Atchison, T. & S. F. Ry. Co. v. Love

Decision Date02 February 1909
Citation99 P. 1081,23 Okla. 192,1909 OK 28
PartiesATCHISON, T. & S. F. RY. CO. v. LOVE et al.
CourtOklahoma Supreme Court

Syllabus by the Court.

At any time within 12 months from the date a final order is made by the Corporation Commission any proper party feeling aggrieved may prosecute an appeal therefrom by making application to the chairman of said commission for him, under the seal of said commission, to certify to this court all the facts upon which the action appealed from was based, and which may be essential for the proper decision of the appeal, together with such evidence introduced before or considered by the commission as may be selected, specified, and required to be certified by any party in interest, as well as such other evidence so introduced or considered as the commission may deem proper, and also a written statement of the reasons upon which the action sought to be appealed from is based, to be filed with the record of the case, which will constitute the record for review in this court.

(a) It is not necessary that a motion for a new trial be filed and presented to the commission in order to have this court on appeal to determine the reasonableness and justness of the order of the commission from which the appeal is prosecuted.

[Ed Note.-For other cases, see Carriers, Dec. Dig. § 10. [*]

For other definitions, see Words and Phrases, vol. 7, pp 6008-6014; vol. 8, p. 7781.]

Original application by the Atchison, Topeka & Santa Fé Railway Company for a writ of mandamus to be directed to J. E. Love chairman, and the Corporation Commission of the state of Oklahoma. Writ awarded on condition.

On the 19th day of December, A. D. 1908, the Atchison, Topeka & Santa Fé Railway Company filed its petition in this court alleging:

(1) That it is a corporation organized under the laws of the state of Kansas, and owning and operating a line of railway in the state of Oklahoma, and is a common carrier for hire. That the defendant J. E. Love is chairman of the Corporation Commission of the state of Oklahoma, and duly qualified and acting as such. That on the 1st day of October, A. D. 1908, said corporation Commission issued its order fixing freight rates on cotton, cotton seed, cotton seed meal, cotton seed cake, cotton seed ashes, and cotton seed hulls, materially reducing the existing freight rates, to the prejudice of petitioner.

(2) That said order was duly signed and dated October 1, A. D. 1908, and has been duly published in the "Guthrie Leader" a newspaper of general circulation published at Guthrie, Okl., from October 1 to October 22, A. D. 1908, inclusive. A copy of said order is attached to said petition as a part thereof.

(3) That on the 14th day of December, A. D. 1908, petitioner presented to Hon. J. E. Love, chairman of the Corporation Commission, its request in writing, which, among other things, contained the following: "It therefore respectfully requests that the chairman of this commission certify under the seal of the commission to the Supreme Court all of the facts upon which the said order is based, together with all evidence introduced before or considered by the commission in the hearing of said matter and in the making of said order, including a written statement of the reasons upon which the action of the commission in making said order is based, together with a copy of said order. Your petitioner in support of this request cites section 22 of article 9 of the Constitution of this state. [Bunn's Ed. § 234.]"

(4) It is recited that a copy of said request as presented to said commission is attached as a part of said petition; that the chairman refused to certify the evidence as requested, alleging as a reason therefor that the time for appeal had expired; that the refusal of the chairman of said commission to comply with said request is indorsed on the back of the same, and made a part of said petition.

Petitioner further alleges that, notwithstanding said order became final, either on the 1st day of October or on the 22d day of October, when the publication of same was completed, it is entitled to prosecute an appeal from said judgment; that under section 22, art. 9, Const., no limitation is placed upon the right of appeal from the orders of said commission. Petitioner says, therefore, that it is entitled to have said request complied with by the chairman of said commission, and that he wholly fails and refuses to do so. Petitioner states that it is unable to make out any complete assignment of the errors committed to its prejudice in the trial of said cause, for the reason that the chairman of said commission refuses to furnish it with the evidence, findings of fact, or certified copy of the order made in said cause.

