulat- ing of rates and charges for the transportation of freight otherwise provided for in this article, where- upon a copy of the complaint shall be served upon such railway company in the same manner as process in civil cases is served, who shall be required to satisfy the complaint or file a written answer thereto within a reasonable time to be fixed by the commission. (a) Investigation of Complaint. — ^If the railroad company or common carrier shall not satisfy the com- plaint within the time fixed and there shall appear to be a reasonable ground for investigation of the com- plaint upon its merits, the commission shall proceed to an inquiry and hearing into the matters complained of in such manner and by such means as it shall think proper, and shall give the parties thereto written no- tice of the time and place of hearing, and upon the hearing the commission shall make such order or or- ders with respect to the complaint as may be deemed just and reasonable. (b) Ex Mero Motu Investigation. — ^Whenever the commission has reason to believe that any railway or common carrier is violating any provisions of this arti- cle or any laws of this state relative to the control and regulation of railway companies or common car- riers, it shall at once institute an inquiry and fix a time and place for hearing thereon, upon their own motion, and shall make any order or orders as may upon said hearing be just and reasonable; provided, nothing herein contained shall prevent any person, firm, corporation or association, or any mercantile, 575 EULES NEBRASKA COMMISSION agricultural or manufacturing society or body politic or municipal organization or persons proceeding against any railway company or common carrier un- der the laws of this state for such cases made and provided. § 6138. Orders — Notice Of. — The order or orders, together with the findings of fact and the conclusions of the commission based thereon shall be reduced to writing spread upon the record and a copy thereof with the date when the order or orders, shall go into force and effect shall be furnished to the party who complained and to any person or persons directly in- terested therein and to any railway company or com- mon carrier complained of, or with reference to whom a hearing has been had before the commission on their own motion and said order or orders shall go into force and effect at such time as is within the discre- tion of the commission just and reasonable. (a) Orders Prima Facie Evidence and Reasonable. — ^And the order or orders, the findings of fact and conclusions contained in the record, shall' thereafter, in all judicial proceedings, when properly authenti- cated as herein provided, be admitted in evidence without further proof of prima facie evidence of every fact found and that said order or orders are prima facie just and reasonable; provided always, no order or orders shall go into force and effect within ten days after the mailing of said notice to the persons affected thereby. § 6139. Taking Effect of Orders.— The order or or- ders provided for in the two next preceding sections shall be in force and effect from and after the date fixed by the commission and shall so remain until an- 576 RULES NEBRASKA COMMISSION nulled, modified or revised by the commission, or until finally adjudged unreasonable and unjust in a court of competent jurisdiction; provided, no further hear- ing shall be had before the commission with reference to the order or orders; provided further, if the rail- way company, common carrier, person or persons af- fected by the order or orders shall commence any pro- ceeding or proceedings as hereinbefore provided af- fecting any decision, rule or orders of the commission, such order or orders shall be held in abeyance until finally determined in said court. ■ § 6140. Enforcement of Order by Court.— When- ever any railroad company or common carrier shall violate or refuse or neglect to obey any order or or- ders of the commission which have been finally estab- lished, the commission or any company or person in- terested in such orders, may apply in a summary way, by petition, to the district court of the county in which the violation or disobedience of such order or orders shall happen, alleging such violation or dis- obedience, as the case may be, and the court shall have power to hear and determine the matter on such no- tice to the railway company or common carrier as the court shall deem reasonable; and the notice may be served on such railway company or common carrier, its officers, agents and servants as the court shall direct. (a) Informal Pleadings. — The court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and pro- ceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises. (b) Power to Prosecute Inquiries. — To this end 577 EULES NEBRASKA COMMISSION sucli court shall have power, if it deems proper, to di- rect and prosecute, in such manner and by such per- sons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judg- ment in the matter of such petition. (c) Issuance of Injunction or Other Process. — ^If it be made to appear to the court on such hearing or on the report of any such person or persons, that the or- der or orders of the commission drawn in question has been involved or disobeyed, it shall be lawful for the court to issue a writ of injunction, or other process, mandatory or otherwise, to restrain the railway com- pany or common carrier, and its owner, directors, officers, agents, employees, lessors, trustees or receivers or representatives upon whom the duty may devolve or through whose agency the order or orders are to be carried out, from further continuing such viola- tion or disobedience of the order or orders and en- joining obedience to the same, and in case of any dis- obedience of any such writ of injunction or other prop- er process, mandatory or otherwise was directed, shall be guilty of contempt of court, and it shall be lawful for such court to issue a suit of attachment or other process of said court, incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against the railway company or common carrier, to pay any sum of money, not exceeding for each railway company or common carrier, the sum of one thousand dollars for every day after a day to be named in the order, that the railway company or com- mon carrier shall fail to obey such injunction or other proper process, mandatory or otherwise, and the own- ers, directors, officers, agents, employees, lessors, trus- 578 KULES NEBRASKA COMMISSION tees or receivers or operatives upon whom the duty may devolve, or througli whose agency the order or orders are to he carried out, upon failure so to do shall he deemed guilty of misdemeanor and upon con- viction thereof shall he imprisoned in the county jail not less than ten days nor more than thirty days. (d) Right of Appeal. — The moneys shall, when paid, be disposed of according to law, and the payment thereof may, without prejudice to any other mode of receiving the same, be enforced by attachment or order in the nature of a suit of execution, in like manner as if the same had been recovered by a final decree in personam in such court, saving to the commission and to any other party interested therein the right of ap- peal to the Supreme Court under the same rules now provided by law in relation to appeals to said court as to security for such appeal, except that in no case shall security for such appeal be required when the same is taken by the commission. (e) Supersedeas Pending Appeal. — ^But no appeal to the Supreme Court shall operate to stay or super- sede the order of the court or the issuance of execu- tion thereon, and such court may in every such mat- ter order the payment of such costs and attorney and counsel fees as shall be deemed reasonable. (f) Attorney General to Represent Commission. — Whenever any such petition shall be filed or presented by the commission, or by their direction, it shall be the duty of the attorney general of the State to prosecute the same and the cost and expenses on the part of the commission of any such prosecution shall be paid out of the appropriations for the expenses of the com- mission. 579 RULES NEVADA COMMISSION NEVADA Eevised Laws of Nevada 1912, sees. 4515-4548. Title : Public Service Commission of Nevada. JUEISDICTION §4517. The public service commission is hereby invested with full power of supervision, regulation and control of all such utilities, subject to the provis- ions of this act and to the exclusion of the jurisdiction, regulation and control of such utilities by any munici- pality, town or village. Peocedukal Sections § 5431. (a) Complaint. — ^Upon a complaint made against any public utility by any mercantile, agricul- tural or manufacturing society or club, or by anybody politic or municipal organization or by any person or persons, firm or firms, corporation or corporations or association or associations, the same being interested, that any of the rates, tolls, charges or schedules of any joint rate or rates are in any respect unreasonable or unjustly discriminating, or that any regulations, measurements, practice or act whatsoever affecting or relating to the production, transmission or delivery or furnishing of heat, light or water or power, or any service in connection therewith is, in any respect, un- reasonable, insufficient or unjustly discriminatory, or that any service is inadequate, the commission shall proceed, with or without notice, to make such investi- gation, as it may deem necessary. (b) Formal Hearing. — But no order affecting said rates, tolls, charges, schedules, regulations, measure- 580 RULES NEVADA COMMISSION ments, practice or act complained of shall be entered without a formal hearing. (c) Notice of Complaint. — The commission shall, prior to such formal hearing, notify the public utility- complained of that complaint has been made, stating the substance thereof, or, if deemed necessary, accom- panying the notice with a copy of the complaint, and ten days after such notice has been given, the commis- sion may set a time for a hearing. (d) Notice of Hearing. — The commission shall give the public utility and the complainant or complainants at least ten days ' notice of the time when and the place where such hearing will be held, at which hearing both the complainant and the public utility shall have the right to appear by counsel or otherwise and be fully heard. (e) Witnesses and Boohs and Papers. — Either party shall be entitled to an order by the commission for the appearance of witnesses or the production of books, papers and documents containing material testimony. § 4533. (a) Finding as to Rates. — If upon such hear- ing and due investigation the rates, tolls, charges, schedules or joint rates shall be found to be unjust, unreasonable, or unjustly discriminatory or to be pref- erential or otherwise in violation of any of the pro- visions of this act, the commission shall have the pow- er to fix and order substituted therefor such rate or rates, tolls, charges or schedules as shall be just and reasonable. (b) Finding as to Service. — ^If it shall in a like man- ner be found that any regulation, measurement, prac- tice, act or service complained of is unjust, unreason- 581 RULES NEVADA COMMISSION able, insufficient, preferential, unjustly discriminatory, or otherwise in violation of the provisions of this act, or if it be found that the service is inadequate or that any reasonable service cannot be obtained, the com- mission shall have power to substitute therefor such other regulation, regulations, measurements, prac- tices, service or acts, and make such order relating thereto as may be just and reasonable. (c) Separate Hearings. — When complaint is made of more than one rate, charge or practice, the commis- sion may, in its discretion, order separate hearings upon the several matters complained of and at such times and places as it may prescribe, no complaint shall at any time be dismissed because of the absence of direct damage to complainant. (d) Ex Mero Motu Investigation. — The commission may at any time, upon its own motion, investigate any of the rates, tolls, charges, rules, regulations, prac- tices and service, and after a full hearing as above provided, by order make such changes as may be just and reasonable, the same as if a formal complaint had been made. § 4535. (a) Record Before Commission. — ^A full and complete record shall be kept of all proceedings be- fore the commission or its representative on any formal investigation, and all testimony shall be taken down by the stenographer appointed by the commis- sion. (b) Record Upon Review. — ^Whenever any com- plaint is served upon the commission as hereinafter provided for the bringing of actions against the com- mission, before the action is reached for trial, the com- mission shall cause a certified copy of all proceedings 582 RULES NEVADA COMMISSION teld and testimony taken npon such investigation to be filed with the clerk of the court in which the action is pending. § 4539. (a) Finding as to Rates Prima Facie Law- ful. — All rates, fares, charges, classifications and joint rates fixed by the commission shall be enforced and shall be prima facie lawful, from the date of the order until changed or modified by the commission, or in pursuance of sec. 4540 of this act. (b) Findings as to Service Prima Facie Reasonable. — ^All regulations, practices and service prescribed by the commission shall be enforced and shall be prima facie reasonable, unless suspended or found otherwise in an action brought for that purpose pursuant to the modified by the commission itself upon satisfactory provisions of sec. 4540 of this act, or until changed or showing made. § 4540. (a) Action to Set Aside Order. — ^Any party in interest being dissatisfied with an order of the com- mission fixing any rate or rates, fares, charges, classi- fications, joint rate or rates, or any order fixing any regulations, practices or services, may within ninety (90) days commence an action in the district court of the proper county against the commission and other interested parties as defendants to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates, fixed in such order is unlawful, or unreasonable, or that any such regulation, practice or service fixed in such order is unreasonable. The commission and other parties defendant shall file their answers to said complaint within thirty (30) days after the service thereof, whereupon such action shall be at issue and 583 RULES NEVADA COMMISSION stand ready for trial upon twenty (20) days' notice to either party. (b) Injunction on Notice and Hearing. — "No injunc- tion shall issue suspending or staying any order of the commission except upon application to the court or judge thereof, notice to the commission having been first given and hearing having been had thereon : pro- vided, that all rates fixed by the commission shall be deemed reasonable and just and shall remain in full force and effect until final determination by the courts having jurisdiction. (c) Other Evidence on Trial. — ^If upon the trial of such action evidence shall be introduced by the plain- tiff which is found by the court to be different from that offered upon the hearing before the commission, or additional thereto, the court before proceeding to render judgment, unless the parties to such action stipulate in writing to the contrary, shall transmit a copy of such evidence to the commission and shall stay further proceedings in said action for fifteen (15) days from the date of such transmission. Upon re- ceipt of such evidence the commission shall consider the same and may later modify, amend or rescind its order relating to such rate or rates, fares, charges, classifications, joint rate or rates, regulation, prac- tice or service complained of in said action and shall report its action to said court within ten days from the receipt of such evidence. (d) Judgment on Original or Amended Order. — If the commission shall rescind its order complained of, the action shall be dismissed ; if it shall alter, modify ' or amend the same, such altered, modified or amended order shall take the place of the original order com- 584 RULES NEW HAMPSHIRE COMMISSION plained of, and judgment shall be rendered thereon, as thougli made by the commission in the first instance. If the original order shall not be rescinded or changed by the commission, judgment shall be rendered upon such original order. (e) Appeal from Judgment. — Either party to said action within sixty (60) days after service of a copy of the order or judgment of the court may appeal or take the case up on error as in other civil actions. Where an appeal is taken to the Supreme Court of Nevada the cause shall on the return of the papers to the higher court be immediately placed on the cal- endar of the then pending term and shall be assigned and brought to a hearing in the same manner as other causes on the calendar. (f ) Burden of Proof on Assailant of Order. — In all actions under this act the burden of proof shall be upon the party attacking or resisting the order of the commission to show by clear and satisfactory evidence that the order is unlawful or unreasonable as the case may be. NEW HAMPSHIRE Supplement to Public Statutes 1901-1913, ch. 155, sees. 1-26. Title: Public Service Commission. 1. Jurisdiction. — Over railroad, street railway, telephone, telegraph, light, heat, power and water companies.^ iThe commission act is one to regulate public utilities rather than corporations, and corporate activities are regulated solely from a public service standpoint. Grafton, etc., Co. v. State, 77 N. H. 539, 94 Atl. 193, P. U. R. 1915 C 1064. The commission act 585 rules new hampshire commission Peocedueal Sections § 10. Complaints Against Railroad — Any person may make complaint to the commission by petition setting forth in writing anything or act claimed to be done or omitted to be done by any railroad corpora- tion in violation of law or of the terms and conditions of its franchises or charter or of any order of the commission. Thereupon the commission shall cause a copy of said complaint to be forwarded to the rail- road corporation complained of, which may be ac- companied by an order requiring that the matter com- plained of be satisfied, or that the charges be answered in writing within a time to be specified by the commis- sion. If the railroad complained of shall make repa- ration for any injury alleged and shall cease to com- mit or to permit the violation of law, franchise or or- der charged in the complaint, and shall notify the com- mission of that fact before the time allowed for ans- wer, the commission shall not be required to take any action upon the charges. If, however, said charges be not thus satisfied, and it shall appear to the com- mission that there are reasonable grounds therefor, it shall investigate such charges in such manner and by such means as it shall deem proper and after no- tice and hearing take such action within its powers as the facts justify. (a) Inquiry by Experts. — The commission may, of its own motion, investigate or make inquiry, in a man- ner to be determined by it, as to any act or thing done does not supersede other legislation unless its continuance is ■wholly inconsistent with the exercise of the powers granted by the commission act, In the absence of express repeal. Thompson & Nesmdth v. Manchester Traction L. & P. Co., (N. H.), 101 Atl. 212. 586 RULES NEW HAMPSHIRE COMMISSION or omitted to be done by any railroad corporation or public utility and the commission shall make such in- quiry in regard to any act or thing done or omitted to be done by any such railroad corporation or public utility in violation of any provision of law or order of the commission. It may at any time personally, or by its experts or agents, inspect the property, works, sys- tem, plants, devices, appliances and methods used by any railroad corporation or public utility, or the books, papers and records of any such railroad corporation or public utility. Any expert or agent of commission, however, who shall make a demand on behalf of the commission to be allowed to inspect as aforesaid, shall produce written authority to make such inspection signed by the clerk or assistant clerk by some mem- ber of the commission. (b) Complaint hy City or Patrons. — Upon complaint made by the City Councils of any city, or by the mayor of any city, or by the selectmen of any town, in which a public utility is authorized to manufacture, sell or supply gas or electricity for heat, light or power, or to supply water or to transmit telephone or telegraph messages or upon the complaint in writing of not less than one hundred customers or subscribers of such public utility in cities of thirty thousand or more in- habitants, or of not less than fifty in cities of twenty thousand or more inhabitants, or of not less than twenty-five in any other city or town, or upon a petition or a public utility as to the quality of the service fur- nished by such public utility, or that the charges made therefor are excessive or insufficient, the commission shall investigate as to the cause of such complaint, and, after notice and hearing, may make such order, if any, 587 RULES NEW HAMPSHIRE COMMISSION as may in its opinion be necessary to establisli just and reasonable rates or charges or as in its opinion may be necessary to require the making of any reasonable and just improvements in service and methods.^ § 11. (a) Order Upon Hearing. — Whenever the com- mission shall be of opinion after a hearing upon its own motion or upon complaint, that the rates, fares or charges demanded or collected or proposed to be demanded or collected by any railroad corporation or public utility for the transportation of persons or property within the state are unjust or unreasonable or that the regulations or practices of such railroad, corporation or public utility affecting such rates are unjust or unreasonable, or in anywise in violation of any provision of law, or that the maximum rates, fares or charges, chargeable by any such railroad, corpora- tion or public utility are insufficient, the commission shall determine the just and reasonable or lawful rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, and shall fix the same by order to be served upon all railroad corporations or public utili- ties by which such rates, fares and charges are there- after to be observed ; provided, however that when any railroad corporation or such public utility shall seek the benefit of any order of the commission allowing said railroad corporation or such public utility to charge and collect rates higher than charged at the time said order is asked for, the burden of proof, the 2 Findings are prima facie correct, but the court must regard the relative weight of the evidence. Grafton, etc., v. State, 77 N. H. 539, 94 Atl. 193; P. U. R. 1915 C, 1064; Grafton, etc., Co. v. State, (N. H.), 100 Atl. 668. 588 RULES NEW HAMPSHIRE COMMISSION necessity of the increase shall be upon said railroad corporation or such public utility and provided further that the commission shall not allow an increase above any rate prescribed or limited by statute. (b) Alteration and Reconstruction. — This subsec- tion provides that the commission may on its own mo- tion or upon complaint direct alteration or reconstruc- tion of practices, equipment and appliances of rail- road corporations and public utilities, due notice being first given, (abstract) (c) Lowering or Increasing Rates. — Customers may complain of high rates or a public utility of low rates and after hearing the commission may fix rates, and in latter event the burden of proving necessity of high- er rates shall be upon the public utility, (abstract) (d) Duration of Time Rates are Fixed. — This sub- section provides that the commission fixes rates its order shall state the time that they are to remain, not exceeding two years unless set aside or suspended by a court of competent jurisdiciton, but "nothing here- in contained shall present a public utility at any time from entering into a contract with a customer for a period exceeding two years at rates then lawful. " (ab- stract) (e) Discriminatory Rates and Reparation. — On-com- plaint, hearing and finding of charge of discriminatory rate which is unjust, the commission may order repa- ration, (abstract) (f ) (g) Joint Service by Railroads. — The commis- sion after hearing may establish joint service by rail- roads and fix rates and classifications therefor, and, also, in the absence of agreement may fix division of rates, (abstract) 589 EXJLES NEW JERSEY COMMISSION (h) Interstate Rates. — The commission may inves- tigate interstate rates and classifications and, if of opinion, that they are unjust or discriminatory, it may apply to interstate commerce commission, other de- partment of the Federal government or to any court of competent jurisdiction for relief, (abstract) (1) Emergency and Suspension. — ^Where the com- mission is of opinion that an emergency exists it may temporarily alter, amend or suspend any existing rate, classification or rule relating thereto, (abstract) NEW JERSEY Laws of New Jersey 1911, ch. 1905, sees. 1-43, pp. 374-389. Title : Board of Public Utility Commissioners. § 15. Jurisdiction. — The board shall have general suspension and regulation of, jurisdiction and control over, all public utilities, and also over their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carry- ing out the provisions of this act. The term "public utility" is hereby defined to include every individual, co-partnership, association, corporation or joint stock company, their lessees, trustees or receivers appoint- ed by any court whatsoever, that now or hereafter may own, operate, manage or control within the state of New Jersey, any steam railroad, street railway, trac- tion railway, canal, express, subway, pipe line, gas, electric light, heat power, water, oil, sewer, telephone, telegraph system, plant or equipment for public use, 590 EULES NEW JERSEY COMMISSION Tinder privileges granted or hereafter to be granted by the state of New Jersey or by any political subdivision thereof/ Peocedukai, Sections ^ 26. Technical Rules of Evidence Not Observed. — All hearings and investigations before the board or any member thereof shall be governed by rules adopt- ed by the board and in the conduct thereof neither the board nor such member shall be bound by the technical rules of evidence. § 31. Rehearing. — The board, at any time, may or- der a rehearing and extend, revoke or modify any or- der made by it. § 32. Service of Orders. — ^Every order made by the board shall be served upon the person or public utility 1 Conferred Powers. There is not conferred on the commis- sioners the power to decree specific performance of a contract. Public Service Electric Co. v. Public Utility Comrs., 87 N. J. L. 128, 96 Atl. 1013, P. U. R. 1916 D 107. They have the power to abro^ gate contracts between public utility and private consumer in regard to rates. Borough of North Wildwood v. Board P. U. C, 88 N. J. L. 81, 95 Atl. 749, P. U. R. 1916 B 77. Legislature has power to delegate to them the power to fix reasonable compensa- tion for the use of a county bridge. Public Service Ry. Co. v. Pub- lic Utility Comr., 87 N. J. L. 250, 893 Atl. 585, P. U. R. 1915 C 224. It Is not the regulation of an easement to vest in the commission the regulation of a railway crossing. The purpose is to provide for. safety. Erie R. Co. v. Public Utility Comrs., 87 N. J. L. 438, 95 Atl. 177. Providing for elimination of danger at grade crossing by assessing a certain per cent against a street railway is within police power. Public Service Ry. Co. v. Public Utility Comrs., 89 N. J. L. 24, 98 Atl. 28. Commission has no power to order con- demned property around a railroad station merely for park de- velopment. Potter V. Public Utility Comrs., 89 N. J. L. 157, 98 Atl. 30. That a legislature may itself exercise certain powers is not to say that they are non-delegable. West Jersey & S. R. Co. t. Public Utility Comrs., 87 N. J. L. 170, 94 Atl. 57. 591 RULES NEW JERSEY COMMISSION as herein defined, affected thereby, within ten days from the time said order is filed, by personal delivering or by mailing a certified copy thereof, in a sealed pack- age, with postage prepaid, to the person to be affected thereby, or in case of a public utility, to any officer or agent thereof, upon whom a summons may be served in accordance with the provisions of the law of this state. (a) Order to Continue Service. — ^AU orders of the board to continue service or rates in effect at the time said order is made shall be immediately operative. (b) Orders Effective, When — ^AU orders shall be- come effective upon the date specified therein, which shall be at least twenty days after the date of said or- der. Judicial Review § 38. Review of Certiorari or Petition. — ^Any order made by the board may be reviewed on the application of any person or public utility affected thereby, by cer- tiorari in appropriate cases, or by petition to the Su- preme Court of the state of New Jersey, within thirty days from the date upon which said order becomes ef- fective, as herein provided, said petition shall be filed with the clerk of the Supreme Court and a copy there- of served upon the secretary of the board either per- sonally or by leaving same at the office of said board in the city of Trenton.^ (a) Jurisdiction to Review. — ^The Supreme Court is hereby given jurisdiction to review said order of the 2 Certiorari appropriate for municipality to review order of com- missioners as fixing too high a rate for gas. Public Service Gas Co. v. Public Utility Comrs., 87 N. J. L. 581, 94 Atl. 634, P. U. R. 1915 E 251; City of Passaic v. Public Utility Comrs., 87 N. J. L. 581, 95 Atl. 127, P. U. R. 1915 E 625. 592 RULES NEW JERSEY COMMISSION 1)031(1, and to set aside such, order when it clearly ap- pears that there was no evidence before the board to support reasonably such order or that the same was without the jurisdiction of the board.* § 39. Stay of Orders. — The allowance of a writ of certiorari or the institution of any proceeding to re- view any order of the board by the Supreme Court as aforesaid, shall in no case supersede or stay the order of the board, unless the Supreme Court or a justice thereof, shall so direct, and the appellant may be re- quired by the Supreme Court or a justice thereof, to give bond in such form and of such amount, as the Su- preme Court or the justice thereof allowing the stay, shall require. § 40. Precedence Over Other Cases. — Any proceed- ing in any court of this state directly affecting an or- der or the board, or to which the board is a party, shall have precedence over all civil proceedings pending in such court. 