Pacific Telephone Etc. Co. v. Eshleman , 166 Cal. 640 ( 1913 )

I agree with the conclusion that the order under review should be annulled, and concur in the judgment so declaring, but cannot assent entirely to the reasoning by which this result is reached. Important as is the determination of the right of the railroad commission to order the physical connection which it has here directed to be made between the lines of the petitioner and those of the Glenn and Tehama companies, more important still is the correct ascertainment of the extent of the power of this court to review orders of the railroad commission under the writ provided for in section 67 of the Public Utilities Act, or otherwise. What orders may be reviewed, what claims of right may be examined here? The correct determination of these questions lies at the base of the decision, not only of the particular case before us, but of the similar proceedings already pending, and numerous others which will undoubtedly be brought to test the exercise by the railroad commission of the authority vested or believed to be vested in it. I think it proper, therefore, to state, in some detail, my views on these fundamental questions, and to point out how far those views are not in complete accord with the conclusions expressed in Justice Henshaw's opinion.

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]), 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 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, [6 L.R.A. 594, 21 P. 976, 22 P. 742, 1028]; Tulare v. Hevren, 126 Cal. 226, 228, [58 P. 530]; Chinn v. Superior Court, 156 Cal. 479, [105 P. 580]). It is still the rule except in so far as it may have been modified by changes in the constitution itself.

By the amendment in 1911 of section 22 of article XII, creating a railroad commission, it is provided that "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 are 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." And section 23 of the same article, defining public utilities and declaring that they are subject to the control and regulation of the railroad commission, provides that "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." To the extent, then, that the legislature has acted in conferring powers (germane to the subject of the regulation and control of public utilities) upon the railroad commission, it necessarily follows that the validity of such grant of powers is not to be questioned by reason of any other provision of the state constitution. This position is fully developed in Justice Henshaw's opinion. It would seem to follow, too, that if a legislative grant of power to the railroad commission is so extensive in terms as to exclude or limit the power of any court to question or review the order of the commission, such exclusion or limitation must be recognized as valid, although it amounts to a restriction of a part of the jurisdiction conferred upon the courts by other parts of the constitution. If the legislature has plenary power to confer powers upon the railroad commission, it may declare that the orders of the railroad commission shall be final and conclusive and not subject to review by any court of this state. Such declaration would be an exercise of the unlimited power of the legislature to confer additional powers upon the railroad commission. If the legislature may, as a part of its grant of powers to the railroad commission, take away all right of the courts to review the orders of the commission, manifestly it may take away a part of such right, by providing that the acts of the commission shall be subject to only a limited and specified review. There can, then, be no objection, under the constitution of this state, to the provision of the Public Utilities Act (sec. 67) that "no court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission, or to suspend or delay the execution or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties; provided that the writ of mandamus shall lie from the supreme court to the commission in all proper cases." I fully agree, therefore, with Justice Henshaw's view that section 67 of the Public Utilities Act is valid and effective in so far as it takes from every court, except the supreme court, the power to review or suspend any order of the commission, and in so far as it takes from the supreme court the power to review such orders in any mode other than those specially permitted by the act, to wit, by writ of review or mandamus.

But the conclusion that the amendments to sections 22 and 23 of article XII of the constitution authorize the legislature to take away or to limit the jurisdiction of the courts with respect to orders and decisions of the railroad commission does not carry with it the conclusion that the legislature is authorized toenlarge the constitutional jurisdiction of any court of this state. These amendments do not give to the legislature any right to alter the jurisdiction of the courts except to the extent that such alteration is involved in a grant of power to the railroad commission. To say that the orders of the railroad commission shall not be subject to review is to confer upon the railroad commission a greater or more absolute power than it would have if its orders were subject to review in the regular course of judicial procedure. To say, however, that any court shall have a jurisdiction beyond that conferred upon it by the constitution, to review, annul, or modify an order of the railroad commission is not to grant additional or other powers to the railroad commission. It is, on the contrary, to limit the power of the railroad commission and to grant additional powers to the courts. There is nothing in the amendments of 1911 which authorizes such extension by the legislature of the jurisdiction of the courts. The rule must, therefore, be now, as it has always been, that any legislative attempt to confer upon the courts powers beyond those conferred by the constitution is void.

