of the improvement and changes which they adjudge to be proper, by a notice thereof in writing, to be served by leaving a copy thereof, certified by the commissioners' secretary, with any station agent, clerk, treasurer, or any director of said corporation, and a report of the proceedings shall be included in the annual report of the commissioners to the Governor. Nothing in this section shall be construed as relieving any railroad company, or other transportation corporation, from their responsibility or liability for damages to person or property." Act March 8, 1883, c. 124, § 5.

of Statis

HORTON, C. J. The question for our consideration in this case is not what power the Legislature of the state may delegate or confer upon the board of railroad commissioners, but what power is conferred by the existing statutes. It is contended upon the part of the contentin state that the finding of the railroad commissioners of the 13th day of Comm2 es May, 1891, that the Kansas Central Railroad "is in an unsafe and conclus? on Aforch dangerous condition for the transportation of persons and property 2 by reason of the insufficient condition and weight of the iron rails in Order of comm~ the tracks thereof," is final and conclusive upon the defendants and inclus als. this court. Further, that the order of the commissioners, requiring the 3. It proved port Kansas Central Railroad to be relaid with new rails of standard pat- as whether comple tern, and of not less weight than 56 pounds to the lineal yard, is also auc final and conclusive; that, in proceedings in this court to compel a compliance with the order of the commissioners, the statute neither contemplates nor allows any issue to be made or inquiry had of the condition of the railroad examined by the commissioners, or of the reasonableness of the order made by them. The defendants claim that the order of the commissioners, under the terms of the statute, is advisory only. If the finding of the commissioners and their order is final and conclusive, this court has no power to hear or determine any issue of fact, except upon the allegation that the defendants have refused to comply with the order for repairs. If the finding and order of the commissioners are final and conclusive, this court, upon a railroad company refusing a compliance therewith, must at once, upon proper application being made, register the order and enforce the same literally.

The power which is claimed by the commissioners to be conferred upon them, so far as this case is concerned, must be found, if found anywhere, in section 5, c. 124, Sess. Laws 1883 (paragraph 1328, Gen St. 1889). The Legislature has not conferred upon the com- Held. No. missioners by said statute the power claimed. There is nothing in the statute which states, or can be construed to state, that the orders of the commissioners concerning repairs upon a railroad shall be final or conclusive, or that the courts must carry out their determinations or judgments. Upon the other hand, the statute provides only that whenever, in the judgment of the commissioners, any re

• Only a portion of the opinion is printed.

pairs upon a railroad are demanded for the security, convenience, and accommodation of the public, they shall inform the railroad corporation of the improvements and changes which they adjudge to be necessary, and then report their proceedings to the Governor. Nowhere is it stated in the statute that the recommendations of the commissioners concerning repairs must be complied with nolens volens by the company; nor does the statute authorize the Governor to carry into execution the order of the commissioners. As to the necessary repairs of a railroad, the finding and order of the commissioners, under the statute, are advisory only-nothing more. The order cannot be enforced by the commissioners; it cannot be enforced by the Governor; and it cannot be enforced specifically by this or any other court.

* * *

In the first report of the commissioners, their powers under said section 5 were very clearly and fully defined by them. They said: "The commissioners, under this section, have no power to enforce an order. They can simply advise the company in fault of the changes desired or deemed necessary. To have invested the commission with the power to enforce its own orders, it would have been recessary to have changed the character of the board and the scope of its functions and powers. It would have been necessary to have given to the commission all the powers of a court of chancery, to be exercised within the scope of its assigned duties, with such ministerial officers attached to the board as are usual and necessary to such tribunals, to execute its injunctions and mandates. It would have rendered. it necessary to have instituted a formal investigation, upon proper complaint and notice to the company complained of, and the rendition. of a formal judgment and decree upon the evidence which should be submitted to the board. Manifestly, in such case, it would have been improper for the board to have acted upon knowledge and information gathered from personal observation, or the ex parte statements of individuals, as much so as it would be for regularly organized courts to act judicially upon evidence which has never been disclosed to the opposite party to the suit. The supervisory powers of the commission would in such case extend only to such matters as should be formally brought before it by complaint, and no such complaint would be made until some one had become the suffering victim of some neglect, failure, or other violation of duty on the part of a railroad company. Thus the chief benefits which were intended to be secured by giving the commissioners general supervisory powers would be sacrificed by imposing upon them those limitations in the exercise of functions which are necessary to impress upon judicial decrees the weight and character of impartiality." First Annual Report of Railroad Commissioners for 1883, p. 4. * * *

