Neil v. Public Utilities Commission , 32 Idaho 44 ( 1919 )

MORGAN, C. J.

On December 11, 1917, the attorney general filed with the public utilities commission a complaint against plaintiffs herein in which it was alleged that they were common carriers engaged in operating a ferry upon the waters of Snake River for the transportation of persons and property for compensation, and that they had failed and refused, and were failing and refusing, to furnish facilities and to serve the public in the use thereof.

The plaintiffs above named answered the complaint of the attorney general and denied that they were common carriers and admitted that they had failed and refused, and were failing and refusing, to furnish facilities to serve the public in the use of the ferry. By way of separate answer they alleged that the ferry operated by them had always been operated as a private means of transportation; that it would be impossible and unlawful for them to operate a public ferry at the place where they cross Snake River; that there is no public approach thereto, there being no public highway leading to the landing; also that an order compelling them to operate a public ferry at the place in question would amount to a confiscation of their property because there is not sufficient business to warrant the necessary expenditure involved in doing so.

■ Testimony was taken before the commission and it made and filed a decision consisting of findings of fact and an order, the latter being as follows:

“It is therefore ordered, That the defendants, J. M. Neil and Charles Orr, doing business under a partnership, or jointly or severally as owner, or owners, of that certain ferry across the Snake River, in the State of Idaho, commonly known and called ‘Clark’s Ferry,’ be required to furnish such facilities and perform such services as may be requisite and necessary to meet all just and reasonable demands which may be made in the use of said ferry, and forthwith to file with the Public Utilities Commission of the State of Idaho a schedule of rates and charges for the transportation of persons and property thereon.”

This action is brought for the purpose of procuring a review, by this court, of that decision and order in the manner provided for in sec. 63 (a) of the Public Utilities Act.

Since the arguments were heard grave constitutional questions have arisen causing this court to doubt its jurisdiction to dispose of the matter, as presented, and counsel in this ease, as well as in Humbird Lumber Co. v. Public Utilities Commission, post, p. 80, 178 Pac. 284, which was pending at the same time and involved the same constitutional questions, were invited to submit; and they have submitted, briefs thereon.

Sess. Laws 1913, chap. 61, sec. 56, p. 282, provides that complaint may be made before the public utilities commission by any corporation or person, or by certain boards, associations or organizations therein named, setting forth any act or thing done, or omitted to be done, by any public utility in violation of any law or of any order or rule of the commission ; that a copy of the complaint shall be served upon the corporation or person complained of and that the commission shall fix the time when, and the place where, a hearing thereon will be had. Sec. 57 of that chapter provides for a hearing, in the nature of a trial, and directs that, after its conclusion, the commission shall make and file an order containing its decision; also that, in case of an action to review such order, a transcript of the testimony, together with all exhibits or copies thereof introduced and of the pleadings, records and proceedings in the cause shall constitute the record of the commission; also that on such review of an order the parties and commission may stipulate that a question or questions alone and a specified portion of the evidence shall be certified to the court for its judgment, whereupon such stipulation and the question or questions and the evidence therein specified shall constitute the record on review.

See. 63 (a) provides: “Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the Supreme Court of this state for a writ of certiorari or review .... for the purpose of having the lawfulness of the original order or decision or the order or decision on rehearing inquired into and determined.....No new or 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. The review shall not be extended further than to determine whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of the petitioner 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 Commission. The findings and conclusions of the Commission on questions of fact shall be regarded as prima facie just, reasonable and correct. Such questions of fact shall include ultimate facts and the findings and conclusions of the Commission on reasonableness and discrimination.....Upon the hearing the Supreme Court shall enter judgment either affirming or setting aside the order or decision of the Commission.”

Subd. (b) of sec. 63 is as follows': “If the Supreme Court shall decline on constitutional grounds to exercise the jurisdiction in this Act specified, either generally or in any class or classes of cases or in any particular case arising under this Act, then and in that event, but not otherwise, the district court within and for the county wherein any hearing has been had, or if had in more than two counties, the district court within and for the county where the hearing was commenced, shall have jurisdiction to issue a writ of review in the same manner, returnable within the same period, with the same effect and subject to the same limitations specified in Section 63a.”

Sec. 63 (c) provides for an appeal from the district court to the supreme court, and directs that the original transcript of the record filed in the district court, together with a transcript of the proceedings shall constitute the record upon such appeal. )

The foregoing provisions of the law make necessary an interpretation of art. 5, see. 9, of the constitution of Idaho, which is as follows: “The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof. The supreme court shall also have original jurisdiction to issue writs of1 mandamus, certiorari, prohibition, and habeas corpus; and all writs necessary or proper to the complete exercise of its appellate jurisdiction.”