3 Order of appeal not disturbed unless shown to be unrasonable or based on illegal principle. Public Service Ry. Co. v. Public Utility Comrs., 87 N. J. L. 250, 93 Atl. 585, P. U. R. 1915 C 224. The Supreme Court has no jurisdiction to modify an order of the commission. It must merely affirm or set aside. Erie R. Co. v. Public Utility Comrs., (N. J.), 100 Atl. 346; Public Service Gas Co. V. Public Utility Comrs., 87 N. J. L. 581, 92 Atl. 606. The com- mission has no power to make unnecessarily harsh regulations for safety at crossings. Erie R. Co. v. Public Utility Comrs., 87 N. J. L. 438, 95 Atl. 177. Or if such regulation increases rather than diminishes hazards of the public at least when slight changes may satisfy. N. Y. S. & W. R. Co. v. Public Utility Comrs., (N. J. L.), 101 Atl. 49. That the providing for a safe crossing involves expense does not make an order therefor unreasonable. Erie R. Co. V. Public Utility Comrs., 87 N. J. L. 438, 95 Atl. 177. 593 RULES NEW MEXICO COMMISSION NEW MEXICO New Mexico Statutes 1915, Art. VIII, sees. 5368-5390. Title: State Corporation Commission, Jurisdictions — Regulation and control of charges and rates of railway, express, telegraph, telephone, sleeping car and other transportation and transmis- sion companies and common carriers to be vested in State Corporation Commission.^ Pkocedueal Paets § 5374. Complaint by Petition or Letter. — ^Any per- son, firm, corporation, association, chamber of com- merce, board of trade or any commercial, mercantile, agricultui-al, mining, manufacturing or other organi- zation or common carrier complaining of any charge or rate of any railway, express, telegraph, telephone, sleeping car, transportation or transmission company or common carrier within this state or having any grievance against any railway company, transporta- tion company or common carrier as to any matter with- N. M. Constitution, Art. XI, sees. 1-7. iThe commission is not vested with arbitrary powers, and may not order a railroad to establisli a station regardless of expense entailed or benefit to be derived by the public. Seward v. D. & R. G. R. Co., 17 N. M. 557, 131 Pac. 980. It has jurisdiction to require railroad to install stock scales but the burden of showing this to be a necessary facility is on applicant. New Mex. Wool Growers' Assn. v. Atchison T. & S. P. Ry. Co., 20 N. M. 33, 145 Pac. 1077. A mere power to fix, determine, supervise, regulate and control rates does not include power to award reparation for past excessive and unreasonable charges. Santa Pe Gold & M. Co. v. Atchison T. & S. F. R. Co., 21 N. M. 496, 155 Pac. 1093, citing Illinois C. R. Co. v. Paducah Brewery Co., 157 Ky. 357, 163 S. W. 239; Louisville & N. R, Co. V. Finn, 235 U. S. 601, 35 Sup. Ct. 146, 59 L. Ed. 379. 594 RULES NEW MEXICO COMMISSION in the jurisdiction of the commission under the Consti- tution of the state of New Mexico or laws made in pur- suance thereof, may initiate a proceeding before the commission by petition or letter to obtain such relief as is within the powers of the commission to grant. (a) Letter and Complaint Defined. — Such letter shall also be known as a petition and a complaint of any charge or rate shall be known as a grievance. (b) Ex Mero Motu Proceeding. — The commission may also, of its own motion, initiate a proceeding as to any of such matters. (c) Service in Other Cases. — ^Notice of hearing shall be served upon any party to a proceeding not required by law to have a designated agent at the city of Santa Fe by delivering a copy of such notice to such party or statutory agent in New Mexico or by registered mail directed to such statutory agent or party, deposited in a post paid wrapper at the post office in the city of Santa Fe. When service is made by mail at least fif- teen days' notice shall be given and the time shall be- gin to run when the notice is deposited in the post of- fice. (d) Notice of Orders. — ^Notice of the making of any order shall be given within five days after the making thereof. (e) Notice to Attorney. — ^When any party has ap- peared by attorney service upon such attorney shall be deemed sufficient service upon the party. (f) Proof of Service. — Proof of service of any no- tice or process issued by the commission shall be by certificate endorsed thereon if the same be served by a clerk of the commission, or by affidavit of any other person appointed by the commission to serve such no- 595 RULES NEW MEXICO COMMISSION tice or process, accompanied by the return card if ser- vice is made by registered mail. § 5376. Appearance by Party or Attorney. — ^At the time and place set for hearing the parties interested may be heard in person or by counsel and may intro- duce evidence. (a) Adjournment and Continuance. — The commis- sion shall, upon application and proper showing by either party allow such reasonable time as may be ne- cessary for the production of evidence and may ad- journ or continue the hearing from time to time as may be deemed necessary or proper for the accommodation of the parties and the furtherance of justice. (b) Place of Hearing. — Hearings may be held at the city of Santa Fe or any other place in the state desig- nated by the commission and the commission is hereby authorized to use any court room in the state for hear- ings at any time when said hearing does not interfere with the business of the court. Each commissioner or the clerk shall have the power to administer oaths. (c) Stipulation as to Facts. — The parties to any proceeding may by stipulation in writing, file with the clerk of the commission an agreement upon the facts or any portion, which stipulation shall be regarded and used as evidence upon the hearing. (d) Joinder and Misjoinder. — ^AU matters upon which a grievance may be founded may be joined in one hearing and no petition shall be dismissed on account of misjoinder of grievances or parties or because of the absence of direct damage to a petitioner. (e) Findings and Order. — At the conclusion of the hearing the commission shall make its findings con- cerning the subject matter and facts inquired into and 596 RULES NEW MEXICO COMMISSION make and enter an order of its determination and de- cision based on such findings.^ (f ) When Order Goes into Effect. — Said order shall specify the time limit for compliance, which time may on application and for good cause shown he extended hy the commission in its discretion. (g) Signing and Attesting , Order. — ^Every order shall be signed by at least two commissioners and at- tested by the clerk with the seal of the commission thereto affixed. (h) Service of Order. — A copy of such order certi- fied by the clerk under the seal of the commission shall be served upon each of the parties to the proceeding. § 5377. Quorum for Action. — ^Any two commis- sioners shall constitute a quorum to conduct hearings decide motions and make orders, and the concurrence of at least two commissioners shall be required to make any order or determine any matter before the com- mission. (a) Investigation by Authorised Person. — The com- mission may, however, by writing under its seal, auth- orize any commissioner, its clerk or other person to in- vestigate and take testimony as to any matter pending before it. § 5383. Rehearings in Discretion. — Eehearings may be granted to any party by the commission in its discretion. (a) Newly Discovered Facts. — An application for re- hearing, or for the change or modification of an order or requirenient of the commission, on account of facts 2 Determination of reasonableness a judicial question. Seward V. D. & G. R. Co., 17 N. M. 557, 131 Pac. 980. 597 RULES NEW MEXICO COMMISSION and circumstances arising subsequent to tHe Hearing or consequences resulting from compliance with, such! order or requirement, shall be by motion, which mo- tion shall state specifically the grounds upon which said application is made, and the matters relied upon by the applicant. (b) Notice of Rehearing. — ^In ease such rehearing is granted notice thereof shall be given in the same manner as notice of other hearings. § 5384. Record Before Commission. — The clerk shall keep a complete record and separate file of each proceeding had before the commission. (c) Style of Parties. — The petition shall set forth the facts constituting the grievance and shall contain a prayer for the relief demanded. Any party other than the commission initiating such proceeding shall be known as the petitioner, and the party or parties complained of and any party concerned therein other than the commission or the petitioner shall be known as the defendant. (d) (d) Intervention. — ^Any person, firm, corpor- ation, chamber of commerce, board of trade, or any commercial, mercantile, agricultural, mining, manu- facturing or other organization or common carrier, not parties may apply for leave to intervene in any pro- ceeding and shall be heard therein and shall be known as an intervener. Leave granted on such application shall entitle the intervener to appear and be treated in all respects as a party to the proceeding. (e) Duty of Mediation. — ^It shall be the duty of the commission to endeavor by mediation to effect settle- ments of such grievances. 598 RULES NEW MEXICO COMMISSION (f y Fixing Public Hearing. — ^In case no satisfactory settlement shall be effected, the commission shall, on motion by petitioner or of its own motion, order a pub- lic hearing, which hearing shall be held not less than ten days after service of notice thereof upon the de- fendant. § 61. Designation of Agent for Service of Notice. — Every railway, express, telegraph, telephone, sleeping car or transportation or transmission corporation, do- ing business within the state shall designate, by writ- ten statement filed with the commission, an agent in the city of Santa Fe, New Mexico, upon whom notice may be served of any hearing or motion in any pro- ceeding before, or any order made by, the commission, which statement shall give the street number or build- ing where such agent has his oflSce. (a) Service of Notice. — ^Notice of any hearing stat- ing the time and place thereof shall be served upon the corporation complained of by delivering a copy there- of, accompanied by a copy of the petition, to the desig- nated agent of such corporation in the city of Santa Fe, or by leaving the same with some person over eighteen years of age at the office of such agent.* (b) Posting as Constituting Service. — If such cor- poration shall have no designated agent in the city of Santa Fe ; as required by this article, such notice may be served by posting the same in the office of the com- mission. The testimony of witnesses shall be taken by a sten- ographer, who shall transcribe the evidence in tripli- cate. The original order, the evidence adduced at the 3 Appearance does away with irregularity in notice. Seward t. D. & R. G. E. Co., 17 N. M. 557, 131 Pac. 980. 599 RULES NEW MEXICO COMMISSION Hearing, transcribed as aforesaid, together with all ex- hibits and documents in the case shall constitute such file. Judicial Review § 5385. Removal to Supreme Court. — Upon appli- cation of any party to a proceeding for an order of re- moval to the Supreme Court of any order, or in case of failure or refusal of any party to Comply with such or- der within the time limit therein, the commission shall make an order of removal, stating the cause of such removal. (a) Transmittal of Record. — The clerk shall immed- iately transmit to the Supreme Court said order of re- moval together with the file of the proceeding and a copy of the record duly certified by him. (b) Notice of Hearing. — The Supreme Court shall give notice of hearing upon such order of removal as provided in this article for notice of hearing before the commission.* § 5386. Amendments. — Upon application of any party amendments to any petition or paper filed in any proceeding or investigation may be allowed by the commission or the Supreme Court in its discretion § 5387. Rules of Procedure. — The commission and the Supreme Court are hereby authorized and empow- ered to make and publish further rules or order, prac- tice and procedure as the commission or Supreme Court may deem necessary or proper.' *This section gives to the court power to decide causes removed upon their merits. Seward v. D. & R. G. R. Co., 17 N. M. 557, 131 Pac. 980. 5 Court may remand to commission for tailing of further evi-^ dence. D. & R. G. R. Co., 17 N. M. 577, 131 Pac. 980. 600 EULES NEW YOEK COMMISSION NEW YORK 8 Birdseye, Cuinming and Gilbert's Consolidated Laws of New York Cumulative Supplement 1910-1913. Ch. 480 Public Service Commissions Law Arts. 1-6, sees. 1-127. Title: Public Service Commission. Jurisdiction: Over railroads, street railroads, com- mon carriers, gas and electric corporations and tele- graph and telephone corporations.^ Pbocedubal Sections in Regulation of Gas and Electrical Corporations, it being thought not necessary to instance similar sections as to rail- 1 Purpose of Law. This law was created for a very important function and commissioners it was assumed would acquire special knowledge and they would prove efficient instrumentalities in its administration. Therefore it was not intended that court should interfere with them any further than should be necessary to keep them within the law and protect the constitutional rights of the companies over which they were given control. People ex rel. Gas Company v. McCall, 219 N. Y. 84, 113 N. E. 795, P. U. R. 1917 A 553. Franchise. Though contract under accepted ordinance may not be subject to change, yet in the fixing of a rate, that may be raised or lowered under power of regulation. People ex rel. St. Ry. Co. v. Public Service Commission, 162 N. Y. Supp. 405, 175 App. Div 869, P. U. R. 1917 B 957. Despite a contract in favor of individuals, this may be disregarded by street railroad by direction of the com- mission where it works a discrimination. Golf & C. Club v. Syra- cuse & S. R. Co., 160 N. Y. Supp. 693. Conferred Power. There is no jurisdiction in commission of action for damages by a passenger against street railway. Metzger V. N. Y. State Rys., 138 App. Div. 187, 154 N. Y. Supp. 789. Judicial Functions. Commission does not exercise. Venner v. N. Y. C. & H. R. R. Co., 164 N. Y. Supp. 626. Technical objections. Those not raised before commission are regarded as waived on appeal. Re Public Service Commission, 164 N. Y. Supp. 310. 601 RULES NEW YORK COMMISSION roads, street railroads and telegraph and telephone companies. § 71. Investigation upon Complaint. — ^Upon the complaint in writing of the mayor of a city, the trus- tees of a village or the town board of a town in which a person or corporation is authorized to manufacture, sell or supply gas or electricity for heat, light or pow- er, or upon the complaint in writing of not less than one hundred customers or purchasers of such gas or electricity in cities of the first or second class, or of not less than fifty in cities of the third class, or of not less than twenty-five elsewhere, or upon complaint of a gas corporation or electrical corporation supplying said gas or electricity, as to the illuminating power, purity, pressure or price of gas, the efficiency of the electric incandescent lamp supply, the voltage of the current supplied for light, heat or power or price of electricity sold and delivered in such municipality, the proper commission shall investigate as to the cause of such complaint. (a) Inspection of Plant and Boohs by Commission. — When such complaint is made the commission may, by its agents, examiners and inspectors, inspect the works, system, plant, devices, appliances and methods used by such person or corporation in manufacturing, trans- mitting and supplying such gas or electricity, and may examine or cause to be examined the books and papers of such persons or corporation pertaining to the manufacture, sale, transmitting and supplying such gas or electricity. (b) Forms of Complaint and Signatures Thereto. — The form and contents of complaint made as provided in this section shall be prescribed by the commission. 602 RULES NEW-'YORK COMMISSION Such complaints shall be signed by the officers, or by the customers, purchasers or subscribers making them, who must add to their signatures their places of resi- dences by street and number, if any. § 72. Notice of Complaint. — ^Before proceeding un- der a complaint presented as provided in section sev- enty-one, the commission shall cause notice of such complaint and the purpose thereof to be served upon the person or corporation affected thereby. (a) Opportunity to he Heard. — Such person or cor- poration shall have an opportunity to be heard in re- spect to the matters complained of at a time and place to be specified in such notice. (b) Ex Mero Motu Investigation hy Commission. — ^An investigation may be instituted by the commis- sion as to any matter of which complaint may be made, as provided in section seventy-one of this chapter, or to enable it to ascertain the facts requisite to the exer- cise of any power conferred upon it. (c) Fixing Maximum Rates After Hearing. — ^After a hearing and after such an investigation as shall have been made by the commission or its officers, agents, ex- examiners or inspectors, the commission within lawful limits, may by order fix the maximum price of gas or electricity not exceeding that fixed by statute, to be charged by such corporation or person, for the service to be furnished.^ (d) Fixing Improvements and Methods of Supply. 2 Burden of proof is on public utility to show rates so fixed are wrong. People ex rel. Teleph. Co. v. Public Service Commission, 154 N. Y. Supp. 1093. For a railroad to maintain commutation rates is a policy it has a right to decide for itself. People ex rel. T. Public Service Comjnission, 215 N. Y. 241, 109 N. E. 252, P. U. R. 1915 D 423. 603 EULBS NEW TOEK COMMISSION — ^And may order sucli improvement in tHe manufae- ture, distribution of supply of gas, in the manufacture, transmission or supply of electricity, or in the meth- ods employed by such person or corporation, as will in its judgment be adequate, just and reasonable.* (e) Period for which Prices are Fixed. — The price fixed by the commission under this section or under subdivision five of section sixty-six shall be the maxi- mum price to be charged by such person or corporation or municipality for the service to be furnished within the territory and for a period to be fixed by the com- mission in the order not exceeding three years except in the case of a sliding scale, and thereafter until the commission shall upon its own motion or upon the com- plaint of any corporation, person or municipality in- terested fix a higher or lower maximum price of gas or electricity to be thereafter charged. (f) Discretion of Commission in Fixing Rates. — On determining the price to be charged for gas or elec- tricity the commission may consider all facts which in in its judgment have any bearing upon a proper deter- mination of the question although not set forth in the complaint and not within the allegations contained therein, with due regard among other things to a rea- sonable average return upon capital actually expended and to the necessity of making reservations out of in- come for surplus and contingencies.* 3 If there is any evidence to sustain order it will be affirmed. People ex rel. Gas Co. v. McCall, 219 N. Y. 84, 113 N. E. 795. If order not clearly unreasonable it will be aflBrmed. State ex rel. v. Public Service Commission, 160 N. C. Supp. 63, 173 App. D. W. 780, P. U. R. 1916 E 475. * It was not intended that courts should substitute their opinions for those of commission. Re Public Service Commission, 164 N. Y. Supp. 310. 604 rules new tore commission Pkoceduee Under General Provisions op Commission Law § 22. Application for Rehearing and Grant There- of. — ^After an order has been made by a commission any corporation or person interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, and the commission shall grant and hold such a rehearing if in its judg- ment sufficient reason therefor be made to appear; if a rehearing shall be granted the same shall be deter- mined by the commission within thirty days after the same shall be finally submitted. (a) No Stay of Order Pending Application. — ^An ap- plication for such a rehearing shall not excuse any person or corporation from complying with or obey- ing any order or any requirement of any order of the commission, or operate in any manner to stay the en- forcement thereof, except as the commission may by order direct. (b) Change or Abrogation of Order. — ^If after such rehearing and a consideration of the facts, including those arising since the making of the order, the com- mission shall be of opinion that the original order or any part thereof is in any respect unjust or unwar- ranted or should be changed, the commission may abro- gate or change the same. (c) Effect of Order on Rehearing. — ^An order made after such rehearing abrogating or changing the orig- inal order shall have the same force and effect as an original order, but shall not affect any right arising from or by virtue of the original order. 605 RULES' NEW YORK COMMISSION § 23. Service of Orders. — ^Every order of a commis- sion shall be served upon every person or corporation to be affected thereby, either by personal delivery of a certified copy thereof, or by mailing a certified copy thereof, in a sealed package with postage prepaid, to the person to be afifected thereby, or, in case of a cor- poration, to any officer or agent thereof upon whom a summons may be served in accordance with the pro- visions of the code of civil procedure. (a) Admission of Service. — It shall be the duty of every person and corporation to notify the commission forthwith, in writing, of the receipt of the certified copy of every order so served and, in the case of a cor- poration, such notification must be signed and acknowl- edged by a person or ofiicer duly authorized by the corporation to admit such service. (b) Notification of Compliance with Order. — ^With- in a time specified in the order of the commission every person and corporation upon whom it is served must if so required in the order notify the commission in like manner whether the terms of the order are accept- ed and will be obeyed. (c) Talcing Effect and Continuance of Orders. — Ev- ery order of a commission shall take effect at a time therein specified and shall continue in force either for a period which may be designated therein or until changed or abrogated by the commission, unless such order be unauthorized by this chapter or any other act or be in violation of a provision of the constitution of the state or of the United States. Penalties. — Several sections of this chapter show that penalties are imposed for any failure to comply with any order of the commission and these penalties may be sued for in any court of competen jurisdiction. 606 RULES NORTH CAROLINA COMMISSION NOETH CAEOLINA 1 Pell's Eevisal of 1908, eh. 20, sees. 1054-1118. § 1054. Court and Title. — ^There shall be a court of record known as the "Corporation Commission." Sneh court shall adopt a seal, and shall have all of the powers and jurisdiction of a court of general jurisdic- tion as to all of the subjects embraced in this chapter. The members and clerk thereof may administer oaths. § 1066. Jurisdiction and Powers. — The corporation commission shall have such general control and super- vision of all railroad, street railway, steamboat, canal, express and sleeping car companies or corporations and of all other companies or corporations engaged in the carrying of freight or passengers, of all telegraph and telephone companies, of all public and private banks and all loan and trust companies or corpora- tions, and of all building and loan associations, neces- sary to carry into effect the provisions of this chapter and the laws regulating such companies, and to require all transportation and transmission companies to es- tablish and maintain all such public service facilities as may be reasonable and just.^ Peocedxjeal Sections <§ 1068. Rules of Practice. — The corporation com- mission shall prescribe rules of practice and procedure 1 Delegation of power constitutional. Corporation Commission v. Railroad, 139 N. C. 126, 51 S. E. 793; Industrial Siding Case, 140 N. C. 239, 52 S. E. 941; Express Co. v. Wilmington & W. R. Co. Ill N. C. 463, 16 S. E. 393. Interstate Bates. — The fact of excess in local over interstate rates does not necessarily show overcharge over another route. Blalock Hdw. Co. V. Seaboard A. L. R. Co., N. C. 96 S. E. 1051, P. U. R. 1916 A 1051. 607 RULES NORTH DAKOTA COMMISSION in all matters before it and in all examinations neces- sary to be made under this chapter. § 1074. Right of Appeal. — ^From all decisions or de- terminations made by the corporation commission any party affected thereby shall be entitled to an appeal. Before such party shall be allowed to appeal, he shall, within ten days after notice of such decision or deter- mination, file with the commission exceptions to the de- cision or determination of the commission, which ex- ceptions shall state the grounds of objection to such de- cision or determination. If any one of such exceptions shall be overruled, then such party may appeal from the order overruling the exception and shall within ten days after the decision overruling the exception, give notice of an appeal. (Then are given details as to per- fecting appeals.) The theory of enforcement of commission orders is to apply to the court for the recovery of penalties, as see sections 1086, 1092 and 1093. NORTH DAKOTA Compiled Laws North Dakota 1913, Art. 24, sees. 579-601. Political Code: Art. 21, sees. 4708-4783 Civil Code. Laws North Dakota 1915, chs. 208, 209. Title: Board of Railroad Commissioners of the State of North Dakota. Jurisdiction. — The commission originally was given jurisdiction over railroads, railroad corporations and common carriers in the state operated by steam and of 608 RULES NORTH DAKOTA COMMISSION all bridge corporations and ferry companies whose property was used or operated for railroad purposes.^ Peocedubal Sections as to Eaileoads § 4729. Complaint and Investigation. — Whenever any person npon his own behalf or class of persons similarly situated, or any firm, corporation or associa- tion, or any mercantile, agricultural or manufacturing society, or any body politic or municipal organization, shall make complaint to said board of commissioners of railroads that the rate charged or published by any railroad, railroad corporation or common carrier, or the maximum rate fixed by said commissioners in the schedule of fares and freights made by them, or the maximum rate that may now or may hereafter be fixed, is unreasonably high or discriminating, it shall be the duty of said commissioners to immediately investigate the matter of such complaint. (a) Notice of Hearing and Service. — If such com- plaint appears to be well founded and not trivial in character, the board shall fix a day for hearing the same and shall notify such railroad, railroad corpora- tion or common carrier of the time and place of such 1 Later this jurisdiction was extended to municipally owned plants for water, gas and electricity for light, heat and power so far as regulation of rates is concerned. Laws N. D. 1915, Ch. 208. And to telephone companies, (abstract) Laws N. D. 1915, Ch. 209. - Delegation of Power. — Though the commission act does not con- fine its functions to acts that may be technically legislative and ap- peals are provided for to courts as to acts not technically judicial, the delegation is constitutional. Minneapolis, S. P. & S. S. M. R. Co. V. Board of Ry. Co.mmrs. 30 N. D. 221, 152 N. W. 513, P. U. R. 195 D 434. 609 RULES NORTH DAKOTA COMMISSION tearing by serving a notice properly directed on any division superintendent, general or assistant superin- tendent, general manager, president, secretary or agent of such railroad, railroad corporation or com- mon carrier, wMcli notice sliall contain the substance of the complaint so made and the board shall also notify the person or persons complaining, of such time and place. § 4730. Evidence and Argument. — ^Upon such hear- ing the said commissioners shall receive whatever evi- dences, statements or arguments either party may of- fer pertinent to the matter under investigation. (a) Burden of Proof Not on Complainant. — And the burden of proof shall not be held to be upon the per- son or persons making the complaint, but the commis- sioners shall add to the showing made at such hearing whatever information they may then have, or can se- cure from any source whatsoever. (b) Rates of Other Carriers as Evidence. — And the person or persons complaining shall be entitled to in- troduce any published schedule of rates of any railroad, railroad corporation or common carrier, or evidence of rates actually charged by any railroad, railroad cor- poration or common carrier for substantially the same kind of service, whether in this or in any other state. (c) Prima Evidence of Reasonable Rate. — And the lowest rate published or charged by any railroad, rail- road corporation or common carrier for substantially the same kind of service, whether in this state or in any other state, shall, at the instance of the person or per- sons complaining be accepted as prima facie evidence of a reasonable rate for the service under investiga- tion. 610 RULES NORTH DAKOTA COMMISSION "(d) Rates Charged in Other States — ^And if the rail- road, railroad corporation or common carrier com- plained of is operating a line of railroad beyond the state of North Dakota, or if it appear that it has a traffic arrangement with any such railroad, railroad corporation or common carrier, then the commission- ers in taking into consideration the charge made or rate established by said railroad, railroad corporation or common carrier, or the company with which it has traffic arrangements for carrying freight, passengers or property from beyond the state to points within the state and from points within the state to points beyond the state, and if such company be operating a line of railway beyond the state, they shall also take into con- sideration the rate charged or established for a sub- stantially similar or greater service by such company in any other state in which said railroad, railroad cor- poration or common carrier operates a line of railways. §. 