It is an historical fact, well known by those who attended the session of the Legislature of 1883, and by those acquainted with the proceedings of that body, that there was a bitter contention among its

members as to what power should be conferred upon or delegated to
the commissioners to be appointed under the act or bill then pending
for adoption. A part of the members, under the lead of Hon. Eugene
F. Ware and others, were favorable to the delegation to the com-
missioners and the court's full authority for the enforcement of their
orders; others, and a majority, opposed the delegation of such power;
and the result was that advisory action only on the part of the com-
missioners was provided for. The national interstate commerce act
of February 4, 1887, differs widely from the act of 1883 of our Legis-
lature, in expressly providing for writs of mandamus to be issued out
of the United States Circuit Courts to compel railroad companies to
comply with the orders of the national commission, and also for pun-
ishing in such courts railroad companies for violating or neglecting
to obey any lawful order or requirement of the national commission.
Volume 1, Interstate Commerce Commission Reports, 665-671. * * *5

5 See State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662 (1900) F~. 385 declaring the act establishing a court of visitation for the regulation of rail- Sruce give to to. roads unconstitutional, as commingling judicial and legislative powers. fix schedules othales See People v. New York, Lake Erie & Western Railroad Commany, 104 N. Fr. 387,395 Y. 58, 9 N. E. 856, 58 Am. Rep. 484 (1887): "In regard to the facts there is no dispute. A plainer case could hardly be presented of a deliberate and in- Maud hadricu sough tentional disregard of the public interest and the accommodation of the pub

the atty feet in

lic. The railroad commissioners have thought that it was essential for
those purposes that a new and enlarged building for passengers and freight compl Risto to for

should be erected. That, it is true, was a question for them to decide. The

statute (Laws 1882, c. 353) created a commission of 'competent persons'; re- ride a proper stit

quired from them an official constitutional oath; assigned to them an office
for the transaction of business; provided a clerk to administer oaths to wit- there was neg.)
nesses, and a marshal to summon them; gave full power of investigation
and supervision of all railroads and their condition, with reference not only in carrier a
to the security, but accommodation, of the public; and declared that whenever,
in their judgment, it shall appear, among other things, that any addition toʻ
moorde depot it.
or change of the stations or station-houses is necessary to promote the securiwas did statu
ty, convenience, or accommodation of the public, they shall give notice to the
corporation of the improvements and changes which they deem to be proper,
and, if they are not made, they shall present the facts to the Attorney Gen-
eral for his consideration and action, and also to the Legislature. All these
things have been done. The commissioners have heard and decided. They d.c.io
can do no more. After so much preliminary action by a body wisely organ-

ized to exercise useful and beneficial functions, it might well be thought in-dion

fortunate that some additional machinery had not been provided to carry

into effect their decision. By creating, the statute recognizes the necessity
for such a tribunal to adjust conflicting interests and controversies between

tau maud.

the people and the corporation. It has clothed it with judicial powers to on spicede

hear and determine, upon notice, questions arising between these parties,
but it goes no further. Its proceedings and determinations, however
characterized, amount to nothing more than an inquest for information.

We find no law by which a court can carry into effect their decision. dulus. 67
At this point the law fails, not only by its incompleteness and omis-
sion to furnish a remedy, but by its express provision that no request or ad-
vice of the board, 'nor any investigation or report made by it,' shall have the
effect to impair the legal rights of any railroad corporation. The Attorney
General is given no new power. He may consider the result of the investi-
gation made by the commissioners, and their decision, and so may the com-
pany; but we must look further for his right of action, and the corporation,
disregarding the judgment of the commissioners. may continue the manage-
ment of its business in its own way-may determine in its own discretion to

98326

Good now. pp331-Sto

SECTION 3

ORDERS OF INDIVIDUAL APPLICATION—
ADMINISTRATIVE AND QUASI JUDICIAL

DETERMINATIONS

3 FULLER et al. v. COUNTY OF COLFAX.

(Circuit Court of United States, District of Nebraska, 1882. 14 Fed. 177.)

On motion to remand cause to state court.