The jurisdiction of the supreme court is carefully defined by the constitution. The court has jurisdiction on appeal from the superior court in certain cases. It also has appellate jurisdiction in matters pending before a district court of appeal which shall be ordered by the supreme court to be transferred to itself, and it has original jurisdiction to issue writs ofmandamus, certiorari, prohibition and habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction. The Public Utilities Act does not attempt to confer upon this court any appellate jurisdiction. Under the views already expressed it is not competent for the legislature to confer upon the supreme court any original jurisdiction which is not embraced within one or the other of the writs above mentioned, i.e., mandamus, certiorari, prohibition and habeascorpus and all other writs necessary or proper to the complete exercise of its appellate jurisdiction.

Section 67 of the act provides that the party against whom a decision is rendered by the railroad commission may apply to the supreme court for a writ of certiorari or review for the purpose of having the lawfulness of the order inquired into and determined. The writ of review (certiorari) is one of the writs which, under section 4 of article VI of the constitution, is within the original jurisdiction of the supreme court. To the extent, then, that certiorari is an appropriate remedy to review the orders of the commission, this court would have had power to issue such a writ if the Public Utilities Act had been silent on the subject of the right of the courts to examine the acts of the commission. And, considering the settled rule with respect to the power of the legislature to enlarge the constitutional jurisdiction of the courts, the power to issue a writ of review and to dispose of the questions arising under it is to be regarded as derived primarily from the constitution, rather than from section 67 of the Public Utilities Act.

The writs embraced in the grant of original jurisdiction contained in section 4 of article VI of the constitution are the designated writs as they were understood and defined at the time the constitution was adopted, and the legislature has no power to extend the scope of the writs as thus limited. (Maurer v.Mitchell, 53 Cal. 291; Camron v. Kenfield, 57 Cal. 550.) The writ of review, as is well settled in this state, is issued only to an officer or tribunal exercising judicial functions. It lies for the purpose of reviewing only judicial or quasi judicial proceedings. (People v. Bush, 40 Cal. 346; Quinchard v. Board ofTrustees, 113 Cal. 664, [45 P. 856]; Cook v. Civil ServiceComm., 160 Cal. 589, [117 P. 663].) It does not lie to review errors of fact or law, but only to determine whether an officer, board, or tribunal has exceeded his or its jurisdiction. This is the purpose of the writ as declared by section 1068 of the Code of Civil Procedure. The provision of section 1074 of the same code (enacted prior to the adoption of the constitution of 1879), that the review 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" did not assume to enlarge the range of inquiry. This court has expressly held that the clause "whether the tribunal has regularly pursued its authority" is the equivalent of "whether it has exceeded its jurisdiction." (Central Pacific R.R. Co. v.Placer County, 43 Cal. 365; Quinchard v. Board of Trustees,113 Cal. 664, [45 P. 856].)

It follows that the inquiry which we may make under the writ issued in this case is limited to determining whether or not the railroad commission has exceeded its jurisdiction in making the order complained of. If section 67 of the act undertakes to give to this court any broader power than that, the attempt so to do must be disregarded as in violation of the constitution. I think, however, that, properly construed, section 67 does not assume to authorize anything more than a search into the jurisdiction. It provides that the review shall not be extended further than to determine "whether the commission has regularly pursued its authority." This is the very language of section 1074, and is synonymous with determining whether the commission has acted within its jurisdiction. The words "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 California" do not extend the inquiry as thus defined. The examination of constitutional rights is, under the terms of the Public Utilities Act, included in the inquiry whether the commission has regularly pursued its authority. It is not made a separate and distinct subject of judicial scrutiny. Whether or not the commission is acting within its jurisdiction may or may not depend upon constitutional questions. I do not understand, as seems to be held in Justice Henshaw's opinion, that Spring Valley Water Co. v. Bryant, 52 Cal. 138, decides that the question whether the petitioner's constitutional rights have been invaded can never be inquired into on certiorari. The declaration quoted from the opinion in that case was made and is to be read in connection with the determination of the court that the order sought to be reviewed was not a judicial order. This being so, it was not a proper subject of a writ of certiorari, whether or not constitutional rights were claimed to be invaded. If the constitutional question raised is one that goes to the jurisdiction of the lower tribunal, I do not see why it, as well as any other jurisdictional question, cannot be considered and decided under such a writ. If, for example, the legislature should undertake to give to the justice's court original jurisdiction of an action in equity, I do not doubt that a judgment rendered by such court in an action of that character could be reviewed and annulled upon certiorari, upon the ground that the legislative attempt to confer jurisdiction was in violation of the constitution. Be this as it may, the inquiry in this case cannot extend further than to determine whether or not the railroad commission has acted within its jurisdiction in making the order complained of. I do not go specifically into the question whether the order complained of is judicial in character and therefore subject to review, as I think that question is virtually determined in favor of the petitioner by the decision in Imperial Water Co. v. Board of Supervisors, 162 Cal. 14, [120 P. 780].