Among the interesting constitutional questions presented are the following:

1. Is the jurisdiction of this court, original and appellate, fixed by the constitution, or may it be broadened and extended by the legislature ? If it is so fixed, and if it may not be so broadened or extended:

2. Does sec. 63 (a) of the Public Utilities Act seek to broaden and extend the scope of the writ of certiorari, thereby rendering it a different writ than that recognized and understood when jurisdiction to issue it was conferred upon this court, and, if so, does it, for that reason, conflict with art. 5, sec. 9, of the constitution?

3. If this proceeding is not certiorari, as contemplated and intended by that constitutional provision, but is an appeal, has this court jurisdiction to review, upon appeal, the actions of administrative boards, or officers, or is its appellate jurisdiction confined to the review of decisions of district courts, or the judges thereof ?

In Stein v. Morrison, 9 Ida. 426, 75 Pac. 246, this court had under consideration the scope of the writ of prohibition. After quoting the portion of art. 5, see. 9, of the constitution granting original jurisdiction to the supreme court, it said:

“This provision seems to have been taken literally from sec. 4, art. 6 of the constitution of California. The same provision was contained in the constitution of California as adopted in 1849 and again as adopted in 1862, and was 'finally readopted in the constitution of 1879. The legislature of California, in defining the writ of prohibition at see. 1102, Code of Civil Procedure, used the identical language which was copied by our legislature and adopted as sec. 4994 of our Bevised Statutes.”

The supreme court of California, in 1878, decided the case of Maurer v. Mitchell, 53 Cal. 289, and said:

“By the fourth section of the sixth article of the constitution of the state the supreme court has power to issue writs of prohibition. We are all of the opinion that the writ mentioned in the constitution is the writ of prohibition as known to the common law.” (See, also, Spring Valley Water Works v. City and County of San Francisco, 52 Cal. 111.)

After the decision of the California cases above mentioned the legislature of that state attempted to extend the scope of the writ of prohibition and it was held, in Camron v. Kenfield, 57 Cal. 550, decided in 1881, long prior to the drafting of our constitution, that the amendment was ineffectual to grant additional powers to the supreme court, for the reason that the word “prohibition” had been used in the constitution in the common-law sense of that term and that it was beyond the power of the legislature to extend the scope of the writ.

Our court, in Stein v. Morrison, citing, approving and applying Camron v. Kenfield, said: “When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial 'interpretation and with the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken, ’ ’ and held that the writ of prohibition, authorized by art. 5, sec. 9, of our constitution, is the writ which was known and recognized at common law.

The foregoing discussion of the limitations of the writ of prohibition which may be issued by the supreme court applies with equal force to the writ of certiorari. We derive our jurisdiction to issue these writs from one sentence of the constitution: “The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus,” and it cannot be said that the framers of that document, when they drafted it, nor the people, when they ratified it, intended to limit our jurisdiction in case of prohibition to the kind of writ then known and in common use, but with respect to certiorari, intended that we should have such jurisdiction as the legislature might, from time to time, prescribe. The jurisdiction of this court is fixed by the constitution and cannot be broadened or extended by- the legislature.

In case of Pacific Teleph. & Teleg. Co. v. Eshleman, 166 Cal. 640, Ann. Cas. 1915C, 822, 137 Pac. 1119, 50 L. R. A., N. S., 652, the supreme court of California, in a very instructive opinion, delivered by Henshaw, J., discussed the question now before this court. The legislature of that state had enacted a law for the regulation of public utilities, from which the portions of our law here under consideration have been taken, and the jurisdiction of that court to review, by certiorari; the decisions of the railroad commission was questioned. The court sáid: “In this consideration the first established fact is that sec. 67 of the public utilities act does, in violation of all precedent and decision, seek to enlarge the purview of the writ of review. If the legislature has done this without sanction of the constitution, it would result merely in compelling a declaration from this court that the legislative attempt -was unwarranted, and that the writ of review must remain as defined at the time the constitution was adopted.”