Petitioner assigns error as to said order for the following reasons:

(1) That said order was and is erroneous, in that it reduces the compensation for the carriage of the products mentioned to a sum actually less than will reimburse it for the transportation of same.

(2) That the rules and regulations prescribed by said order are unreasonable and unjust.

(3) That the commission ignored the conference agreement made by and between the producers and shippers and the railway and railroad companies, which conference was held with the clerk of said commission as chairman, and freely entered into by representatives of both the railroads and the shippers interested.

(4) That said order is in violation of the Constitution of this state and of the United States, in that it compels the defendant to perform a service for a wholly inadequate compensation, and so grossly so as to amount to the taking of its property without due process of law. That petitioner is wholly without any remedy for the wrong committed against it by said chairman of said commission in refusing to certify the facts and evidence in said cause, as required by the Constitution of this state, other than by invoking the supervisory jurisdiction of this court over the action of said commission and its members. That it caused notice to be served on the chairman of said commission that it would on the 21st day of December, A. D. 1908, present to this court its application for an order requiring the chairman of said commission to certify to this court under the seal of said commission the facts upon which said order No. 99 was made, together with all evidence introduced before or considered by said commission, including a written statement of the reasons upon which the action of said commission in making the order is based, together with a copy of said order.

Then follows a prayer that an order be made directing the chairman of said commission to grant the certificate requested by the petitioner, and transmit same to the clerk of this court, in order that the petitioner may be able to present to and have considered by this court the error which it believes was committed to its prejudice in the hearing of said cause by said commission, and in the making and promulgating of said order No. 99. On the 21st day of December, A. D. 1908, said cause came on for hearing; the Corporation Commission appearing by counsel and resisting same.

Cottingham & Bledsoe, for plaintiff.

Geo. A. Henshaw, Asst. Atty. Gen., for defendants.

WILLIAMS C.J.

The only question necessary to determine on this record is whether or not a motion for a new trial and a case-made is prerequisite to the allowance of an appeal from a final order of the Corporation Commission.

Section 22, art. 9, Const. Okl. (section 234, Bunn's Ed.; Snyder's Ed. p. 259; Gen. St. Okl. Ann. 1908, p. 114) provides that "in no case of appeal from the commission shall any new or additional evidence be introduced in the Supreme Court; but the chairman of the commission, under the seal of the commission, shall certify to the Supreme Court all the facts upon which the action appealed from was based and which may be essential for the proper decision of the appeal, together with such of the evidence introduced before, or considered by, the commission as may be selected, specified, and required to be certified by any party in interest, as well as such other evidence so introduced or considered as the commission may deem proper to certify. The commission shall, whenever an appeal is taken therefrom, file with the record in the case, and as a part thereof, a written statement of the reasons upon which the action appealed from was based, and such statement shall be read and considered by the Supreme Court, upon disposing of the appeal. The Supreme Court shall have jurisdiction on such appeal, to consider and determine the reasonableness and justness of the action of the commission appealed from, as well as any other matter arising under such appeal: Provided, however, that the action of the commission appealed from shall be regarded as prima facie just, reasonable and correct; but the court may, when it deems necessary in the interests of justice, remand to the commission any case pending on appeal, and require the same to be further investigated by the commission, and reported upon to the court (together with a certificate of such additional evidence as may be tendered before the commission by any party in interest), before the appeal is finally decided." Section 20, art. 9 (section 231, Bunn's Ed.; Snyder's Ed. p. 258; Gen. St. Okl. Ann. 1908, p. 113), also provides that "until otherwise provided by law, such appeal shall be taken in the manner in which appeals may be taken to the Supreme Court from the district courts, except that such an appeal shall be of right, and the Supreme Court may provide by rule for proceedings in the matter of appeals in any particular in which the existing rules of law are inapplicable." These excerpts were borrowed substantially...

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