4731. Decision in Writing. — ^After such hearing and investigation, the said commissioners shall fix and determine the maximum charge to be thereafter made by the railroad, railroad corporation or common car- rier complained of, and the commissioners shall ren- der their decision in writing, and shall spread the same at length in the record to be kept for that pur- pose. (a) Decision Specific as to Rates. — Such decision shall specifically set out the sums or rates which the railroad, railroad corporation or common carrier, so complained of, may thereafter charge or receive for the service therein named and include a classification of such freight or property. (b) Extension of Decision Outside of State. — ^And the said commissioners shall not be limited in their said 611 RULES NORTH DAKOTA COMMISSION decision and tlie schedule to be contained therein to the specific case or cases complained of, but it shall be ex- tended to all such rates between points in this state and whatever part of the line of railway of such company, railroad, railroad corporation or common carrier with- in this state as may have been fairly within the scope of such investigation. (c) Rates Prima Facie Reasonable. — ^And any such decisions so made and entered on record of said com- missioners, including any such schedules and classifi- cations, shall when duly authenticated, be received and held in all suits brought against any such railroad, rail- road corporation or common carrier, wherein is in any way involved the charges of any such railroad, railroad corporation or carrier mentioned in said decisions, in any of the courts of this state, as prima facie evidence that the rates therein fixed are reasonable maximum rates. (d) Rates Siibject to Revision. — And the rates, charges and classifications so established after such hearing and investigation shall from time to time thereafter upon complaint duly made be subject to re- vision by said commissioners the same as any other rates, charges and classifications. Judicial Eeview § 4736. Appeal from Order. — ^Any railroad, rail- road corporation or common carrier subject to the pro- visions of this article, or any other person interested in the order made by the commissioners of railroads may appeal to the district court of the proper county in the judicial district of this state from which the complaint arose, and which is the subject and basis of the order, from any order made by the commissioners 612 RULES NOBTH DAKOTA COMMISSION of railroads regulating or fixing its traffic of rates, fares, charges or classifications, or from any other or- der made by said commissioners under the provisions of this article by serving a notice in writing upon the secretary of said commissioners, or any one of said commissioners within twenty days after such railroad, railroad corporation or common carrier shall receive notice from said commissioners of the making and en- try of such order. (a) Suspension in Certain Cases. — ^If the order ap- pealed from does not regulate or fix the tariff of rates, fares or charges, the district court to which the appeal is taken may in its discretion suspend the operation and effect of the order appealed from pending such ap- peal. (b) Court Always in Session. — ^The district courts of this state shall be deemed to be always in session for the purpose of hearing and determining all appeals taken under the provisions of this article. (c) Notice to Bring on Hearing. — The party taking such appeal may bring the same on for hearing and determination at any time after taking such appeal, up- on serving a notice to take effect upon any one of the commissioners or their secretary at least ten days prior to the day set for such hearing. (d) Rescinding, Altering or Modifying Order. — ^Th© district court shall, upon the hearing of such appeal, receive and consider such evidence as may be adduced by either party and shall rescind, modify or alter said order appealed from in such manner as may be equi- table and just.^ 2 The constitutionality of this provision insofar as it gave right of appeal from an administrative or legislative ruling was upheld 613 RULES NORTH DAKOTA COMMISSION (e) 'Appeal to Supreme Court. — ^Any railroad, rail- road corporation, common carrier, the commissioners of railroads or any party interested in the decision of said court may appeal from tlie decision of the district court to the Supreme Court of this state by serving a notice of such appeal upon the opposite party within twenty days after the rendition of such decision and notice thereof. (f ) Summary Hearing on Notice. — ^For the purpose of hearing such appeal the Supreme Court shall be deemed to be in session and appeals to it may be heard summarily by either party showing upon the other a notice of hearing at least fifteen days before the day fixed for such hearing. (g) Evidence to he Signed hy Judge District Court. — ^When evidence has been taken before the district court such evidence shall be signed by the judge of said district court, the party presenting such evidence to said judge for signature giving the other party five day's notice of the time and place for such presenta- tion. (h) Record in Supreme Court. — The evidence signed as aforesaid shall become part of the record in the case, and upon an appeal to the Supreme Court being taken as hereinbefore mentioned shall be transmitted by the clerk of the district court to the Supreme Court, to- gether with all the records and files in the case. according to the principle announced in Prentis v. Atlantic C. L. Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150. Minneapolis P. & S. S. M. R. Co. V. Board of Railway Comrs., 30 N. D. 221, 152 N. W. 513, P. U. R. 1915 D 434. 614 RULES OHIO COMMISSION (i) Judgment Reversing, Affirming or Modifying. — The Supreme Court may reverse, affirm or modify the decision of the district court as may seem equitable and just.* OHIO 1 Page & Adams Anno. Code 1912, sees. 614-1 to 614- 84, pp. 198-223. Title : Public Utilities Commission of Ohio. §§ 614-4. Jurisdiction and Powers.— The jurisdic- tion, supervision, powers and duties of the public ser- vice commission shall extend to every public utility and railroad, the plant or property of which lies wholly within this state, and when the property of a publio utility or railroad lies partly within and partly without this state to that part of such plant or property which lies within this state, and to the persons or companies owning, leasing or operating the same and to the rec- ords and accounts of the business thereof done within this state.^ 3 That discretion is vested in the commission to grant or deny an order does not negative right of appeal. Minneapolis S. P. & S. S. M. R. Co., 30 N. D. 221, 152 N. W. 513, P. U. R. 1915 D 434. Though there is practically retrial in appellate court, this does not make jurisdiction any the less appellate. Christiansen v. Farmers' Ware- house Assn., 5 N. D. 438, 67 N. W. 300; Re Peterson, 22 N. D. 480, 134 N. W. 751. Procedure as to other pubic service corporations is not materially different from that as to railroads. 1 Compensatory Bate. — There is no power to fix other than reason- able compensatory rates. Hocking Valley R. v. P. U. Com., 92 Ohio St. 362, 110 N. E. 952, P. U. R. 1916, B 406, citing N. P. R. Co. v. North Dakota, 236 U. S. 585, 35 Sup. Ct. 429, 59 L. Ed. 735, P. U. R. 1915 C 277. Delegation of Power. — To require railroad to furnish proper 615 RULES OHIO COMMISSION PbOCEDUEAIj SECTIOlirS §§ 614-21. Complaint and Notice. — ^Upon complaint in writing against any public utility by any person, firm or corporation, or upon the initiative or com- plaint of the commission that any rate, fare, charge, toll, rental, schedule, classification or service, or any joint rate, fare, charge, toll, rental, schedule, classifi- cation or service rendered, charged, demanded, ex- acted, or proposed, to be rendered, charged demanded or exacted, is in any respect unjust, unreasonable, un- justly discriminatory or unjustly preferential or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service fur- nished by said public utility or in connection there- with, is, or will be, in any respect unreasonable, un- just, insufficient or unjustly discriminatory or un- justly preferential, or that any service is, or will be, inadequate or cannot be obtained, the public utility complained of that complaint has been made, and of the time and place when the same will be considered and determined, which notice shall be served upon the and adequate facilities is constitutional. Adena R. Co. v. Public Service Com., 92 Ohio St. 1, 110 N. E. 631. That it appears that some loss would result is not conclusive of excessive regulation. Hocking Valley R. Co. v. Public U. Com.. 92 O. St. 9, 110 N. E. 521, P. U. R. 1916 A 1062. Operation not for Profit. — Though by another section of this act a public utility not operated for profit, does not come within this sec- tion, yet as to telephone companies still by another section they are brought in. Teleph. Co. v. Teleph. Co., 92 Ohio St. 336, 110 N. E. 959, P. U. R. 1916 B 401. Competing Companies. — No power was conferred on Public Utili- ties Commission of Ohio to compel a telephone company to furnish to a competing company physicial connection. Shafor v. Public U. Com., (Ohio St.), 113 N. E. 809, P. U. R. 1916 F 432. 616 RULES OHIO COMMISSION puWic utility not less than fifteen days before such hearing and shall plainly state the matters or things complained of. (a) Hearing and Adjournment. — The commission shall, if it appear that there are reasonable grounds for the complaint, at such time and place proceed to consider such complaint and may adjourn the hearing thereof from time to time. (b) Appearance and Process. — The parties thereto shall be entitled to be heard, represented by counsel and have process to enforce the attendance of wit- nesses. (c) Complaint hy Public Utility and Notice. — A public utility may make complaint as to any matter affecting its own product or service with like effect as though made by a, person, firm or corporation, in which event the commission shall publish notice there- of for ten days prior to such hearing in a newspaper of general circulation at the situs of such public utUity. §§ 614-22. Separate or Omnibus Hearing. — ^When complaint is made of more than one rate, charge or service, the commission may order separate hearings thereon and may consider and determine the matters complained of separately and at such times and places as it may prescribe. No complaint shall necessarily be dismissed because of the absence of direct damage to the complainant. §§ 614-23. Consideration and Order After Hearing. Whenever the commission shall be of opinion, after hearing, that any rate, fare, charge, toll, rental, sched- ule, classification or service or any joint rate, fare, 617 RULES OHIO COMMISSION cHarge, toll, rental, schedule, classification or service rendered, charged, demanded, exacted or proposed to be rendered, charged, demanded or exacted, is or will be, unjust, unreasonable, unjustly discriminatory or unjustly preferential or in violation of any law, or the service inadequate, or that the maximum rates, charges, tolls or rentals, chargeable by any such public utility are insufficient to yield reasonable compensa- tion for the service rendered, and are unjust and un- reasonable, the commission shall, with due regard among other things, to the value of all of the property of the public utility actually used and useful for the convenience of the public, excluding therefrom the value of any franchise or right to own, operate or enjoy the same in excess of the amount (exclusive of any tax or annual charge) actually paid to any polit- ical subdivision of the state or county, as the consid- eration for the grant of such franchise or right, and exclusive of any added value thereto by reason of a monopoly or merger and to the necessity of making reservation out of the income for surplus, deprecia- tion and contingencies, and all such other matters as may be proper, according to the facts in each case, fix and determine the just and reasonable rate, fare, charge, toll, rental or service to be thereafter ren- dered, charged, demanded, exacted or collected for the performance or rendition of the service, and order the same substituted therefor; and thereafter no change in the rate, fare, toll, charge, rental, schedule, classi- fication or service shall be made, rendered, charged, demanded, exacted or changed by such public utility without the order of the commission and any other rate, fare, toll, charge, rental, classification or service 618 RULES OHIO COMMISSION shall be deemed and held to be unjust and unreason- able, prohibited and unlawful.^ (a) Rescinding, Amending or Altering Rate. — ^Upon application of any person or any public utility, and after notice to the parties in interest and opportunity to be heard as provided in this act for other hearings, has been given, the commission may rescind, alter or amend an order fixing any rate or rates, fare, toll, charge, rental, classification or service or any other order made by the commission. Certified copies of such orders shall be served and take effect as provided for original orders. §§ 614-24. Investigation of Value. — The commis- sion shall have the right to investigate and determine the value of all the property, including the value of its physical property, of every public utility within its jurisdiction actually used and useful for the service and convenience of the public, whenever it deems the ascertainment of such value necessary in order to properly carry into effect any of the provisions of this act. §§ 614-69. Action to Set Aside Order of Commis- sion. — A public utility or railroad or other party dissatisfied with an order of the commission fixing or z Judicial Review. — Supreme Court will not substitute Its judg- ment for that of the commission unless it appears commission ac- tion was unlawful or unreasonable. Hocking Valley R. Co. v. Pub- lic Utilities Com., 92 Ohio St. 362, 110 N. B. 521, P. U. R. 1916 B 406; Settle v. Public Utilities Com., (Ohio St.), 114 N. E. 1036, P. U. R. 1917 C 366. But the court will investigate the entire rec- ord to ascertain whether a purported finding of fact is so involved with questions of law as to be in effect a decision of the latter. Hocking Valley R. Co. v. Public U. Com., 92 Ohio St. 9, 110 N. B. 521, P. U. R. 1916 A 1062. 619 RULES OKLAHOMA COMMISSION substituting or confirming any fare, toll, "price, rate, charge, rental, schedule or classification, or any order fixing or substituting or confirming any regulation, practice, act or service, or any other order, finding, determination, direction or requirement of the com- mission, may commence an action in the court of common pleas of Franklin county or of the county in which is located the principal ofl&ce of the public utility or railroad within sixty days after such order is made against the commission as defendant, to vacate and set aside such order on the ground that the fare, toll, price, rate, charge, rental, schedule or classification fixed in such order is unlawful or un- reasonable; or that the order, finding, determination, direction or requirement of the commission is unlaw- ful or unreasonable, in which action summons may be issued to any county or counties in the State and there served upon the adverse parties. OKLAHOMA Oklahoma Constiution, Art. 9, sees. 15-35, which gives the right to any legislature after Jan. 1909 to alter, amend, revise or repeal sections 18 to 34 inclu- sive or any part of them. Title: Corporation Commission. The Constitution of Oklahoma vests powers in the corporation commission in the supervising, reg^ilat- ing and controlling all transportation and transmis- sion companies and this power has been extended to rates, charges, services and practices of water, heat, light and power companies. Neither by the constitu- tion nor acts extending its power is any rule of pro- 620 EULES OREGON COMMISSION cedure set out, but there are provisions for review of orders. Therefore there appears in this appendix only this much with regard to Oklahoma. OREGON General Laws of Oregon 1911, ch. 279, sees. 1-80, pp. 483-508. lUd 1915, ch. 241, sec. 1, page 347. Title: Since July 1, 1915 — ^Public Service Commis- sion. Jurisdiction is over railroads, telegraph, tele- phone, street railroads, heat, light, water and power companies.^ Peocedubal Sections § 41. Informal Investigation Upon Complaint. — Upon a complaint made against any public utility by any mercantile, agricultural or manufacturing society or by any body politic or municipal organization or by any three persons, firms, corporations or associations, that any or all of the rates, tolls, charges or schedules or any joint rate or rates are in any respect reason- able or unjustly discriminatory, or that any regula- tion, measurement, practice or act whatsoever affect- ing or relating to the production, transmission, deliv- 1 Conferred Powers. — The fact that a city by ordinance fixed rates of a telephone company does not prevent a public service commis- sion in which regulation of rates was afterwards vested from in- creasing such rates. City of Woodburn v. Public Service Commis- sion, 82 Ore. 114, 161 Pac. 391, P. U. R. 1917 B 967, L. R. A. 1917 C 98. Courts have no original jurisdiction over the regulation of a pub- lic utility. First Nat. Bank v. Pacific Teleph. & Teleg. Co., 81 Ore. 307, 159 Pac. 561, P. U. R. 1917 A 90. 621 RULES OEBGiON COMMISSION ery or furnishing of heat, light or water power or the conveyance of any telegraph or telephone message, or the transportation of persons or property by street railroad or any service in connection therewith is in any respect unreasonable, insufficient or unjustly dis- criminatory, or that any service rendered by any public utility is inadequate or is not afforded, the com- mission shall proceed, without notice to make such in- vestigation as it may deem necessary or convenient. (a) Formal Hearing Prerequisite to Order. — ^But no order affecting said rates, tolls, charges, schedules, measurements, practices or act complained of shall be entered by the commission without a formal hearing. § 42. Setting Time and Place of Hearing. — The commission shall prior to such formal hearing notify the public utility complained of that complaint has been made, and to answer the same at the same time or afterward, may proceed to set a time and place for a hearing and an investigation as hereinafter pro- vided. (a) Notice to Parties Interested. — The commission shall give the public utility and the complainant, if any, ten days' notice of the time and place when and where such hearing and investigation will be held and such matters considered and determined. Both the public utility and complainant shall be entitled to be heard and shall have process to enforce the attendance of witnesses. § 43. Finding and Substitution of Rates. — ^If upon such investigation any rates, tolls, charges, schedules or joint rates shall be found to be unjust, unreason- able, insufficient or unjustly discriminatory, or to be 622 RULES OREGON COMMISSION preferential or otherwise in violation of any of the provisions of this act, the commission shall have power to fix and order substituted therefor such rate or rates, tolls, charges or schedules as shall he just and reasonable. (a) Finding and Substitution in Service. — If upon such investigation it shall be found that any regula- tion, measurement, practice, act or service complained of is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise in violation of any of the provisions of this act, or if it be found that any service is unsafe or inadequate or that any rea- sonable service cannot be obtained or is not afforded, the commission shall have power to substitute there- for such other regulations, measurements, practices, service or acts and to make such changes in such regu- lations, measurements, practices, service or acts as shall be just and reasonable. § 44. Omnibus and Separate Hearings. — The com- mission may in its discretion, when a complaint is made of more than one rate or charge, order separate hearings thereon, and may consider and determine the several matters complained of separately at such times as it may prescribe. (a) Direct Damage Not Essential. — ^No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. § 45. Ex Mere Motu Investigation. — Whenever the commission shall believe that any rate or charge or schedule of rates or charges may be unreasonable or unjustly discriminatory, or that any service is unsafe or inadequate or is not afforded, or that any investiga- tion of any matter relating to any public utility should 623 RULES OREGON COMMISSION for any reason be made, it may on its own motion sum- marily investigate the same with or without notice. (a) Notice of Hearing After Investigation. — ^If after making such investigation the commission be- comes satisfied that sufficient grounds exist to warrant a hearing being ordered to determine whether any rate or charge or schedule of rates or charges so in- vestigated is unreasonable or unjustly discriminatory, or whether the service investigated is unsafe or inade- quate or is not afforded, or that an investigation of any other matter relating to such public utilities should be made, it shall furnish such public utility in- terested a statement notifying the public utility of the matters under investigation, which said statement shall be accompanied by a notice fixing a time and place for hearing upon such matters. Notice may like- wise be given to other parties interested. Such notice of hearing shall be given at least ten days in advance of any hearing. (b) Procedure as Upon Complaint. — Thereafter proceedings shall be had and conducted in reference to the matter investigated in like manner as though com- plaint had been filed with the commission relative to the matter investigated and the same order or orders may be made in reference thereto as if such investiga- tion had been made on complaint. § 46. Complaint by Public Utility. — ^Any public utility may make complaint as to any matter affecting its own product or service with like effect as though made by any mercantile, agricultural or manufactur- ing society, body politic or municipal organization or by any ten persons, firms, corporations or associa- tions. 624 RULES OREGON COMMISSION § 52. Revising and Amending Orders. — ^The com- mission may at any time, upon notice to the public utility and after opportunity to be beard as provided in section 42 hereof, rescind, alter or amend any order fixing any rate or rates, schedule of rates, tolls, charges or any other order made by the commission, and certified copies of the same shall be served and take effect as herein provided for original orders. § 53. Rates Prima Facie Lawful. — ^All rates, tolls, charges, schedules and joint rates fixed by the com- mission shall be in force and shall be prima facie law- ful, and all regulations, practices and services pre- scribed by the commission shall be in force and shall be prima facie lawful and reasonable until found otherwise in a suit brought for that pursuant to this act. § 54. Action to Vacate Order. — ^Any public utility or other person, persons or corporation interested in or affected by any order of the commission fixing and rate or rates, tolls, charges, schedules, classifications, joint rate or rates, or any order fixing any regulations, practices, act or service, being dissatisfied therewith, may commence a suit in the circuit court of the county in which the hearing was held, against the commission as defendant to vacate and set aside any such order or specified portion thereof on the ground that the order or portion thereof is unlawful, in which suit a copy of the complaint shall be served with summons as in a suit in equity.'' 2 Injunction will not lie against public utility as to a matter over which commission has jurisdiction without its being first applied to First Nat. Bank v. Pacific Teleph. & Teleg. Co., (Ore.), 159 Pac. 561, P. U. R. 1917 A 90. 625 RULES PENNSYLVANIA COMMISSION (a) Trial on Ten Days' Notice. — The commission shall serve and file its answer to said complaint within ten days after the service thereof, whereupon said suit shall be at issue and stand ready for trial upon ten days ' notice by either party. (b) Precedence Over Other Causes. — All suits brought under this section shall have precedence over any civil cause of a different nature pending in said court, and the circuit shall always be open for the trial thereof and the same shall be tried and determined as a suit in equity, (c) Action Barred, When. — ^Every such suit to set aside, vacate or amend any determination or order of the commission or to enjoin the enforcement thereof or to prevent in any way such order or determination from becoming effective, shall be commenced, and every appeal to the courts shall be taken or exercised within ninety days after the entry or rendition of such order or determination, and the right to commence any such action, proceeding or suit, shall terminate abso- lutely at the end of ninety days after such entry or rendition thereof. § 57. Appeal to Supreme Court. — ^Either party to said suit within sixty days after the entry of the judg- ment or decree of the circuit court may appeal to the supreme court. PENNSYLVANIA 6 Purdon's Digest of Pennsylvania, Statutes 1905- 1915,- pp. 7204-7239, Public Service Company Law, sees. 1-199. Title: Public Service Commission of the Common- wealth of Pennsylvania. 626 RULES PENNSYLVANIA COMMISSION § 89. Powers and Duties.— It is given general ad- ministrative power and authority to regulate all pub- lic service companies, which include railroad, canal, street railway, stage line, express, baggage transfer, pipe line, and ferry corporations, common carriers and Pullman car, dining car, tunnel, turnpike, bridge, wharf, incline plane, grain elevator, telegraph, tele- phone, natural gas, artificial gas, electric, water, water power, heat, refrigerating and sewage corporations.^ Peocedubal Sections § 146. Complaint Duly Verified. — ^Any person or corporation, public service company or municipality complaining of anything done or about to be done^ omitted or about to be omitted by any public service company, in violation of any of the requirements or pro- visions of this act, or of any lawful determination, rul- 1- Purpose of Act. — ^As cities cannot under guise of police power determine the reasonableness of rates charged by a public service corporation, the purpose of the legislature was to create a commis- sion for the performance of this function. York Water Co. v. City of York, 250 Pa. 115, 95 Atl. 396. And so as to the general regula- tion of such a corporation. Therefore, where a municipality had not actually begun to extend its system of waterworks into another district it desired to serve it must get permission from the public service commission. Bethlehem City Water Co. v. Borough of Beth- lehem, 253 Pa. 333, 98 Atl. 646. Ordinance Fixing Bates. — Acceptance by a water company of an ordinance fixing rates does not interfere with changes by the public service commission. Turtle Creek Borough v. Pennsylvania Water Company, 243 Pa. 415, 90 Atl. 199; Belle Borough v. Ohio Valley Water Company, 245 Pa. 415, 91 Atl. 236; Mt. Union Borough v. Mt. Union Water Co., 63 Pa. Super. Ct. 337. Facilities. — That a turnpike company may have to expend more for improvement of its road than the amount of its income is no defense to proceedings to compel it to keep its road in good condi- tion. Glen Rock Motor Club. v. York & M. L. Turnpike Co., 64 Pa. Super. Ct. 147. 627 RULES PENNSYLVANIA COMMISSION ing or order of the commission, may apply to tlie com- mission by petition duly verified by the affidavit of the complainant, which shall contain a concise statement of all the material facts upon which the complaint is founded. (a) Complaint Forwarded to Public Service Com- pany. — Said petition shall be filed of record with the commission; whereupon a copy of the petition thus presented and filed shall forthwith be forwarded by registered mail, by the commission, to any officer or agent of the public service company or public service companies complained against, accompanied by a notice from the commission calling upon the public service company or public service complained against to satisfy the complaint or answer the same in writing, within such reasonable time as may be specified in said notice. ^ 147. Dismissed on Satisfaction of Grievance. — ^If such public service company, within the time specified shall satisfy the complaint, the commission shall dis- miss the petition, but said public service company shall be relieved from responsibility only for the specific matter complained of. (a) Duty to Investigate. — If such public service company shall not satisfy the complaint within the time specified, and it shall appear to the commission, from a consideration of the answer or otherwise that reasonable ground exists for investigating said com- plaint, it shall be the duty of the commission to fix a time and place for a hearing and to investigate the matter complained of in accordance with the pro- vision of this act. (b) Notice of Hearing. — ^Notice of the time and 628 RULES PENNSYLVANIA COMMISSION place of such hearing shall be given to the petitioner and to the pulic service company or companies com- plained against, in such manner as the commission may prescribe. (c) Testimony and Record of Proceedings. — The testimony shall be taken down by the stenographer appointed by the commission and a full and complete record of all proceedings had before the commission or any commissioner or any hearing or investigation. <§ 148. Ex Mere Motu Investigation and Hearing. — The commission may also, upon its own motion and upon such notice as it may deem reasonable under the circumstances, institute any similar inquiry or investi- gation and fix a time and place for a hearing with the same effect as though complaint had been made as aforesaid and satisfaction refused. § 150. Written Finding Made on Hearing. — ^When- ever the commission shall investigate any matter com- plained of, under the provisions of this act, it shall be its duty to make and file of record a written finding, determination or order, either dismissing the com- plaint or directing the public service company or com- panies complained against to satisfy the cause of com- plaint in whole or to such extent and within such time as the commission may specify, require or order. (a) Direct Damage Not Necessary. — ^No complaint shall at any time be dismissed merely because of the absence of direct damage to the complainant, except in cases of petitions for an order directing the pay- ment of damages alleged to have been actually sus- tained. § 151. Ex Merc Motu Investigations. — The com- mission shall likewise make and file a written finding, 629 RULES PENNSYLVANIA COMMISSION determination or order in all hearings or investiga- tions instituted on its own motion. The commission may also prepare and file a written opinion with any determination or order. § 152. Rescission, Modification, Rehearing. — The commission shall have the power to rescind or modify findings, determinations or orders made under the provisions of this act, upon such notice and in such manner as it shall deem proper, and may grant re- hearing for cause shown. § 154. Application for and Grant of Rehearing. — After any finding, determination or order shall have been made by the commission, any public service com- pany or municipal corporation affected thereby or any party complainant in the proceedings, or any person, corporation or public service company or association duly permitted by the commission, on proper petition and cause shown to intervene, may apply within fif- teen days after service of said order, for a rehearing in respect to any matter determined by the commis- sion in or by its hearing or investigation and order issued herein, and the commission may grant and hold such rehearing, if in its judgment sufficient cause therefor be shown. (a) Petition to Set Forth Grounds for Rehearing. — ^AU applications for rehearing shall be by petition specifically setting forth the grounds upon which such application is based. Judicial Eeview § 157. Appeal to Superior Court. — Within thirty days after filing of any finding or determination by the commission, or after the date of service of any 630 RULES 'PENNSYLVANIA COMMISSION order, unless an application for rehearing be pending, and then within thirty days after the refusal of such application or the entry of an order modifying, amending, rescinding or affirming the original finding, determination or order, any party to the proceedings affected thereby may appeal therefrom to the Superior Court. § 159. Petition for Appeal Must Assign Specific Errors. — ^All appeals to the superior court shall be by petition to said court setting forth specifically and concisely the error or errors assigned to the finding, determination or order of the commission, which petition shall be accompanied by a copy of the orig- inal complaint, if any, filed with the commission, as well as a copy of the ruling, determination or order of the commission appealed from and shall also be ac- companied by affidavit of the party or parties appel- lant, that the appeal is not taken for purpose of delay, but because the appellant or appellants verily believe that injustice has been done; each error relied on must be specified particularly and set forth in a separate numbered paragraph of the petition. § 160. Certifying Record to Court Appealed to. — The commission shall be immediately notified in writ- ing by appellant of the taking of an appeal and within thirty days after service of such notice shall certify under its official seal to the proper court of common pleas the record of said proceedings, which record shall include the testimony taken therein, the findings of fact, if any, of the commission based upon such testimony, a copy of all orders made by the commis- sion in said proceedings and a copy of the opinion, if any filed by the commission. 