In a concurring opinion in that case, Sloss, J., said: “The courts of this state derive their powers and jurisdiction from the constitution of the state. The constitutional jurisdiction can neither be restricted nor enlarged by legislative act. An attempt to take away from the courts judicial power conferred upon them by the constitution, or to impose upon them judicial powers not granted or authorized to be granted by the constitution, is void. This declaration is not only in accord with ¡the decisions elsewhere (Marbury v. Madison, 1 Cranch (U. S.), 137, 2 L. ed. 60, see, also, Rose’s U. S. Notes), but has been held by this court from the early history of the state. (Thompson v. Williams, 6 Cal. 88; Hicks v. Bell, 3 Cal. 219; Burgoyne v. Supervisors, 5 Cal. 9; Parsons v. Tuolumne County Water Co., 5 Cal. 43, 63 Am. Dec. 76; People v. Applegate, 5 Cal. 295; Fitzgerald v. Urton, 4 Cal. 235; Wilson v. Roach, 4 Cal. 362; Zander v. Coe, 5 Cal. 230; Haight v. Gay, 8 Cal. 297, 68 Am. Dec. 323; People v. Peralta, 3 Cal. 379; Caulfield v. Hudson, 3 Cal. 389; In re Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594; Tulare v. Hevren, 126 Cal. 226, 228, 58 Pac. 530; Chinn v. Superior Court, 156 Cal. 479, 105 Pac. 580.) It is still the rule except in so far as it may have been modified by changes in the constitution itself.”

Our court adhered to this doctrine in Dewey v. Schreiber Implement Co., 12 Ida. 280, wherein it held that an act of the legislature attempting to grant to probate courts jurisdiction to foreclose liens and mortgages was violative of the provisions of the clearly implied prohibition in art. 5, sec. 21, of the constitution.

Prior to the enactment of the law of California providing for the regulation and control of public utilities, the constitution of that state had been so amended as to create a railroad commission and provided, among other things, as follows: “No provision of this constitution shall be construed as a limitation upon the authority of the legislature to confer upon the railroad commission additional powers of the same kind, or different from those conferred herein, which aré not inconsistent with the powers conferred upon the railroad commission in this constitution, and the authority of the legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this constitution.” It was further provided in the amendment: ‘ ‘ The right of the legislature to confer powers upon the railroad commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this constitution.”

Because of this amendment the California court reached a conclusion that it had jurisdiction in the class of eases to which this one belongs. Our constitution has not been so amended. It remains as it was when copied from that of California before its amendment and, therefore, the foregoing quotations from Pacific Teleph. & Teleg. Co. v. Eshleman apply to this case with persuasive force.

Certiorari, at common law, has been variously defined. Without quoting its definitions, or any of them, we will say that not a single instance has been brought to our attention where, up to the time of the ratification of our constitution, an effort had been made to give it the scope, in civil cases at law, or to put it to the use, attempted by the legislative act here under consideration, or to provide for it in any case where, in the opinion of the court, there is any other plain, speedy and adequate remedy.

Prior to the writing and ratification of the Idaho constitution in 1889, the writ of certiorari had been provided for, and its scope had been fixed, by statute. Rev. Statutes of the Territory of Idaho (1887), secs. 4961, 4962 and 4968, were as follows:

See. 4961: “The writ of certiorari may be denominated the writ of review.”

Sec. 4962: “A writ of review may be granted by any court except a Probate or Justice’s Court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.”

Sec. 4968: “The review upon this writ cannot be extended further than 'to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.”

These sections were the law when the constitution came into existence and had been for a long time prior thereto. There can be no doubt that the convention, when it adopted the constitution, and the people when they ratified it, and therein granted to this court power to issue the writ of certiorari, had in mind, intended to grant, and did grant jurisdiction over the writ then known and in use in the territory of Idaho, and none other. Nothing the legislature can do will serve to limit or extend our powers or duties in this particular. We are without power to grant the relief sought by the writ mentioned in Sess. Laws 1913, chap. 61.

This court has heretofore issued that writ in the cases of Idaho Power etc. Co. v. Blomquist, 26 Ida. 222, Ann. Cas. 1916E, 282, 141 Pac. 1083; Federal Min. & Smelting Co. v. Public Utilities Commission, 26 Ida. 391, 143 Pac. 1173, L. R. A. 1917F, 1195; Murray v. Public Utilities Commission, 27 Ida. 603, 150 Pac. 47, L. R. A. 1916F, 756, and Coeur d’Alene v. Public Utilities Commission, 29 Ida. 508, 160 Pac. 751.

In the Blomquist case the court discussed a number of constitutional questions, and while it held, in general terms, that the act here under consideration is not “repugnant to the provisions of the constitution of this state,” it did not decide the points here under consideration. It is true the court at that time had before it the case of Pacific Teleph. & Teleg. Co. v. Eshleman, supra, and followed District Judge Wolverton in Pacific Teleph. & Teleg. Co. v. Wright-Dickinson Hotel Co., 214 Fed. 666, disagreeing with the California court and holding that the power to regulate within the purpose and spirit of the act includes the power to require physical connection between competing telephone lines, and that such power of regulation need not be specifically conferred by constitutional authority, but did not discuss, nor decide, the limitations which have been placed by the constitution upon the jurisdiction of this court. In the Idaho cases last above mentioned, other than the Blomquist case, none of these questions were considered. It is clear the rule of stare decisis does not apply.

