State ex rel. Northern Pac. Transport Co. v. Public Service Commission, 7678

• Decision Date: 25 April 1957
• Docket Number: No. 7678,7678
• Citation: 82 N.W.2d 597
• Parties: STATE of North Dakota, ex rel. NORTHERN PACIFIC TRANSPORT COMPANY, a corporation, Plaintiff and Respondent, v. PUBLIC SERVICE COMMISSION of the State of North Dakota, and Anson J. Anderson, Ernest D. Nelson and Martin Vaaler, as Members of the Public Service Commission of the State of North Dakota, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 597

82 N.W.2d 597

18 P.U.R.3d 393

STATE of North Dakota, ex rel. NORTHERN PACIFIC TRANSPORT

COMPANY, a corporation, Plaintiff and Respondent, v. PUBLIC SERVICE COMMISSION of the State of North Dakota, and Anson J. Anderson, Ernest D. Nelson and Martin Vaaler, as

Members of the Public Service Commission of the State of

North Dakota, Defendants and Appellants.

No. 7678.

Supreme Court of North Dakota.

April 25, 1957.

Syllabus by the Court

1. Where a public administrative agency is vested with quasi-judicial powers and discretion to determine questions of fact involving the taking and consideration of evidence, such agency cannot be compelled by mandamus to decide in a particular way, but may be compelled to take action and to make some determination.

2. In the instant case it is held, for reasons stated in the opinion, that the appellant, Public Service Commission, failed for an unreasonable length of time to make findings of fact, conclusions of law and to make decisions in the cases involved, in violation of Section 28-3213, NDRC 1943, and that the district court properly issued a peremptory writ of mandamus compelling the Commission to make some determination.

Charles L. Murphy, Sp. Asst. Atty. Gen., for appellants.

E. T. Conmy, Jr., Fargo, Frank S. Farrell, St. Paul, Minn., for respondent.

SATHRE, Judge.

This is an appeal by the Public Service Commission from a judgment of the district court, fourth judicial district, North Dakota, granting a peremptory writ of mandamus, directed to the Public Service Commission requiring it to decide two certain cases pending before it designated as cases M-968 and M-969. The writ was issued by the Hon. C. L. Foster, one of the judges of said district court and dated February 5, 1957.

On or about May 21, 1955, the Northern Pacific Transport Company, a subsidiary of and owned by the Northern Pacific Railway Company, presented to the Public Service Commission an application for three class A certificates of public convenience and necessity authorizing passenger and freight transportation by motor bus service, between certain points in North Dakota, but of which only two are here for consideration to wit:

'(1) For a Class A Certificate of public convenience and necessity authorizing motor passenger and freight service for the transportation of passengers and their baggage, express, newspapers, milk, cream and general commodities between Valley City, North Dakota, over U. S. Highways 10, and 52 to Sanborn, North Dakota, thence over North Dakota Highway 1 to junction of North Dakota Highway 7, thence over North Dakota Highway 7 to Cooperstown, North Dakota, thence over North Dakota Highway 45 to junction of North Dakota Highway 65, thence over North Dakota Highway 65 to Binford, North Dakota, thence over unnumbered highway to McHenry, North Dakota, and return over the same route, serving all intermediate points and off-route points to Berea.

'(2) For a Class A certificate of public convenience and necessity authorizing motor passenger and freight service for the transportation of passengers and their baggage, express, newspaper, milk, cream and general commodities between Jamestown, North Dakota and Turtle Lake, North Dakota: Over U. S. Highways 52 and 281 to Carrington, North Dakota, thence over North Dakota Highway 7 to junction of North Dakota Highway 41, thence over North Dakota Highway 41 to Turtle Lake, North Dakota, and return over the same route, except that the passenger authority is not sought between jamestown and Carrington, serving all the intermediate points and off-route points of Parkhurst, Sykeston, Heaton, Bowden, Chaseley and Pickardville; between Carrington, North Dakota and Esmond, North Dakota; Over U. S. Highway 281 to junction of unnumbered highway approximately six miles north of Sheyenne, North Dakota, thence over unnumbered highway to junction of North Dakota Highway 30, thence over North Dakota Highway 30 to Maddock, North Dakota, thence over unnumbered highway or over unnumbered highway and North Dakota Highway 19 as an alternate route for operating convenience only, to Esmond, North Dakota, and return over the same route, serving all intermediate points and off-route points of Guptill, Barlow, Divide, Josephine, Flora and Hesper.'

The Public Service Commission assigned docket numbers Case M-968 to that portion of the application designated under (1) and Case M-969 to the application designated (2).

On the same date, May 21, 1955 the Northern Pacific Railway Company filed with the Public Service Commission an application for permission to change the train service of the Northern Pacific Railway Company to and between the towns on the branch lines affected by the application of Northern Pacific Transport Company as set forth in the application hereinbefore referred to. The application of Northern Pacific Railway Company was divided into five separate cases and docketed as cases No. 5326, 5327, 5328, 5329 and 5330. All of these five cases designated as the train cases were heard by the Public Service Commission in the summer and fall of 1955, and were decided adversely to the Northern Pacific Railway Company in the spring and summer of 1956, and are all pending on appeal to the district courts of this state. No decision was ever made by the Commission in the motor bus cases M-968 and M-969.

Thereafter and on about the 19th day of December 1956 the Northern Pacific Transport Company made application to the district court, fourth judicial district, Burleigh County, North Dakota for a peremptory writ of mandamus directing the Public Service Commission promptly to make findings, conclusions and decisions in cases M-968 and M-969, the same being the cases in which the transport company made application for class A certificates of public convenience and necessity as set forth herein.

The application alleged that cases M-968 and M-969 had not been decided by the Public Service Commission even though they were heard and finally submitted in the fall of 1955, and in spite of repeated requests by the Northern Transport Company, for decisions in these cases; that fifteen months had elapsed since the evidence was received; that approximately one year had passed since the briefs were filed and the cases finally submitted; that the Public Service Commission still had not made findings and conclusions or rendered a decision in either of said cases as required by Section 28-3213, NDRC 1943.

The application further alleged that the Northern Pacific Transport Company had been greatly inconvenienced and damaged because of the long delay without a decision in said cases; and that said Northern Pacific Transport Company had no plain, speedy or adequate remedy in the ordinary course of law. A peremptory writ of mandamus was prayed for directing the Public Service Commission to make findings, conclusions and decisions in cases M-968 and M-969 as required by Section 28-3213, NDRC 1943.

The said application together with an order issued by the said district court was duly served on the Public Service Commission. The order fixed the date for hearing upon the merits of such application before the Hon. C. L. Foster, one of the judges of the said district court, on the 15th day of January 1957 at 10 o'clock A.M. at ...