[icate, a
• a public road DUNDY, District Judge. This cause was removed into this court
r the land. He from a state court held within and for Colfax county. The defend-
Presented clau ant moves to remand the same, for the reason that the suit was re-
the bd county moved from an appellate court and not from the one in which the suit
Commrs who re-
used it torso. P

what extent, and in what manner, the exercise of a public trust requires it
to subserve the 'security, convenience, and accommodation of the public.'
Section 6 of the New York act of 1882, above referred to, was subse-
quently changed, so as to read as follows: "If in the judgment of the board,
after a careful personal examination of the same, it shall appear that repairs

molling stock, or any add railroad in the state, or that any addition to the

rolling stock, or any addition to or change of the station or station-houses, or
that additional terminal facilities shall be afforded, or that any change of
the rates of fare for transporting freight or passengers or in the mode of
operating the road or conducting its business, is reasonable and expedient

in order to promote the security, convenience and accommodation of the pub-
lic, the board shall give notice and information in writing to the corporation

and shall give such corporation an opportunity for a full hearing thereof, and if the corporation refuses or neglects to make such repairs, improvements and changes, within a reasonable time after such information and hearing, and fails to satisfy the board that no action is required to be taken by it, the Naturboard shall fix the time within which the same shall be made, which time it may extend. It shall be the duty of the corporation, person or persons ownring or operating the railroad to comply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board shall present the facts in the case to the Attorney General for his consideration and action, and shall also report them in its annual or in a special report to the Legislature."

fiets, have ca. manded, ping st

alliges dist at was
hire a ct. ap real

•tual chrew
br.commer?
died. Bin act wi
iCong

New York Railroad Law (Laws 1890, c. 565) § 161.

NB.

See People ex rel. Linton v. Brooklyn Heights R. Co., 172 N. Y. 90, 64 N. Fr.395
E. 788 (1902). The way to compel action by railroad corporations is by first
applying to the railroad commissioners, and not by judicial proceedings in
the first instance.

wr FIFTEENTH ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION FOR
THE YEAR 1901.
Complaints.

The work of the Commission which pertains directly to regulation involves
two distinct kinds of procedure: One based upon formal petitions filed with
the Commission under section 13 of the law, and involving regular hearing
and investigation, the preparation of a report setting forth the material facts
found and conclusions reached by the Commission, and issuance of an order
dismissing the case or directing the carrier or carriers complained against
to correct the rate or practice which may be held unlawful. The other kind
of procedure arises in the performance by the Commission of its duty, under
the twelfth section, to "execute and enforce the provisions of the act," and

was brought. If this be true it must, of necessity, be decisive of the

motion.

clanu a put

In considering the motion two questions arise-First, is a board of. Is by a ct wi'the county_commissioners a court within the meaning of the removal meang of act. acts of Congress; and, second, is a mere claim for damages for right of way for a public road, presented to the county board, a suit within the meaning of the said removal acts, so long as the claim there remains for consideration.

The state law provides for paying for the right of way necessary in locating all public roads. If damages are sustained by the owners of land through which a road is located, the county is primarily liable therefor, and the manner of making the claim as well as the mode of making the payment is here perfectly well understood. After the location of the road all that seems to be necessary for the injured party to do is to make known to the county board the fact that damages are claimed for the right of way. If the claim is thought to be just and reasonable the county board allows it, and draws warrants on the county treasurer for the amount of damages awarded. If the claimant should be dissatisfied with the amount of damages so awarded him, he can appeal to the district court of the proper county, where the case is to be tried de novo. Thus it will be seen that the remedy provided by law in cases like the present one is alike speedy, efficacious, inexpensive.

The plaintiffs were damaged, as they claim, in consequence of a public road being located through their lands; and they presented to the county board a claim in the sum of $5,000 therefor. The board reduced the claim, or sum allowed, to $250, and the claimants appealed to the district court, all of which was done in strict accord

relates to complaints presented by letter, the examination of tariffs on file in the office in connection with such complaints, and correspondence with shippers and carriers concerning the same. Complaints of the latter class are called informal complaints, to distinguish them from the formal petitions or complaints which constitute the basis of contested cases.

No order can be issued upon an informal complaint and inquiry. The main object of that method of procedure is the speedy disposition, through settlements, readjustments plainly required by the statute, or advice given by the Commission, of matters in which regulation is demanded, and thus to limit the number of contested cases upon the docket. It would be an injustice to complaining shippers and communities, amounting frequently to denial of relief, to compel the institution of a regular proceeding every time cause of complaint is brought to the attention of the Commission; and the number of cases requiring the hearing of witnesses, oral or written argument, and formulated decision would probably be greater than the Commission could dispose of properly or without intolerable delays. The great mass of complaints are handled and disposed of by the Commission by preliminary investigation and correspondence or conference with carriers and shippers. The matters considered and acted upon in this way range from overcharges upon small shipments to rate relations affecting the interests of entire communities, and are of the same nature as those which find their way to the regular case docket of the Commission.

6 Act Cong. March 3, 1875, c. 137, § 3, provided that the petition for removal must be filed "in such suit in such state court before or at the term at which said cause could be first tried and before the trial thereof."

Ice Nyman Juried himetrs of Comm' act 27 Sthorous. passieu