In re Application & Hearing Before Board of Railroad Commissioners of State

• Decision Date: 04 January 1921
• Docket Number: 358
• Citation: 181 N.W. 596,47 N.D. 179
• Court: North Dakota Supreme Court

181 N.W. 596

47 N.D. 179

IN THE MATTER OF THE APPLICATION AND HEARING BEFORE THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NORTH DAKOTA, ENTITLED, CITY COMMISSION OF BISMARCK, NORTH DAKOTA, v. BISMARCK WATER SUPPLY COMPANY. STATE OF NORTH DAKOTA EX REL. P. C. REMINGTON, et al., Petitioners, v. C. J. AANDAHL, et al., Respondents

No. 358

Supreme Court of North Dakota

January 4, 1921

Application for an original writ to set aside, and restrain the enforcement of a purported order or regulation of the Board of Railroad Commissioners ordering an increase in the rates of the Bismarck Water Supply Company.

Writ granted.

Writ issued.

Newton Dullam & Young, H. F. O'Hare, and Lawrence & Murphy, for petitioners.

The supreme court has original jurisdiction of this cause. State ex rel. Granvole v. Porter, 11 N.D. 309; State ex rel. Buttz v. Lindahl, 11 N.D. 320; State ex rel. Mitchell v. Lawson, 13 N.D. 420; State ex rel. Baker v. Hanna, 21 N.D. 570. Cases where exercised, as to state boards, commissions and tribunals. State v. Archibald, 5 N.D. 359; State ex rel. Birdzell v. Jorgenson, 25 N.D. 539; State ex rel. Baker v. Hanna, 31 N.D. 570; State ex rel Linde v. Taylor, 33 N.D. 76; State v. Packard, 32 N.D. 301; State ex rel. Linde v. Packard, 35 N.D 298; State ex rel. Langer v. Kositzky, 38 N.D. 616.

This court may act as a court of equity. It may take testimony. Re Sidle, 31 N.D. 405, 154 N.W. 277.

It may issue all necessary writs and all necessary orders to effectuate its jurisdiction as assumed. State v. Archibald, 5 N.D. 359, 66 N.W. 234; State v. Nuchols, 18 N.D. 233, 20 L.R.A. (N.S.) 413, 119 N.W. 632; State ex rel. Brick Corp. v. District Ct. 24 N.D. 28, 32, 138 N.W. 988; State v. Langer (N.D.) 177 N.W. 414.

The mere filing of a petition for the removal of a suit which is not removable does not work a transfer. To accomplish this the suit must be one that may be removed and the petition must show a right in the petitioner to demand the removal. Stone v. State, 117 U.S. 430, 29 L.Ed. 962.

It perhaps is immaterial whether the action of the board of railroad commissioners was legislative or judicial. This court in the case of Re M. St. P. & S. St. M. R. Co. 30 N.D. 227, following the Federal cases to which we have called attention, holds that the board in establishing rates acts legislatively.

The following authorities sustain the right to invoke certiorari in a case where the remedy by appeal proves inadequate. State v. Guinotte, 156 Mo. 513, 50 L.R.A. 787, 57 S.W. 281; State v. Whatcom County, 74 Wash. 601, 134 P. 183; State v. King County S.Ct. 26 Wash. 278, 66 P. 385; United States Standard Voting Mach. Co. v. Hobson, 132 Iowa 38, 7 L.R.A. (N.S.) 512, 109 N.W. 458; R. R. Co. v. Lamb, 60 Ind.App. 409, 110 N.E. 997.

Miller, Zuger & Tillotson and Simpson & Mackoff (Butler, Mitchell & Doherty, of counsel), for Bismarck Water Supply Company.

This cause is not one within the original jurisdiction of this court. State v. Packard, 32 N.D. 301, 155 N.W. 666; State v. Taylor, 33 N.D. 76, 156 N.W. 561; State v. Hall, 35 N.D. 34, 155 N.W. 281; State v. Packard, 35 N.D. 298, 160 N.W. 150; State v. Packard, 168 N.W. 673.

The controversy between the city of Bismarck and the Water Supply Company was prior to the commencement of this proceeding, duly removed to the United States District Court, and the courts of the state of North Dakota have no longer jurisdiction to consider it. Judicial Code of the U. S. Comp. Stat. § 1010; Upshur County v. Rich, 135 U.S. 467, 477; Delaware County v. Diebold Safe & Lock Co. 133 U.S. 473; Fuller v. Colfax County, 14 F. 179; C. M. & St. P. R. Co. v. Drainage Dist. Co. 253 F. 491; Waha-Lewiston L. & W. Co. v. Lewiston-Streetwater I. Co. 158 F. 137.