What, then, are the grounds of objection to the order here made? It is said that the order is, in effect, one for the taking of private property for public use without compensation, and that such order therefore violates the provisions of both the state and federal constitutions.

I do not see how it can be said that there is any violation of the state constitution. The procedure of the railroad commission and the order made by it were in strict conformity with section 40 of file act. That section gives the commission power to do just what it has done. If this amounts to a taking of private property for public use without compensation, it is a taking authorized by the terms of the act. Under the provisions of sections 22 and 23 of article XII of the constitution above quoted, the powers granted to the commission by the act are not controlled by any provisions of the state constitution. Hence it cannot be said that an order made under a power expressly conferred by statute upon the commission violates that constitution. Section 40 names the conditions on which the order can be made, viz., that it can reasonably be made, that the lines can be made to form a continuous line of communication, that public convenience and necessity will be subserved thereby, and that the purpose is not primarily to secure local transmission. Finding these conditions, the commission is authorized to order the connection under rules and regulations established by it and, if the companies do not agree, to fix the division of the cost of connection and of the rates. Evidently no compensation except such as may inhere in a division of tolls is contemplated. It is, then, the law, and not any order made outside of the law, that takes property without compensation, if property is thus taken. I do not find in the act any provision authorizing the railroad commission to exercise generally the power of eminent domain or to assess damages on condemnation. The only section authorizing it to allow a compensation for property taken is section 41, which refers solely to the case of one public utility using the conduits, subways, tracks, wires, etc., of another on, over orunder a street or highway. This section has no pertinency to the case at bar. There is no provision which requires or authorizes the railroad commission in a case like the one before us to award to one of the two telephone companies directed to make a physical connection between their lines, any compensation as such for the taking of its property. The commission, therefore, has strictly pursued the powers which the legislature, acting under the plenary power conferred upon it by the state constitution, has granted, and the provisions of other parts of that constitution seem to me to be out of the case.

The other ground of attack is that the order is a violation of the rights of the petitioner under the federal constitution. The fifth amendment to the constitution of the United States, providing that private property shall not be taken for public use without just compensation, has no bearing upon the case, as it is well settled that this amendment is a limitation upon the power of the federal government and not upon that of the states.(Barron v. Baltimore, 7 Pet. 243, [8 L. Ed. 672].) If, however, the order in question does amount to a taking of private property for public use without just compensation, such taking is a violation of the rights of the petitioner under the fourteenth amendment to the constitution of the United States, providing that no state shall deprive any person of life, liberty, or property without due process of law. "A law which authorizes the taking of private property without compensation or for other than a public purpose cannot be considered as due process of law in a free government." (1 Lewis on Eminent Domain, 3d ed., sec. 11.) And this doctrine is fully elaborated and clearly laid down inChicago etc. R.R. Co. v. Chicago, 166 U.S. 226, [41 L. Ed. 979, 17 Sup. Ct. Rep. 581. (See, also, Ex parte Martin, 13 Ark. 198, [58 Am. Dec. 321]; Harness v. Chesapeake etc. Canal Co., 1 Md. Ch. 248; Staton v. Norfolk etc. R. Co., 111 N.C. 278, [17 L.R.A. 838, 16 S.E. 181].)

