State v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 05 February 1917
• Docket Number: 3958.
• Citation: 163 P. 115,53 Mont. 229
• Parties: STATE EX REL. BOARD OF R. R. COM'RS v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY ET AL.
• Court: Montana Supreme Court

163 P. 115

53 Mont. 229

STATE EX REL. BOARD OF R. R. COM'RS v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY ET AL.

No. 3958.

Supreme Court of Montana

February 5, 1917

Proceeding by the State of Montana, on the relation of the Board of Railroad Commissioners, against the District Court of the First Judicial District in and for the County of Lewis and Clark and R. Lee Word, Judge, to annul an order of said Court. Order of District Court affirmed.

J. B Poindexter, Atty. Gen., and J. H. Alvord, Asst. Atty. Gen for relator.

Veazey & Veazey, of Great Falls, for respondents.

BRANTLY C.J.

Certiorari. On May 13, 1916, the state Board of Railroad Commissioners the relator herein, made an order designated as "Order No. 160," requiring the Great Northern Railway Company (hereinafter referred to as the company) to operate a local passenger train each way daily between designated stations on its main line from Mondak, in Sheridan county, to Virden, in Toole county. It also directed the company to establish a like service between designated stations on its line extending southward from Great Falls, in Cascade county, to Billings, in Yellowstone county, giving the company the option, however, to furnish local Sunday service between Moccasin, in Fergus county, and Billings, by its through trains numbered 43 and 44. The purpose of the order was to require the company to extend the local service the retofore established, so as to include Sundays as well as week days. Thereupon, and on May 26th, the company brought its action in the district court of Cascade county to have the order reviewed as unjust and unreasonable so far as it required Sunday service between the points designated. The cause was thereafter transferred to the district court of Lewis and Clark county. Such proceedings were then had in that court that on July 10th, after a hearing upon an order to show cause theretofore issued at the instance of the company, the court made and entered its order staying the order of the board and suspending its operation pending a review of it by the court and a final determination of the action. The board thereupon commenced this proceeding to have the order of the district court annulled as in excess of jurisdiction.

It is agreed by counsel on both sides that the order, though referred to in the petition as a stay order, is in effect an injunction. The question submitted therefore is: Has the district court in this class of cases jurisdiction to use the provisional remedy of injunction in limine to suspend an order or regulation made and promulgated by the board pending a final determination of the action in which a review of the order is sought? Counsel have devoted considerable space in their briefs to a discussion of the questions which they say were considered and decided by the district court upon the hearing on the order to show cause. Whether the conclusions of the district court in a solution of these questions were correct we are not required in this proceeding to decide.

The board was created by chapter 37, Laws of 1907 (Laws 1907, p 68). The act is incorporated in the Revised Codes as chapter 5, tit. 8, p. 4, div. 1, §§ 4363-4399, inclusive. For convenience, reference is made to the sections considered here by their Code numbers. The board is vested with very extensive powers and duties. Among numerous others it has power, and it is its duty, to establish and promulgate fair and just rates and charges for the transportation of passengers and freight by railroads operating in this state; to prevent extortion and unjust discrimination in this behalf; and to compel all such railroads to provide and maintain train service for both passengers and freight sufficient to furnish reasonable accommodations to the public. Section 4384 confers upon the district court of the proper county jurisdiction to review any determination of the board "fixing any classification, rate, toll, charge, regulation or order," or its refusal to make, fix, or establish such classification, rate, etc. The action must be commenced by the filing of a complaint in the proper county, and the defendant must be served with summons as in an ordinary action, or with an order of court fixing a reasonable time within which appearance may be made, not less than five days. The issues are made up by answer. If the court finds the order establishing the classification, rate, etc., to be unjust and unreasonable, it becomes the duty of the board to revise it. Section 4390 authorizes any railroad deeming a classification, rate, toll, etc., established by the board to be unjust and unreasonable to bring the action against the board to have its determination reviewed. Section 4391 empowers any shipper to bring an action for the same purpose. To enforce any determination made by the board, section 4387 authorizes the court to entertain an action in the name of the state and by proper "decree, injunction or order" to compel obedience by the railroad to which the determination...