"If the cause is removable and the statute for its removal has been complied with, no order of the state court for its removal is necessary to confer jurisdiction on the court of the United States, and no refusal of such an order can prevent that jurisdiction from attaching." Kern v. Huidekoper, 103 U.S. 485; Marshall v. Holmes, 141 U.S. 589; Mannington v. Hocking Valley R. Co. 183 F. 133.

CHRISTIANSON, Ch. J. ROBINSON, BRONSON, and GRACE, JJ., concur, BIRDZELL, J., ROBINSON, J., (concurring specially).

OPINION

CHRISTIANSON, Ch. J.

This is an application for an original writ to have reviewed and set aside and annulled as unlawful and in excess of jurisdiction a certain order made by the board of railroad commissioners of this state on or about October 2, 1920, whereby the said board of railroad commissioners granted an increase in rates to the Bismarck Water Supply Company. The petition alleges that the city of Bismarck is a municipal corporation having a population of about 7,000; that on June 23, 1919, the city commission, by resolution duly adopted, made the following complaints against the service rendered by the Bismarck Water Supply Company:

"(1) Unsanitary condition of reservoirs.

"(2) Unprotected condition of reservoirs.

"(3) Insufficient fire and water protection, in this that there is only one water pump which may at any time break down and repairs are difficult to procure, thus endangering the property, health, and lives of the citizens of Bismarck.

"(4) Plant is insufficient to take care of supply and demands of service.

"(5) There is an unnecessary delay in extending water mains after demand is made therefor.

"(6) There is no filtration plant.

"(7) The mixing chamber is not in fit condition to insure a proper mixture of the chlorine used to purify the water.

"(8) The rates are excessive for home consumption, lawns and gardens.

"(9) The water is muddy and full of sediment."

That such resolution was filed with the board of railroad commissioners; that thereafter the Bismarck Water Supply Company filed an answer to the effect that it denied generally and specifically each and every charge so made by the city commission against the Bismarck Water Supply Company; that the issues thus framed were the only ones before the board of railroad commissioners to determine; that after hearing and taking of evidence the board of railroad commissioners on or about October 2, 1920, "wrongfully and unlawfully and in excess of their jurisdiction and foreign to the issues created at said hearing," did make and file an order wherein it granted the Bismarck Water Supply Company permission to increase its rates in amounts, aggregating approximately 60 per cent increases in existing rates. (The order also contained other provisions relating to the matter mentioned in the charges filed by the city commissioners); that subsequently the city commissioners appealed to the district court from the entire order and determination of the railroad commissioners; that a determination of such questions will require a considerable length of time and that in the meantime the unlawful rates and increases purported to be authorized by the board of railroad commissioners will be put into effect; that there are approximately 1,400 users of waters, including the municipality and the state; that the relators are resident taxpayers of the city of Bismarck, and users of water furnished by the Bismarck Water Supply Company.

It is further averred in said petition that the board of railroad commissioners did not at any time during the progress of said hearing initiate or conduct any examination relating to the increase of rates; and that no notice of said proposed increase in rates was given as required by chapter 192, Laws 1919, or at all. It is further averred that the law under which the board of railroad commissioners purported to act is unconstitutional and void; and that the said board of railroad commissioners has no legal authority or power whatever to exercise any control over, or to act upon or grant rate increases to, any utilities except railroad and street car companies.

It is further averred in the petition, "that said board of railroad commissioners is proceeding to act under the said chapter 192, Laws of 1919, and is prescribing rates for and making orders with reference to public utilities doing business in every community of the state of North Dakota. That it is constantly and continuously making orders of the character herein described under circumstances and conditions similar to those existing in the proceeding instituted as hereinbefore alleged for the purpose of securing a reduction of rates charged by the Bismarck Water Supply Company and requiring certain other acts and things to be done. That in its said proceedings every municipality, community, and citizen of the state is interested and affected, and that by reason of the premises the acts of the commissioners under said chapter 192 affect the rates and privileges and franchises of this state. . . . That the matters herein involved are of great public interest and of public concern and involve questions affecting the sovereign rights of the state and of said boards and officers and the operation of said state statute, and are not local in character but will affect each and every municipality and community in the state of North Dakota and the rights of all the citizens of such municipalities and communities with reference to their rights as against the action of public utilities, and of the state board of railroad commissioners pretending to exercise power to increase rates thereof. That the state of North Dakota is a user of such water in its state institutions at Bismarck." The respondent, Bismarck Water Supply Company, appeared specially, and so appearing, moved the court:

"(1) To dismiss the alternative writ issued in this cause and all proceedings herein and to vacate the restraining orders issued herein, on the ground that this court has no jurisdiction to...