63X BULBS PENNSYLVANIA COMMISSION § 164. Petition for Intervention. — The court may, also, upon application by petition and cause shown permit any person or corporation to intervene in the said proceeding and be added as a party plaintiff or defendant therein. § 165. Answer to Petition for Appeal. — ^An answer shall be filed by the commission within thirty days after the service of notice upon it of the taking of an appeal. Leave may also be given by the court to any other party to the record to file an answer. (a) Case at Issue. — ^Upon the filing of an answer by the commission the case shall be considered at issue and a hearing shall be held before said court as herein- after provided without further pleadings. Copies of the petition and answer shall be served upon the op- posite party or parties within five days after filing the same. § 166. Hearing on Certified Record. — ^At the hear- ing of the appeal the said court shall upon the record certified to it by the commission determine whether or not the order appealed from is reasonable and in con- formity with law. § 167. Orders Prima Facie Reasonable. — In all such cases the orders of the commission shall be prima facie evidence of the reasonableness thereof, and the burden of proving the contrary shall be upon the ap- pellant or appellants.^ (a) Testimony Certified Part of the Record. — And the notes of testimony taken before the commission or any of the members thereof, duly certified under its 2 Burden of proof to show unreasonableness is on appellant. Be Relief Elec. L. H. & P. Co., 63 Pa. Super. Ct. 1, P. U. R. 1916 D 592. 632 RULES PENNSYLVANIA COMMISSION seal and filed as aforesaid as a part of the record shall be considered by the court as the testimony in the case. § 168. Aflfirmance of Order. — ^If the court shall upon the record find that the order appealed from is reasonable and in conformity with law, it shall enter a decree dismissing the appeal and af&rming the order of the commission.^ (a) Reversal or Remand with Directions. — ^If the court shall upon the record find that the order ap- pealed from is unreasonable or based upon incompe- tent evidence materially effecting the determination or order of the commission or in otherwise not in con- formity with law, it may enter a final decree reversing the order of the commission, or in its discretion it may remand the record to the commission, with directions to reconsider the matter, and make such order as shall be reasonable and in conformity with law.* (b) Directions to Reinstate Complaint. — ^In case the said court shall reverse an order of the commission dismissing a complaint, aftet an investigation and hearing thereon before the commission, it shall re- mand the record and proceedings to the commission, with directions to reinstate the complaint, proceed to another hearing and investigation and make such order as shall be reasonable and in conformity with law. In making any final decree on any appeal the court shall have full power to dispose of all costs. 3 But in dismissing complaint on specific ground, the court may- remand to commission for other action. Mt. Union Borough v. Mt. Union Borough Water Co., 63 Pa. Super. Ct. 337. 4 Where order directs entire reconstruction of turnpike, it will not be sustained except as to parts in bad condition. Glen Rock Motor Club v. York & M. L. Turnpike Co., 64 Pa. Super. Ct. 147. 633 RULES RHODE ISLAND COMMISSION* § 169. Newly Discovered Evidence. — No evidence shall be received at the hearing on any appeal, but if any party shall satisfy the court that evidence has been discovered since the hearing before the commis- sion that could not have been obtained for use at that hearing by the exercise of reasonable diligence and will materially affect the merits of the case, the court may, in its discretion, remand the record and pro- ceedings to the commission with directions to take such after-discovered evidence, and, after considera- tion thereof, enter and file such order as shall in the opinion of the commission be reasonable and in con- formity with law, from which order the appeal shall lie as in the case of any other final order, § 174. Appeal to Supreme Court. — ^Any party to the record aggrieved by the final judgment, order or decree of the aforesaid superior court, or of the court of the county, whenever under the provisions of this act an appeal may in the first instance be taken to said court, may appeal therefrom to the supreme court. Such appeal shall be taken and prosecuted in the same manner and form and with the same effect, as is pro- vided in other cases of appeal to the supreme court from the courts of common pleas of the common- wealth. EHODE ISLAND Laws of 1912, ch. 795, pp. 84-118 inclusive, sees. 1-60. § 3. Title. — Public Utilities Commission. § 18. Complaint. — ^Written complaint may be made against a public utility by city or town council, any corporation or 25 electors of rates, joint rates being 634 RULES SOUTH CAROLINA COMMISSION § 3146. Injunction by Commissioners. — Wlienever in the judgment of the railroad commissioners, it shall appear that any such (railroad) corporation has vio- lated any law or neglected, in any respect or partic- ular, to comply with the terms of its charter, or with the provisions of any of the laws of the state, espe- cially in regard to the connections with other railroads, the rates of toll and the time schedule, they shall give notice thereof in writing to such corporation, and if the violation or neglect is continued after such notice, the commissioners shall make application to a Circuit Judge or a Judge thereof, in vacation, for an injunc- tion to restrain the company complained of from fur- ther continuing to violate the law or the terms of its or for a writ of mandamus. 4 3147. Requirements as to Repairs and Rates. — Whenever in the judgment of the Eailroad Commis- sioners, it shall appear that repairs are necessary upon any such railroad, or that any addition to the rolling stock, or any enlargement of, or improvement in, the stations or station houses, or any modification in the rates of fare for transporting freight or pas- sengers, or any change in the mode of operating the road and conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, they shall give in- formation, in writing to the corporation of the im- provement and changes, which they adjudge to be proper; and if the said company shall fail, within etc., R. Co., 82 S. C. 418, 64 S. E. 240. Not exclusive of municipali- ties within their limits. Boggero t. Southern Ry., 64 S. C. 104, 41 S. E. 819. This section contemplates giving notice of hearing. Railroad Comrs. v. Columbia N. & L. R. Co., 82 S. C. 418, 64 S. E. 240. 639 RULES RHODE ISLAND COMMISSION power to substitute therefor sucli other regulations, measurements, practices, service or acts and to make such order respecting and such changes in such regu- lations, measurements, practices, service and acts as shall be just and reasonable, § 23. Public Safety. — The power is given to the commission after hearing and in the interest of public safety to "require any dangerous or unsafe condition to be removed or remedied." (abstract) § 24. Costs of Investigation. — ^If commission finds that rates are unreasonable^ unjustly discriminatory or preferential or service is inadequate, public utility shall pay costs of investigation "either in whole or in part as the commission in its discretion may deter- mine." (abstract) V25. Separate Rate Hearings. — The commission, where more than rate is complained of, may order separate hearings in its discretion, and no direct dam- age to complainant is necessary to be shown, (abstract) . § 26. Summary Investigations. — Commission may on its own motion summarily investigate as to unrea- sonable or unjustly discriminatory rates, or as to meas- urements and practices or service as being inade- quate, unjustly discriminatory or dangerous to public safety, (abstract) § 27. Formal, Hearing After Summary Investiga- tion. — If commission after summary investigation be- lieves ground for formal hearing exists, it may give ten days' notice of the time and place therefor, (abstract) 636 RULES RHODE ISLAND COMMISSION § 33. Rescinding or Altering Orders. — THe com- mission may at any time upon notice to a public utility and after opportunity to be beard . . . rescind, alter or amend any order fixing any rate, toll, charge, joint rate or rates, or any other order made by the commis- sion and certified copies of the same shall be served and take effect as herein provided for original orders. § 34. Appeal from Orders. — ^Public utility of com- plainant may appeal within seven days to Supreme Court from any order by the commission, and clerk of court shall issue citation to the parties. The court will either "sustain or reverse the order appealed from." (abstract) § 35. Stay of Order. — ^Every appeal shall act as a. stay of the order appealed from, unless the court thinks the appeal is for delay, or justice, equity or public safety otherwise requires, or conditions may be imposed to the appeal so operating, by the court or any justice when the court is not in session, (abstract) § 36. Transcript of Testimony. — ^A transcript of the testimony taken before the commission, certified by the stenographer taking same shall be admitted as testimony on the appeal, (abstract) § 37. New Evidence. — ^If newly discovered evi- dence is introduced in court in the case on appeal, and the court deems it of sufficient importance for a re- consideration by the commission, the court shall stay proceedings and transmit the testimony to the com- mission, unless there is stipulation to the contrary. If the commission rescinds the order the appeal shall be dismissed. If it alters or amends it, or refuses so 637 EULES SOUTH CAROLINA COMMISSION to do, the case shall then be heard on the amended or original order, (abstract) SOUTH CAEOLINA Code of Laws 1912, sees. 3138-13330. Title: Eailroad Commission. § 3142. General Supervision by Commissioners. — The commissioners shall have the general supervision of all railroads and railways, express and telegraph lines in this state operated by steam, and shall exam- ine the same and keep themselves informed as to their condition and the manner in which they are operated, with reference to the security and accommodation of the public and the compliance of the several corpo- rations with the provisions of their charters and the laws of the state ; and to enforce the provisions of this chapter; and the provisions of this chapter shaU ap- ply to all railroads and railways, and to the corpora- tions, trustees, receivers, or others owning or operat- ing the same. Acts 1913, p. 179: Extension to Interurhan Rail- ways. — ^AU authority, power and duties now conferred by law upon the Eailroad Commission as to railways, express and telegraph lines in this State operated by steam, is hereby extended and conferred upon the Eailway Commission as to all interurban railways, whether steam, electricity or other power be used and whether such roads be partly without the corporate limits of towns or cities,^ 1 This Is sufficient delegation of power. Railroad Commissioners V. Atlantic C. L. Ry. Co., 71 S. C. 130; Railroad Comrs. v. Columbia, 638 RULES RHODE ISLAND COMMISSION ■unreasonable or unjustly discriminatory, or of its service being inadequate, discriminatory or unsafe, but no order stall be entered by tbe commission witb- out a formal public bearing, (abstract) § 19. Hearing. — The commission sball prior to sucb formal bearing notify the public utility com- plained of that a complaint bas been made and ten days after sucb notice, tbe commission may proceed to set a time and place for a bearing and an investiga- tion as hereinafter provided. § 20. Notice of Hearing. — Ten days' notice to be given to public utility and complainant, when either or both may be represented by counsel and have pro- cess for witnesses, (abstract) § 21. Regulation of Rates. — If upon such a hearing . . . the commission sball find any existing rates, tolls, charges or joint rate or rates of any public utility to be unjust, unreasonable, insufficient or unjustly dis- criminatory or to be preferential . . . the commission shall have power to fix and order substituted therefor, sucb rates, tolls, charges or joint rates as shall be just and reasonable. § 22. Regulation of Service. — If upon sucb a bear- ing and investigation . . . tbe commission shall find that any regulation, measurement, practice, act or service of any public utility is unjust, unreasonable, insufficient, preferential, unjustly discriminatory, or otherwise in violation of any provisions of this act, or that any service of any such public utility is inade- quate or that any service which can be reasonably de- manded cannot be obtained, the commission shall have 635 RULES SOUTH CAROLINA COMMISSION sixty days, to adopt the suggestions of said commis- sioners, they shall take such legal proceedings as they may deem expedient, and shall have authority to call upon the Attorney-General to institute and conduct such proceedings.^ § 3148. Procedure Upon Written Complaint. — Upon the complaint and application of the Mayor and Aldermen, or council of any city, town or county board of commissioners of any county within which any part of any (such) railroad is located, it shall be the duty of the Railroad Commissioners to make an examination of the condition and operation thereof. Before proceeding to make such examination in ac- cordance with such application, said commissioners shall give to the applicants and the railroad corpora- tion reasonable notice, in writing, of the time and place of entering upon the same. If upon such exam- ination, it shall appear to the commissioners that the complaint alleged by the applicant is well founded, they shall so adjudge, and shall inform the corporation operating such railroad of their adjudication in the same manner as is provided in section 3146 of this chapter. (For failure to remove cause of complaint, report shall be made to the General Assembly or the commissioners may bring such legal proceedings as they see proper.* 2 This section does not authorize a suit for penalties. Railroad Comr's y. Railroad Co., 26 S. C. 353, 2 S. E. 127. But it is not un- constitutional in not expressly stating that the railroad is not giv- en opportunity to be heard. Railroad Comr's v. Columbia N. & L. R. Co. Supra. 3 The general scheme of this chapter is application by commis- sioners to courts for assistance In the enforcement of its orders or for recovery of specific penalties imposed. 640 RULES SOUTH DAKOTA COMMISSION SOUTH DAKOTA Compiled Laws South Dakota 1913, ch. 312, sees. 1-54. Title: Board of Eailroad Commissioners of the State of South Dakota. Jurisdiction: Common Carriers.^ Peocbdueal Sections § 20. Summary Investigation Upon Complaint.— Whenever any person upon his own behalf or class of persons similarly situated, or any firm, corporation or association, or any mercantile, agricultural or man- ufacturing society, or any body politic, commercial club or board of trade or municipal organization, shall make complaint to said board of railroad commission- ers, that the rate of fares, charges published by any common carrier, or the maximum rates fixed by said board in any schedule of rates and prices made by 1 Constitution Law Requiring telephone company serving local and long distance excliange to connect subscriters of local com- pany is not taking property without due process of law but comes under police power. City of Milwaukee v. Dakota Central Teleph. Co., (S. D.), 159 S. W. 99, P. U. R. 1916 F 562. Power to Enforce Orders. — Not having power to enforce orders cannot be urged as denial of power expressly given to make orders. Turner Creamery Co. v. M. & St. P. R. Co., 36 S. D. 310, 154 N. W. 819, P. U. R. 1916 A 1083. Commission is administrative and not judicial body. Chicago & N. W. R. Co. v. Railway Com., (S. D.), 163 N. W. 715. Discrimination. — Interstate commission has authority to remove discrimination between interstate and interstate rates to the extent they conflict. Am. Express Co. v. South Dakota, 244 U. S. 617, 37 Sup. Ct. 656, 61 L. Ed. Reversing in principle State ex rel. At- torney General v. American Express Co., (S. D.), 161 N. W. 132, P. U. R. 1917 C 471. 641 EDLES SOUTH DAKOTA COMMISSION tliem is unnecessarily high or discriminating, it shall be the duty of said board to immediately investigate the matter of such complaint.^ (a) Notice of Hearing by Registered Letter. — ^If such complaint appears to be well founded and not trivial in character, the board shall fix a day for hear- ing the same and shall notify the common carriers in- terested of the time and place of hearing by mailing by registered letter a notice of hearing with a copy of such complaint properly directed to any division super- intendent, general or assistant superintendent, gen- eral manager, president or secretary of such company, and the board shall also notify the person or persons complaining of such time and place. § 22. Evidence Upon Hearing. — ^Upon all hearings the said board shall receive whatever evidence, state- ments or agreements either party may offer or make, pertinent to the matter under investigation, and the burden of proof shall be upon the common carrier or carriers affected thereby. (a) Supplementary Evidence by the Board. — ^But the board shall add to the showing made at such hear- ing whatever information they may have or can secure from any source whatsoever. (b) Schedules of Other Carriers. Prima Facie Evi- dence. — ^And the person or persons complaining shall be entitled to introduce any published schedules of rates and fares of any common carrier in a similar branch of carriage or evidence of rates or fares actu- ally charged by any common carrier for substantially 2 A subscriber of a telephone company has .right to begin pro- ceedings against it. City of Millbank v. Dakota Central Teleph. Co., (S. D.), 159 N. W. 99, P. U. R. 1916 F 562. 642 RULES SOUTH DAKOTA COMMISSION the same kind of service, whetlier in this State or any other State, and the lowest rates and fares published or charged by any railroad company for substantially the same kind of service whether in this State or any other State, shall at the instance of the person or per- sons complaining, be accepted as prima facie evidence of a reasonable rate for the service under investiga- tion. (c) Interstate Rates Considered. — ^And if the com- mon carrier complained of is operating a line of trans- portation beyond the State of South Dakota, or if it ap- pears that it has traffic arrangement with any common carrier, then the board, in determining what is a reasonable rate or fare, shall take into consideration the charge made or the rate established by such com- mon carrier or the carrier with which it has a traffic arrangement for carrying or transmitting freight, passengers, express or messages by telephone from beyond the State to points within the State, and from points within the State to points beyond the State, and if such carrier be operating a line of transportation or transmission beyond the State, the board shall take into consideration the rate charged or established for a substantially similar or greater service by such car- rier in any other State in which said common carrier operates a line of transportation. § 23. Fixing Maximum Rates. — ^After such hearing the said board shall fix and determine a reasonable maximum charge to be thereafter made by the com- mon carriers complained of and the said board shall render its decision in writing and shall spread the same at length in the record to be kept for that pur- pose. 643 RULES SOUTH DAKOTA COMMISSION '(b) Rates and Classifications Specific. — Such de- cision shall specifically set out the sums or rate which the common carriers so complained of may thereafter charge or receive for the service therein named and including a classification of freight, express or mes- sages. (c) Findings Applicable to Similar Cases. — ^And the said board shall not be limited in its said decision ; and the schedule to be contained therein to the specific cases complained of, but it shall be extended to all rates and fares between points in this State and what- ever part of the line of such company or common car- rier within this State as may have been fairly within the scope of such investigation.* (c) Prima Facie Evidence of Reasonableness. — And any such decision so made and entered on record of said board, including any schedule and classifica- tions shall, when duly authenticated, be received and held in all suits brought against any such common car- rier wherein is in any way involved the charges of any such corporation or common carrier mentioned in said decisions in any of the courts of this State, as prima facie evidence that the rates and fares therein fixed are reasonable maximum; rates and fares. (d) Revision of Rates May be Made. — ^And the rates, fares and classifications so established after such hearing and investigation shall from time to time thereafter, upon complaint duly made, be subject to revision by said board the same as any other rates, fares and classifications. sif Interstate rates are lower than local rates It cannot be said that the higher rates do not put burden on carrier to show their reasonableness. Turner Creamery Co. v. Chicago, M. & St, P. Ry. Co., 36 S. D. 310. 154 N. W. 819, P. U. R. 1916 A 1083. 644 rules south dakota commission Judiciaij Review § 4. Appeal to Circuit Court. — Any party affected by any final order or determination of said board shall have the right to appeal therefrom to the circuit court of any county in which the original controversy sub- mitted to said board for determination, or any part thereof, arose, or to the circuit court of any county in which any common carrier or public utility resides or has his office, or in which it operates, at any time with- in sixty (60) days from the date of service of said final order or determination/ § 5. Review in Circuit Court. — . . . In all actions or proceedings in which the validity, lawful- ness or reasonableness of any final order or determi- nation of the board of railroad commissions shall in any case come in question, the original or certified copy of the final record made before said board shall constitute the record in said cause, and no new evi- dence shall even be received or introduced, but the case shall be heard and determined upon the final record provided for in this act.^ § 7. Disposition by Circuit Court. — ^The said cir- cuit court in its determination of said cause may af- firm, reverse or modify such order or determination of *To urge any contention on appeal there must have been evi- dence before the commission and a finding thereon. City of Mill- bank V. Dakota Central Teleph. Co., (S. D.), 159 N. W. 99, P. U. R. 1916 F, 562. 5 What does not appear in such record cannot be considered. City of Millbank v. Dakota Central Teleph. Co., (S. Dak.), 159 N. W. 99, P. U. R. 1916 F 562. It is not unconstitutional to deny a jury trial in a reparation case. Turner Creamery Co. v. Chicago, M. & St. P. R. Co., 36 S. D. 310, 154 N. W. 819, P. U. R. 1916 A 1083. 645 EULES' SOUTH DAKOTA COMMISSION" said board or substitute tberefor any order which, in its opinion the board should have made at the time of entering the order or determination from which the appeal is taken, or remand the cause to the board of railroad commissioners with directions to make such order. (a) Appeal to Supreme Court. — ^From any final order judgment or determination made by any circuit court on such appeal any party affected thereby, in- cluding the State of South Dakota or the board of rail- road commissioners of the State of South Dakota shall have the right to appeal to the Supreme Court of this State in the manner now or hereafter provided for by laws for appeals in civil causes. (b) Disposition hy Supreme Court. — And the Su- preme Court in the determination of said cause on appeal shall have authority and it is hereby empow- ered to either aflSrm, reverse or modify such order, determination or judgment of said circuit court or of the board of railroad commissioners of the State of South Dakota, or substitute for such judgment, order or determination of said circuit court or of the board of railroad commissioners any order or judgment, which in the opinion of said Supreme Court the said Circuit court or the board of railroad commissioners should have made at the time of entering the judg- ment, order or determination from which the appeal is taken, and shall have the power to remand the cause to the board of commissioners direct with instructions to make such order.* « Action of commission may be overturned only when It appears unjustified in fact. Nelved v. Chicago, M. & St. P. R. Co, 36 S. D. 1, 153 N. W. 886. 646 RULES TEXAS COMMISSION TENNESSEE This State has a commission law enacted in 1897 and this was amended in 1915 and while the original and amendatory act speaks of hearings there is no formal procedure expressly presented by Statute, therefore Tennessee has only this reference to its com- mission act. VIRGINIA Virginia Annotated Code 1904, ch. 56 A, sec. 1313a with 75 subsections. It creates the Commission into a court and pre- scribes Eules of Practice and Procedure "before it very much as in an ordinary court, these however being set forth in very general terms. It is not thought beneficial to include these rules verbatim in this ap- pendix. TEXAS Vernon & Sayles' Texas Civil Statutes 1914, ch. 15, sees. 6653, 6616, F. Title: Eailroad Commission. Art. 6654. Powers and Duties. — The power and authority is hereby vested in the railroad commission of Texas, and it is hereby made its duty, to adopt all necessary rates, charges and regulations to govern and regulate railroad freight rates and passenger tariffs, the power to correct abuses and to prevent un- just discrimination and extension in rates of freight and passenger tariffs on the different railroads in this State and to enforce the same by having the penalties 647 RULES TEXAS COMMISSION as by this chapter prescribed through proper courts having jurisdiction. To do this it may (1) classify freights, (2) fix a reasonable rate for each, (3) make the classification uniform for all railroads, (4) fix different rates for different railroads, (5) fix reasonable joint rates, (6) fix proportions of charges between connecting rail- roads, (7) make partial or special classifications, (8) may amend and alter classifications, (9) adopt rules of procedure and determine complaints against rates or existing rules, (10) make rates for loaded or empty cars, (11) establish rates for transportation and for other services, and (12) may require of railroads to maintain adequate and suitable freight and passenger depots, (abstract)^ Peocedtjeal, Paets Art. 6655. Notice and Hearing. — ^Before any rates shall be established under this chapter, the commis- sion shall give the railroad company to be affected thereby ten days' notice of the time and place, when and where the rates shall be fixed; and said railroad company shall be entiled to be heard at such time and place to the end that justice may be done, and it shall have process to enforce the attendance of witnesses. (a) Fixing Rules for Investigations. — The commis- iThis is constitutional delegation of power. International & G. T. Ry. Co. V. Railroad Commission, 99 Tex. 332, 89 S. W. 961. The findings of a commission will not be distended "except upon clear and satisfactory evidence that they are unjust and unreasonable." Railroad Commission v. Galveston Chamber of Commerce, 105 Tex. 101, 145 S. W. 573, but where violation of its orders involve penal consequences, they are to receive strict construction. Texarkana & P. S. Ry. Co. V. Sabine Tram Co. (Tex. Civ. App.), 129 S. W. 198. 