Chicago, Milwaukee & St. Paul Railway Co. v. Public Utilities Commission of State

• Citation: 47 Idaho 346,275 P. 780
• Decision Date: 14 March 1929
• Docket Number: No 4252,4252
• Court: United States State Supreme Court of Idaho
• Parties: CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY et al., Appellants, v. PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, Respondent

275 P. 780

47 Idaho 346

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY et al., Appellants, v. PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, Respondent

No 4252

Supreme Court of Idaho

March 14, 1929

APPEAL AND ERROR-COSTS OF APPEAL-PUBLIC UTILITIES COMMISSION PARTY TO ACTION-PRIVATE FUNDS IN POSSESSION OF STATE-DISPOSITION OF INTEREST.

1. Railroad companies held entitled to judgment for costs taxed in United States supreme court on reversal of state supreme court's decision affirming Public Utilities Commission's order reducing railroad freight rates, but not for costs in state court, the state being a party to proceeding so far as the Public Utilities Commission is a party.

2. The state is a party to a railroad freight rate proceeding, so far as the Public Utilities Commission is a party thereto.

3. Costs against the state are allowed only when provided by statute, either expressly or by necessary implication.

4. A general statute, such as C. S., sec. 7212, providing that prevailing party shall recover costs on appeal, except when new trial is ordered or judgment modified, does not apply to state, particularly when it is a party in its governmental capacity, as in railroad freight rate proceeding before Public Utilities Commission, though section 7223 provides for payment of costs by state when taxed against it.

5. A private fund, of which state takes possession, pursuant to law, in exercise of governmental function, as in case of sums collected by railroad companies in excess of freight rates authorized by Public Utilities Commission, pending hearing in state and United States supreme courts, and deposited by clerk with state treasurer under C. S., sec. 165, becomes "moneys of the state," within sec. 318, and interest paid thereon by state depositories must be apportioned to general fund under sec. 325, not distributed to parties entitled to principal on determination of case, as provided by sec. 2512, where court orders clerks to deposit funds at interest under sec. 2511.

PETITION for entry of judgment. Allowed, in part.

Petition of appellants granted as to costs taxed in the United States supreme court, and denied as to costs in this court and the interest earned on the deposited fund; and the orders of the Public Utilities Commission appealed from set aside.

F. M Dudley and E. J. Dockery, for Appellants.

Costs in United States Supreme Court: The right to these costs, amounting to $ 894, is not open to question. They have been taxed and allowed by that court, and this court has no power to change the same. (In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994.)

Costs in Supreme Court of Idaho: It may be contended by respondents that such cost judgment would be a judgment against the state and should therefore not be allowed. There are two answers to such a contention: Such a judgment is not against the state, even though it must be paid from public funds. Proceedings to secure the annulment or enjoining of orders of Public Utility, Public Service or Railroad Commission, because improperly made, may be divided into two classes: special statutory proceedings such as by writ of certiorari or appeal, as in Idaho; or injunction proceedings which are open at least in the absence of special statutory provisions. Thus, although there is no special statutory provision, it is settled that wrongful and injurious orders of the Interstate Commerce Commission may be enjoined under the general equity powers of the federal courts. And this power has been repeatedly exercised. For examples, see Southern Pacific Co. v. Interstate Commerce Com., 219 U.S. 433, 31 S.Ct. 288, 55 L.Ed. 283; Interstate Commerce Com. v. Union Pacific Ry. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; Interstate Commerce Com. v. Louis & Wash. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431.

Obviously, the United States supreme court did not, in the present case, consider that it was directing a judgment against the state when it directed in its mandate that judgment be entered for the costs incurred in that court, for the eleventh amendment to the federal constitution would have prohibited such action if that were the case. (Brady v. Place, 41 Idaho 752, 242 P. 314, 243 P. 654; Ex parte Fitzpatrick, 171 Ind. 557, 86 N.E. 964; Bartles Oil Co. v. Lynch, 109 Minn. 487, 124 N.W. 1994, 25 L. R. A., N. S., 1234.)

Whether the provisions of C. S., sec 165, applied to the special trust fund created by deposits of excess collections by a utility under the provisions of sec. 2511, is open to doubt: But it is not necessary to consider the question here. If the statute requires such deposit, the treasurer took it as an express trustee, charged with the duty of holding it in a special suspense fund. If such deposit was unauthorized, he nevertheless having received the moneys with notice of their character as a trust fund, was chargeable as a trustee with respect thereto, and could make no profit therefrom. Neither could the state, which had no interest in these moneys.

