Aandahl v. Great Northern Railway Co.

Decision Date11 January 1919
CourtNorth Dakota Supreme Court

Rehearing denied February 26, 1919.

Appeal from the District Court of McKenzie County, Fisk, J.



Murphy & Toner, for appellant.

At common law the legislatures and courts of equity had certain powers of regulations over railroads based either on charter provisions or the police power. State v. R. Co. 92 P. 606; Chicago etc. v. Minnesota, 134 U.S. 418.

Neither judicial power nor legislative power can be delegated to the Railroad Commission. Louisville etc. v. R. R Commissioners, 19 F. 679; R. R. Commissioners v. R Co. 27 S.Ct. 90; N. P. R. Co. v. Washington, 142 U.S. 492; Atlantic etc. Co. v. Wilmington R. Co. 111 N.C. 463; R. Commissioners v. Oregon R. Co. 19 P. 702; State v. Atlantic etc. R. Co. 40 So. 875; 2 Elliott, Railroads, § 682; Re Pacific R. Commission, 32 F. 241; Eastern R. Co. v. Concord R. Co. 47 N.H. 108; State v. Chicago etc. (S.D.) 94 N.W. 406.

The jurisdiction of a statutory tribunal such as the Commission will not be extended by implication. Re Beckman Street, 20 Johns. 269; Thatcher v. Powell, 6 Wheat. 119; Kansas etc. R. o. v. Campbell, 62 Mo. 585.

No authority existed at common law to compel a railroad to build stations or install agents. N. P. R. Co. v. Washington, 142 U.S. 492; Atchison etc. R. Co. v. Denver etc. R. Co. 110 U.S. 667; People v. New York, 104 N.Y. 58; Southeastern R. Co. v. Commissioners, L. R. 6 Q. B. Div. 586; R. Commissioners v. Oregon; State v. Atlantic etc. R. Co. and State v. Chicago etc. supra; Nashville etc. v. State (Ala.) 34 So. 491; State v. Kansas etc. (La.) 25 So. 126; Atlantic etc. v. Wilmington etc. 111 N.C. 463; Chesapeake etc. v. Comm. 54 S.E. 331.

There can be no delegation of power to railroad commissioners. Administrative duties essential for the execution of the law may be delegated. Georgia etc. v. Smith, 70 Ga. 694; State v. Great Northern, 111 N.W. 289; State v. Young, 9 N.W. 737; State v. R. Co. 37 N.W. 782; Anderson v. Assurance Co. 60 N.W. 1095, 63 N.W. 241; State v. Copeland, 69 N.W. 27; State v. Johnson, 60 P. 1068; State v. Wagener, 80 N.W. 778.

The order of the Commission is not a judgment, and the Commission is not a court. Interstate Commerce Comm. v. Cincinnati, 64 F. 98; Telourney v. Jeffersonville, 17 Ind. 169; Wilkins v. State, 113 Ind. 514; Betts v. Dimon, 3 Conn. 107; Re Pacific R. Commission, 32 F. 241; State v. New Haven etc. 43 Conn. 351; Chicago etc. v. R. R. Comrs. 38 Ind.App. 439; People v. R. R. Comrs. 158 N.Y. 421; Mississippi R. R. Comm. v. R. Co. 203 U.S. 235; State v. Wilmington etc. 122 N.C. 877; State v. Wilson, 121 N.C. 425.

The order of the Commission must be enforced, if at all, by the courts. R. R. Comrs. v. R. Co. 63 Me. 269; R. R. Comrs. v. R. Co. 71 S.C. 130; Smith v. Chicago, etc. 53 N.W. 128; State v. Chicago etc. 58 N.W. 1060; State v. Mo. P. 92 P. 606; R. Co. v. State, 137 Ala. 439, 34 So. 401; State v. Yazoo, 87 Miss. 679, 40 So. 263; State v. Des Moines, 54 N.W. 461; State v. Chicago etc. 53 N.W. 253.

The courts will not enforce an order that the Commission has not authority to make. Oregon etc. v. Fairchild, 224 U.S. 510; State v. R. Co. (La.) 25 So. 126; Nashville etc. v. State (Ala.) 34 So. 401; State v. Tompkins, 77 N.W. 104; Comp. Laws § 4743; State v. R. R. Comrs. 79 N.W. 510; Northern Pacific v. Washington, 142 U.S. 492.

In the absence of statute to that effect, the order of the Commission does not put the burden upon either party as to the prima facie validity of such order. Oregon etc. v. Fairchild, 224 U.S. 510; State v. R. Co. (La. ) 25 So. 126; Nashville etc. v. State (Ala.) 34 So. 401; State v. Tompkins, 77 N.W. 104, Comp. Laws, § 4743; State v. R. R. Comrs. 79 N.W. 510; Northern Pacific v. Washington, 142 U.S. 492; R. R. Comrs. v. R. Co. 203 U.S. 335; Atchison etc. v. Denver, 110 U.S. 667; Maele etc. v. People, 132 Ill. 559, 24 N.E. 643; Chicago etc. v. People, 152 Ill. 230, 38 N.E. 562; Louisiana v. State (Ark.) 121 S.W. 284; State etc. v. Chicago, 94 N.W. 406; Elliott, Railroads, § 682; State v. Des Moines, 54 N.W. 461; State v. Yazoo, 87 Miss. 679, 40 So. 263; 23 Am. & Eng. Enc. Law, 655.

