State v. Great Northern Ry. Co.

• Decision Date: 15 April 1912
• Citation: 123 P. 8,68 Wash. 257
• Court: Washington Supreme Court
• Parties: STATE ex rel. STATE RAILROAD COMMISSION et al. v. GREAT NORTHERN RY. CO.

123 P. 8

68 Wash. 257

STATE ex rel. STATE RAILROAD COMMISSION et al. v. GREAT NORTHERN RY. CO.

Supreme Court of Washington

April 15, 1912

Department 2. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by the State, on relation of State Railroad Commission and the members thereof, against the Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

F. V Brown and Frederic G. Dorety, both of Seattle, for appellant.

W. V Tanner, Atty. Gen., and Stephen V. Carey, Asst. Atty. Gen for respondent.

ELLIS J.

On March 30, 1909, the Railroad Commission of the state of Washington filed before itself a complaint challenging the sufficiency of the station facilities of the defendant, Great Northern Railway Company, at the various stations on its lines within the state of Washington. After service of the complaint upon the defendant together with a citation to appear, a hearing was had at which the defendant company appeared by counsel and introduced evidence. Based upon this hearing, an order was made by the Commission requiring the defendant to construct a station building at the town of Chattaroy in Spokane county. The order required that the building be not less than 12 by 40 feet in size, specified other things in connection therewith, and required that the improvements be made within 40 days after the service of the order upon the defendant. The order was served on August 2, 1909. No appeal or action to review these proceedings and order in the superior court was taken or had. By a compliance with the order, the station would have been completed not later than September 12, 1909. It is admitted that it was not completed until December 26, 1909. This action was brought in the superior court in Spokane county against the railroad company by the state, upon the relation of the Railroad Commission, to recover a penalty, under the provisions of section 5 of the Railroad Commission Act (Rem. & Bal. Code, 8631), for the failure to obey the order and complete the station within the time therein fixed. The case was tried upon an agreed statement of facts before the court without a jury. The court made findings in favor of the plaintiff and rendered judgment thereon for $1,000 and costs. From that judgment the defendant has appealed.

The facts upon which the defendant relied for a defense were agreed upon subject to the plaintiff's objection that they were incompetent, irrelevant, immaterial, and constituted no defense. They were as follows: That at the time of the making and service of the order the Commission made and served orders requiring the construction of certain facilities at 47 other stations of the defendant in this state; that prior to service the defendant was informed of the nature of the orders and directed its general superintendent to cause the Chattaroy depot to be constructed and the other orders complied with, except those from which appeals were taken to the superior court as provided in the act; that by the defendant's system then and prior thereto in force, which system is complex and set out in detail in the agreed statement, and under which all improvements were made, different parts of the work were allotted to different departments and officials; that under this system the engineering department in making surveys, plans, and estimates, and getting them approved, consumed the time from July 31st to October 4th, some 65 days; that the purchasing department in ordering, purchasing, and shipping materials consumed the time from October 4th to November 15th; that the operating department proceeded with the work when the materials arrived; that the plans for the Chattaroy depot were of a small standard type in general use on the Great Northern system and were on file in the engineer's office prior to August 1, 1909; that 11 days' time was necessary to construct one of these buildings; that the Chattaroy plans were not sent to the St. Paul office for approval until September 4th, because it was customary to send in several of such plans and estimates at one time, and the resident engineer thought that was the proper way to do in this instance; that in the months of November and December, 1909, unprecedented floods caused many injuries to the tracks, bridges, and culverts of the defendant's railroad, and carpenters and workmen engaged upon the work of the improvements ordered by the Commission were diverted from that work to the repair work made necessary by the floods which to some extent delayed the completion of the improvements; that from the time when the general superintendent ordered the plans and estimates on July 31st, some of the employés, officials, and departments of the defendant were under instructions to proceed with the work of completing all the improvements ordered, including the Chattaroy depot.

The appellant's contention, presented under several heads, when reduced to the ultimate, may be fairly stated in two postulates.

1. It is assumed that in the Railroad Commission Act there is no provision, either expressed or implied, authorizing the Commission to fix a time within which duties enjoined by its orders shall be performed. It is argued that the Railroad Commission Act is a law declaratory of the duties of common carriers in this state; that the commission is a tribunal intrusted with jurisdiction to determine when these duties are not being discharged, empowered to order performance of these duties, and vested with authority to enforce the declaratory parts of the statute. It is admitted that the penal provisions are inserted to prevent disobedience to the authority thus constituted. It is claimed that the authority goes only to a hearing and an order thereon as to what duties shall be performed and the manner of performance, but that no means are provided for either hearing or order as to the time of performance; that, the duty being fixed, the obligation to perform begins at once and cannot be dispensed with by any order for a single day; that the fixing of a time within which performance must be made is therefore beyond the power of the Commission. If we have caught counsel's meaning, this is a fair and just compend of their contention. The argument is attractive but specious. Its infirmity consists in the assumption that the fixing of a time within which performance must be made to escape the penalty impairs the obligation to perform. It would be equally as just to say that an order prescribing a manner of performance which in its nature must consume a certain time dispenses with the duty to perform during that time. Neither is true. The order, as to both manner and time, is based upon the antecedent and continuing duty. The admitted power of the Commission to determine the duty and enforce performance under penalty carries with it the power and duty to determine manner of performance and time when the penalty for the failure to perform will attach. This is essential to the very genius of the law. The power to compel performance under penalty necessarily implies the power to fix a time beyond which failure to perform will not be tolerated, otherwise the provision imposing the penalty would be nugatory. The Railroad Commission Act would be a law without sanction. It is no answer to say that the Commission cannot by order dispense with the obligation to perform for a single day. The order does not dispense with the obligation. It creates it in the sense that it defines it and makes the general obligation specific and certain as applied to the given case, both as to manner of performance and time beyond which performance may not lag without incurring the penalty. The obligation exists from the beginning. It is never suspended. The time limit merely invokes the penalty. It is manifest that, the statute having imposed the penalty for failure to obey the order, that order must be specific and certain or it would be void so far as enforcement is concerned. The Legislature, acting within its constitutional powers, has, by statute, created the Railroad Commission and intrusted to its jurisdiction the broad and complex field covered by the duties of common carriers in their relation to the public as such. A jurisdiction so vast is of necessity covered in general terms. The dominant purpose of the act is remedial. There is therefore conferred by necessary implication every power proper and necessary to the exercise of the powers and duties expressly given and imposed.

'While in the abstract the power to prescribe rules and regulations for common carriers appertains to the legislative department, it is settled that within proper limits such power may be exercised through administrative officers and boards, and that in general such officers and boards have authority to do anything proper and necessary for the complete lawful exercise of the duties imposed upon them. Wherever a power is given by statute, everything lawful and necessary to the effectual execution of the power is given by implication of law. Mitchell v. Maxwell, 2 Fla. 594; Opinion of Chief Justice, 8 Fla. 496, text 508; State ex rel. Attorney General v. Gleason, 12 Fla. 190, text 209; Ex parte J. C. H., 17 Fla. 362; Ex parte Wells, 21 Fla. 280; State ex rel. Smith v. Burbridge, 24 Fla. 112, text 126, 3 So. 869. See, also, Markey v. State, 47 Fla. 38, text 50, 37 So. 53, text 56. The railroad commissioners are statutory officers whose powers are special and limited. They can exercise only such authority as is legally conferred by express provisions of law or such as is by fair implication and intendment incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the purposes for which the offices were established....