We have found no statute authorizing the deposit of such moneys, held in trust in a special suspense fund, in depository banks. C. S., sec. 318 provides: "The state treasurer shall deposit and at all times keep on deposit, subject to the provisions of this chapter, in designated state depositories, all moneys of the state of Idaho coming into his hands."

But these moneys were not moneys of the state of Idaho. They were special funds impounded until, by the final decision in the case, it was determined whether they were the moneys of the shippers or of the utilities; and the treasurer was without authority to deposit them in the banks. He, however, did so, and collected interest thereon. But the interest so collected became and was the property of the cestui que trust, determined in this case to be the appellants. (Drainage Dist. No. 2 v. Ada County, 38 Idaho 778, 226 P. 290; State v. McGraw, 74 Mont. 164, 240 P. 817; Public Service Com. v. Frazee, 188 Ind. 573, 122 N.E. 328.)

Frank L. Stephan, Attorney General, and S.E. Blaine, Assistant Attorney General, for Respondent.

The action herein is against a department of the state, the Public Utilities Commission, and the Public Utilities Commission being an arm of legislative authority and a branch of the state government, the action in effect and in fact, is an action against the state itself. (Bragaw v. Gooding, 14 Idaho 288, 94 P. 438; Thomas v. State, 16 Idaho 81, 100 P. 761; Coon v. Sommercamp, 26 Idaho 776, 146 P. 728; Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 345; Brady v. Place, 41 Idaho 747, 753, 242 P. 314, 243 P. 654.)

The costs herein untaxed and unallowed are a claim or demand against the state. (Const., art. 4, sec. 18, art. 5, sec. 10; C. S., secs. 149, 242.)

The right to costs is purely statutory and when there is no statute authorizing it, no costs can be allowed. (Rhodenbaugh v. Stingel, 31 Idaho 594, 174 P. 604; United States ex rel. Phillips v. Gaines, 131 U. S. Appendix, clxix, 25 L.Ed. 733.)

There are only three statutory provisions that have any apparent application to the right to costs in the action herein. (C. S., secs. 7212, 7223; 1921 Sess. Laws, chap. 72, sec. 5.)

No contract either expressed or implied exists herein for the state to pay interest on funds held by authority of this court and no contract existing, the appellants herein are not entitled to any interest on such deposits. We think that the case of the United States v. Minnesota Mutual Investment Co., reported in 271 U.S. 212, 46 S.Ct. 501, 70 L.Ed. 911, is directly in point herein in principle and decides the question of interest without further citation or argument.

BRINCK, District Judge. Budge, C. J., and Wm. E. Lee, J., concur. GIVENS, J., concurring in part and dissenting in part.

OPINION

BRINCK, District Judge.

In this action appellants appealed to this court from an order of the Idaho Public Utilities Commission made August 20, 1923, reducing the rate for the transportation of logs one-half of the 25 per cent increase that had been made in 1920 by the Interstate Commerce Commission by order Ex parte 74. This court, in a decision rendered March 25, 1925 (Railway Co. v. Public Utilities Com., 41 Idaho 181, 238 P. 970), affirmed the order of the Public Utilities Commission appealed from. On January 4, 1926, the supreme court of the United States granted a writ of certiorari to this court in this case (269 U.S. 550, 46 S.Ct. 201, 70 L.Ed. 406), and reversed the decision of this court on May 16, 1927. (Chicago, M. & St. P. R. Co. v. Public Utilities Com., 274 U.S. 344, 47 S.Ct. 604, 71 L.Ed. 1085.) The mandate issued by the supreme court of the United States to this court reversing the decision of this court ordered that the judgment of this court should be reversed with costs, and that the said appellants, Chicago, Milwaukee & St. Paul Railway Co. et al., recover against the said appellee $ 894 for their costs herein expended and have execution therefor.

Pending the hearing in this court and in the supreme court of the United States, this court suspended the operation of the order of the Public Utilities Commission reducing the rates, and ordered that the several appellants each pay into court from time to time, there to be impounded until the final decision of the case, all sums of money which they might collect from any corporation or person in excess of the sums they could have collected if the orders of the Commission had not been suspended. The funds so deposited with the clerk under the orders that were made were by the clerk deposited with the state treasurer, under the provisions of C. S., sec. 165, which is as follows:

"Any state officer, department,...