648 RULES TEXAS COMMISSION sion sKall have power to adopt rules to govern its pro- ceedings and to regulate the mode and manner of all investigations and hearings of railroad companies and other parties before it, in the establishing of rates, charges and other acts required of it under this law; provided no person desiring to be present in any such investigation by said commission shall be denied ad- mission. Art. 6657. Review of Orders. — ^If any railroad or other party at interest be dissatisfied with the deci- sion of any rate, classification, rule, charge, order, act or regulation adopted by the commission, such dissat- isfied company or party may file a petition setting forth the particular cause or causes of objection to such decision, act, rate, rule, charge, classification or order or to either or all of them, in a court of com- petent jurisdiction in Travis County, Texas, against said commission as defendant. Said action . . . shall be tried and determined as other civil causes in said court. Either party to said action may appeal to the Appellate Court. Art. 6658. Burden of Proof in Trials.— In all trials under the foregoing article, the burden of proof should rest upon the plaintiff, who must show by clear and satisfactory evidence, that the rates, regulations, orders, classifications, acts or charges complained of are unreasonable or unjust to it or them.^ 2 The last two articles mean the orders stand for enforcement until declared unreasonable or unjust by the court. Railroad Com- misaion v. Weld, 95 Tex. 278, 66 S. W. 1097. But the customer and the railroad are on the same footing in attacking rates as unrea- sonable. Gulf C. & S. F. Ry. Co. v. Railroad Commission, 102 Texas 338, 116 S. W. 795. To set aside a rate fixed by the commission, the evidence must leave no reasonable doubt that it is unreasonable 649 RULES UTAH COMMISSION Art. 6677a. — ^By acts of 1911, p. 157, the power and authority of the Commission was extended and the articles regarding this extension are embraced in 1914 Civil Statutes. This extension is to "public wharves, docks, and piers and all elevators, warehouses, sheds, tracks and the property used in connection therewith and over all suburban, belt, and terminal railroads," and commission procedure as to them is the same as to railroads. (N. B. — Tex. Civ. Appeals seem not in library since 1910.) UTAH This State has no commission law, but its Constitu- tion provides that: ."Nothing in this Section shall be construed to deny or restrict the power of the legisla- ture ... to establish and regulate the rates of freight, passage, toll and charges of railroads, toll roads, ditches, flume and tunnel companies, incorporated under the laws of the State or doing business therein;* and also it is provided that: "All railroads and other transportation companies are declared to be common carriers and subject to legislative control; and such companies shall receive and transport each other's or unjust. Railroad Commission v. Galveston Chamber of Com- merce supra. Where the revenue from hauling one of its principal articles of transportation does not yield a compensatory rate, then the rate therefor is unreasonable. Gulf C. & S. F. Ry. Co. v. Rail- road Commission supra. That a system of rates was provided for a; long time, and money has been invested on the faith of its con- tinuance is only evidence and not conclusive that it is not unrea- sonable. Galveston Chamber of Commerce v. Railroad Commission (Tex. Civ. App.), 137 S. W. 737. 1 Constitution of Utah 1895, Art. 6, sec. 18. 650 EULES VERMONT COMMISSION passengers and freight without discrimination or nn- neeessary delay.'" Further it is provided that: "The legislature shall pass laws estahlishing reasonable maximum rates of charges for transportation of passengers and freight, for correcting abuses and preventing discrimination and extortion in rates of freight and passenger tariffs by the different railroads and other common carriers in the State and shall enforce such laws by adequate penalties.* VERMONT Laws 1908, ch. 116, pp. 101-108, sees. 1-24. § 1. Title. Public Service Commission. § 9. Jurisdiction and Powers. — The Public Service Commission shall have jurisdiction, on due notice, to hear, determine, render judgment and make orders and decrees in all matters provided for in the charter of any corporation owning or operating any plant, line or property subject to supervision under this act and shall base like jurisdiction in all matters respecting: I. The purity, quantity of any product furnished or sold by any company under supervision, as provided by this act, and may prescribe the equipment for and standard of measurement, pressure or initial voltage of such product. II. The providing for each kind of business subject to supervision under this act, suitable and convenient standard units of product or service, which standards shall be lawful for the purposes of this act. III. The manner of operating and conducting any 2J(f. Art. 12, sec. 12. aia. Art. 12, sec. 15. 651 RULES VERMONT COMMISSION "business subject to supervision under this act, so as to be reasonable and expedient, and to promote the safe- ty, convenience and accommodation of the public. rV. The price, toll rate or rental charged by any company subject to supervision under this act, when unreasonable or in violation of law. V. The sufficiency and maintenance of proper sys- tems, plants, conduits, appliances, wires and ex- changes, and when the public safety and welfare re- quire the location of such wires or any portion thereof underground. VI. To restrain any company subject to supervision under this act from violations of law, unjust discrim- inations, usurpation or extortion. VII. The issue of stock, mortgages, bonds or otter securities in order to prevent overcapitalization.^ § 10. Rates, Toll and Service. — The commission may order that other rates, tolls, charges and sche- dules or other measurements and practices be substi- tuted for those found to be unjust, unreasonable, in- sufficient, unjustly indiscriminatory, preferential and inadequate, but this does not require the commission to make the same tolls or rates for like service in dif- ferent parts of the State, (abstract) § 13. Right of Eminent Domain. — Public utility needing for the reasonable requirements of its serv- ice to cross .the lands of another for a pipe line, con- duits, line of poles, towers or wires and no agreement ■can be made for compensation to be paid, may petition I Delegation of Power is by this act constitutional. Sayers v. Montpelier & W. R. R., (Vt.), 99 Atl. 4, P. U. R. 1917 C 320. But it does not deprive court of jurisdiction of contract actions by or against utilities. Roeben v. Ryegate L. & P. Co., (Vt.), 100 Atl. 768. 652 RULES WASHINGTON COMMISSION the commission for such, right, and it "shall, upon due notice to all parties in interest, hear and determine the necessity therefor, and render a judgment accord- ingly, which judgment shall be final except as an ap- peal to the Supreme Court is allowed from the orders and decrees of said commission." § 16. Capital Stock, Mortgages and Bonds. — Pub- lic utility shall not increase its capital stock, nor issue mortgages, bonds or. other securities, except such as are payable within one year "without first securing the permission of the public service commission for that purpose. "Then follow details as to notice by mail and publication in newspapers of the time and place of hearing and as to the making of an order ap- plied for. (Abstract.) >§ 18. Filing Schedules and Changes Therein. — Every public utility must be with the commission schedules of rates, which shall be open to public in- spection and of all rules and regulations affecting such, rates, which shall not be changed except upon ten days' notice to the commission. If allowed changes shall be indicated on existing schedules. (Abstract.) § 19. Schedules Posted for Inspection. — Every public utility shall keep posted at office where consum- ers or patrons pay rates, a copy "printed in plain type of so much of its said schedules as the commission shall deem necessary." (Abstract.) WASHINGTON Bemington & Ballinger's Annotated Code and Statutes of Washington, Supplement 1913, sees. 8626- 1-112. 653 RULES WASHINGTON COMMISSION Title : Public Service Commission of "Washington. Jurisdiction. — Over railroads, express companies, street railways, gas, electrical and water companies, telephone and telephone companies, wharfingers, docks, wharves and warehouses, all being called pub- lic service corporations.^ ^Police Power. — It is within police power for a commission to regulate telegnraph and telegraph companies as common carriers. State ex rel. Webster v. Supreme Court, 67 Wash. 37, 120 Pac. 861. And this is true as to a telephone company operating under a city franchise, this not imparing obligation of contract nid; nor deprivation of equal protection of the laws where classification is founded on a reasonable basis. State v. Somerville, 67 Wash. 638, 122 Pac. 324. Order of commission increasing rates is not pre- vented by a contract with a city, as the contract is in contempla- tion of future right of regulation. Raymond Lumber Co. v. Ray- mond L. & P. Co., 92 Wash. 330, 159 Pac. 633, P. U. R. 1916 F 437. Delegation of Power. — The commission act of Washington is au- thorized by Washington constitution. Art. 12, sec. 18, by re- quiring the legislature to establish reasonable maximum rates for railroads and other common carriers, State ex rel. Webster v. Su.- perlor Court, 67 Wash. 37, 120 Pac. 861. Nor is the vesting in a commission the power to promulgate reciprocal demurrage rules and penalties an unconstitutional delegation of power. State ex rel. Railroad v. Public Service Commission, 94 Wash. 274, 162 Pac. 523, P. U. R. 1917 C, 631. The legislature may confer on a commis- sion judicial powers, because the distribution of power by the con- stitution of these departments does not restrict judicial powers to a set of officers in one department only. State ex rel. Railroad Commission v. Oregon R. & Nav. Co., 68 Wash. 160, 123 Pac. 3; State ex rel. Railroad Commission v. Grt. Northern R. Co., 68 Wash. 257, 123 Pac. 8. Discrimination in Rates. — ^Commission may direct public utility to cease to carry out a contract which works discrimination in rates, notwithstanding it may have been lawful when made. Ray- mond Lumber Co. v. Raymond L. & P. Co., 92 Wash. 339, 159 Pac. 133, P. tr. R. 1916 F, 437. Commission may make order to remove discrimination. State ex rel. v. Public Service Commission, (Wash.), 163 Pac. 1143. Strict Construction of Conferred Powers. — Sale of surplus electric 654 rules washington commission Peocedueal Sections §§ 8626-80. Complaint in Writing. — Complaint may be made by the commission of its own motion, or by any person or corporation, chamber of com- merce, board of trade or any commercial, mercantile, agricultural or manufacturing society, or any body politic or municipal corporation, by petition or com- plaint in writing, setting forth any act or thing done or omitted to be done by any public service corporation in violation or cliamed to be in violation of any pro- vision of law or any order or rule of the commission. (a) No Private Complaint or Rates in Municipal Public Service. — Provided that no compaint shall be entertained by the commission except upon its own motion as to the reasonableness of the schedules of the rates or charges of any gas company, electrical com- pany, water company or telephone company unless the same be signed by the mayor, council or commission of the city or town in which the complained of is engaged in business, or not less than twenty-five consumers or purchasers of such gas, electricity, water or telephone service. (b) Competing Utilities Filing Complaint. — Pro- vided, further, that when two or more public service power by a street railway company cannot be regulated. State ex. rel. Public Service Commission t. Spokane I. E. R. Co., (Wash.), 154 Pac. 1110, P. U. R. 1916, 469. Where commission must give to public utilities opportunity to fix joint rates, it has no power to fix them until failure after notice to so do. State esc rel. Public Service Commission v. Skagit R. Telph. & Telg. Co., 89 Wash. 625, 155 Pac. 902, P. U. R. 1916 C, 590. Due Process of Law. — Orders establishing same, joint through freight rates for one town as enjoyed by other portions of the road does not take property unconstitutionally. State ex rel. v. Public Service Commission, (Wash.), 163 Pac. 1143. 655 KULES WASHINGTON COMMISSION corporations '(meaning to exclude municipal and otHer public corporations) are engaged in competition in locality or localities in the state either may make com- plaint against the other or others that the rates, charges, rules and regulations or practices of the other or others, with or in respect to which the complainant is in competition, are unreasonable, unremunerative, discrimatory, illegal, unfair or intending or tending to oppress the oomplaintant, to stifle competition, or to create or encourage the creation of monoply and upon such complaint or upon complaint of the commission upon its own motion, the commission shall have pow- er, after notice and hearing as in other cases, to, by its order, subject to appeal as in other cases, correct the abuse complained of by establishing such uniform rates, charges, rules, regulations or practices in lieu of those complained of, to be observed by all such com- peting public service corporations in the locality or localities specified as shall be found reasonably re- munerative, nondiscriminating, legal, fair or tending to prevent oppression or monopoly or to encourage competition, and upon any such hearing it will be proper for the commission to take into consideration the rates, charges, rules, regulations and practices of the public service corporations complained of in any other locality or localities in the state. (c) Joinder of Grievances and Parties Permitted. — All matters upon which complaint may be founded shall be joined in one hearing and no motion shall be entertained against a complaint for misjionder of com- plaints or grievances or misjoinder of parties ; and in any review of the courts of orders of the commission the same rule shall apply and pertain with regard to 656 EULES WASHINGTON COMMISSION tHe joinder of complaint and parties as herein pro- vided: Provided, all grievances to be inquired into shall be plainly set forth in the complaint. (d) Direct Damage Not Necessary. — ^No complaint shall be dismissed because of the absence of direct damage to the complainant. (e) Service of Complaint. — ^Upon the filing of a complaint the commission shall cause a copy thereof to be served upon the person or corporation com- plained of, which shall be accompanied by a notice fix- ing the time when and the place where a hearing will be had upon such complaint. (f) Hearing Upon Ten Days' Notice. — The time fixed for such hearing shall not be less than ten days after the date of the service of such notice and com- plaint, except as herein provided. (g) Rules Presented by Commission. — ^Rules of practice and procedure not otherwise provided for in this act may be prescribed by the commission.^ §§ 8626-81. Hearing and Introduction of Evidence. — ^At the time fixed for the hearing mentioned in the preceding section the complainant and the corpora- tion shall be entitled to be heard and introduce such evidence as he or it may desire. The commission shall issue process to enforce the attendance of all neces- sary witnesses. (a) Findings by Commission. — ^At the conclusion of such hearing the commission shall make and render 2 This power did not authorize the commission to establish a rule for the recovery of a money judgment before it in favor of a complainant. State ex rel. Railroad v. Public Service Commission, 94 Wash. 274, 162 Pac. 523, P. U. R. 1917 C, 631; Johnson v. Pacific Power & L. Co., 90 Wash. 492, 156 Pac. 530, P. U. R. 1916 D 548. 657 RULES WASHINGTON COMMISSION Endings concerning tlie subject-matter and facts in- quired into and enter the order based thereon. (b) Order in Effect in Twenty Days. — ^A copy of such order certified under the seal of the commission shall be served upon the person or corporation com- plained of, or his or its attorney, which order shall by its own force, take effect and become operative twenty days after the service thereof, except as otherwise pro- vided. (c) Extension of Fine for Compliance. — ^Where an order cannot, in the judgment of the commission be complied with within twenty days, the commission may prescribe such additional time as in its judgment is reasonably necessary to comply with the order, and may on application and for good cause shown extend the time for compliance fixed by the order. (d) Record for Judicial Review. — ^A full and com- plete record of all proceedings had before the com- mission, or any member thereof, or any formal hear- ing had, and all testimony shall be taken down by a stenographer appointed by the commission and the parties shall be entitled to be heard in person or by attorney. In case of an action to review any order of the commission, a transcript of such testimony, to- gether with all exhibits introduced and of the record and proceedings in the cause^ shall constitute the rec- ord of the commission. Judiciaij Review §§ 8626-86. Application for Writ of Review.— Any complainant or any public service company affected by 3 It is mandatory that relief must first be applied for from com- mission. Hewitt Logging Co. t. Northern Pac. Ry. Co., (Wash.), 166 Pac. 1153. 658 RULES WASHINGTON COMMISSION any order of tlie commission, and deeming it to be con- trary to law, may, within thirty days after the service of the order upon him or it, apply to the Supreme Court of the county in which such proceeding was in- stituted for a unit of review, for the purpose of having its reasonableness and lawfulness inquired into and de- termined. "^'■^'^ (a) Writ of Review, When Returnable. — Such writ shall be made returnable not later than thirty days from and after the date of the issuance thereof, unless upon notice to all parties affected a further time be fixed by the court, and shall direct the commission to certify its record in the case to the court. On such re- turn day the case shall be heard by the court, unless for good cause shown the same be continued. (b) Cause Heard on Record Before Commission.—^ Said cause shall be heard by the court without the in- tervention of a jury on the evidence and exhibits in- troduced before the commission and certified by it. (c) Judgment Affirming a Setting Aside Order. — Upon such hearing the Superior Court shall eiUter judgment either affirming or setting aside the order of the commission under review. (d) Reversal and Remand with Directions. — ^In ease said order is reversed by reason of the commission failing to receive testimony properly proffered, the court shall remand the cause to the commission with instructions to receive the testimony so proffered and rejected and enter a new order based upon the evi- dence theretofore taken and such as it is directed to receive. The court may in its discretion remand any cause which is reversed by it to the commission for further action. 659 RULES WASHINGTON COMMISSION §§ 8626-88. Appeal to Supreme Court. — The com- mission, any public service company or any complain- ant may within twenty days after the entry of judg- ment in the Superior Court in any action prosecute an appeal to the Supreme Court of the state of Washington. (a) Filing and Service of Briefs. — ^The appellant shall have fifty days after the entry of such judgment in Arhich to serve and file his opening brief, and the respondant shall have thirty days of the service of such opening brief in which to answer the same. The appellant shall have twenty days after the service of respondant 's brief in which to reply to the same. (b) Notice of Time of Hearing. — ^After the filing of such brief, or the expiration of the time for filing briefs, the cause shall be assigned for hearing at the earliest motion day of the court, or at such other time as the court shall fix, and the clerk of the court shall notify the attorneys for the respective parties of the date set for the hearing in time to permit the parties to participate in the hearing, (c) Manner of Taking Appeal. — Such appeal shall be taken by giving a notice of appeal in open court at the time of the rendition of judgment, or by the serv- ice and filing of a notice of appeal within twenty days from and after the entry of judgment. (d) The Original Transcript of the record and tes- timony filed in the Superior Court in any action to review an order of the commission, together with a transcript of the proceedings in the Superior Court, shall constitute the record on appeal. (e) Laws of Ordinary Appeals Applicable. — ^The general orders relating to appeals to the Supreme 660 RULES WEST VIRGINIA COMMISSION Court shall so far as applicable and not in conflict with the provisions of this act, apply to appeals taken un- der the provisions of this act. WEST VIEGINIA "West Virginia Code (Annoated) 1913, ch. 15, sees. 636-656. West Virginia Acts 1915, ch. 8, p. 45. Title: Public Service Commission. § 638. Jurisdiction. — Over (1) common carriers, railroads, street railroads, sleeping car companies, freight lines, car companies, toll bridges and ferries; (2) telegraph and telephone companies and pipe line companies for the transportation of oil, gas or water ; (3) gas companies, electric lighting companies and municipalities furnishing gas or electricity for light- ing, heating or power purposes; (4) hydro-electric companies for the generation and transmission of light, heat or power and water company, and (5) all persons, associations, corporations and agencies em- ployed or engaged in any of the businesses above enu- merated. The term "public service corporation" in- cludes the above.^ (Abstract.) 1 A commission has the right to require of a carrier to put on a train according to a specified schedule, provided this does not im- pose an undue burden upon interstate commerce. Chesapeake & O. R. Co. V. Public Service Commission, (W. Va.), 89 S. E. 844, P. IT. R. 1917 A 104. It is competent for legislature to deny right of appeal as to one subject passed upon by the commission while providing for appeal generally. Howell v. Public Service Commission, (W. Va.), 90 S. E. 105, P. U. R. 1917 A 268. Delegated Power. — ^Legislature may delegate to a commission the making of reasonable maximum rates over railways. State ex rel. T. Baltimore & O. R. Co., (W. Va.), 85 S. E. 7141, P. U. R. 1915 D. 558. But equity would have jurisdiction to enjoin the enforcement 661 rules west virginia commission Peocedtjeal Sections § 37. Commission Prescribes Procedure. — The commission prescribe the rules of procedure and for taking evidence in all matters that may come before it and enter such orders as may be just and lawful. (a) Proceedings Informal. — ^In the investigations and hearings of cases, the commission may not be bound by the strict technical rules of pleading and evidence, but in that behalf it may exercise such dis- cretion as will facilitate their efforts to understand and learn all the facts bearing upon the right and jus- tice of the matters before them.^ § 646. Complaint to Commission. — ^Any person, firm, association of persons, public officer, public or private corporations, municipality or county, com- plaining of anything done, or omitted to be done by any public service corporation subject to the provis- ions of this act, in controvention of the provisions thereof, or any duty owing by it, under the provisions of this act may present to the commission a petition which shall succintly state all of the facts. of a statutory rate, as being confiscatory, where statute does not provide for questioning such rate Coal & Coke R. Co. v. Conley, 67 W. Va. 129, 67 S. E. 613. If there is a commission statute and supervision may be applied for until the question of the rightful- ness of an order may be determined, it is necessary to pursue this course: State ex rel. v. Baltimore & O. R. Co. Supra; United Fuel Gas Co. V. Public Service Commission, 74 W. Va. 57, 80 S. B. 931. This latter case holds there is constitutional delegation of power to this commission and that right of review of order is not essen- tial to its validity. 2 Commission's judgment on a question of expediency is final and not reviewable. United States Gas Co. T. Public Service Com- mission, 73 W. Va. 571. 80 S. E. 931. 662 RULES WEST VIRGINIA COMMISSION (a) Complaint Forwarded to Public 'Service Corpo- ration. — ^Whereupon a statement of the charges tlms made shall be forwarded by the commission to said public service corporation which shall be called upon to satisfy such complaint or to answer same in writ- ing within a reasonable time to be specified by the commission. (b) Reparation or Satisfaction Given. — 'If such public corporation within the time specified shall make reparation for the injury alleged to have been done, or correct the practice complained of and obey the law and discharge its duties in the premises, then it shall be relieved of liability to the complainant for the par- ticular violation of the law or duty complained of. (c) Investigation of Failure to Satisfy Complain- ant. — If such public service corporation shall not sat- isfy the complainant within the time specified, or there shall appear to be any reasonable ground to investi- gate the complaint, it shall be the duty of the commis- sion to investigate the same in such manner and by such means as it shall deem proper.^ Judicial Eevibw § 651. Petition for Suspension of Order.— Any party feeling aggrieved by the entry of a final order by the commission affecting him or it, may present his or its partition in writing to the Supreme Court of Appeals, or to a judge thereof in vacation, praying for the suspension of such final order. The applicants 3 That performance of extra service may cause pecuniary loss is not alone sufficient to show an order therefor confiscatory. Chesa- peake & O. R. Co., (W. Va.), 89 S. E. 844, P. U. R. 1917 A 104. 663 EULES WEST" VIRGINIA COMMISSION shall deliver a copy of sucli petition to the secretary of the commission before presenting same to the court or judge. (a) Notice of Petition for Suspension. — The court or judge shall fix a time for the hearing on the appli- cation, but such hearing shall not be held sooner than five days, unless by agreement of the parties, after the presentation, and notice of the time and place of such hearing shall be forthwith delivered to the secretary of the commission, so that the commission may be represented at such hearing by one or more of its members or by counsel. (b) Granting Suspension on Terms. — ^If the court or judge after such hearing be of opinion that a sus- pending order should issue, the court or the judge may require bond upon such conditions and in such penalty and impose such terms, terms and conditions upon the petitioner as are just and reasonable. (c) Precedence Over Other Cases. — The hearing of the matter shall take precedence over all other mat- ters before the court except the correction of assess- ments. (d) Record on Review. — For such hearing the com- mission shall file with the clerk of said court all pa- pers, documents, evidence and record or certified cop- ies thereof as were before the commission at the hear- ing or investigation resulting in the entry of the order from which the petitioner appeals. (e) Judgment of Court. — The commission shall file with the court before the day fixed for the final hear- ing a written statement of its reasons for the entry of such order, and after arguments by counsel the court 664 RULES WISCONSIN COMMISSION shall decide tlie matter in controversy as may seem to be just and right.* WISCONSIN "Wisconsin Statutes 1913, eh. 87, sees. 1797ml-109, pp. 1352, 1370. Title: Eailroad Commission. Jurisdiction to regulate every public utility in the state. Pbocbdueax, Pabts § 1797m43. Complaint and Investigation. — ^Upon a complaint made against any public utility by any mercantile, agricultural or manufacturing society or by any body politic or municipal organization or by any twenty-five persons, firms, corporations or asso- ciations, that any of the rates, tolls, charges or sched- ules or any joint rate or rates are in any respect un- reasonable or unjustly discriminatory, or that any reg- ulation, measurement, practice or act whatsoever af- fecting or relating to the production, transmission, de- livery or furnishing of heat, light, water or power or any service in connection therewith or the conveyance of any telephone message or any service in connection therewith is in any respect unreasonable, insuflSeient 4 The appellate jurisdiction of the Supreme Court of Appeals be- ing limited to judicial matters in judicial proceedings "there is no appeal from an order by the commission purely administrative, ex- ecutive or judicial." United Fuel Gas Co. v. Public Service Commis- sion, 73 W. Va. 571, 80 S. B. 931. It is not for a reviewing court to substitute its judgment for that of the commission on questions of expediency, or as to what would be best in the interest of the petitioner or of the public served. On all such questions we think the legislature intended that the judgment of the commission should be final." Ibid. 665 RULES WISCONSIN COMMISSION or unjustly discriminatory; or tliat any service is in- adequate or cannot be obtained, tbe commission shall proceed, with or without notice, to make such investi- gation as it may deem necessary or convenient. But no order affecting said rates, tolls, charges, schedules, regulations, measurements, practice or act complained of shall be entered by the commission without a formal hearing.