Chicago, M., St. P. & P.R. Co. v. Board of Railroad Com'rs of South Dakota

• Citation: 266 N.W. 660,64 S.D. 297
• Decision Date: 07 April 1936
• Docket Number: 7852.
• Parties: CHICAGO, M., ST. P. & P. R. CO. v. BOARD OF RAILROAD COM'RS OF SOUTH DAKOTA. [a1]
• Court: Supreme Court of South Dakota

266 N.W. 660

64 S.D. 297

CHICAGO, M., ST. P. & P. R. CO. v. BOARD OF RAILROAD COM'RS OF SOUTH DAKOTA. ^[a1]

No. 7852.

Supreme Court of South Dakota

April 7, 1936

Original proceeding in certiorari by the Chicago, Milwaukee, St. Paul & Pacific Railroad Company against the Board of Railroad Commissioners of the state of South Dakota. Writ of certiorari was issued, and defendant moves to quash.

Writ quashed, and proceeding dismissed, without prejudice.

Hepperle & Fuller, of Aberdeen, for plaintiff.

Walter J. Conway, Atty. Gen., and Herman L. Bode, Asst. Atty. Gen for defendant.

CAMPBELL Judge.

Purporting to act pursuant to the provisions of section 9773, R.C.1919 as superseded by chapter 251, § 4, Laws 1923, amended by chapter 261, Laws 1925, defendant Board of Railroad Commissioners held a hearing and made and entered an order fixing the sum of $40 per annum as a reasonable rental to be paid to plaintiff by the Plankinton Cooperative Elevator Company for an elevator site on plaintiff's right of way in the town of Plankinton in Aurora county, S.D. Plaintiff applied to the board for rehearing pursuant to section 9590 R.C.1919, as amended by section 1, c. 81, Laws 2d Sp.Sess.1920, and such application being denied, plaintiff within 30 days thereafter applied to this court pursuant to section 9591, R.C.1919, as amended by section 2, c. 81, Laws 2d Sp.Sess.1920, for certiorari to review the order of the defendant commission.

The writ issued, defendant board has interposed a motion to quash attacking the jurisdiction of this court, and the matter is now before us for disposition upon such motion.

In support thereof defendant maintains that the only method open to plaintiff for reviewing this particular order of the board was by appeal to the circuit court. To understand this contention it is necessary somewhat to review relevant legislation. The statute by virtue of which the board purported to fix the rental value of the elevator site here in question appears to have originated as chapter 232, Laws 1909, which was re-enacted with some modifications by chapter 261, Laws 1911. Both of these statutes were specifically repealed and a new law relating to the subject-matter was enacted by chapter 297, Laws 1913. All three of these statutes provided, with reference to this particular matter, for an appeal to the circuit court; the relevant provisions of the 1913 law being sections 2, 3, and 4 thereof, reading as follows:

"Section 2. Either party to such controversy shall have the right to appeal from the decision made by the Board of Railroad Commissioners to the circuit court of the county in which the proposed site is located. The appeal shall be taken by serving a notice of appeal in writing upon the adverse party and upon the secretary of the Board of Railroad Commissioners and filing the original notice of appeal, with proof of such service, with the clerk of the circuit court of said county within thirty (30) days from the date of the decision from which the appeal is taken. The notice of appeal shall state the names of the parties, the date of the order or decision appealed from, and designate in plain and concise language whether the appeal is from the whole or a part of the decision, and if from a part, shall indicate plainly that part from which the appeal is taken. Within fifteen (15) days after the service of the notice of appeal, the secretary of the Board of Railroad Commissioners shall make and file with the clerk of the circuit court of the county a certified copy of the evidence taken before the Board, as well as the findings and order appealed from.

"Section 3. At the next term of the circuit court of said county, unless continued for good cause shown, and without any further pleadings, the question of the fair annual rental value of such warehouse, coal shed or other building site shall be submitted to a jury for determination, and judgment shall be entered upon the verdict by the court. In such action the certified copy of the record sent up by the secretary of the Board of Railroad Commissioners and of the findings and order appealed from shall be admissible as evidence.

"Section 4. Unless an appeal from the decision of the Board of Railroad Commissioners be taken within the time mentioned in Section 2, the decision of the Board shall be final."

