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the railroad companies that the act referred to is in violation of their chartered rights and that the same is unconstitutional and therefore void.
On the part of the complainant nine witnesses were examined. On the part of the defendant companies no testimony was offered, nor was any argument made. The order of the commission was based upon the case as presented by the complainant.
The appeal, when it comes to be heard in the district court, involves the necessity and expense of taking over again all the testimony offered at the hearing before the commission, and such other evidence as the defendant companies may conclude to produce.
This is another instance of the imperfection of our laws with reference to hearings before the commission. It is the opinion of the commission that the procedure in the courts to enforce the orders of the commission should be based upon the pleadings and record of the testimony taken at the hearing before the commission. In such case the common carrier, opposing the complaint, would be compelled to disclose his case at the hearing before the commission. This would confine and limit the inquiry of the courts to the record of the testimony and pleadings actually made before the commission.
The present procedure to enforce the orders of the commission involves vexatious delays and great expense. The commission is of opinion that no injustice can be done the carriers by a provision of law that the case heard by the court upon application for the enforcement of the commission's orders should be the case, and the only case, which the parties chose to make in the first instance before the commission. The parties to a complaint heard by the commission should be compelled to make their whole case at the first and original hearing, and not be allowed to make a new and different case before the court, on an appeal, that has never been submitted to the commission before issuing the order sought by the proceedings in court to be enforced.
The commission which is directed by the statute to make an investigation and an order thereon should have the benefit of all the evidence upon which to base an order, that the court has when passing upon the validity of that order. Without this the aim of the law to create a speedy and economical remedy is made of no effect.
The Steenerson rate case, now pending in the supreme court of this state, is another illustration of the necessity for the proposed change. The case originally heard by the commission involved
the presence of many witnesses, summoned from widely separated portions of the state, at great expense, and a cost of no little time and labor. The cominission based its order upon the record made before it. From this order the company appealed to the district court of Ramsey county. The witnesses were again summoned, and at least ten days were spent in hearing testimony. The district judge ruled against the order, and the case is now in the supreme court, testing the validity of an order made by the commission, not upon the record, testimony, and the pleadings made before the commission, but upon the record and testimony as it was submitted in the district court. In cases of appeal to the district court from the orders of the commission the case made before the commission is the case the court should pass upon with the purpose of determining whether the order made is reasonable, and not a case that may be made in the district court by showing that the order is not valid, or upon the basis of other grounds not presented to or considered by the commission.
The act of congress to regulate commerce between the states has the same course of procedure with reference to enforcing the orders of the interstate commission.
The interstate commerce commission have experienced in their administration the same difficulty as this commission herein calls attention to, and have recommended to congress an amendment to the federal law which will remedy the evil.
In our report for 1891 the commission made this reference to the general subject, viz.:
It is necessary often to repeat the fact that the commission is solely the creation of the statute; that it has no jurisdiction or powers except such as it is clothed with by law, and that it cannot act in any other manner than the law prescribes. It is without power to enforce its own orders or to punish their violation.
When the commission has exhausted its powers of persuasion in any given case with the managers of railways, and finds itself forced to procced to the extremity of an order, which is disregarded and not obeyed, it is compelled to go to the courts of the state, who alone are authorized to give force and effect to such order.
This makes it necessary for the commission to make such a presentation of the facts in any given case to the court as will justify the order. The commission has not only to be satisfied itself that its order is proper and reasonable, but it must be in a position to satisfy the court of this, in a legal and proper way.
Hence, the necessity of using great care in the investigations which we are from time to time called upon to make.
Under the statute there are two kinds of orders which the commission may make; one, administrative orders, with reference to repairs upon roads, or additions to or changes in stations or station houses, or changes in modes of operating roads or conducting business so as to promote the security, convenience or accommodation of the public; these are orders under section 10 of the act of 1887, and may be made, after investigation based upon the complaint, or after inquiry, which the commission may make upon its own motion.