Upon the remaining question — whether the order of the commission amounts to a taking of the property of the petitioner without compensation — I agree with the conclusion reached in Justice Henshaw's opinion, and, in substance, with the reasoning upon which that conclusion is based. It is plain that the answer to this question depends upon an ascertainment of the precise nature of the governmental power which has been called into use in making the order before us. If the commission has merely exercised the power of regulation conferred upon it — if, in other words, it has, as an instrument of the state, used the police power of the state — no right under the federal constitution is invaded, unless the order is so arbitrary and unreasonable as to amount to a confiscation of property. The order, viewed as a pure regulation, can hardly be so characterized. Even if it could, it is doubtful whether, in view of the provision of the Public Utilities Act that the findings and conclusions of the commission on questions of fact, including reasonableness and discrimination, shall be final and not subject to review, the order could be attacked on this ground in any court of this state, however assailable it might be in the federal courts. If, on the other hand, the commission, pursuing the power attempted to be granted to it, has made an order which amounts to a taking of the petitioner's property for public use, the commission, as an agency of the state, was exercising the power of eminent domain. If that power was sought to be exercised without at the same time making provision for compensating the petitioner for the property taken, the order was one which the state was, by virtue of the fourteenth amendment to the federal constitution, precluded from making. It may be that, if the statute contained proper provision for an assessment and payment of compensation for the taking, the failure of the commission to fix and allow adequate compensation could not be made the basis for assailing the order oncertiorari. In such event, it might be said that the statute vested jurisdiction in the board, and that an order which omitted to provide compensation would merely constitute error in the exercise of jurisdiction. (See Bishop v. Superior Court, 87 Cal. 226, [25 P. 435].)

But, as already stated, the statute itself fails to provide for the assessment or payment of damages, and such statute must, therefore, be held to be in conflict with the federal constitution to the extent that it assumes to authorize the taking of private property without compensation. A void statute — and one which conflicts with either the federal or the state constitution is void — is not effective to confer jurisdiction on any court or board whose authority to act in the particular case is not granted except by that statute. This is well illustrated by the case of Connecticut River R.R. Co. v. CountyCommissioners, 127 Mass. 50, [34 Am. Rep. 338], where it was held that a writ of prohibition would lie to prevent proceedings in eminent domain under a statute which did not make adequate provision for compensation to the party whose property was sought to be taken.

I think it cannot be doubted that an order, compelling the owner of private property, against his will, to subject that property to the use of the public or of an individual, amounts to a taking of property. For property consists, not of the tangible things, whether realty or chattels, over which dominion is claimed, but of the right to possess or use those things. An order requiring the owner of a house to permit others to occupy and use it, is a taking of that house, although the legal title remains in the owner. So an order compelling the owner of a telephone line, or of any other property adapted only to a particular use, to surrender it, in a greater or less degree, to such use by others, is clearly a taking of that property. Where the particular property has been dedicated to a public use; where the property, in other words, is employed in a public service, the owner has consented that the public may use his property within the limits to which the dedication extends. Within those limits, the use by the public does not constitute a taking, or, if it be a taking, it is one which has been invited by the owner. But the fact that property has been offered for one public use does not authorize the public to use it for other and different purposes. The purveyor of a public service — whether that of a carrier or an innkeeper, a light or power company, a telephone or a telegraph company, is not bound to undertake a service different from that which he has professed to render (Wyman on Public Service Corporations, sec. 251.) Thus, a railroad which has undertaken to carry passengers only could not be compelled to accept freight offered for shipment, and it can hardly be doubted that a law directing it to undertake the new service would amount to a taking, pro tanto, of its property, for which compensation would have to be made. On like reasoning, an order compelling a telephone company to subject its lines and appliances to the burden of a service substantially different from that which it has offered to perform, is a taking of its property. It seems clear to me that the physical connection ordered in this case does compel the petitioner to allow a use of its lines beyond the use which it professes to extend to the public. It is more than a regulation of a public service undertaking; it is a direction to perform a kind of service which has not been undertaken. The petitioner has established lines of long distance communication, and has connected them with local exchanges, so that its customers served by the various local exchanges may have the benefit of the long distance lines. The long distance advantages are also at the service of those who apply for them at pay stations of the company. No doubt the petitioner could not arbitrarily exclude any member of the classes to which its service had thus been offered. Any one desiring a telephone installed within a district to which local service has been offered, or one applying at a pay station for a long distance connection, would be entitled to the service demanded. But these are very different things from compelling a physical connection with the lines of a company competing with the petitioner in a local field, to the end that the competing company's patrons may have the benefit of long distance service from their homes. Of course, if the Pacific States Company had dedicated its long distance plant to this use — if it had held itself out as prepared to make and had made connections with such rival companies, it would be bound to treat all alike. An order requiring a connection would in such case be a mere regulation of the service within the scope of the professed service. But such is not the case here. It is true that the findings of the commission refer to the fact that the petitioner had, under agreement, connected with other companies. Mention of this circumstance was made in answer to the claim that there were practical difficulties in the way of making a physical connection. It is not claimed, however, and under the evidence there was no room to claim, that the petitioner had ever made connections with competing companies. All it had done was, upon terms and for a consideration (or compensation) satisfactory to it, to connect with companies operating in territories where it offered no local service. The fact that the service here is directed to be given to competing companies seems to me to be a most essential factor in the conclusion that the petitioner is called upon to subject its property to an additional and different use. Rival companies are not within the class of the public to which it has offered its facilities for use. (Wyman on Public Service Corporations, sec. 698.) If there were two companies furnishing electric light or power to the inhabitants of a city, could one of such companies, having a surplus of current beyond that required for its existing contracts, be compelled to furnish that surplus to the rival company, for no other compensation than a rate fixed by public authorities, to the end that the rival might be enabled to compete with it more effectively? It would seem fairly clear that this was not a service which the first company had undertaken or professed to perform. The case at bar is, I think, the same in principle. By installing its long distance plant for the use of subscribers to its local systems, the petitioner has developed an element of great value in the conduct of its local business at various points. It has thereby built up for itself an advantage, and a perfectly legitimate one, over competitors who, with a much smaller investment and at far smaller risk, have created only a local system. It has never offered to share this advantage with rival companies. To be compelled to so share it is to subject its property to a new use — and thus, in part, to take it. If the public interest requires the connection, appropriate provision for estimating and paying the damage occasioned thereby must be made. A mere division of the tolls, even though the entire toll may be allotted to the petitioner, is not the compensation required as a condition to the taking of property for public use. In the first place, it is uncertain, both as to amount and time. (Connecticut River R.R.Co. v. County Commrs., 127 Mass. 50, [34 Am. Rep. 338].) In the next place, the division of tolls will only pay the company for the service actually rendered by it from time to time. It will not afford any compensation for the damage occasioned by the taking, i.e., by the subjecting of its property to the demands of a public service to which that property was not dedicated. What the measure of such damage is I do not attempt here to define, but it is plain that it includes elements not covered by a mere apportionment of tolls.