While we would follow the precedents formed by the writ being issued in the above-cited Idaho cases, if permitted to do so, we must bear in mind that the constitution may only be amended in the manner therein provided for, and that its mandates are obligatory upon this court, even though some of them have been, for a time, overlooked and, therefore, disregarded.

We have all the powers granted to us by the constitution and may issue the writ of certiorari in all cases contemplated by art. 5, see. 9 thereof, construed in the light of the law defining and limiting that writ when the constitution was written and ratified. That power is limited, as above indicated, and is dependent-upon three circumstances which must co-ordinate, to wit: 1, That an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer; and 2, there is no appeal; nor, 3, in the judgment of the court, any plain, speedy and adequate remedy.

The questions presented to the public utilities commission and here sought to be reviewed are: Were plaintiffs common carriers engaged in operating a ferry? Could they lawfully operate a public ferry ? Would an order compelling them to operate a public ferry amount to a confiscation of their property ?

These are purely judicial, not legislative nor administrative, questions, and can only be adjudicated in a court invested with judicial powers. The public utilities commission is not such a court. All of the judicial power of the state is vested in “a court for the trial of impeachments, a supreme court, district courts, probate courts, courts of justices of the peace, and such other courts, inferior to the supreme court, as may be established by law, for any incorporated city or town.” (Const., art. 5, sec. 2.)

It is true section 61 of the Public Utilities Act provides: “All orders and decisions of the commission which have become final and conclusive shall not be attacked collaterally, ’ ’ but it is too obvious for comment that the orders and decisions therein referred to are only those the commission is authorized to make, and that the section does not seek to confer upon it judicial powers in contravention of the constitution.

The order of the commission is neither final on nor eon-elusive of these questions, any, or all, of which may be presented to the courts for consideration and determination should an action be commenced against the plaintiffs looking to its enforcement, as the act provides may be done. In such event they will be at liberty to make any defense they may have and will not be precluded by the order here sought to be reviewed. Until an action is commenced no remedy is needed. (Little v. Broxon, 31 Ida. 303, 170 Pac. 918.)

It follows that we are also without power to grant the relief sought by the writ of certiorari, jurisdiction to issue which is conferred upon this court by art. 5, sec. 9, of the constitution.

In exercising the powers and discharging the duties conferred upon the public utilities commission by the legislature it may frequently be necessary for it to reach conclusions upon, and make decisions of, questions which can only be finally and conclusively adjudicated by the courts, and nothing in this opinion is to be construed as intending to hold that it has not that right.

The proceeding attempted to be provided for in sec. 63 (a) more nearly resembles our appellate than our original jurisdiction (Idaho Power etc. Co. v. Blomquist; Murray v. Public Utilities Commission, supra,) and we have given this phase of the question careful consideration with a view to carrying out the legislative intent, if that can be done, by treating this ease as being here on appeal. Our appellate jurisdiction is also fixed by art. 5, sec. 9, of the constitution, and is limited to the review of decisions of district courts, or the judges thereof, and we- cannot entertain an appeal directly from the public utilities commission.

We desire that nothing stated in this opinion be understood to mean that it is beyond the power of the legislature to grant to district courts jurisdiction to issue the writ mentioned in sec. 63 (a), as provided for in see. 63 (b) of the Public Utilities Act, or to empower those courts to review, upon appeal, the orders of the commission. These questions are not properly before us in this case, and. we decline to express an opinion upon them. In this connection, however, it may be interesting to compare the constitutional powers of district courts with those of the supreme court, heretofore quoted and discussed. Art. 5,‘sec. 20, is as follows:

“The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.”

By way of recapitulation it may be said:

1. Because of the limitations placed upon its jurisdiction by the constitution, the supreme court cannot issue the writ mentioned in Sess. Laws, 1913, chap. 61, sec. 63 (a).

2. The relief sought in this action cannot be granted by the writ of certiorari, jurisdiction 'to issue which is conferred upon the supreme court by the constitution, because plaintiffs have a plain, speedy and adequate remedy, should one ever be needed. <

3. This case cannot be considered an appeal from the public utilities commission, because the appellate jurisdiction of the supreme court is limited, by the constitution, to the review of decisions of district courts, or the judges thereof.

The case is dismissed. No costs are awarded.