Minneapolis, St. Paul, & Sault Ste. Marie Railway Company, a Corp. v. Stutsman
| Decision Date | 13 October 1915 |
| Citation | 154 N.W. 654,31 N.D. 597 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Barnes County: Coffey, J.
Affirmed.
Judgment affirmed, with respondents taxable costs on this appeal.
Lee Combs, and L. S. B. Ritchie (John L. Erdall of counsel), for appellant.
The commissioners had no jurisdiction to hear and determine the matter involved. The doctrine of implied authority cannot be relied upon by the commissioners in this case, since our statutes give them but a supervisory control of the railroads in the state, and gives them no authority or power to regulate the building and maintenance of highway crossings over the track and right of way of railroads. Rev. Codes 1905, § 369, Comp. Laws 1913, § 589.
The railroad commissioners are statutory officers, and have only such powers as are conferred upon them, express or implied by the statutes of the state, and they cannot act outside of such authority. State ex rel. Ellis v. Atlantic Coast Line R. Co. 51 Fla. 578, 4 So. 875.
Such jurisdiction as to highways is not given them by implication. Railroad Comrs. v. Oregon R. & Nav. Co. 17 Ore. 65 2 L.R.A. 195, 19 P. 702.
"Authority of the railroad commissioners to do or compel any particular act on the part of the railway must be an express one embodied in the statute creating or defining the duties of such boards." Elliott, Railroads, §§ 682-684; Cambridge v. Boston & A. R. Comrs. 153 Mass. 161, 26 N.E. 241; Re Railroad Comrs. 83 Me. 273, 22 A. 168; Rev Codes 1905, §§ 4306, 4320, 4322, 4325-4397, Comp. Laws 1913, §§ 4657, 4687, 4688, 4709-4783.
W. H. Stutsman and Henry J. Linde, Attorney General, and Francis J. Murphy and H. R. Bitzing, Assistant Attorneys General, for respondents.
The general powers under which the Board of Railroad Commissioners acts are found in chapter 116 of the Laws of 1897. This law appears to have been taken from Nebraska, and has been construed by the supreme court there. State ex rel. Bd. of Transportation v. Fremont, E. & M. Valley R. Co. 22 Neb. 313, 35 N.W. 119.
South Dakota, also, has a statute like ours upon the subject, and it has been also construed by the supreme court there, against the appellant's contention. State ex rel. Tomkins v. Chicago, St. P. M. & O. R. Co. 12 S.D. 305, 47 L.R.A. 569, 81 N.W. 503.
In Oregon, from which state counsel for appellant cite authority, the law does not give the Board of Railroad Commissioners any remedial or supervisory powers whatever, and does not authorize it to make any order, but merely to investigate and recommend and to advise the railroad companies of their neglect of duty. Such law is not applicable in this state. Railroad Comrs. v. Oregon R. & Nav. Co. 17 Ore. 65, 2 L.R.A. 195, 19 P. 702.
Upon complaint to the State Board of Commissioners of Railroads by the chairman of the township board of Binghampton township, in Barnes county, the Board made an investigation resulting in its issuance to appellant railroad company of an order that it construct a certain crossing over their tracks near the village of Fingal. The company appealed. In its notice of appeal it is recited that the appeal is "from said order and the whole thereof, and it demands a review in said district court of the proceedings had in said matter." A purported transcript of the proceedings before the Commission was filed in district court, and thereupon trial in court was had anew on the merits on testimony taken but without the filing of pleadings further formulating issues. From the entire record before the district court it appears that no question of jurisdiction of that court of either subject-matter or parties was ever raised, either by demurrer, motion, or otherwise. Nor was the question of proper parties plaintiffs ever there invoked for decision. Instead 140 typewritten pages of testimony were taken at the trial had on the merits. The decision upon the merits was adverse to defendant. Findings and conclusions were made and filed, and judgment was entered ordering in the crossing. From that district court judgment the defendant appeals to this court. For the first time it now attempts, both by specifications served and assignments of error, to question the jurisdiction of the commissioners and afterward that of the district court "to hear and determine the controversy," quoting from its brief. Also, that there is no provision of law giving the commissioners authority to order the establishment of a highway crossing over railroad tracks at a point where there is no public highway in existence, or lawfully laid out, "nor at any point in the state." In its brief the appellant thus attacks the jurisdiction of the commissioner and of the district court on appeal, and the authority of the district court to enter the judgment appealed from.
There is no question of jurisdiction of the commissioner before this court. This proceeding stands exactly as though these parties had formulated their issue for decision and thereupon submitted the same to the district court for trial and decision upon the merits, and with that court having jurisdiction at law of the subject-matter so submitted for arbitrament. Upon proper proceedings, unquestionably that court would have had jurisdiction to determine and adjudge that this railway company should build this crossing over its tracks at the place in question. That being so, as a...
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