There was not in this state at the time of the passage of any of the three acts last above mentioned any comprehensive provision of law for appeal in all cases from the orders of the board to the circuit court. The same session of the Legislature, however, which had enacted chapter 297, Laws 1913, passed later in the session a statute of broader application (chapter 312, Laws 1913), establishing in general terms the procedure for the trial of matters before the board, prescribing the method of keeping and making up the record thereon, and providing and fixing procedure for an appeal to the circuit court from "any final order or determination of the board." Under this general statute, appeal was required to be taken within 60 days, and the method of taking it was somewhat different from that prescribed by chapter 297, Laws 1913, with reference to the special case there dealt with. At the close of the 1913 legislative session, we had then this situation; First, a general statute (chapter 312, Laws 1913) providing for and regulating the procedure on appeals from "any final order or determination" of the board; second, a special statute (chapter 297, Laws 1913) authorizing the board to fix rental value of warehouse and other sites, but requiring an appeal from its orders with reference to such matters to be taken in a lesser time and in a somewhat different manner from the procedure of general application established by chapter 312. This status continued unchanged until the adoption of the Revised Code of 1919.

When the revisers came to prepare chapters 297 and 312, Laws 1913, for insertion in the Code, this is what they did: They placed the provisions of chapter 312 (relating generally to trials and records before the board and appeals therefrom) in the Code without substantial change as sections 9587-9597 thereof, constituting article 3 of chapter 1 of part 20 of title 6 of the Code. When they came to deal with chapter 297, relating to the matter of warehouse sites, they placed section 1 of the act (purporting to authorize the board to fix rentals in case of dispute) in the Code without any substantial change as section 9773. The provisions of sections 2, 3, and 4 of the act (hereinbefore quoted and relating to appeals from these particular orders) they consolidated into one section and placed in the Code as section 9774, which reads as follows: "Either party to such controversy shall have the right to appeal from any such decision of the board of railroad commissioners to the circuit court of the county in which the purposed site is located, such appeal to be taken as provided in article 3, chapter 1, of this part; provided, that the question of the fair annual rental value of such warehouse, coalshed or other building site shall be submitted to a jury for determination, and judgment shall be entered upon the verdict by the court. Unless an appeal from the decision of the board of railroad commissioners be so taken, the decision of the board shall be final."

In this form the 1919 Code was adopted by the Legislature. It will be seen that the Code abrogated the special provisions of chapter 297, Laws 1913, relating to appeals from these rental orders, and put such appeals upon the same basis as appeals in general from final orders of the board pursuant to the provisions originating as chapter 312, Laws 1913, which had become in the Code article 3 of chapter 1 of the same part and title which included sections 9773 and 9774.

The next legislative step in the matter was the enactment of chapter 290, Laws 1919, which purported to amend sections 9590-9593, R.C.1919; the general effect of the amendment being to do away with appeals from orders of the board to the circuit court and to provide that such appeals should lie directly to the Supreme Court. This statute was held unconstitutional and beyond the legislative power by Winner Milling Co. v. Chicago & N.W. R. Co. (1921) 43 S.D. 574, 181 N.W. 195. But before that decision was handed down (January 29, 1921), the matter had again received the attention of the Legislature by chapter 81, Laws 2d Sp.Sess.1920 (approved June 30, 1920). By this statute, sections 9590-9596, R.C.1919, were once more amended. This second amendatory act likewise abrogated the provisions for appeal to the circuit court and provided, in substance, that a party affected by any final order of the board should first apply to the board for a rehearing, and if the same was denied such party might within 30 days apply to the Supreme Court for a writ of certiorari. The act also undertook to limit the powers of this court in hearing upon the writ, and further specifically provided by section 6 (amending section 9595, R.C.1919) as follows: "No court of this state, except the supreme court, to the extent specified in this act, shall have jurisdiction to review, reverse, correct or annual any order or decision of the board of railroad commissioners, or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the board in the performance of its official duties; provided, that the writ of mandamus shall lie from the supreme court to the board in all proper cases."

It is by virtue of the provisions of chapter 81, Laws 2d Sp.Sess.1920, that plaintiff in the instant matter claims the right to proceed as it is proceeding.

It is to be noted that section 9774, R.C. 1919, above quoted provides for an appeal "to the circuit...