^ Fixing Date § 1797m44. Formal Hearing. — The commission shall prior to such formal hearing, notify the public utility complained of that a complaint has been made and ten days after such notice has been given the commis- sion may proceed to set a time and place for a hearing and an investigation as herein after provided. § 1797m45. Notice of Formal Hearing. — The com- mission shall give the puublic utility and the com- plainant, if any, ten days' notice of the time and place, when and where such hearing and investigation ^Delegation of Power. — There is not by the Wisconsin act any delega/tion of legislative or judicial power. Borgins v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 48, 93 N. C. C. A. 649; Chippewa & F. Improv. Co. v. Railroad Commission, (Wis.), 159 N. W. 739, P. U. R. 1917 A, 743. It is a lawful delegation of power to a commission for it to require of a city to bear a part of the expense of reparation of crossing grades on railroad tracks. Milwaukee v. Railroad Commission, 162 Wis. 127, 155 N. W. 948, P. U. R. 1915 C, 592. Conferred Power. — Jurisdiction of commission looked for in the Statute creating it. Chicago & N. W. R. Co. v. Railroad Com. 155 N. W. 941, P. U. R. 1916 C, 595. Power to prevent physical con- nection between telephone systems, where it could result in sub- stantial loss to either of them, is proper exercise of police power. Wisconsin Telegraph Co. v. Railroad Com., 162 Wis. 383, 156 N. W. 614, P. U. R. 1916 D, 212, L. R. A. 1916 B, 748. 666 aULES WISCONSIN COMMISSION will be held and such matters considered and deter- mined. Both the public utility and complainant shall be entitled to be heard and shall have process to en- force the attendance of witnesses. § 1797m46. (1) Fixing Rates. — If upon such inves- tigation the rates, tolls, charges, schedules, joint rates shall be found to be unjust, unreasonable, insuflSicient or unjustly discriminatory, or to be preferential or otherwise in violation of this act, the commission shall have power to fix and order substituted therefor such rate or rates, tolls, charges or schedules as shall be just and reasonable. <§ 1797m46. (2) Fixing Service Regulations.— If upon such investigation it shall be found that any reg- ulation, measurement, practice, act or service com- plained of as unjust, unreasonable, insufficient, prefer- ential, unjustly discriminatory or otherwise in viola- tion of any of the provisions of this act, or if it be found that any service is inadequate or that any rea- sonable service cannot be obtained, the commission shall have power to substitute therefor such other regulations, measurements, practices, service or acts and to make such order respecting, and such changes in, such regulations, measurements, practices, service or acts as shall be just and reasonable. § 1797m47. Taxing Costs of Investigation. — If upon said investigation shall be found that any rate, toll charge, schedule or joint rate or rates is unjust, unreasonable, insufficient, or unjustly discriminatory or preferential or otherwise in violation of any of the provisions of this act, or that any reguation, practice, act or service complained of is unjust, unreasonable, 667 RULES WISCONSIN COMMISSION insufficient,, preferential or otherwise in vialation of any of the provisions of this act, or if it be found that the service is inadequate or that any reasonable serv- ice cannot be obtained, the public utility found to be at fault shall pay the expenses incurred by the com- mission upon such investigation. 1^ 1797m48. Separate or Omnibus Hearing. — The commission may, in its discretion, when complaint is made of more than one rate or charge, order separate hearings thereon, and may consider and determine the several matters complained of separately and at such times as it may prescribe. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. § 1797m49. Ex Merc Motu Investgiation. — When- ever the commission shall believe that any rate or charge may be unreasonable or unjustly discrimina- tory or that any service is inadequate or cannot be obtained or that an investigation of any matter re- lating to any public utility should for any reason be made, it may, on its own motion, summarily investi- gate the same with or without notice. § 1797m50. Formal Hearing Following Investiga- tion. — If, after making such investigation, the com- mission becomes satisfied that sufficient grounds exist to warrant a formal hearing being ordered, as to the matters investigated, it shall furnish such public util- ity interested a statement notifying the public utility of the matters under investigation. Ten days after such notice has been given the commission may pro- ceed to set a time and place for a hearing and an in- vestigation as hereinbefore provided. 668 RULES ■WISCONSIN COMMISSION § IT97m51. Procedure as on Complaint. — ^Notice of tlie time and place for such hearing shall be given to the public utility and to such other interested persons as the commission shall deem necessary as provided in sec. 1797m45, and thereafter proceedings shall be had and conducted in reference to the matter investi- gated in like manner as though complaint had been filed with the commission relative to the matter in- vestigated, and the same order or orders may be made in reference thereto as if such investigation had been made on complain. § 1797m52. Complaint of Public Utility.— Any public utility may make complaint as to any matter af- fecting its own product or service with like effect as though made by any mercantile, agricultural, or manu- facturing society or by any twenty-five persons, firms, corporations or associations. § 1797m56. Record. — ^A full and complete record shall be kept of all proceedings before the commission as its agent on any formal investigation had and all testimony shall be taken down by the stenographer ap- pointed by the commission. § 1797m57. Certified Transwipt for Judicial Re- view. — Whenever any complaint is served upon the commission under the provisions of sec. 1797m64 {infra), the commission shall, before said action is reached for trial, cause a certified transcript of all the proceedings had and testimony taken upon such inves- tigation to be filed with the clerk of the circuit court where the action is pending. § 1797m62. Change of Order of Commission.— The commission may at any time, upon notice to the public 669 RULES WISCONSIN COMMISSION utility and after opportunity to be heard, as provided in section 1797in45, rescind, alter or amend any order fixing any rate or rates, tolls, charges or schedules or any other made by the commission and certified copies of the same shall be served and take effect as herein provided for original orders. § 1797m63. Orders Prima Facie Lawful.— All rates, tolls, charges, schedules and joint rates fixed by the commission shall be in force and shall be prima facie lawful, and all regulations, practices and serv- ices prescribed by the commission shall be in force and shall be prima facie reasonable, until finally found otherwise in action brought for that purpose pursuant to the provisions of section 1797m64.^ § 1797m64. (1) Action to Set Aside or Enjoin Order. — ^Any public utility and any person or corpora- tion in interest being dissatisfied with any order of the commission fixing any rate or rates, tolls, charges, schedules, joint rate or rates, or any order fixing any regulations, practices, acts or service, may commence an action in the circuit court for Dane County against the commission as independent to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates fixed in such ord«r is unlawful, or that any such regulation, practice, act, or service fixed in such order is unrea- sonable, in which action the complaint shall be served with the summons. (2) Answer hy Commission. — The answer of the 2 Order directing physical connection between telephone systems justifiable, where patron is required to pay additional charge for additional service. Wisconsin Teleph. Co. v. Railroad Com., 162 Wis. 385, 156 N. W. 614, P. U. R. 1916 C, 212, L. R. A. 1916 E, 748. 670 EULES WISCONSIN COMMISSION commission to the complaint shall be served and Bled within ten days after service of the complaint, where- upon said action shall be at issue and stand ready for trial upon ten days' notice to either party. (3) Interplea by Third Party. — ^Any person not a party to the action, but having an interest in the sub- ject thereof, may apply to the court to be made a party and thereupon the court shall order him to be brought in by proper amendment. § 1797m65. Time Within Which Action Must be Brought. — ^Every proceeding, action or suit to set aside, vacate or amend any determination or order of the commission or to enjoin the enforcement thereof or to prevent in any way such determination from be- coming effective, shall be commenced, and every ap- peal to the courts or right or recourse to the courts shall be taken or exercised, within ninety days after the entry or rendition of such order or determination, and the right to commence any such action, proceed- ings or suit, or to take or exercise any such appeal or right of recourse to the courts, shall terminate abso- lutely at the end of such ninety days after such entry or rendition thereof. § 1797m67. New Evidence on Trial.— This section provides that where evidence not before the commis- sion is introduced by plaintiff, the court shall trans- mit it to the commission, stay further proceedings in the suit, unless parties stipulate to the contrary. There- upon the commission upon consideration of such new evidence may review or modify its order and report to the court. (Abstract.) 671 EULES WISCONSIN COMMISSION § 1797in68. Recission, Modification or Adherence to Order.' — This section provides that if the commis- sion rescinds its former order the case shall be dis- missed; if it modifies it the case is to be tried on the modified order, and if it adheres to it, it is to be tried on the original order. (Abstract.) § 1797m69. Appeal to Supreme Court. — ^Either party to said action, within sixty days after service of a copy of the order or judgment of the circuit court may appeal to the Supreme Court. Where an appeal is taken the cause shall in the return of the papers to the Supreme Court be immediately placed on the state calendar of the then pending term and shall be as- signed and brought to a hearing the same as the causes on the state calendar. § 1797m70. Burden of Proof on Adversary of Com< mission. — ^In all trials, actions and proceedings under the provisions of this act or growing out of the exer- cise of the authority and powers granted herein to the commission, the burden of proof shall be upon the party adverse to such commission or seeking to set aside any determination, requirement, direction or order of said commission, to show by clear and satis- factory evidence that the determination, requirement, direction or order of the commission complained of is unreasonable or unlawful as the case may be.^ 3 There must be evidence by plaintiff to maintain every essential factor in his contention. Chippewa & L. F. Improv. Co. v. Railroad Com., 159 N. W. 739, P. U. R. 1917 A, 743. Conflicting evidence not justify setting aside. Wisconsin Teleph. Co. v. Railroad Com., 162 Wis. 383, 156 N. W. 614, P. U. R. 1916 D, 212. L. R. A. 1916 E, 748. 672 EUIiES WYOMING COMMISSION WYOMING Laws of Wyoming 1915, ch. 146, sees. 1-80, pp. 210, 228. Title: Public Service Commission of Wyoming. JUEISDICTION § 11. Powers. — The commission shall have general and exclusive power to regulate and supervise every public utility within the state in accordance with the provisions of this act. Public utility embraces property of railroads, ex- press companies, sleeping car companies, private car lines, street railroads, gas, electricity, water telegraph and telephone companies. Peocedueai, Pakts § 42. Public Hearing. — ^Whenever the commission shall determine to conduct an investigation of any matter provided for in this act, either with or with- out complaint as in this act provided for, it shall fix a time and a place for a public hearing of the matters under investigation, and shall notify by registered let- ter requiring receipt, the complaint, the person com- plained of and such other persons, as it may deem proper, of such time and place of hearing, at least twenty days in advance thereof. (a) Taking of Testimony. — ^At the hearing held pur- suant to such notice the commission may take such tes- timony as may be offered, as it may desire and may make such other and further investigation as in its opinion is desirable. 673 RULES WYOMING COMMISSION § 43. Service of Notice or Order, — Service on any person of any notice or order or other matter under the provisions of this act may be made by mailing such! notice or order or other matter, or a certified copy thereof, in a registered letter, requiring receipt, di- rected to the public utility at the principal office of such public utility in this state. § 44. Separate Hearing. — ^When complaint is made of more than one matter in writing the commission may order separate hearings thereon and may hear and determine the several matters complained of sep- arately and at such times as it may prescribe. (a) Hearings Open to Public. — ^AU hearings con- ducted by the commission shall be open to the public. (b) Opportunity^ to Be Heard. — ^In any hearing pre- ceding an investigation conducted by the commission any party may be heard in person or by attorney. § 51. Minutes of Hearings. — The minutes of all hearings had before or by the commission shall be kept and shall include the names of all persons who appear and witnesses who are sworn, with the identi- fication of any documentary evidence produced. (a) Transcripts of Testimony. — Parties to any pro- ceeding before the commission shall be entitled to transcripts of the testimony taken in such proceedings, subject to such reasonable rulings and regulations as the commission may prescribe. § 52. Opinions and Orders of Commission. — ^Every order of the commission shall be in writing and in cases of importance may be accompanied by an opin- ion setting forth in brief the facts on which the com- mission has based its order. 674 RULES WYOMING COMMISSION (a) Publication of Orders and Opinions. — The com- mission shall provide for the publication from time to time and for the assembling of its opinions and orders. § 53. When Orders Become Effective. — ^Unless a different time is prescribed by the commission, every order of the commission shall be effective within thirty 1(30) days after the service thereof. (a) Forthwith Notice of Order. — Straightway after the entry of record of any order of the commission notice therof shall be given to every party required to obey the order. (b) Answering or Annulling Order. — At any time after entry thereof the commission in the manner pro- vided for the making thereof may alter, amend, annul or otherwise modify any order. "§ 54. Rehearing. — At any time after an order has been made by the commission any person interested therein may apply for a rehearing in respect to any matter determined therein and the commission shall grant and hold such rehearing if in its judgment suffi- cient reason thereof be made to appear, which rehear- ing shall be subject to such rules as the commission may prescribe. (a) Statf of Order. — ^Application for rehearing shall, as to the matter specified therein, stay the effect of any order or decision of the commission for thirty days thereafter or until the commission grants or de- nies said application. (b) Second Application Barred. — Any order or de- cision made after such rehearing, vacating, amending or modifying the original order or decision shall not, as to the matter considered on rehearing, be open to 675 RULES WYOMING COMMISSION a further application for rehearing, and shall have the same force and effect as the original order or decision. Judicial Eeview. § 59. Action to Vacate or Enjoin Order. — ^Any per- son in interest, being dissatisfied with any order of the commission may commence an action in the district court of the county in which the commission has its principal office, or in the Federal court having requi- site jurisdiction, to vacate and set aside, or alter, amend or enjoin such order on the ground that the commission lacked anything in the premises, or that if enforced the order would violate a provision or pro- visions of any law of this state, or of the constitution of this state or of the United States. (a) Answer and Trial. — The answer of the commis- sion to the complaint shall be served and filed within thirty (30) days after service of the complaint, where- upon said action shall be at issue and stand ready for trial upon ten (10) days' notice to either party. § 60. Time for Bringing Said Action. — This sec- tion provides for bringing action referred to in section 59 within ninety days after service of order of com- mission and when there has been application for re- hearing within said time after service of any order made upon a rehearing. (Abstract.) <§ 61. Appeal. — ^Either party to said action may ap- peal to the court of last resort in the manner pre- scribed by law for appeals from the decisions of the particular court in which said action in suit was brought. 676 TABLE OF CASES (References are to pages.) A. C. L. V. Com'w'th, 411. A. C. L. V. N. C. Corp. Com., 303, 396, 418, 450. A. C. L. V. R. Mills, 367. A. C. L. R. Co. V. Ga., 351. Actina Mills v. Brookline, 161. Adams v. Freeman, 110. Adams Exp. Co. v. Croninger, 368. Alexandria, etc.. Ferry Co. v. Wisch., 126. Allen V. Smith, 65. AUnut V. Inglis, 39, 65, 66, 92, 202. Am., etc.. Com. Co. v. Exchange, 206. Am. Exp. Co. V. S. Dak. 364. Am. W. W. Co. V. State, 223. Ann Arbor R. Co. v. Fellows, 427. Angus V. McGochlan, 64. Anonymous, 31. Arkadelphia L. Co. v. Arkadel- phia, 165. Arkadelphia M. Co. v. S. Merc. Co., 109. Arms V. Ayer, 262. Armington v. Barnet, 162. Arnold v. Mundy, 76. Ashmead, Re, 469. Ashley v. Ryan, 346. Ashley & C. M. T. Co. v. Teleph. Co., 463. Aster V. Heaven, 49. Atl. Exp. Co. V. R. Co., 265, 398. Atty. Gen. v. Gas L. Co., 464. Atty. Gen. v. Johnson, 62. Atty. Gen. v. Old Col. R. Co., 403. Atty. Gen, v. Ridrow, 62. Atty. Gen. v. Stevens, 128. A. T. & S. F. R. Co. V. P. S. Comn., 457. A. T. & S. F. R. Co. V. State, 358. A. T. & S. F. R. Co. V. U. S., 443. Auto F. Co. V. Ft. Worth, 428. B B. & O. R. Co. V. I. C. C, 373, 376, 387. B. & O. R. Co V. Coal Co., 432. Babcock v. Herbert, 126. Backers v. Lebanon, 162. Baer Bros. M. Co. v. R. Co., 341. Ball V. Herbert, 30, 35. Ball, the Daniel, 82. Bank of Augusta v. Barle, 165. Barstow v. Rockport Ice Co. 89. Bartram v. Turnp. Co., 171. Bartlett v. Bangor, 24. Bay -v. Logging Co., 381. Beardsley v. R. Co., 285, 295. Beekman v. R. Co., 233. Beekman v. Shouse, 106. Bellona Co., In re., 157. Bellvue v. Water Co., 180. Benedict v. Goit, 130. Bennett v. Button, 211. Bennett v. Mellor, 52. Bethlehem, etc., W. Co. v. Beth- lehem, 437. 677 TABLE OP CASES (References are to pages.) Binney v. Ches. etc., R. Co., 134. Burnett v. Com., 160. Bird V. Smith, 105. Birmingham, ex parte, 10. Blackett v. Smith, 65, 66. Blair v. Chicago, 170. Blake V. R. Co., 141, 405. Blundell v. Catterall, 80, 101. Boerth v. Gas Co., 400. Bogert V. Haight, 99. Bolt V. Stennet, 37, 91. Book & Sta. Co. v. Gas L. Co., 281. Borden v. Ins Co., 136. Boston, etc., R. Co. v. Lowell, etc., R. Co., 159. Boston M. D. Corp. v. Newman, 54. Boston W. P. Co. v. Boston, etc., Corp., 162. Botelor v. Washington, 114. Burke v. Davis, 30. Brass v. North Dakota, 93, 205. Brim v. Jones, 20. Brind v. Dale, 51. Bristow V. Cormican, 32. Broadnax v. Baker, 125. Broadway, etc., Perry Co. v. Hankey, 10. Brockhaven v. Smith, 63. Brown v. Chadbourne, 86. Brown Bros. M. Co. v. R. Co., 455. Brunswick G. L. Co. v. United, etc., Co., 146. Bymen v. Water Co., 327. Budd V. New York, 93, 188, 205, 234. Buncombe, etc., Co. v. Newland, 132. Burden v. Stein, 161. Burlington v. Beasley, 115. Burl C. R. & N. Co. v. Day, 452. 678 Burting v. Oreg., 375, 390. Burt V. Ins. Co., 155. Butcher's TJ. S. Co. v. Live S. L. Co., 9, 10. Buttfield v. Stanahan, 402. Caldwell V. Stock Yards Co., 346. Calumet S. Co. v. Chilton, 466. Canada Pa. Ry. Co. v. Intl. Bridge Co., 254. C. & A. R. Co. V. Peo., 275. C. & A. R. Co. V. Wagner, 377. C. & C. R. Co. V. Conley, 429. C. & O. R. Co. V. P. S. Comn., 357, 418, 422. Calif. V. C. P. R. Co., 122. Calye's Case, 88. Cannon v. New O., 240, 302. Canal Comrs. v. Peo., 88. Capital City, etc,, Co. v. Talla- hasse, 171. Carroll v. Campbell, 173. Carson v. Blazee, 31, 83. Carter v. Murcott, 56. Carton v. Murcot, 31. Cass, ex parte, 240. Cawker v. Meyer, 403. C. B. & Q. R. Co. V. Iowa, 106, 174, 356, 357. C. B. & Q. R. Co. V. Nebraska, 411. Cedar Rapids Gas Co. v. Cedar Rapids, 323, 327. Chagrin F. ^ C. P. Co. v. Cane, 130. Chapman v. Kimball, 75. Chehalis B. Co. v. County, 167. Charles River Bridge v. Warren Bridge, 9, 10, 25, 40. TABLE OP CASES (References are to pages.) Cherokee Nation v. R. Co., 139, 155. Ches. & O. R. Co. v. W. Va., 306. Ches. & Pac. T. Co. v. Tel., etc., Co., 313. Chicago V. Gillsdorf, 417. Chicago V. McGinn, 24. Chicago V. Schmidinger, 195. Chicago, etc., R. Co. v. Iowa, 209, 213, 236. Chicago, etc., R. Co. v. Jones, 265, 451. Chicago, etc., R. Co. v. Minne- sota, 234, 257, 296. Chicago, etc., R. Co. v. Winnett, 265. Chilvers v. People, 26. Christie v. Griggs, 49. Cincinnati v. R. Co., 173. Cincinnati v. White, 21. Cincinnati, etc., R. Co. v. I. C. C, 340, 406, 431. Clark v. Des Moines, 128. Clark V. Hull, 104. Clarksville, etc., Turnp. Co. t. County, 171. Cleveland v. Ry. Co., 179. Coggins V. R. Co., 160. Cole V. Goodwin, 210. Coggs V. Bernard, 49, 67. Collier v. L. & T. S. M. Co., 107. Colchester v. Brooke, 61. Columbia, etc., Co. v. Meier, 138. Cotton V. Hanchett, 128. C. C. C. & St. L. R. Co. V. 111., 364. C. M. & St. P. R. Co. T. P. U. Comrs., 363, 368, 369, 416, 440. C. R. r. & P. R. Co. V. I. C. C, 332, 418. C. R. I. & P. R. Co. V. Neb., 444, 452. Com. V. A. C. L. R. Co., 286, 412. Com. V. Alger, 84. Com. V. Bridge Corp., 24. Com. V. Charlestown, 128. Com. V. Erie, etc., R. Co., 143. Com. V. Farren, 113. Com. V. Gray, 114. Com. V. Hazen, 46. Com. V. Inter Consol. R. C, 288. Com. V. Kingsbury, 109. Com. V. Morningstar, 191. Com. V. Phafin, 84. Com. V. R. Co., 358. Com. V. R. Co., 359. Com. V. Raymond, 114. Com. V. Stodder, 109. Com. V. Vrooman, 120. Com. V. Waite, 114. Com. V. Wilkinson, 28, 131. Com. V. Worcester Tp. Co., 130. Commutation Rate Case, 295. Conway v. Taylor, 125, 126. Compton V. Hawkins, 99. Cooley V. Wardens, 348. Cooper V. Smith, 126. Cooper V. Williams, 133. Cornell S. B. Co. v. Cal., 346. Cottrill V. Mysick, 56. Cotting V. K. C. Stockyards Co., 95, 204, 249, 251. Covington, etc., Co. v. Sandford, 132, 250, 334. Coxe V. State, 78. Craig V. Childers, 106. Crenshaw v. S. River Co., 55. Crawford County v. Hathaway, 135. Crumley v. Water Co., 110. Culbertson v. Kinevan, 238.. Cunningham v. Bucky, 111. Curtis V. R. Co., 229. 679 TABLE OF CASES (References are to pages.) Dartmouth College v. Wood- ward, 48, 174. Dawson v. Teleph. Co., 181. Deansville Cem. Assn., In re, 152. Deavitt v. Washington County, 160. Deepwater R. Co. v. Lambert, 218. Del. L. & W. R. Co. v. S. Y. Co., 94, 206. Del. Bridge Co. v. Trenton B. Co., 128. Del. & N. Co. V. U. S., 367. Denver & R. Co. v. U. S., 375. Deslion v. Transatlantlque, 386. Des Moines Gas Co. v. Des Moines, 322, 386, 415, 426. DifCenbaugh v. I. C. C, 332. Detroit, etc., R. Co. v. Michigan, 179, 181. Dickey, ex parte, 107, 242. Dovaston v. Payne, 34. Douglas Appeal, 173. Dowling V. Gro. Co., 262. Dow V. Beldelman, 234, 247. Dreyer v. 111., 411. Dutton V. Strong, 21, 96, 98, 101. Dygert v. Schenck, 127. E Eastern States, etc. Assn. v. V. S., 219, 462. Eastern R. Co. v. Boston, etc., R. Co., 159. Eastern L. Br. Soc. v. Com., 191. East Teleph. Co. v. P. U. Bd., 468. East Tenn. Tel. Co. v. Russell- ville, 145. Edison, etc., Co. v. Hooper, 147. Egan y. Hart, 137. 680 Elder v. Buenes, 83. Ely V. Parsons, 104. Emp. Liability Cases, 376. Enfield T. B. Co. v. H. & N. H. R. Co., 9, 104, 157, 163. Engelhard, Re, 441. Erie R. Co. v. New York, 374. Erie R. Co. v. P. U. Comrs., 447. 460. Erie R. Co. v. Purdy, 287. Erie R. Co. v. Stewart, 217. Fairhaven, etc., Co. v. New Haven, 178. Fales V. Whiting, 132. Fall V. Sutter County, 127. Fallbrook, etc., Dist. v. Bradley, 138. Farmers El. So. v. Chicago, 395. Farmers Elec. Co. v. C. R. I. & P. R. Co., 442, 456. Farm Inv. Co. v. Carpenter, 135. Field V. Clark, 403. Fish V. Chapman, 106. Fitchburg R. Co. v. Gage, 272. Pitzwalters Case, 56. Pla. E. C. L. V. V. S.. 442, 446. Fletcher y. Phelps, 88. Fray, In re, 125. French v. Boston, 128. Ga. Cent. R. Co. v. Lippman, 107. Ga. R. & B. Co. v. Smith, 177, 264. Gadiner v. Tisdale, 21. Ganstable v. Free Fishers, 29, 60. Gas Co. v. Pub. IT. Bd., 416. Gaston v. Mace, 85. TABLE OP CASES (References German Alliance Ins. Co. v. Lewis, 48, 57, 120, 182, 199, 208, 226, 245. Gibbons v. Ogden 336, 347. Gibbs V. Gas Co., 222. Gilman v. Loma Point, 155. Gilman v. Philadelphia, 128. Gladson v. Minn., 363. Goddard t. Johnson, 398. Goodtitle v. Asker, 33. Grand T. R. Co. v. Michigan, 261, 311, 349, 405, 417, 47, 444, 446. Gray v. Slverpool & B. Ry. Co. 69. Grinnell v. Cook, 51, 110. Guardians, etc., v. Greene, 73. Guernsey v. Power Co., 20. Guillotte V. New Orleans, 58, 102, 195. Gutierres v. Irr. Co., 136, 155, 192, 195. H Hadley, Re, v. Selectmen, 436. Hagar v. Reclamation Dist., 137. Hale de Jure Maris, 90. Hale de Portibus Maris, 36, 84, 98, 201. Hall V. De Cuir, 392. Hampton v. Watson, 77. Hangen v. Light & W. Co., 221. Hanover v. Water Co., 161. Harold v, Jones, 85. Harriman v, I. C. C, 405, 421. Harrison v. Rutland, 34. Harrison v. Young, 126. Hartford v. Bridge Co., 162. Hathom v. Stinson, 88. Hays V. Penna. Co., 277. Hazen v. Essex County, 160. H. E. & W. T. R. Co. V. State, 359, 360, 364. are to pages.) Head v. Amoskeag M. Co., 116. Heany v. Heany, 98. Heine v. Levee Comrs., 426. Hendersonville L. & P. Co. t. R. Co., 229. Hennington v. Ga., 347. Hieronymous v. Water S. Co., 312. Howland v. Chicago, 165. H. R. T. & L. Co. V. Hawaii, 407. Hudson County v. State, 241. Hudspeth v. Hall, 171. Huffman v. Teleph. Co., 314. Hunter v. Moore, 126. Huzzey v. Field, 24. Higgins V. Bretherton, 65. Hittinger v. Eames, 89. Hocking V. R. Co. v. P. U. Com., 300, 436, 447, 454. Hodges V. Williams, 89. Holden v. Hardy, 387. Holderness v. Collinson, 65. Home Teleph. Co. v. Carthage, 327. Home Teleph. Co. v. Los An- geles, 179. Home Teleph Co. v. Peo. T..^& T. Co., 315. I I. C. C. V. L C. C. V. I. C. C. V. I. C. C. V. 399, 412. I. C. C. V. I. C. C. V. 443, 450. L C. C. V. 442, 449, I. C. C. V. L C. C. V. Baird, 454. Brinson, 398. C R. I. & P. Co., 331. Can., etc., R. Co., 262, Del. R. Co., 300, 443. L C. R. Co., 333, 432, L. & N. R. Co., 441, 455. N. P. R. Co., 443. R. Co., 290, 406, 408. 681 TABLE OF CASES (References are to pages.) I. C. C. V. Transit Co., 261, 336, 401. I. C. C. V. U. P. R. Ck)., 419, 443, 445. I. C. R. Co. V. I. C. C, 420, 445. I. C. R. Co. V. Ill, 78, 87, 375. I. C. S. N. R. Co. V. Mass., 289, 346. Idaho P. & L. Co. v. P. U Comrs, 295, 467. Inc. Passenger Rates, 295. Indianapolis, etc., Co. v. Citi- zens, etc., R. Co., 171. Ingalls V. Perry Co., 173. Int. Hard. Co. v. Mo., 462. Inter-Ocean Pub. Co. v. Asso. Press, 206. J Jackson Agr. Wks. v. Hurlbut, 107. Jacobsen v. Wis., etc., R. Co., 261. James River, etc., Co. v. Early, 132. James River, etc., Co. v. Thomp- son, 162. Jefferson, The Thomas, 83. Jersey City Gas Co. v. Dwight, 172. Johnson v. R. Co., 273, 371. Johnson v. Schooner, 65. Jones v. Elec. Co., 226. Jones V. Johnson, 125. Jones V. Thurloe, 65. Jones Bros. v. R. Co., 405. Justice v. GrifHn, etc.. Road, 131. K Kansas, etc., R. Co. v. C. & M. Co., 217. K. C, etc., R. Co. T. R. Comn., 405, 427. 682 K. C, etc., R. Co. V, Botkin, 345. K. C, etc., R. Co. V. Stiles, 345. K. S. So. Ry. Co. v. U. S., 425. Keokuk v Packet Co., 240. King V. Inhabs. Bucks, 23. Kinloch v. Craig, 65. Knoxville v. Water Co., 250, 400, 414. Knoxville Water Co. v. Knox. ville, 170, 327, 328, 401, 410. Kohl V. U. S., 155. La Crosse v. G. & E. Co., 466. La Harpe v. G. L. Co., 206. La. R. Co. v. U. S., 443. La. R. Comn. v. Teleph. Co., 255. Ladd V. Mfg. Co., 95. Laird v. Pittsburgh, 46. Landon v. P. U. Comn., 426. Lane v. Cotton, 211, 212. Leeds V. Manch., etc., R. Co., 33. Lehigh V. R. Co. v. Meeker, 443. Leighton v. Concord, 358. License Tax Cases, 164. Lieberman v. Van DeCarr, 411. Loomis V. L. V. R. Co., 433. Louisville v. Teleph. Co., 250, 415. Lode V. Shephard, 33. Los Angeles S. Case, 311, 443, 446. L. & N. R. Co. V. Brewing Co., 447. L. & N. R. Co. V. Comn., 392. L. & N. R. Co. V. Garrett, 267, 407, 409, 453. L. & N. R. Co. V. Ky., 338. L. & N. R. Co. V. Mottley, 279, 300. L. & N. R. Co. V. U. S., 443. TABLE OP CASES (References L. & N. R. Co. v.U. C. N. S. Co., 97. L. S. & M. S. R Co. V. Ohio, 354. L. S. & M. S. R. Co. V. Smith, 283, 291. L. S. & M. S. R. Co. V. IT. S., 462. Lombard v. Stearns, 153. Long Island, etc., Co. v. Brook- lyn, 156, 161. Long-worth v. Ledevic, 104. Love V. R. Co., 237. Lowell V. Proprs., 134. Lusk V. Atkinson, 457. M McArthur v. G. B. Co., 133. McAdams v. Express Co., 427. McConnell v. Lexington, 21. McClune v. Gas Co., 223. McClune v. Hamword, 106. McClusky V. Maryville, 381. McCook, etc., Co. v. Burtless, 300. McCrary v. Beandry, 153. McDuffie V. R. Co., 276. McFadden v. Haynes, 89. McKenna v. R. Co., 295. McKinston v. Sager, 79. McCord V. L. & N. R. Co., 436. McLeod V. R. Co., 238. McWhorter v. R. Co., 264, 320, 398, 403. Macon v. R. Co., 239. Magee v. Overshire, 145. Magna Charta, 29. Maine v. G. T. R. Co., 166. Manitowoc v. Tr. Co., 180. Markham v. Brown, 110. Marion W. Co. v. R. Comn., 154. Marmet v. State, 165. Marselis v. Seaman, 238. Martin v. Waddell, 77, 80. are to pages.) Marquis v. Teleph. Co., 300, 330. Marshall v. Nav. Co., 32. Mason v. Harperjs Ferry Co., 126. Mason v. Thompson, 111. Mayhall v. Grimes, 126. Mayhew v. Lighting Co., 465. Mead v. Portland, 325. Meeker v. L. V. R. Co., 448. Memphis v. Water Co., 10. Memphis Corp. v. Overton, 125. Merrick v. Halsey & Co., 346. Merrill v. Irr. Co., 136. Messenger v. R. Co., 274, 275. Millersville G. L. Co. v. Vine- land Co., 172. Mills V. Learn, 125. Mills V. St. Clair County, 126. Mich. S. Tel Co. v. R. Comn., 466. Minn., etc., R. Co. v. Minn., 236. Minn., etc., R. Co. v. Pratt, 227. Minn. Rate Cases, 236, 260, 327, 331, 337, 349, 357, 405. Minn, etc., R. Co. v. Minn., 340. Mo., ex rel., v. Murphy, 147. Mo. V. C. B. & Q. R. Co., 413. Miss. R. Comn. v. I. C. R. Co. 355 M. & O. R. Co. V. Peo., 418. M. St. P., etc., R. Co. V. P. Comn., 444, 452. Miss. River v. Lonergan, 126. Mitchell, etc., C. Co. v. Pa., 433. M. K. & T. R. Co. V. U. S., 375. Mobile V. Yuille, 58, 112, 195. 202. Monongahela B. Co. v. R. Co., 239. Monopolies, Case of, 7, 39. Monterey, etc., Co. v. Chamber- lain, 238. 