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is without power to enforce its own orders or to punish their violation.
When the commission has exhausted their powers of persuasion in any given case with the managers of railways, and finds itself forced to proceed 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 urder 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. Where it is compelled to do this, it follows that when suits and proceedings are instituted the companies may interpose their defences, 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, nor 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 thirteen 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 rate 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, (sec. 13) contemplates a complaint made to the commission. This is a pre-requisite, 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 inter-state 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.
Sec. 13 of the inter-state commerce act contains the follow. ing clause: “Said commission * * * may institute any inquiry on 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 inter-state commerce 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 sig. nificant, and in our opinion limits our jurisdiction in such cases to instances where complaint is made as specfied 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 administration, 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.
The reports of the chief grain inspector, and the state weighmasters at the terminal cities, showing the workings of the act to regulate warehouses, inspection, weighing and handling of grain, are attached to this report.
LIST OF CASES.
List of cases acted upon by the Commission from December 1,
1890, to December 1, 1891, with a brief statement of the nature and disposition of each case. Important cases reported in full.
No. 1. Application of the St. Paul and Duluth Railroad and the Minnesota Belt Line Railway for permission to put in an interlocking signal arrangement at their crossing about three miles north of St. Anthony Park. Permission granted December 16, 1890.
R. V. Pratt, St. Anthony Park,
St. Paul and Northern Pacific R. R.
Dangerous and unsightly bridge over a street. Advised to apply to City Council in the first instance. Nothing further heard of the case, but new iron bridge is put in.
F. E. Powers and others, St. Paul, No. 3.
Great Northern Railway. Keeping open University depot evenings for the accommodation of
students. Depot was opened again and kept open till October, 1891, when it was closed altogether and station abandoned.
No. 4. Duluth Transfer Co., Duluth.
Application for permission to increase its capital stack. Permission granted.
0. A. Hines, Delhi, No. 5.
vs. Minneapolis & St. Louis Ry. Damages wanted for killing team of horses by a train. Upon the application of the commission the company made a settlement with the complainant which was accepted by him.
Frank M. Thornton, Madelia,
Lack of cars to ship gruin in January.
T. B. Andrews, New Richland, No. 7.
M. & St. L. Ry. Petition to have through south bound passenger train stop at New
Richland. Adjusted by arranging to have accommodation train supply the necessary service.
C. W. Gilmore, County Attorney, Pipestone,
Depot and agent wanted at Holland. Place visited by commission; company requested to build depot. Request complied with by the company.
M. Jacoby, Wabasha, No. 9.
C. M. & St. P. Ry. Obstructing street and abandoning part of line. Complaint was afterwards withdrawn by complainant before action was taken by the commission.
John D. Farrand, Fargo, N. Dak., for farmers north of Moor
head, No. 10.
G. N. Ry. " Alleged refusal of Ry. Co. to ship grain to Moorhead mills. Reported in full.
A. J. Sitz, New York Mills, No. 11.
N. P. R. R. Discrimination in grain rates in favor of Henning; a station on a
parallel line of same company's road. This matter was at once brought to the attention of the proper officers of the company who immediately took steps to have it corrected, thereby reducing the grain rate to Duluth,