As the commission understands the decision of the supreme court in the so-called sleeping-car case, orders made by it under this section cannot be appealed from by the railroad companies. The commission, however, in case its orders under this section are not obeyed, must cause suits or proceedings to be instituted to enforce its orders. When it is compelled to do this, it follows that when suits and proceedings are instituted, the companies may interpose their defenses, and the commission then is in the position of any other litigant; it has got to make out a case, by legal and competent testimony, and must show to the court that its order is made within its jurisdiction, and that it is a reasonable and proper order.
It is manifest that a scheme of regulation which is attended by so much uncertainty and embarrassment in the enforcement thereof is not adequate to produce such results as will be effective or satisfactory to the public.
The carrier can ignore the findings and order of the commission, and wait for a new trial in the courts, in a proceeding to be instituted and carried on by the commission. Until the judgment of a court of last resort is pronounced the order does not become effective, and the delay caused by this substantially defeats the remedy. It is suggested that if the law could be so changed as to make the proceedings before the commission summary, and a finality so far as taking further testimony is concerned, leaving only questions of law for review at the instance of the aggrieved party, it would be in harmony with the spirit of the law and more effective for regulation and control.
The interstate commerce commission in its last annual report, referring to this subject, comments as follows:
“When, however, the questions passed upon by the commission are purely administrative, it seems plain that the conclusions should be a finality, even though their enforcement may require judicial aid. It is neither consistent with the ordinary jurisdiction of courts that they should take up questions for original consideration when they are purely administrative, no: could their doing so be made to harmonize with the purpose of the law. Indeed if the courts might be appealed to to consider the question anew the very delay that must attend a contest over them in the courts would almost necessarily be such as to make any attempt to enforce the law of very little value; the proposition, therefore, that administrative decisions should carry no more than prima facie authority is as mischievous in practice as it is erroneous in principle."
The other orders which may be made by the commission, are under section 13 of the act of 1887, and are orders affecting the revenues of the railroad companies.
The supreme court of the United States in the so-called milk mate case has held that these orders can only be made after a hearing by the commission, of which both parties shall have due notice, and the orders so made by the commission are appealable from by the companies themselves,
In such case the commission is also called upon to justify in court its order by legal and competent testimony. The burthen is thrown upon the commission. It must know definitely what it can prove and by whom, who the witnesses are, where they reside, and what they will testify to.
The statute, too (section 13), contemplates a complaint made to the commission. This is a prerequisite, and is the basis upon which the commission acts.
It is a common criticism of the commission, often made by those who are not familiar with the laws, that in such cases the commission will not move without a complaint. Our view of the law is, that we cannot act unless complaint is filed as this statute requires.
It is interesting and of practical importance to note here a decided difference between the interstate commerce act and the act under which this commission is organized, with reference to the power and authority of the commission, to move of its own motion and without complaint in cases similar, under section 13 of our act.
Section 13 of the interstate commerce act contains the following clause: *Said commission * * * may institute any inquiry of its own motion in the same manner and to the same effect as though complaint had been made."
The first part of section 13 of our own state act is identical, word for word, with but a single exception, with section 13 of the interstate cominerce act, but the paragraph above quoted from the congressional act giving. the commission power “to institute an inquiry upon its own motion" is omitted altogether from our state act.
Whether this omission was accidental or designed the commission has no means of determining, but the omission is significant, and in our opinion limits our jurisdiction in such cases to instances where complaint is made as specified by the law.
The law defining the powers and authority of the commission, both in respect to administrative and judicial orders, has very carefully defined and circumscribed our action, and much of the criticism devoted to the commission and its action under the law would more properly be devoted to the law itself.
The commission is led to make these remarks for public consideration and discussion, and not from any disposition to find fault with the law itself or with the remarks which are frequently made with reference to our action under the law.
It is not to be supposed that such a law in its first inception should be at all perfect, or 'that in its workings it should meet the just expectations of those who framed it; but in process of time, through the actual experience which comes from practical adininistration, we shall be able to remedy defects that are found to exist, and enact amendments that will perfect and complete that state control and restraint of common carriers which the law was framed to secure.