683 TABLE OP CASES (References Mondou V. R. Co., 381. Moore v. Sanborne, 86. Montgomery v. R. Co., 377. Morgan v. King, 87. Morgan v. La., 141. Morse v. Slue, 50, 212. Mo. K. & T. Shippers Assn. v. R. Co., 455. Morrisdale C. Co. v. R. Co., 433. Mountain T. Co. v. Washington, 382. Mound City, etc., Co. v. Miller, 138. Murphy v. Montgomery, 240. Murphy v. Wheatley, 343. Muskogee, etc., Co. v. Hall, 145. Murray v. Berkshire, 131. Murray v. Comrs., 130. Munn V. 111., 19, 35, 66, 90, 98, 107, 112, 125, 182, 232, 244, 246, 317, 392, 461. Munn V. Pec, 89, 184. N Nash V. Page, 93, 206. Nash V. U. S., 219, 462. Nat. Dock Co. v. R. Co., 153. Nat. U. P. Gro. Co. v. Dickin- son, 121. Naylor v. Hangles, 65. New Britain G. L. Co. v. Root, 456, 460. Newoomb v. Smith, 117. Newton v. Trigg, 51. N. J. Excel Co. V. Gro. Co., 119. N. J. Nav. Co. V. Bank, 91. N. J. So., etc., Co. V. Comrs., 172. N. J. S. N. Co. V. Bank, 107, 212. N M. Wool G. Assn. v. R. Co., 446. N. O. V. Clark, 146. 684 are to pages.) N. O. Gas Co. V. Paulding, 223. N. O. Gas Co. V. L. Co., 146, 161. N. O. Gas Co. V. Rivers, 148. Newport v. B. Co., 239. Newport v. Taylor, 126. N. Y. V. Bryan, 423. N. Y. V. Pine, 161. N. Y. V. Stamm, 26. N. Y. V. Starin, 125. N. Y. C. R. Co. V. Lockwood, 212. N. Y. Cent., etc., Co. v. Gas L. Co., 158. N. Y. L. W. R. Co., In re., 157. N. Y., etc., Grain Co. v. Board, 158, 206. N. Y., etc., R. Co. V. I. C. C, 279, 367. N. Y. Comn. v. R. Co., 422. N. & P. B. R. Co. V. Com'wth., 411. N. & W. Ry. V. W. Va., 293. Niagara, etc, Co., In re., 151. Nickerson v. Bracket, 56. Nixon V. Reid, 126. Noble S. Bank v. Haskell, 187. Norfolk, etc., Co. v. T. Co., 144. Northern B. Co. v. London, etc., Co., 27, 129. N. Cent. R. Co. v. Comn.,. 131. N. Jersey, etc,. R. Co. v. Jersey City, 167. N. Am. Ins. Co. V. Yates, 117. Norway P. Co. v. Boston, etc., R. Co., 210. N. P. R. Co. V. Boynton, 218. N. P. R. Co. V. N. Dak., 260, 285, 290. N. P. R. Co. V. Washington, 374. Nottenville Tp. Co. v. Baker, 131. TABLE OP CASES (References are to pages.) Okla. City v. R. Co., 422. Okla. Gin Co. v. Okla., 95, 402, 409, 412, 452. Okla. Nat. Gas Co. v. State, 422. Old Dom. S. S. Co. v. Gilmore, 386. Oliver & Son v. R. Co., 343. Olmstead v. Camp, 115. Olmstead v. Proprs., 220. Omaha v. Water Co., 330. O'Neill V. Arnett, 102. O. & C. B. R. Co. V. I. C. C, 335. Oregon R. Co. v. Faircliild, 305, 450. Ouachita Pkt. Co. v. Aiken, 240. Pa. Coal Co. v. Del., 237. Paine v. Woods, 89. Palmero, etc., Co. v. R. Comn., 428, 436. Pa. Ry. Co. v. Clark Bros., etc., Co., 433. Pa. Ry. Co. v. Coal M. Co., 433. Pa. Ry. Co. v. P. S. Comn., 286, 291, 293, 309, 428. Pa. N. Co. V. Lehigh V. R. Co., 436. Palmer v. MuUiga'n, 85. Panton Tp. Co. v. Bishop, 130. Parker v. R. Co., 241. Parsons v. Bradford, 73. Passenger Rates Case, 295. Patrick v. Ruffness, 123. Patterson v. Bast Bridge, 128. Patterson v. Wollman, 15, 26, 173, 175. Patterson G. L. Co. v. Brady, 220. Payson v. Peo., 417. Pedecson v. R. Co., 378. Peik V. Chi., etc., R. Co., 216, 247. Pennick v. County, 24. Peo. V. Budd, 93, 205. Peo. V. Canal Appraisers, 83. Peo. V. Chi., etc., R. Co., 147. Peo. V. Dechan, 146. Peo. V. Formosa, 191. Peo. V. Foundry Co., 343. Peo. V. Harper, 265. Peo. V. Hartford Ins. Co., 190. Peo. V. Kingman, 24. Peo. V. Mayo, 26. Peo. V. McCall, 358, 454. Peo. V. O'Brien, 143. Peo. V. Wilcox, 464. Peo., ex rel., v. McCall, 358, 454. Peo., ex rel., v. Reynolds, 262. Peo., ex rel., v. R. Co., 405, 423. Peo., ex rel., v. P. & P. U. R. Co., 258. Peo., ex rel., v. St. Ry. Co., 423. Peo., ex rel., t. Wilcox, 464. Perrine v. Canal Co., 170, 239. Pervear v. Com., 164. Phila. B. & W. R. Co. v. Schy- bert, 377. Plnchin v. London, etc., R. Co., 69. Pine V. N. Y., 161. Pipkin V. Wynn, 125. Pitkin V. Olmstead, 74. Pittsburgh, etc., R. Co. v. Jones, 126. Plumley v. Mass., 164. Plym. C. Co. V. Pa., 266. Pollock V. Landis, 111. Portland Nat. Gas Co. v. State, 223. Prentis v. A. C. L., 269, 410, 435, 437, 439, 453. 685 TABLE OP CASES (References are to pages.) Prescott Irr. Co. v. Flathers, 136. Price V. Peo., 166. Primrose v. Tel. Co., 109. Procter v. Nicholson, 64. Proctor & Gamble v. U. S., 433. P. S. Gas Co. V. Comn., 330. P. U. Comn. V. I. C. R. Co., 405, 442. P. U. Comn. V. Lake Erie K. Co., 310. P. U. Comn. V. Refrig. Co., 312, 402. P. U. Comn. V. Spokane, 463. P. V. Comn. V. State, ex rel, 424. P. U. Comn. V. Teleg. & T. Co., 421, 463. Poughkeepsie B. Co. In re., 150, 229. Pub. S. Gas Co. v. P. U. Comn., 436, 460. Puget S. E. R. Co. V. R. Comn., 181, 445. Purdy V. Brie R. Co., 287, 294. R. & S. S. Co. V. R. Comn., 418. Randall Gas Co. v. Glass Co., 442. Ratcliff V. V. S., 206. Raymond v. R. Co., 380, 382, 383. Reagan v. L. & T. Co., 234, 248, 318, 395, 406. Red "C." Ore M. Co. v. Board, 261. Redfoot, etc., Dist. v. Dawson, 137. Reg. V. Sainthill, 23. Rex V. Grosvenor, 62. Rex V. Inhab. Kent County, 33. Rex V. U. & I. Nav., 32. Rex V. Yorkshire West Riding, 127. Rhode Island Sub. R. Co., In re., 229. Rhodes v. Otis, 87. Biskey v. R. Co., 438. Robertson v. Kennedy, 106. Robinson v. B. & O. R. Co., 433. Robinson v. Lamb, 241. R. R. Comn. Cases, 317, 247, 406, 393. R. R. Comn. v. St. L. & S. F. R Co., 452. R. Co. V. Comnwth, 398. R. Co. V. Bristol, 411. R. Co. V. Carr, 379 R. Co. V. Colosurdo, 378. R. Co. V. Engelwood, 427. R. Co. V. Harrington, 378. R. Co. V. Hayes, 380, 381 R. Co. V. Hesterlerly, 378. R. Co. V. Husen, 348. R. Co. V. Jacobson, 417 R Co. V. Jones, 378, 397, 403. R. Co. V. Kansas, 418, 422. R. Co. v.Koermeeke, 379. R. Co. V. Maerkle, 378. R. Co. V. Minn., 417. R. Co. V Parker, 379 R Co. V. Peery, 380. R. Co. V. Polick, 380. R. Co. V. Seale, 378. R. Co. V. Smith, 285 R. Co. V. Vreeland, 378. R. Co. V. Welsh, 380. R. Co. V. White, 380, 382 R. Co. V. Winfield, 383. R. Co. V. Winters, 380. R. Comn. V. H. & T. R. Co., 444. R. Comn. V. L C. R. Co., 404. R. Comn. v. N. A. R. Co., 398. R. Comn. V. Nav. Co., 404. 686 TABLE OF CASES (References are to pages.) Rochester v. Water Co., 149. Kockingham County, etc., Co. v. Hobbs, 228. Richmond, etc., T. Co. v. Louisa. R. C, 162, 173. Richmond, etc., T. Co. v. Rogers, 26. Rich V. Kneeland, 50. Riddle v. Proprietors, 132. Ross y. Johnson, 68. Ross V. R. Co., 160. Rowe V. Granite B. Corp., 87. Rowland v. R. Co., 422, 428. Rugby Charity v. Merryweather, 24. Ruggles V. Illinois, 234. Ruggles V. Peo., 214. Rundle v. Del., etc., Co., 133. Rushville v. Nat. Gas Co., 224. St. Louis, etc., R. Co. v. Paul, 176. San Antonio T. Co. v. Altgeld, 178. Sanders v. Young, 109. San Diego L. & T. Co. v. Natl. City, 250, 319, 401. San Diego L. & T. Co. v. Jasper, 137, 193, 250, 319, 327, 330, 412, ,401. Sandford v. R. Co., 276. Salt R. V. C. Co. V. Nelssen, 401. Saratoga Spgs. v. Gas, etc., Co., 399, 439. Satterlee v. Matthewson, 411. Sav. Springs v. Elect. Co., 264. Say Petitioner, 16. Sayre v. Newark, 78, 79. Sayres v. R. Co., 358, 436, 450. Schofield V. R. Co., 275. S. A. L. R. Co. V Hampton, 427. S. L. & S. F. R. Co. V. Gill, 257. St. Louis, etc., R. Co. v. Inst. for Blind, 158. St. Louis, etc., R. Co. v. Pressed Brick Co., 311. St. & N. P. R. Co., In re., 158. St. P. & S. Co. V. G. L. Co., 428. St. L. I. M. & S. R. Co. V. Mc- Whorter, 376. St. L. L M. & S. R. Co. V. State, 358. S. Ind R. Co. V. R. Comn, 420, 421 Scott V. Williston, 86. Settle V. P. U. Comn., 446. Sharp V. Grey, 49. Shaw V. Berry, 111. Shawnee G. & Elec. Co. v. State, 96. Shelby v. Ditch Co., 312. Sheppard v. Gas Co., 222. Shorter v. Smith, 171. Silkman v. Board, 300. Silver v. R. Co., 408. Simpson v. Shepard, 260. Siner Alkali Co. v. Johnson, 50. Siner Mfg. Co. v. Miller, 111. Sinking Fund Cases, 188, 204, 216. Skinner v. Upshaw, 65, 67. Slidell V. Grandjean, 170. Sloan V. Bienmiller, 88. Smith V. Independent Ace. Co., 384. Smith V. I. C. C, 429. Smith V. Maryland, 77. Smyth V. Ames, 317, 338, 266, 249. Sneed v. Watkins, 64. Society for Savings v. Corte, 167. S. Car. V. Georgia, 128. 687 TABLE OP CASES (References S. Gov. & C. St. R. Co. V. Cov- ington, 349. S. Pac. Co. V. Adjustment Co., 437. So. Pac. Co. V. Crockett, 373. So. Pac. Co. V. Jensen, .385. So. Pac. Co. V. I. C. C, 405, 450. So. R. Co. V. Melton, 343. So. R. Co. V. U. S., 372. Sotne V. R. Co., 392. Souther v. Gloucester, 300. S. W. T. & T. Co, V. Danaher, 256. S. W. T. & T. Co. V. Sharp, 312. Spangler's Appeal, 160. Spooner v. Crawford, 86. Spring Valley W. W. v. Schot- ten, 174, 204, 395, 401. Stephens v. Ok. S. Teleph, Co., 447. Stone V. R. Co., 393. Stone V. Trltts, 436. Stoughton V. Baker, 55, 56. Stowell V. Plagg, 117. Sturgeon Bay, etc., Co. v. Leatham, 239. Sullivan v. Supervisors, 26. Summerset, Duke of, v. Togwell, 81. Sunbury, etc., R. Co. v. Comn., 132. S. S. Orleans v. Phoebus, 83. Staley v. R. Co., 384. Stamford v. Horse R. Co., 144. Standard O. Co. v. U. S., 219, 461. Stanislaus B. Cto. v. Horsley, 239. Stanislaus Co. v. Irri. Co., 178, 319. Stanislaus Co. v. R. Co., 401. Stark v. Miller, 126. 688 are to pages.) Stanwood v. Pierce, 130. State V. A. C. L., 398. State V. Boneval, 285. State V. Buchanan, 71. State V. Buckner, 115. State V. Butte Water Co., 223. State V. Chapman, 325. State V. Chicago, 258. State V. Cloud, 54. State V. C. M. & St. P. R. Co., 229. State V. Eastman, 26. State V. Edwards, 116. State V. L. K. & L., 191. State V. Franklin Palls Co., 88. State V. Gilmanton, 88. State V. G. N. R. Co., 260, 403. State V. Hudson Co., 241. State V. L. N. R. Co., 405. State V. Newton, 114. State V. R. Co., 166. State V. R. Comn., 403, 405. State V. Smith, 113, 114. State V. Snyder, 115. State V. Sutton, 197, 178. State V. Teleph. Co., 314. State V. Town of Hampton, 130. State V. Wilson, 125, 171. State V. Wood County, 24. State Comn. v. I. C. R. Co., 453. State, ex rel, v. Adams Exp. Co., 364. State, ex rel, v. B. & O R. Co., 263, 428. State, ex rel, v. Cadwallader, 315. State, ex rel, v. Cin. G. L. & C Co., 146. State, ex rel, v. Col. Gas, etc., Co., 223. State, ex rel, v. East Fifth, etc. R. Co. 143. TABLE OP CASES State, ex rel, v. Fla., etc., R. Co., 260. State, ex rel, v. Gas Co., 423. State, ex rel, v. G. L. & C. Co., 206. State, ex rel, v. Gt. N. R. Co., 285. State, ex rel, v. H., etc., R. Co., 14, 28. State, ex rel, v. M. & St. L. R. Co., 444. State, ex rel, v. Nebr. Tel. Co., 314. State, ex rel, v. P. S. Comn, 457, 458, 459. State, ex rel, v. R. Co., 396, 422, 424. State, ex rel, v. Skagit, etc., Co., 261, 280, 314. State, ex rel v. Supervisors Court, 181. State, ex rel, v. Teleph. Co., 314, 436, 437. State, ex rel, v. Van R. Co., 422. Sunbolf V. Alford, 51. Sunderland Bros. v. R. Co., 342. Sun Ptg. Assn. v. New York 139. Sutton V. New Jersey, 177. Sweet V. Pym, 6d. Swords V. Edgar, 100. Tallahassee Ore Co. v. Hollo- way, 117. Tallassee P. M. Co. v. County, 239. Tallassee O. & P. Co. v. Hollo- way, 58. Tampa v. Water Co., 401. Tap Line Cases, 443. Taylor v. Com., 78. (References are to pages.) Thomas v. Boston, etc., R. Co., 210. Thompson v. Lacy, 65. T. & P. R. Co. V. Am. T. & T. Co., 433. T. & P. R. Co. V. Oil Mill, 432. T. & P. R. Co. V. R. Comn., 405. T. & P. R. Co. V. V. S., 360. Thomsen v. Cayson, 218, 283, 461. Tilley v. R. Co., 403. Townsend v. Light Co., 394. Tracey v. R. Co., 229. Transp. Co. v. Parkersburg, 254. Travers City v. Teleph." Co., 438. Teutonic, etc., T. Co. v. TJtil. Comrs., 428. Tripp V. Frank, 25. Turney v. Wilson, 107. Turtle Creek v. Water Co., 180. Twelfth St, R. Co. v. R. Co., 171-45. U Union Bridge Co. v. U. S., 261, 402. Union Canal Co. v. Landis, 133, 135. Union Fuel Co. v. Comn,. 300, 434, 442. U. P. Ry. Co. V. Comn., 428. U. P. Ry. Co. V. County. 24. U. P. Ry. Co. V. Goodrich, 278. U. S. V. Am. Tobac. Co., 219, 461. U. S. V. B. & O. S. W. R. Co., 450, 456. U. S. V. Chicago, 158. U. S. V. C. M. & St. P. R. Co., 375. U. S. V. Del. & L. R. Co., 367. U. S. V. Grimaud, 261, 402. 689 TABLE OF CASES (References U. S. V. L. & N. R. Co., 405, 425, 446. U. S. V. Nixon, 374. U. S. V. Nav. Co., 433. U. S. V. Ramsey, 374. Vanhook v. Selma, 165. Vanderburgh v. Minneapolis, 325. Venner v. N. Y. C. & H. R. Co., 454 Vicksburg v. Water Co., 179. W Wabash, etc., R. Co. v. Illinois, 334, 215. Wadley So. R. v. Ga., 429. Wadley v. So. Ry. Co. v. Tucker, 257. Wadsworth v. Smith, 86, 132, 142. Walla Walla v. Water Co., 148. Washer v. County, 24. Washington, ex rel., v. Fairchild, 418. Waterman v. Johnson, 88. Watson V. Cross, 111. Webb V. Ry. Co., 68. Weems S. B. Co. v. Peoples S. B. Co., 96, 98. are to pages.) Weld V. Gas & C. Comrs., 463. Weld V. Chapman, 125. Weld V. Hornby, 84. Welles V. Cowles, 129. West River B. Co. v. Dix, 104, 162. West Roxbury v. Stoddard, 89. Wheeler v. Nav. Colo., etc., Co., 135, 136. Whitfield V. Ranges, 456. Wiggins F. Co. v. East St. Louis, 165. Willard v. Remhardt, HI. Wiloox V. Consol. Gas Co., 250, 259, 290, 328, 415. Williams v. Branson, 107. Williams v. Cammack, 137. Williams v. Gas Co., 221. Wilson V. Forbes, 83. Wilson T. Marsh Co., 347. Wilson V. New, 331, 366, 387, 412. Winchester, etc., R. Co. v. Com- monwealth, 438. Young, ex parte, 256. Zanesville v. G. L. Co., 206, 224. 690 TABLE OF CASES FOR ANNOTATED APPENDIX. (References A Ada New Depot, Re, Minn., 552, 554, 557. Adena R. Co. v. P. U. Comn. Ohio, 616. Am. Exp. Co. V. S. D., V. S., 641. Atch. T. & S. F. R. Co. V. R. Comn. Cal., 484. Atch. T. & S. F. R. Co. V. P. S, Comn. Mo., 560. Augusta City v. Lewistown, etc., R. Co., Me., 541. B Belfast V. B. Water Co., Me., 543. Belle Borough v. Ohio V. Water Co., Pa., 627. Bethlehem Water Co. v. Bethle- hem, Pa., 627. Birmingham, ex parte, A. Co., 478. Blalock V. Seaboard A. L. R. Co., N. C, 607. Boggero V. So. R. Co., S. C, 639. Borgins v. Falk Co., Wis., 666. Buckley v. N. Y., etc., R. Co., Mass., 547. Camp Rincon v. Eshleman, Cal., 484. Cardinal, ex parte, Cal., 484. Ches. & O. R. Co. v. P. S. Comn., W. Va., 661, 663. are to pages.) Ches. & P. Teleph. Co. v. B. & O. Tel. Co., Md., 547. Chicago V. O'Connell, 111., 512, 519, 522. Chi. B. & Q. R. Co. V. Cava- naugh. 111., 512. Chi. B. & Q. R. Co. V. P, S. Comn., Mo., 560, 564, 570. Chi. & E. I. R. Co. v. P. U. Comn., 111., 524. Chi. M. & St. P. R. Co. V. P. U. Comn., 111., 513, 514, 515, 521. Chi. M. & St. P. R. Co. V. P. S. Comn., Ind., 524. Chi. & N. W. R. Co. V. R. Comn., S. D., 641. Chi. R. Co. V. P. S. Comn., Ind., 524. Chippewa & F. I. Co. v. R. Comn., Wis., 666. Christiansen v. Farmers W. Asso., N. D., 615. Civic & Com. Asso. v. Chi., etc., R. Co., Minn., 555. Clemmons v. R. Comn., Cal., 486. Cleve. C. C. & St. L. R. Co. v. P. U. Comn., 111., 522. Coal & C. R. Co. V. Conley, W. Va., 662. Connecticut Co., Re, Conn., 495. Coeur D'Alene v. P. U. Comn., Idaho, 505. 691 TABLE OP CASES FOE ANNOTATED APPENDIX. (References are to pages.) Corporation Comn. v. Railroad, I 111. C. R. Co. V. Paducah Brff. N. C, 607. Cullen V. Seaboard A. L. R. Co., Fla., 500. Co., Ky., 594. Industrial Siding Case, N. C, ° 607. Dawson v. Dawson Teleph. Co., International & G. T. R. Co. v. Ga., 505. R. Comn., Tex., 648. Denver & S. P. P. R. Co. v. Eng- elwood, Colo., 492. J E Emporia Teleph. Co. v. P. V. Comn., Kan., 535. Erie R. Co. v. P. U. Comn., N. J., 591, 593. L Express Co. v. Wil. & M. R. Co., ^aird v. B. & O. R. Co.. Md., Joest V. Clarendon & Pkt. Co., Ark., 484. Johnson v. Pac. P. & L. Co., Wash., 657. N. C, 607, F Farmers Elev. Co. v. C. R. I. & P. R. Co., ni., 516, 517. First Natl. Bk. v. Pac. Teleph. & T. Co., Oreg., 621, 625. Fla. E. C. R. Co. v. Fla., Fla., 500. G 547. Limoneiva v. R. Comn., Cal., 484. L. & N. R. Co. V. Finn, TJ. S., 594. Li. & N. R. Co. V. Distillery Co., Ky., 538. L. & N. R. Co. V. R. Comn., Fla., 503. Glen Rock M. Club v. Turnpike ^- ^ ^- ^- ^°- ^- ^- ^omn., V. Co., Pa., 627, 633. Grafton, etc., Co. v. State, N. H., 585. S., 538. Lukrawka v. Spring V. W. Co., Cal., 484. Gulf C. & S. R. Co. V. R. Comn., ^""^^ ^- Atkinson, Mo., 570. Tex., 649, 650. H Hocking V. R. Co. v. P. TJ. Comn., Ohio, 615, 616, 619. Hewitt Logg. Co. V. N. P. R. Co., Wash., 658. Holabird v. R. Comn., Cal., 491. M McCook I. & W. P. Co. V. Burt- less. Ark., 574. Marconi W. Teleg. Co. v. Com- monwealth, Mass., 549. Marsh Min. Co. v. Inland E. M. & M. Co., Idaho, 505. Hooper v. R. Comn., Cal., 491. Md. R. Co. v. Towers, Md., 547. Howell V. P. S. Comn., W. Va., Metzger v. N. Y. State Rys., N. 661. Y., 601. 692 TABLE OF CASES FOB ANNOTATED APPENDIX. (References are to pages.) Milbank v. Dak. Cent. Tel. Co., O S. D., 642, 645. qpJjo ^^^^^ ^ t. Co. v. Chi., etc., Milwaukee v. R. Comn., Wis., r. cc, Minn., 553. 666. Oro Blec. Corp. v. R. Comn., Milwaukee v. Dak. Cent. Teleph. Cal., 490. ' Co., S. D., 641. P Minn. St. P. & S. S. M. R. Co. pac. Teleph. & T. Co. v. Eshle- V. R. Comrs., N. D., 609, 614, man, Cal., 484. 615. Palermo L. & W. Co. v. R. Mollohan v. A. T. & S. P. R. Co., Comn., Cal., 484. Kan., 533. Passaic v. P. U. Comn., N. J., Mt. Knockti L. & P. Co. v. The- 592. len Cal. 487. Pensacola R. Co. v. State, Fla., Mt. Union v. Water Co., Pa., „ ^°°' „^. ^ „ ^ „27 fioo Peo. V. Chi., etc., R. Co., HI., 547. Minn. V. Illinois, U. S., 473. p^^ ^^ ^^j^ g^ ^y co. v. P. S. Murray v. P. U. Comn., Idaho, comn., N. Y., 601. ^^^- Peo., ex rel, Teleph. Co. v. P. S. Mut. Film Corp. v. Ind. Com., Comn., N. Y., 601. U. S., 549. Peo., ex rel., Gas Co. v. McCall, ^ N. Y., 601. Peterson, In re, N. D., 615. Nat. Dock & S. W. Co. v. B. & Patter v. P. U. Comrs., N. J., M. R. R., Mass., 550. 591. New Brittain G. L. Co. v. Root, Prentis v. A. C. L. R. Co., U. S., Conn., 495, 496, 497. 614. New Mex. Wool G. Asso. v. A. T. P- S. Comn. v. State, ex rel., Ind., & S. P. R. Co., N. M., 594. 524. Nelved v. C. M. & St. P. R. Co., P- «• Comn. v. Vandalia R. Co., S. D., 646. I'l'l-' 524. V- " ; T- 1.'- '- " " "m-"--'" " " "■ "' Comn., N. Y., 593. ^ ^ ^^^^^ ^^ ^^^ ^_ ^^ ^^^^ N. Indiana & M. T. Co. v. Teleph. gp^ Co., Ind., 528. p g comm. v. Helena, Mont., N. P. R. Co. V. North Dak., U. S., 571. 615. p. s. Elec. Co. v. P. U. Comrs., Norwalk, Appeal of. Conn., 497. N. J., 591. N. Wildwood V. P. TJ. Comn., N. P. S. Gas Co. v. P. U. Comrs., J., 591. N. J., 592. 693 TABLE OP CASES FOE ANNOTATED APPENDIX. (References are to pages.) P, S. Ry. Co. V. P. U. Comrs., St. Paul Asso. v. C. B. & Q. R. N. J., 591, 593. Co., Minn., 552. P. U. Comn. V. M. Refrig. Co., Scammon v. Am. Gas Co., Kan., III., 515. 533. P. U. Comn. V. Chi. & W. T. R. Settle v. P. V. Comn., Ohio, 619. Co., 111., 512, 521, 523. Seward v. D. & R. G. R. Co., N. P. U. Comn. V. Bethany M. T. M., 594, 597, 599, 600. Co., 111., 512. Shafor v. P. U. Comn., Ohio, 616. P. U. Comn. V. Noble M, Teleph. State v. A. C. L. R. Co., Pla., 498, Co., 111., 513. 499, 502, 503. State V. Pla. E. C. R. Co., Pla., •* 500. Raymond Lumber Co. v. R. L. & State v. Gt. Nor. R. Co., Minn., P. Co., Wash., 654. 555, 556, 557, 558. R. Comn. v. Ala. G. S. & R. Co., State v. L. & N. R. Co., Pla., Ala., 478. 499, 503. R. Comn. v. L. & N. R. Co., Ala., State v. P. S. Comn., Mo., 570. 478. State v. Somerville, Wash., 654. R. Comn. v. St. L. & S. F. R. Co., State, ex rel. Atty. Gen., v. Am. Ala., 478. Exp. Co., S. D., 641. R. Comn. v. Saline R. R. Co., State, ex rel, v. Atkinson, Mo., Ark., 483. 565. R. Comn. V. Gal. C. of C, Tex., State, ex rel. Webster, v. Sup. 648. Ct., Wash., 654. R. Comn. v. Weld, Tex., 649. State, ex rel, v. L. & N. R. Co., R. Comrs. v. A. C. L,. R. Co., Fla., Pla., 500. 503. State, ex rel, v. Pla. E. C. R. Co., R. Comrs. v. A. C. L. R. Co., S. Fla., 498, 499, 500, 501. C, 638. State, ex rel, v. Kan. P. Tel. Co., R. Comrs. v. Columbian, etc., R. Kan., 533. Co., S. C, 638, 640. State, ex rel. Comn. v. Minn. & Relief Elec, etc., Co., In re.. Pa., S. L. R. Co., Minn., 555. 632. State, ex rel, Comn. v. Dist Ct., Rochen v. Rysgate L. & P. Co.. Mont., 573. Vt., 652. State, ex rel, v. Landon, Kan., S 530. Santa Fe G. & M. Co. v. A. T. & State, ex rel, v. P. S. Comn., S. P. R. Co., N. M., 594. Mo., 563, 565. Sayers v. M. & W. R. Co., Vt., State, ex rel, Comn. v. Spokane, 654. etc., Co., Wash., 655. St. L. & S. P. R. Co. V. State, State, ex rel. Comn. v. Skaget, Ark., 483. etc., Co., Wash., 655. 694 TABLE OF CASES FOE ANNOTATED APPENDIX. (References are to pages.) State, ex rel, Railroad v. P. S. U Comn., Wash., 655, 657. union P. R. Co. v. P. U. Comn., State, ex rel., v. B. & O. R. Co., Kan., 530, 533. W. Va., 661, 662. United P. G. Co. v. P. S. Comn., Stow V. Pensacola & A. R. Co., W. Va., 662, 665. Pla., 500. y S. W. Teleg. & T. Co. v. Sharp Vandalia R. Co. v. P. S. Comn., & White, Ark., 483. Ind., 524, 526, 527. S. W. Teleg. & T. Co. v. Dana- Vandalia R. Co. v. P. S. Comn., her. Ark., 483. ^- ^^ ^^^^ ^2^- Van Dyke v. Geary, U. S., 479, 482. T Venner v. N. Y., etc., R. Co., N. T., 601. W Tallahassee O. Co. v. HoUoway, Ala., 478. Teleph. Co. v. Teleg. Co., Ohio, ^^^'ey So. R. Co. v. State, Ga., 616. Tex. P. R. Co. V. R. Comn., La., 540. Texarka. & P. S. R. Co. v. Sabine T. Co., Tex., 648. Thompson v. N. W. T., etc., Co., N. H., 586. Towers v. II. R. & E. Co., Md., 547. 505. Western Asso. v. R. Comn., Cal., 484. West Jersey & S. R. Co. y. P. U. Comrs., N. J., 591. Wis. Teleg. Co. v. R. Comn., Wis., 666, 670, 672. Wilcox V. Gas Co., U. S., 547. Woodburn City v. P. S. Comn., Oreg., 621. Y Turner Cry. Co. V. N. & S. P. R. Yancey v. Teleph. Co., Ark., Co., S. D., 641, 644. 433 Turtle Creek v. Water Co., Pa., York Water Co. v. York, Pa., 627. 627. 695 INDEX. (References are to pages.) A ALLNTJT V. INGLIS (1810). (12 Bast. 527.) (See Warehouses.) This case discussed and approved in Munn v. Illinois (94 U. S. 113), 91. ANTI-TRUST ACT. (See Monopoly.) ARTICLES OF GENERAL NECESSITY. (See Bread and Meat.) ARBITRATION, compulsory for interstate employes, 389. B BOLT V. STERRET (1800). 8 T. R. 606, cited and approved in Munn v. Illinois (94 U. S. 113), 91. BRIDGE. (See Highways; Public Interest Property Devoted to.) franchise needed to huild, 126. BURDEN OF PROOF, on owner of property in public employment, 98, 99. BREAD AND MEAT, regulation of dealers in articles of general necessity, 112. bakery business, rates fixed, 195. BUSINESS TAKING ON PUBLIC USE, regulation, 251. C CANAL, franchise for public navigation, 132. franchise for public irrigation, 135. CERTIFICATE OF CONVENIENCE AND NECESSITY, means of preventing interference of one utility with another, 462. and thereby regulating monopoly, 462. controlling utility preferable to unrestricted competition, 463. 697 INDEX. (References are to pages.) CERTIFICATE OP CONVENIENCE AND NECESSITY— Continued, public interest, 464. and investors protected, 466. competition unregulated, serious evil, 467. as, for example, in use of streets and highways, 468. privilege in use of highways, 469. instances of denial of, 470, 471. sufHciency and insufficiency of existing utilities, 471, 472, instances of grant of, 472. CHARTER. (See Franchise.) as contract free from impairment, 173. reservation of right to amend, 174. corporation chartered as common carrier, 214. as proof of public employment, 216. grants privilege and imposes duty, 220. basis of regulation, 223. test of duty in supplying facility, 307. COMMON CARRIER. (See Public Interest, Property Devoted to.) devoting vehicle to public use, 49. is insurer under policy of law, 50. affected with public interest, 105. holding out determinative of character, 106, 107. railroad' as, 140. street and suburban railway as, 143. regulation as public employment, 211. contracts with private person at arms' length, 213. corporation chartered as, 214. charter as evidence of holding out, 216. monopoly under anti-trust act, 218. COMMON LAW. (See Public Interest, Property Devoted to.)" classification of public uses, 20. ports as public landings, 35. rule of trinoda necessitas, 35. franchise public ports, 36. jus publicum, jus privatum and jus regium, 37. part of American law, 71. Magna Charta part of our, 81. discrimination in rates not forbidden by, 272. remedies against public employments, 65. 698 INDEX. (References are to pages.) COMMONS AND MARKETS, not those of feudal times, 21. no recognition in our law, 44. COMMON RIGHTS, things indestructible, 13. farming out to private individuals, 17. COMMUTATION RATES, special service by carriers, 291. COMPETITION. (See Monopoly.) control as between utilities, 463. so as to benefit public, 464. and insure investors, 465. effected by certificate of convenience, 467. for example, in use of streets and higbways, 468. CONGRESS, failure to act directly in discrimination, 368. CONSTITUTIONAL LAW, franchise obligation protected from impairment, 173. acts of Parliament fixing rates, 246. legislative rates subject to Fourteenth Amendment, 247. private interest in public service protected, 248. judicial review as to confiscatory rates, 250. and in imposition of penalties, 255. rates by statute or commission governed by, 259. delegation of power to commission is constitutional, 260. protection in valuation of property. excessive valuation opposed to due process of law, 319. no power in commission to proceed without notice and hearing, 440. orders of commission quasi-judicial, 441. CONTRACT. (See Charter; Franchise.) franchise free from impairment, 173. reservation of right to amend, 174. CORPORATION. (See Charter.) COTTON GIN. (See Grist- and Sawmills.) 699 INDEX. (References are to pages.) DISCRIMINATION. (See Reasonable Rates.) not forbidden at common law, 272. but opposed by American rule of uniformity, 274, and by anti-monopoly principle, 276. may be invoked by individual rate payer, 279. unlawful, includes giving of gratuities, 280. anti-monopoly principle embraces all public utilities, 281. statute powerless to confer, 283. though classification on reasonable basis allowable, 285. and discretion of utility must be granted, 287. lower rates permitted for special service, 288. commutation rate in special service, 291. and so party rate, 295. uniformity in furnishing facilities, 312. and in local interstate rates, 358. discrimination as burden on interstate commerce, 359. DRAINS AND LEVEES, general legislation provides for, 137. E EASEMENTS, on things of common right, 7. grantee takes with notice of trust in public, 14. which are farmed out by State, 15. are subject to eminent domain, 160. EIGHT-HOUR DAY. (See Employes of Carriers.) EMINENT DOMAIN, dormant power called forth by statute, 150. which statute is constitutional, 151. purpose, not use, test of exercise of right, 152. Federal power in exercise of right, 154. applies both to tangibles and intangibles, 157. but not to property presently devoted to public use, 158. easements on property subject to, 160. and franchises, 161. public use basis of right to exercise, 226. statute defines public use, 228. 700 INDEX. (References are to pages.) EMPLOYES OP INTERSTATE CARRIERS, regulation in interstate commerce, 370. safety appliance act, 371. protection of employes thereby, 371. congressional power to enact, 372 penal character of statute, 372. assumption of risk displaced, 373. hours of service act, 373. non-interference by State law on same subject, 374. applies to railroad in hands of receiver, 374. Employers' Liability Act, 375. statute remedial in character, 376. abrogates railway relief department, 377. acts operate prospectively and retrospectively, 377. bears on acts partly in State and interstate service, 379. but not where work is purely local, 380. Workmen's Compensation Acts not applicable, 381. but only to service wholly local, 383. supersedes State regulation, 383. dissenting opinion by Brandieis, J., 384. ocean carrier under Federal law, 385. eight-hour labor law, 386. relationship to interstate service, 386. discussion on constitutionality, 387. compulsory arbitration, 389. employes in industrial pursuits, 390. FACILITIES. (See Discrimination.) regulation in furnishing or requiring, 301. so that requirements be not unreasonable, 302. duty to furnish all necessary, 303. entailing expense not conclusive of unreasonableness, 303. except when not within absolute duty, 305. charter as test of absolute duty, 307. switching service at terminal, 311. uniform treatment of other utilities, 312. connections between telephone companies, 313. supplying private patron with, 314. local as burden on interstate commerce, 352. stopping interstate trains, 353. 701 INDEX. (References are to pages.) FACILITIES— Continued. substantial interference with commerce, 354. and where adequate facilities exist, 355. enjoining order of commission, 427. order of commission arbitrary may be enjoined, 446. FERRY. (See Highways.) franchise necessary to run, 123. FISHERY. (See Navigable Waters.) FORFEITURE, right to proceed for not excluding mandamus, 423. FRANCHISE, defined as to public callings, 122. exclusive privilege for ferry, 123. for public bridge, 126. for canal for navigation, 132. for canal for irrigation, 135. for railroad, 140. for street and suburban railway, 143. for lighting company, 146. for municipal water works, 147. subject to right of eminent domain, 161. distinguished from license, 165. monopoly under rightful, 169. but exclusive rights against public not favored, 170. secus against private persons, 171. contract protected by constitution, 173. except where reservation of right of amendment, 174. surrender by city of franchise right, 178. superseding city contract by commission, 180. GAS AND ELECTRIC COMPANY, (See Public Service Commission.) GERMAN ALLIANCE INSURANCE CO. V. LEWIS, ruling that insurance subject to regulation, 183. State cases in support of principle, 190, dissenting opinion by Lamar, J., 192. GRATUITIES. (See Discrimination.) 702 INDEX. (References are to pagei.) GRIST- AND SAWMILLS, common law regarding, 54. affected with public interest, 115. colonial history regarding, 116. cotton gin within principle, 117. H HALE'S PORTS OF THE SEA, wharf and crane of public interest, 92. devotion of property to public use, 201. HIGHWAYS, universal right of use, 19. nomen generalissimum, 23. includes usage, 23. cul-de-sac, 24. ferry, 24. turnpike, 26. river and tow paths, 28. public quay, 91. canal, 132. railroad, 140. street and suburban railway, 143. all affected with public interest, 103. whether by water or on land, 104. use controlled, 468. HOURS OF SERVICE ACT. (See Employes of Interstate Carriers.) INALIENABLE PROPERTY. (See Jus Publicum.) INDUSTRIAL PURSUITS, regulating hours of labor, 390. INJUNCTION, against void order by commission, 420. caution by courts in granting, 426. matter of wise discretion, 427. prior application to commission, 428. abuse of power by commission, 428. suspension of statutory penalties, 429. 