The Commission has no control over interstate traffic. R. Co. v. Blackwell, 244 U.S. 310; R. R. Comrs. v. Illinois (U.S.) 27 S.Ct. 90; Chicago etc. v. State, 238 U.S. 491; Ry. Co. v. Illinois, 163 U.S. 142; Great Northern v. Commission, 238 U.S. 340; Stone v. Farmers Trust Co. 116 U.S. 307; Charleston v. Furniture Co. 237 U.S. 597; Chicago etc. v. Minnesota, 134 U.S. 418; Mississippi R. Com. v. Illinois etc. 203 U.S. 335; Mobile etc. v. Sessions, 28 F. 592.

The order of the Commission is an interference with interstate traffic, and deprives appellant of property without due process of law. State v. Kaster, 168 P. 838; Chicago etc. Ry. Co. v. R. R. Comrs. 237 U.S. 226.

East Fairview does not come within the terms of § 4656, Comp. Laws 1913. Ricker v. Portland, 90 Me. 395, 38 A. 338; Gaycon v. R. Co. Grant, Ch. (U. C.) 62; Caldwell's Case, 19 Wall. 264; State v. R. Co. 18 L.R.A. 502; Southern etc. Co. v. N. A. Land Co. 50 F. 26.

William Langer, Attorney General, Edw. B. Cox, Assistant Attorney General, and Wm. G. Owens, State's Attorney, for respondents.

Geo. F. Schafer and Palmer, Craven, & Burns, for petitioners.

The findings and orders of the Railroad Commission are prima facie right and just and have been authorized by law. Comp. Laws 1913, § 4741; Mpls. St. Paul, etc. R. R. Co. v. R. R. Comm. (Wis.) 17 L.R.A.(N.S.) 821 and note, 116 N.W. 905; Louisiana R. R. Co. v. Railroad Commission, 121 La. 855, 46 So. 994; St. Louis R. R. Co. v. Bellamy (Ark.) L.R.A.1915D, 96. Also see note in L.R.A.1915D, 100, 101.

Even when the installing of a depot may be unprofitable, its installation may be lawfully required when public necessity demands it. Chicago R. I. R. R. Co. v. Nebraska Railroad Commission, 26 L.R.A.(N.S.) 444, 124 N.W. 472.

BIRDZELL, J., ROBINSON, J. BRONSON, J., did not participate, Honorable W. L. NUESSLE, Judge of Sixth Judicial District, sitting in his stead.


Statement by BIRDZELL, J.

This is an appeal from a judgment entered in the district court of McKenzie county, under which the defendant and appellant is compelled to construct and maintain a platform and station within the village of East Fairview, North Dakota, sufficient to care for such passengers as may take the train at that place. The proceedings were initiated by a petition signed by residents of the village of East Fairview and addressed to the Board of Railroad Commissioners, asking that the appellant railroad company be required to erect a depot and install an agent at such place. It appears that a hearing was held by the Board of Railroad Commissioners, at the conclusion of which an order was entered requiring the construction and maintenance of a platform and building for the convenience of passengers. From this order an appeal was perfected to the district court and a trial was subsequently had, resulting in the judgment above referred to.

The findings of fact made by the trial court are to the effect that the village of East Fairview is incorporated and contains a population of 285 persons and property of the assessed value of $ 60,000; that there are located in such village various business enterprises, including two banks, three elevators, flour mill, stockyards, livery barn, garage, implement business, Standard Oil Company station, Jennison Milling Company plant, offices, and numerous other business institutions, and a Consolidated Public School; and further that the village is a trading point and shipping point for a large tributary agricultural country, most of which is within an irrigation project. That during the year preceding the order made by the Railroad Commissioners the freight receipts properly apportionable to the village exceeded the sum of $ 32,000; that there are several tracks of the Great Northern Railway Company, consisting of the main line of the Snowdon-Fairview line and the main line from Fairview to Watford City, and various industrial tracks intersecting the village. That there is no depot, station, platform, or other stopping place in East Fairview, or tributary thereto, in North Dakota. That the railroad business in connection with the East Fairview vicinity is transacted at the station and depot at Fairview, Montana, the depot being located 3,370 feet south and west from the central part of East Fairview village. That the trains of the defendant company pass through the village of East Fairview without stopping except for switching purposes; that there is no station in North Dakota within approximately 5 miles of the village of East Fairview; that the village of East Fairview has been recognized by the defendant company in its rate schedules, passenger schedules, and other operations as a point from which and to which freight could be consigned and delivered, and that public necessity requires the construction of the building and platform referred to. The foregoing constitutes a sufficient statement of the facts upon this appeal.

BIRDZELL, J. (after stating the facts as above). The question presented is one of the power of the Board of Railroad Commissioners to make the order which lies at the foundation of the judgment of the district court. The existence of this power is dependent upon the statutes which prescribe the powers and duties of the commissioners of railroads. Its seems to be practically conceded that there is no statute which contains a specific authorization in express terms. Section 589, Compiled Laws...

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