We are of opinion that the procedure by the courts to enforce orders of the commission should be confined to the record made up of the pleadings and testimony taken before the commission, and that the order of the commission should be enforced by the courts unless it is made to appear affirmatively from the record made before the commission that some material error prejudicial to the carrier has been committed.
With this report is the draft of an amendment to the general railroad law of the state (section 22) which is intended to give effect to the views herein expressed. The commission earnestly recommend the adoption of this amendment.
There are a number of points, like Hanley Falls, where railroads in this state intersect each other, where similar transfer facilities are demanded. The commission in such cases has advised delay in formulating complaints until such time as the Hanley Falls case shall have been finally adjudicated by the courts.
There has been the usual number of informal complaints, in· quiries, petitions, and requests during the year, all of which have been attended to by the commission, and for the most part with satisfactory results. These have embraced the relative equality of rates and fares to and from points similarly situated on different lines of the same road; the erection of loading platforms; the erection of depot buildings and better depot facilities where station houses are already built; the stoppage of passenger trains at certain points not provided for by the time schedule; the meeting of passenger trains at junction points; spur tracks to mills and other industries located adjacent to the right of way; inquiries as how to obtain sites on right of way for elevators and warehouses, and many other subjects which are of common interest alike to the people of the state in their dealings with transportation companies. These cases are very numerous, are varied in character, and experience shows that they require the intervention of a governmental authority, which the commission really is.
The commission has also done what it could to bring about the uniform classification of freights. This can only be effected by congressional authority. At the last meeting of the railroad com
'issioners of the several states, held at Washington in May, 1896, the following report upon this subject was made by a member of this commission, who was chairman of the committee appointed by the convention to consider the question of uniform classification. The report of this committee is as follows:
Your committee on uniform classification of freight beg leave to report:
For a history of the work of the committee, up to and including the date of the last annual convention, we respectfully refer to the report of 1894, found on pages 34 and 35, and to the report of 1895, found on pages 39, 40 and 41, of the proceedings of the convention for said respective years.
In accordance with the resolution adopted by the last convention, your committee invited the different traffic associations of the United States and Canada to attenl a conference with the committee in New York on Oct. 23, 1895, for the purpose of discussing the subject of uniform classification and for devising some means for its accomplishment.
There were present at the meeting Hon. M. A. Knapp and Hon. J. C. Clements, of the interstate commerce com:mission; M”. A. C. Bird, freight traffic manager of the Chicago, Milwaukee & St. Paul Railway Company; Mr. J. M. Johnson, chairman of the committee of the Western Freight Association and general freight agent of the Chicago, Rock Island & Pacific Railway Company; Mr. H. B. Chamberlin, general freight agent of the New York, Lake Erie & Western Railroad, representing the Trunk Line Association; Mr. W. B. Hamblin, assistant general freight agent of the Chicago, Burlington & Quincy Railroad Company, and Mr. John Earls, chairman of the Canadian joint freight classification committee, and three members of your committee Messrs. Billings, Bulkley, and Mills.
All the gentlemen present agreed that, for both the carrier and general public, a uniform classification of freight was desirable; in fact, the necessity and desirability of such classification has been recognized by the carriers ever since the enactment of the interstate commerce law. The several traffic acsociations of the United States, viz., New England Freight Association, Western Freight Association, Mississippi Valley Railroads, Trunk Line Association, Southern Railway and Steamship Association, the Trans-Missouri Association, and the Southern Interstate Association, as early as 1888 appointed a committee, consisting of three members from each association, to formulate a uniform classification.
This committee held several meetings, and after giving the subject careful and earnest consideration agreed upon a classification and reported the same to the different associations for approval and adoption. It was approved and adopted by some of the associations, while at least one withheld its approval, and for that reason it never went into effect. There was no law compelling the adoption of the classification by any of the associations or the roads belonging to such associations. Anyone road, by dissenting, could defeat the whole