703 (References are to pages.) INN KEEPERS, affected with public Interest, 110. duty to entertain all of public, 110. Insurers at common law. 111. policy of law in this regard, 112. INSURANCE. (See German Alliance Ins. Co. v. Lewis.) business affected with public interest, 117. magnitude and necessary relation to public, 118. ^ statute fixing rates constitutional, 185. public interest in, definite and special, 186. right of all to demand service not necessary, 187. right to regulate is in police power, 187. INTERSTATE CARRIER, constitutional limitation on regulation, 331. confiscatory requirement forbidden, 332. regulation by Congress exclusive, 334. concurrent action by States, 335. commerce act not applicable to street railway. direct burden on interstate commerce unconstitutional, 336. State and Federal regulation each independent, 337. low rates for one and adequate for another, 338. interblending where Congress does not act, 339, joint rates with connecting lines, 340. carrier participating in, becomes, 341. practical difficulties in local and interstate rates, 342. divided allegiance of carrier, 356. local rates working discrimination, 358. direction to carrier to adjust rates, 359. direct burden on interstate commerce, 360. power of Congress to so declare, 361. jobbers prejudiced by State rates, 364. scope of regulation, 366. purpose of commerce act, 367. local rates working discrimination, 368. inaction by Congress upon subject matter, 383. State Workmen's Compensation Act inapplicable. and so State eight-hour labor law, 386. INTERSTATE COMMERCE, exclusive control by Congress, 339, effect of local rates on, 340. through bills of lading, 341. 704 INDEX. (References are to pages.) INTERSTATE COMMERCE— Continued, indirect burden on, 344. tax on interstate railroad lawful, 344. Imposed on entire capitalization, 345. franchise on consolidated corporation, 346. inaction by Congress, 346. State's police power as to taxation, 347. indirect effect of police power, 348. intrusion by State law upon, 349. conflicting regulation by States of carrier, 351. local facilities required, burden on, 352. stoppage of interstate trains, 353. where burden is incidental only, 354. correlative local and interstate rights, 355. local rates working discrimination, 358. adjustment by carrier directed by interstate commerce commis- sion, 359. where conflict held direct burden on, 360. in discretion of Congress to declare substantial burden on, 361. removal by Congress of injurious discrimination, 362. local shippers prejudiced by discrimination, 363. purpose of commerce act to prevent discrimination, 367. employes in, 378. State Workingmen's Compensation Act excluded, 381. INTERSTATE COMMERCE COMMISSION, conferred power purely statutory, 405. delegation of power constitutional, 406. administrative control in England and in the States, 407. language conferring power must be clear, 408. jurisdiction a question of law, 409. proceeding upon complaint, 421. investigation of own motion, 427. J JUDICIAL REVIEW, all questions of law before commission subject to, 416. for example, establishment of a depot, 418. exhausting remedy before commission condition precedent, 438. no power to substitute another for a commission flnding in ques- tions of fact, 443. though statute may otherwise provide, 444. 705 INDEX. (References are to pages.) JUDICIAL REVIEW— Continued. prima facie correctness of findings by commission, 444. State courts follow Federal decision in alleged confiscatory rates, 445. and where orders are deemed arbitrary, 446. limitation in review is to afBrm or set aside order of commis- sion, 460. JURISDICTION OF COURT, not ousted by right of public oflScer to proceed for forfeiture, 437. municipality must first apply to commission, 438. JURY TRIAL, findings by commission no unlawful interference with, 448. same rule as in findings by ofiicers and special tribunals, 448. but notice and hearing required, 449. personal knowledge by commission not same as view by jury, 451. JUS PRIVATUM, cessation of as to ports and wharves, 37. doctrine by Lord Hale, 90, 91. JUS PUBLICUM, distinguished from jus privatum and jus regium, 37. emphasis by Lord Hale, 40. cessation of jus privatum, 47. carrier in public employment, 49. right is in inalienable property, 60. exists in people with trust in State, 61. soil between high and low water, 62. as protected for the common benefit, 75. navigable waters impressed with trust, 78. Magna Charta as guaranty, 79. public landings as to, 89. JUS REGIUM. (See Jus Publicum.) L LICENSES, imposed by law, 164. distinguished from franchise, 165. privilege under, not a franchise, 166. no evidence of public interest, 168. 706 INDEX. (References are to pages.) LIENS AT COMMON LAW, on goods in hands of common carrier, 65. procedure in enforcement, 66. LOCATION OF BUSINESS. (See Public Landings, Stockyards, Warehouses.) M MAGNA CHART A, "Palladium of English Liberty," 79. relates to fundamental rights, 80. and applies to this country, 80. forbade exclusive fishery under royal grant, 81. corresponds to phrase "due process of law," 81. MANDAMUS, to enforce orders by commission, 421. but not as to continuing duty by utility, 422. nor where it has no power to comply, 423. not forbidden where State o£9cers may substitute proceeding for forfeiture, 423. may issue as to ministerial duty, 424. but not where there is discretion, 425. order to within relief prayed, 425. MAXIMUM RATES. (See Reasonable Rates.) MODERN BUSINESS, classification as affected with public interest, 139. necessity of franchise for railroad, 140. for street and suburban railway, 143. for gas and electric companies, 146. and for municipal waterworks, 147. MONOPOLY, against freedom of trade, 7. exclusive right not always monopoly, 9. because not odious, 11. may be legal or virtual, 92. and this to impress on property a public interest, 92. virtual monopoly arises out of the way property is circum- stanced, 92. thus, a warehouse for grain so as to stand at a public landing place, 93. 707 INDEX. (References are to pages.) MONOPOLY— Continued. and a tobacco warehouse, 94. and a stockyards, 95. and wharves, docks and piers, 43-96. franchise may legalize, 169. but exclusive rights against public not favored, 170. virtual and legal distinguished, 42-20S. anti-trust act as to public service company, 218. anti-monopoly principle forbids discrimination, 276. in public utility monopoly specially odious, 462. certificates of convenience and necessity opposed to, 463. controlled monopoly preferred to unrestricted competition, 464. (1) MUNICIPAL CORPORATIONS. (See Public Service Commission.) may regulate water companies, 401. rates fixed by prima facie correct, 415. ■where public service commission supersedes, then application to latter, 438. (2) MTJNN V. ILLINOIS (94 U. S. 113). Cited on pages 19, 35, 66, 90, 98, 107, 112, 125, 182, 232, 244, 246, 317, 392, 461. because of the jus publicum theory it establishes, 89. from which regulation of utilities has been developed, 182. and it has been entitled a "Landmark case," 183. N NAVIGABLE WATERS. (See Jus Publicum; Highways.) American common law regarding, 74. fishery in river ancient right, 74. drawing seines as interference with, 75. soil below high-water mark publici juris, 75. Magna Charta enforcing ancient rights in, 76. right of Crown to grant exclusive rights in, 77. American view of jus publicum in, 77. pollution of non-navigable as distinguished from, 78. may be used to carry off refuse and filth, 79. no distinction in American law between fresh and salt, 81. test in navigability, 82. floating stream in, 83. Magna Charta forbids nuisances in, 84. floatable streams not recognized in England, 85. 708 INDEX. (References are to pages.) NAVIGABLE WATERS— Continued. may be declared public highways for rafts, 85. if there is servitude of public interest streams are, 86. common law does not embrace lakes, 87. the "Great Lakes" in America are, 87. and fishing therein is free, 88. and also in "Great Ponds" in Massachusetts, 88. "jus publicum," applies to landings on, 89. the same as to common carriers, 91. and warehouses in a port, 93. and where there is virtual monopoly, 94. and to stockyards, docks and piers, 96. all such property affected with public interest, 98. NOMEN GENERALISSIMUM, term applicable to highways, 23. and to turnpike road, 27. NOTICE AND HEARING, public service commission must give, 438. as function is not purely legislative, 439. no power to vest jurisdiction without, 440. all essential rights of utility preserved, 455. opportunity for cross-examination necessary, 456. commission not court, but body of experts, 457. PARKS AND RECREATION GROUNDS, dedication is for public purpose, 21. in feudal law a right or profit in land, 21. public spring treated as a common or park, 22. parks at common law, 45. PENALTIES, excessive may be arbitrary and unconstitutional, 255. especially when deterrent in effect, 256. but not when good faith in attacking is non-existent, 258. suspension of, while injunction is pending, 429. and not imposed as to current violations, 429. PHYSICAL CONNECTIONS. (See Facilities.) • 709 INDEX. (References are to pages.) POLICE POWER, principle of regulation in, 182. of which business in insurance is example, 185. broad definition by U. S. Supreme Court, 187. exemplified in fixing weight and price of bread, 195. and compelling street cars to carry policemen free, 197. fixing zones between State and National power, 348. intrusion of State on Federal power, 349. no prevention where Congress is inactive, 349. local facilities as burden on Federal power, 352. for example, stoppage of interstate trains, 353. (1) PRIOR RESORT TO PUBLIC SERVICE COMMISSION, remedy to be exhausted before resort to court, 431. rule as well to interstate commerce commission, 432. otherwise commerce act is self-destructive, 433. and its enforcement without unlawful discrimination, 434. rule in judicial review, 435. (2) PROPERTY. (See Public Interest in Property Devoted to.) all interests and rights in subject to eminent domain, 157. POLITICAL ACTIVITIES. (See Interstate Commerce Commission.) expenditures for, inquired into, 429. PUBLIC INTEREST, PROPERTY DEVOTED TO. (See Common Law; Public Landings.) bridge as part of highway, 23. canals same as ferries, 32. carrier in public employment, 42-49. ferry exacting common charge, 24. innkeeper holding self out to public, 54-110. gristmills exacting tolls, 54-116. insurance under police power, 57-117. ports and wharves under royal control, 36-40. business with virtual monopoly, 42. warehouse given exclusive right to bond goods, 41. commons and markets, 45. parks and recreation grounds, 46. bakery and butchers in colonial law, 58. basis of right in rate making, 200. 710 INDEX. (References are to pages.) PUBLIC LANDINGS, location as test of public interest in, 74. for example, bank of navigable stream, 76. warehouses likened to ferries and public mills, 90-92, stockyards under same principle, 94. ■wharves and docks, 96. location compelling resort to, 251. PUBLIC RIGHT, prima facie in wharves, docks and piers, 96. but if private convenience this is rebutted, 97. PUBLIC SERVICE COMMISSIONS, vesting regulation as affecting contract rights, 180. delegation of power constitutional, 260. examples in delegation to boards and municipalities, 261. but the delegation is not of purely legislative power, 262. though it may be in the nature of such power, 267. but if State constitution permits, there is no hindrance, 269. regulation subject to due process of law, 391. origin in American law of railroad commissions, 392. constitutionality of delegation of power discussed, 393. extension to utilities generally, 394. public character of railroads subjecting them to regulation, 395. inability of legislature to deal directly with regulation, 397. character of administrative bodies, 398. regulation applied to gas and electric companies, 399. and water companies for domestic purposes, 400. and for irrigation of land, 401. for storage, refrigeration, etc., 402. for heating and light plants, 403. express grants of statutory power, 404. strict construction of statute, 405. questions of law jurisdictional, 410. findings of fact prima facie correct, 410. conferring three-fold power, 411. if State constitution permits, no hindrance in Federal law, 412. experience as test of constitutional regulation, 413. evidence clear to overturn findings by commission, 414. or where ordinance by city prescribes, 415. commission not exclusive judge of its own jurisdiction, 416. record must show jurisdiction, 417. order beyond power to make, 419. enjoining void order, 420. 7H INDEX. (References are to pages.) PUBLIC SERVICE COMMISSIONS— Continued, tribunal body of experienced men, 420. application to court to enforce order, 421. investigation upon complaint, 421. investigation on motion of commission, 429. political activities by railroad, 429. necessity of notice and hearing, 438. no power to vest conclusive powers In, 440. notice to utilities in fixing rates, 441. action by commission quasi-Judicial, 441. acts same as direct legislation, 442. findings of law reviewable by court, 442. but no substitution of commission's findings of fact, 443. burden of proof on objector to orders, 447. not unlawful interference with jury trial, 448. findings without evidence unconstitutional, 449. technical rules in procedure not required, 454. but substantial evidence necessary, 455. takes place of direct legislation, 458. commission a body of experts, 459. PUBLIC USE. (See Public Landings.) public landings affected by, 89. warehouse as public landing, 93. stockyards the same, 94. and warehouses, docks and piers, 96. RAILROADS. (See Highways; Public Service Commission.) common carriers, 140. commerce act applicable to interstate railroads, 333. concurrent action by states over bridge where used, 334. commerce act not applicable to street railroads, 335. regulation by Congress paramount, 336. RATE MAKING. (See Discriminations.) based on public interest in property, 198. principle deduced from common law, 200. enumeration of businesses subject to, 201. discrimination in forbidden, 397. schedules subject to judicial review, 452. rate regulation by commission like legislation, 453. but has none of the qualities of res judicata, 453. 712 INDEX. (References are to pages.) REASONABLE RATES. (See Discrimination.) what is, legislative question, 231. instances in fixing legislative, 233. all subject to judicial review, 234. rates established by utility and by law, 235. schedules by legislation directly or mediately, 236. regulation by courts of rates fixed by law, 237. experience as test of reasonableness, 239. charter as basis for fixing rates, 241. rates for drays, ominibusses, etc., 242. those fixed by law prima facie correct, 259. classification in rates permissible, 283. discrimination between local and interstate rates, 358. courts may inquire into schedules, 452. REFRIGERATION. (See Public Service Commission.) RIVERS AND TOW PATHS. (See Highways.) S SAFETY APPLIANCE ACT. (See Employes of Interstate Car- riers.) SCHEDULES. (See Reasonable Rates.) SERVICE. (See Jus Publicum.) compulsory by utility, 100, 101. commutation rate as special, 291. and so party rate, 295. uniformity in granting, 312. TECHNICAL RULES. (See Public Service Commission.) strict observance of in procedure not required, 452. but there must be substantial evidence, 455. TELEGRAPH AND TELEPHONE COMPANIES. (See Facilities.) TOLL ROADS AND TURNPIKES. (See Highways.) V VALUATION OP PROPERTY, historical review, 317. criterion for rate-making purposes, 318. 713 INDEX. (References are to pages.) yALUATION OP PROPERTY— Continued, "fair value" as rule, 319. which is dependent on circumstances, 320. thus on earning capacity, 321. "going value" to be deducted, 322. business sagacity as element, 323. valuation of established plant, 324. liberality in valuation as public policy, 325. variant rules as to different utilities, 326. experience as test in valuation, 328. materiality of opinion evidence, 330. W WAREHOUSE. (See Monopoly; Stockyards.) doctrine in Allnut v. Inglis, 41. virtual monopoly in location, 93. stockyards controlled by same principle, 94. WATER COMPANIES. (See Public Service Commissions.) WHARVES, DOCKS AND PIERS. (See Public Landings; Navig- able Waters.) WORKMEN'S COMPENSATION ACTS. (See Employees of In- terstate Carriers.) compulsory arbitration constitutional, 382. federal court no jurisdiction under, 382. not applicable to employes of interstate carrier, 383. .714 INDEX TO NOTES IN APPENDIX. (References are to pages.) ALABAMA. DEDICATION TO PUBLIC USE, ginning cotton for public, 478. PUBLIC SERVICE COMMISSION, delegation of authority to constitutional, 475. but under statute this authority advisory only, 475. has authority to declare whether sale of utility is lawful, 475. authority to fix maximum rates prevents railroad cancelling them in vacation, 475. JUDICIAL REVIEW, unless order clearly unjust, upheld, 478. evidence not reported where inquiry is of jurisdiction, 478. JURISDICTION OF COMMISSION, no power to make order without hearing evidence, 478. where there is jurisdiction, presumption that orders are rear eonable, 478. ARIZONA. DEDICATION TO PUBLIC USB, utility supplying water to part of town site valuation, 479. where fair-minded board would uphold judgment of board affirmed, 482. ARKANSAS. COMMON CARRIER, inclined/ plana for carrying cargoes to vessels, 483. CALIFORNIA. CONFERRED POWER, strict construction of statute, 484. CONTRACTS, come under regulation, 484. 715 INDEX TO NOTES IN APPENDIX. (References are to pages.) DIRECTORY PROVISION, not jurisdictional, 487. DEVOTION TO PUBLIC USE, does not exclude private management, 484. rates of irrigation company controlled, 484. telephone company at resort for public entertainment, 484. jitney busses not arbitrary classification, 484. JUDICIAL REVIEW, prior application to commission condition precedent, 486. findings of fact not subject to, 490. nor interlocutory order, 491. nor order as to priority between consumers, 491. PROCEDURE, signing petitions by individuals mandatory, 483. RULES BY UTILITY, reasonable, bind subscriber to telephone, 483. paying charges or extending credit, 483. FACILITIES, absolute duty, though entailing loss, 483. order for extension to be reasonable, 484. COLORADO. JURISDICTION BY COMMISSION, municipality confers no vested right where without express power to contract, 492. CONNECTICUT. JUDICIAL REVIEW, administrative orders supported by evidence not subject to, 497. nor where future prospects are considered, 497. JURISDICTION OF COMMISSION, entertaining petition for extension of service, 495. determining number of tracks on bridge, 495. PROCEDURE, technicalities not observed, 496. FLORIDA. BURDEN OP PROOF, to show discrimination is on utility, 500. on utility to show rate unremunerative, 503. 716 INDEX TO NOTES IN APPENDIX. (References are to pages.) CONFERRED POWER, statute strictly construed, 498. but enumeration of powers not required, 498. arbitrary power not granted, 498. making schedules, within conferred power, 499. but no power to make rates to particular persons, 499. EXPERIENCE, necessary to show rates confiscatory, 500. JUDICIAL REVIEW, exercise of discretion subject to, 499. but not where no evidence to support burden of proof on utility, 499. where there may be difference of opinion, 500. order without evidence set aside, 501. no interference unless invalidity clearly appears, 503. constitutionality inquired into, 603. NOTICE AND HEARING, without, no presumption of reasonableness, 601. and where no opportunity for is given, 501. PROCEDURE, specific complaint not necessary to initiate proceedings, 499. admissions in pleadings may show unreasonableness, 500. REGULATION, court will decide on pleadings, 502. common carrier assumes burden of, 499. SCHEDULES, presumption of correctness, 500. SPECIAL SERVICE, charge for not confined to actual cost, 500. GEORGIA. DELEGATION OF POWER, held constitutional, 605. NOTICE AND HEARING, " ' must be given by rule of commission, 505. IDAHO. CONFERRED POWER, no concern in payment of exorbitant salaries, 505. 717 INDEX TO NOTES IN APPENDIX. (References are to pages.) EMINENT DOMAIN, property not presently used may be taken, 505. FINDINGS OF FACT, all prima facie correct, 611. JUDICIAL' REVIEW, court prescribe rules in valuation of property, 511. and set aside rates when not properly based on facts, 511. ILLINOIS. BURDEN OF PROOF, on utility to show confiscatory requirement, 522. CONFERRED POWER, must be in specific terms, 512. and cover property within jurisdiction, 512. except where telephone companies have interchange of ser- vice, 513. not similar service in interstate transportation irrelevant, 513. commission must act within, 524. delegation of power constitutional, 524. EMINENT DOMAIN, commission exercise right of for public safety, 512. and generally in regulation, 512. not taking without constitutional authority, 512. FINDINGS BY COMMISSION, prima facie correct, unless arbitrary, 521. must be based on evidence, 523. and this must be substantial, 523. JUDICIAL REVIEW, court cannot substitute its judgment, 522. must afiirm or set aside order, 522. must follow statutory method, 522. JURISDICTION, order by commission without evidence, 512. and where court has passed on questions to the contrary, 512. NOTICE AND HEARING, where change in voluntary rates necessary, 515. but voluntary rates conclusively reasonable, 515. notice to file schedule not fixing of rates, 515. findings without notice are void, 516. for preliminary hearing not necessary, 517. 718 INDEX TO NOTES IN APPENDIX. (References are to pages.) PROCEDURE. under general prayer for relief, technicality not considered, 513. nor when utility brings about hearing, 513. or appears and offers evidence, 514. findings need not recite reasons, 515. application for rehearing necessary, 519. SUPERSEDING MUNICIPALITY, contract between city and street railway, 512. nor when made under local authority, 512. INDIANA. CONFERRED POWER, acts must be within statutory grant, 524. delegation constitutional, 524. JUDICIAL REVIEW, acts within statute upheld, 524. even though subject is complex, 526. if particular rate, not subject of review, 527. NOTICE AND HEARING, due process wanting when not given, 527. PROCEDURE, appeals not taken piecemeal, 528. rehearing must be asked, 528. IOWA. (no procedural sections in law and no notes of cases given.) KANSAS. CONFERRED POWER, no express grant as to railroad crossings, 530. but there is as to rates for natural gas, 530. and to prevent discrimination, 533. JUDICIAL REVIEW, none as to purely administrative matters, 533. cannot by resort to injunction exercise, 535. RATES, test of confiscatory rates, 535. 719 INDEX TO NOTES IN APPENDIX. (References are to pages.) KENTUCKY. JUDICIAL REVIEW, limiting evidence to that before commission constitutional, 538. LOUISIANA. JUDICIAL REVIEW, findings before commission conclusive, 540. MAINE. CONFERRED POWER, depends on statute, 541. DISCRIMINATION, not to furnish free water to the public, 543. MARYLAND. DISCRIMINATION, utility must not permit, 547. FACILITIES, may require only such as are necessary, 547. FINDINGS, prima facie correct, 547. INJUNCTION, rate in force until test is made, 547. INTERSTATE RAILROAD, must apply for leave to create indebtedness, 547. MASSACHUSETTS. CONFERRED POWER, ample to prevent discrimination, 550. DISCRIMINATION, common carrier to serve all alike, 549. this applies also to telegraph company, 549. and to absorbing of switching rates, 550. MICHIGAN. (statute does not present procedural rules, and no notes to cases are given.) 720 INDEX TO NOTES IN APPENDIX. (References are to pages.) MINNESOTA. CONFERRED POWER, no standard as to rates except reasonableness, 662, can order building of new depot, 562. and provide industrial tracks, 552. and order improvements and facilities, 564, constitutional delegation, 558. DISCRIMINATION, In granting facilities unlawful, 555. FINDINGS, being subject to appeal no invalidation, 56&^ if opposed to public policy unreasonable, 557. are by commission enforced by experience, 557. JUDICIAL REVIEW, court cannot substitute judgment, 657. MISSISSIPPI. (no procedural rules are given by statute and no cases are cited.) MISSOURI. AUTHORITY OF COMMISSION, not legislature or court, 560. findings like those of master in chancery, 560, 665. and subject to be set aside when not supported by preponder- ance of evidence, 660, 565. DISCRETION, large in fixing raties, 663. FACIUTIES, not to be denied because involving loss, 565. JUDICIAL REVIEW, no conclusiveness in findings, 570. decision later shaken, 570. RATES, actual test determines reasonableness, 566. MONTANA. CONFERRED POWER, not "special commission" under constitution, 671. 721 INDEX TO NOTES IN APPENDIX. (References are to pages.) FINDINGS, conclusive as to rates only, 573. MUNICIPALITY, indebtedness created by does not oust commission, 571. NEBRASKA. IRRIGATION COMPANY, common carrier subject to regulation, 574. NEW HAMPSHIRE. AUTHORITY OP COMMISSION, regulates utilities, not corporations as such, 585. does not supersede other consistent legislation, 586. JUDICIAL REVIEW, court may regard weight of evidence, 589. NEW JERSEY. CONFERRED POWER, may not decree specific performance, 591. but may abrogate contracts of utility, 591. may fix compensation for county bridge, 591. and regulate easement of railway crossing, 591. provide against danger thereat, 591. but may not condemn property for park development by car- rier, 591. test of delegable powers, 591. JUDICIAL REVIE5W, certiorari by municipality appropriate for, 592. order not disturbed unless unreasonable or not justified in law, 593. court may not modify order, 593. unnecessarily harsh requirement subject to, 593. or when slight change may sulRce, 593. order involving expense not subject to, 593. NEW MEXICO. CONFERRED POWER, arbitrary power is not conferred, 594. may require installation of stock sales, 594. but to control rates no power to grant separation, 594. 722 INDEX TO NOTES IN APPENDIX. (References are to pages.) JUDICIAL REVIEW, reasonableness of rate judicial question, 597. may decide findings on merits, 600. remand may be for further evidence, 600. NEW YORK. COMMISSION STATUTE, purpose assumes special knowledge by commission, 601, CONFERRED POWER, none in action for damages by passenger, 601. no exercise of judicial functions, 601. ESTOPPEL, technical objections must be raised before commission, 601. FRANCHISE, accepted ordinance no protection in fixing rates, 601. JUDICIAL REVIEW, findings supported by evidence a£Brmed, 604. and where not clearly unreasonable, 604. RATES, burden of proof on objector, 603. commutation rates for utility to fix, 603. NORTH CAROLINA. CONFERRED POWER, delegation constitutional, 607. DISCRIMINATION, excess of local over interstate not proof of, 607. NORTH DAKOTA. CONFERRED POWER, constitutional, though function be technically legislative, 609. JUDICIAL REVIEW, that discretion exists no denial of appeal, 614. and where there is retrial by court jurisdiction is appellate, 614, OHIO. COMPENSATORY RATE, no power to fix other than, 615. 723 INDEX TO NOTES IN APPENDIX. (References are to pages.) CONFERRED POWER, to require adequate facilities, constitutional, 615. no po-wer to compel physical connection between telephone companies, 616. EXCESSIVE REGULATION, to furnish facilities causing loss, not, 616. OKkAHOMA. (neither by constitution or statute are given rules of procedure and no cases are cited.) OREGON. CONFERRED POWERS, commission succeeds city as to rates, 621. JUDICIAL, REVIEW, courts no original jurisdiction in regulation, 621. PRIOR RESORT TO COMMISSION, condition precedent to injunction, 625. PENNSYLVANIA. BURDEN OF PROOF, on objection to show unreasonableness, 632. DESIGN OF COMMISSION STATUTE, to exercise police power which city cannot, 627. FACILITIES, that expenditure for will exhaust income no objection to order, 627. JUDICIAL REVIEW, where complaint dismissed on specific ground, remand, 633. ORDINANCE OP CITY, acceptance by utility no bar to regulation, 627. PERMIT FOR, extension by city not begun must be applied for, 627. RECONSTRUCTION OF TURNPIKE, order valid only as to part in bad condition, 633. RHODE ISLAND. (no decisions reported.) 724 INDEX TO NOTES IN APPENDIX. CR«fereirces are to pages.} SOUTH CAROLINA. DEXiEGATION OF EOWER, constitutional, 638. not exclusive of cities -within limits, 639. NOTICE AND HEARING. must be given, 639, 640. PENALTIES, the commission act not authorizing suit for, 640. SOUTH DAKOTA. CONFERRED POWER, commission administrative body, 641. no right to enforce rates not denial of express power to make, 641. FACILITIES, requiring connection with other utility, constitutional, 641. INTERSTATE COMMERCE COMMISSION, may remove discrimination between local and interstate rates, 641. JUDICUL REVIEW, none from finding on evidence submitted, 645. none except on record before commission, 645. no reversal save when finding not based on fact, 646. JURY TRIAL, none in reparation case, 645. RATES, lower state than interstate rate no proof of unreasonable- ness, 644. TELEPHONE COMPANY, subscriber may begin proceedings against, 643. TENNESSEE and VIRGINIA. (no cases, because no procedural rules given by statute.) TEXAS. BURDEN OF PROOF, on objector to rates, 649. DELEGATION OF POWER, constitutional, 648. 725 INDEX TO NOTES IN APPENDIX. (References are to pages.) JUDICIAL REVIEW, findings supported if not unjust or unreasonable, 648. if involving penal consequences, strictly construed, 648, 649. REASONABLE RATES, those not compensatory are, 649. but long test not conclusive, 649. VERMONT. COURTS, jurisdiction not ousted in contract matters, 652. DELEGATION OP POWER, constitutional, 652. WASHINGTON. CONFERRED POWER, strict construction, 655. none to establish rule as to money judgment, 657. CONTRACT OBLIGATION, city franchise not protected, 654. but it is subject to future regulation, 654. and does not prevent advancing rates, 654. DELEGATION OF POWER, authorized by state constitution, 654. as -where it covers demurrage, 654. and vests in it judicial powers, 654. or the exercise of police power, 654. DISCRIMINATION IN RATES, commission may direct cessation where rates lawful when made, 654. or it may remove by order, 654. DUE PROCESS OF LAW, no want of in directing joint through rates, 655. NOTICE AND HEARING, no power to fix joint rates without, 655. PRIOR APPLICATION TO COMMISSION, condition precedent to review, 658. WEST VIRGINIA. APPEAL, may be denied as to particular matter though allowed gener- ally, 661. 726 INDEX TO NOTES IN APPENDIX. (References are to pages.) FACIUTIES, requiring must not interfere with interstate commerce, 661. DELEGATION OP POWER, to make maximum rates constitutional, 661. but equity may enjoin as confiscatory, 662. but statute may compel prior resort to commission, 662. right of review not essential, 662. SPECIAL SERVICE, causing pecuniary loss not test of confiscation, 663. JUDICIAL REVIEW, questions of expediency not reviewable, 662. nor as to any order purely administrative, 665. no substitution of commission's judgment, 665. WISCONSIN. CONFERRED POWER, none of legislative or judicial power, 666. statute strictly construed, 666. but police power is conferred, though causing substantial loss, 666. lawful to apportion expense of repairing railroad grades, 666. PHYSICAL CONNECTION, lawful to require additional charge for, 670. FINDINGS, must be evidence to support, 672. conflict in evidence finding approved, 672. WYOMING. (no cases cited.) 7271