Jackman v. The Public Service Commission of The State of Kansas

• Decision Date: 08 May 1926
• Docket Number: 26,907
• Citation: 121 Kan. 141,245 P. 1047
• Parties: R. C. JACKMAN et al., Plaintiffs, v. THE PUBLIC SERVICE COMMISSION OF THE STATE OF KANSAS et al., Defendants
• Court: Kansas Supreme Court

245 P. 1047

121 Kan. 141

R. C. JACKMAN et al., Plaintiffs, v. THE PUBLIC SERVICE COMMISSION OF THE STATE OF KANSAS et al., Defendants

No. 26,907

Supreme Court of Kansas

May 8, 1926

Decided January, 1926.

Original proceeding in mandamus.

Motion overruled.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--Public Service Commission--Arbitrary Refusal to Approve Dam Project. The allegations of an alternative writ of mandamus that in refusing to approve the plans and specifications of a dam across a navigable river the public service commission acted arbitrarily and unreasonably and without reference to the merits, and that the plans and specifications were proper and correct and the commission had no valid objection to them, are sufficient to raise an issue of fact as to the action of the commission being arbitrary.

2. SAME--Acts and Duties Enforceable--Public Service Commission's Approval of Dam Project. The provision of the statute for the submission to the public service commission, for its inspection and approval, of plans and specifications of a dam across a navigable river, by clear implication requires the commission to approve them if that is the course that commends itself to its judgment after a full consideration of the matter on the merits. The commission is not authorized to withhold its approval merely at its own pleasure or volition, and mandamus is an appropriate remedy if it undertakes to do so.

Henderson S. Martin, of Lawrence, Bennett R. Wheeler, S. M. Brewster and John L. Hunt, all of Topeka, for the plaintiffs.

M. J Healy, John M. Kinkel, Henry V. Gott, all of Topeka, J. B. Wilson and Ralph R. Rader, both of Lawrence, for the defendants.

Mason, J. Harvey, J. concurring specially.

OPINION

MASON, J.:

The statute provides for the submission to the public utilities commission (now the public service commission) for its inspection and approval, by any person who desires to construct or repair, or who has already constructed, a dam over a navigable river of this state, of plans and specifications thereof, upon the approval of which the construction of the dam shall be authorized, or, if already in existence, shall become established, the right to maintain it being confirmed. (R. S. 68-1502, 68-1503.) The sections of the statute referred to are printed in full following this opinion. The owners of the dam across the Kansas river at Lawrence presented to the commission plans and specifications for repairs, additions and betterment thereto. A committee of engineers was appointed by the commission to investigate and report upon them. The committee made a favorable report. The commission denied the application for the approval of the plans and specifications. The applicants bring this proceeding, seeking by mandamus to require the commission to approve them. An alternative writ has been issued, reciting that the plans and specifications are not subject to objection and that the commission had no valid objection to them; that from an engineering standpoint they were proper and correct in all respects; that they were so prepared as to avoid all damages and injury to anyone; that a request for findings of fact was refused; and that the refusal of the commission to approve them was unreasonable and arbitrary and made without reference to their merits. The case has been argued upon a motion of the commission to quash the writ--in effect a demurrer.

The commission's contention is that it has full discretion to grant or refuse the approval asked, and its conduct in that regard is not subject to judicial control. It suggests that the recitals of the writ that its course has been arbitrary and unreasonable is a mere conclusion of law and should be given no effect.

1. We think the allegations in question are as specific as the nature of the case admits, or at all events are sufficiently concrete to require that they be treated as assertions of fact. To say that the plans were not subject to objection, that the commission had no valid objection to them, that from an engineering standpoint they were proper and correct, and that they avoided injury to everyone, was to present issues in these respects pertinent to the controversy and susceptible of proof or refutation by evidence. The statement that the applicants' request for findings of fact was denied has some bearing on the matter. The statute does not in terms require the making of findings, yet in a matter of such obvious importance a refusal to indicate the grounds of the decision, where the circumstances alleged do not readily suggest a just reason, tends in some degree to support the assertion that none existed. The course of conduct fairly to be expected of a body to which is committed the regulation of such extensive interests is not to be measured by what is expressly commanded. Of the failure of a commerce commission for two years to take action in a rate case it has recently been said:

"For this apparent neglect on the part of the commission no reason or excuse has been given; and it is just to say that, without explanation, its conduct evinces an entire lack of that acute appreciation of justice which should characterize a tribunal charged with the delicate and important duty of regulating the rates of a public utility with fairness to its patrons but with a hand quick to preserve it from confiscation." (Smith et al. v. Illinois Bell Telephone Company, 270 U.S. 587, 46 S.Ct. 408, 409, 70 L.Ed. 747.)

In a proceeding where mandamus was invoked to compel a probate judge to issue a permit for the sale of intoxicating liquor this court said the refusal of the judge to give his reason for not granting the application was immaterial. ( Stanley v. Monnet, 34 Kan. 708, 9 P. 755.) The language of the opinion, however, does not adequately indicate what it was that the judge declined to furnish. The record shows the demand with which he refused to comply to have been that he state his reasons for believing the applicant unfit to be granted a permit, the evidence on which he founded his belief, and the names of the persons who gave him information on the subject.

2. The statute does not explicitly state under what conditions the commission shall grant and under what conditions it shall reject such an application as that here involved. It does not say in so many words that it shall grant the application if that is the course that approves itself to its judgment after a full consideration of the matter, but such a mandate is as much a part of the law as though it were explicitly stated.

"Even where an ordinance in terms merely says that a certain thing shall not be done without a permit from a designated officer, it is often interpreted as meaning that the officer is to grant the permit unless in his honest judgment reasonably exercised the interest of the public will thereby be put in jeopardy, a construction rendering it unobjectionable on constitutional grounds. ( Lieberman v. Van De Carr, 199 U.S. 552, 50 L.Ed. 305, 26 S.Ct. 144.)" (Service Oil Co. v. City of Marysville, 117 Kan. 514, 516, 231 P. 1031.)

The federal case cited in the foregoing quotation involved the validity of an ordinance forbidding the keeping of milk for sale without a permit from the board of health. The ordinance did not state under what circumstances a permit should be issued or under what withheld. The supreme court of the United States held it valid because the state court of last resort had interpreted it as authorizing the exercise of legal discretion, but not of arbitrary conduct on the part of the board of health. While the opinions of the state courts (80 N.Y.S. 1108; 175 N.Y. 440) deal rather briefly with this phase of the matter, they clearly show the ordinance was regarded as meaning that the board was to grant or refuse permits as the reason of the case should require without discrimination where the applicants were similarly situated. Ordinances vesting discretion in public officers to issue or refuse permits without laying down a definite rule by which they are to be governed have often been held void as giving countenance to arbitrary action. (Note, 12 A. L. R. 1435.) But a rule sufficiently definite for the purpose is often inferred from general provisions of the ordinance, or from the nature of the case. (Same note, pp. 1445-1452.) So far as the constitutional feature of the matter is concerned a distinction is sometimes drawn with respect to the issuance...