The conclusions reached may be summarized as follows:

1. This court has no power to review the orders of the railroad commission except by means of a writ of certiorari, or to control its action except in appropriate cases by mandamus. No other court of the state has any power to review the orders of the commission or to control its official action.

2. Upon a writ of certiorari against the railroad commission this court must inquire whether the railroad commission has acted within its jurisdiction, and if this inquiry be answered affirmatively the proceeding must be dismissed.

3. If the railroad commission has acted in conformity with the powers granted to it by the legislature, the validity of its order cannot be questioned in this court or elsewhere under a claim of violation of any provision of the state constitution other than the provisions relating to the railroad commission. This statement is, however, to be taken subject to the qualification that the powers conferred by the legislature on the railroad commission must be such as are cognate and germane to the purposes for which the railroad commission was created, i.e., the regulation and control of public utilities.

4. Where the commission has acted within the powers conferred upon it by the legislature, the only recourse of one affected by its action is to the guaranties of the federal constitution. And in cases where the violation of the right guaranteed by the federal constitution does not involve an excess of the jurisdiction of the railroad commission, the federal courts are the only ones in which he may assert his rights under those guaranties.

5. If the railroad commission, acting within the powers granted to it by the legislature, makes an order which amounts to a taking of private property for public use without compensation, such order does not violate any provision of the constitution of this state.

6. If in making such order private property is taken for public use without compensation, such taking is a violation of the provisions of the fourteenth amendment to the constitution of the United States.

7. Any provision of the Public Utilities Act is void to the extent that it purports to grant to the railroad commission power to take private property without compensation, and the act confers no jurisdiction on the board to make an order having this effect.

8. Section 40 of the act, authorizing the ordering of physical connections between telephone companies is void in so far, at least, as it purports to require a company having long distance and local service, to make a physical connection for long distance service with a company competing locally, where the first company has not professed to render this kind of service. An order for physical connection is, in such a case, a taking of the property of the complaining company without compensation.

9. The order under review was in excess of the jurisdiction of the commission and should be annulled.

Shaw, J., concurred.