State v. Maine Cent. R. R.

• Decision Date: 01 December 1914
• Parties: STATE v. MAINE CENT. R. R. et al.
• Court: New Hampshire Supreme Court

92 A. 837

77 N.H. 425

STATE

v. MAINE CENT. R. R. et al.

Supreme Court of New Hampshire. Coos.

Dec. 1, 1914.

Petition for mandamus by the State against the Maine Central Railroad and another. A demurrer to the petition was overruled, subject to exception. Demurrer overruled. Petition for mandamus to compel the defendants to issue and keep for sale in New Hampshire 500-mile mileage books, in accordance with the provisions of chapter 92. Laws 1913. The petition set out the statute and alleged noncompliance by the defendants.

James P. Tuttle, Atty. Gen., for the State.

Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendants.

PARSONS, C. J. This is a petition for a writ of mandamus to compel the defendants to comply with chapter 92, Laws 1913, which provides that all steam railroads operating a passenger service in this state shall hereafter issue 500-mile mileage books at the rate of two cents a mile, good for the transportation of the bearer over all their steam railroad lines in this state, and keep them on sale at their ticket offices in this state, with a proviso excepting certain lines. The defendants demur to the petition. The only facts alleged in the petition are the existence of the statute and the defendants' refusal to comply with it.

Whether the rate fixed by the statute is unreasonable and confiscatory, or deprives the defendant railroad of reasonable compensation for the transportation service required, and whether it discriminates against nonpurchasers of mileage books, are all questions of fact, as is also the question whether the rate was fixed without due investigation, if that be material. These grounds are alleged in support of the demurrer, but they are neither proved nor admitted. If alleged in an answer to which the state demurred, their materiality would be before the court for decision; but it is not understood that the state assents to the verity of the allegations, as matter of fact, or contends, as matter of law, that the Legislature has the power to impose upon the defendants the carriage of passengers at a rate less than reasonable for the service rendered, or so low as to amount to confiscation or to a taking of the defendants' property without due process of law. Consideration of these questions is properly left until they are raised by parties at issue over them. Neither is there anything before the court upon the question of discrimination as between purchasers of mileage and trip tickets, if that objection is open to the defendants in opposition to a rate which affords to them a reasonable return for the service rendered. There is nothing here which shows what the customary trip ticket charge is for transportation on the defendants' road, or whether the customary charge is a reasonable one. Discrimination produced by an unreasonable overcharge for trip tickets cannot render unconstitutional a statute requiring the sale of transportation in 500-mile lots at a reasonable rate. This leaves the only question raised by the demurrer the bald one of legislative power to fix the maximum rate for transportation when taken in 500-mile lots.

That the fixing of rates for transportation is a legislative, and not a judicial, question, within the power of the state as to transportation wholly within the state up to the point where interference with interstate commerce is reached, is settled by federal authority.

"The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind." Holmes, J., in Prentis v. Atlantic Coast Line, 211 U. S. 210, 226, 29 Sup. Ct. 67, 69 (53 L. Ed. 150).

"It is one thing to inquire whether the rates which have been charged and collected are reasonable (that is, a judicial act), but an entirely different thing to prescribe rates which shall be charged in the future (that is, a legislative act)." Brewer, J., in Interstate Commerce Commission v. Railway, 167 U. S. 479, 499, 17 Sup. Ct. 896, 900 (42 L. Ed. 243).

"Railroad companies are carriers for hire. They are incorporated as such, and given extraordinary powers, in order that they may the better serve the public in that capacity. They are therefore engaged in a public employment, and * * * subject to legislative control as to their rates of fare and freight, unless protected by their charters." Chicago, etc., R. R. v. Iowa, 94 U. S. 155, 161, 24 L. Ed. 94; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

"The Legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates." Chicago, etc., Ry. v. Wellman, 143 U. S. 339, 344, 12 Sup. Ct. 400, 36 L. Ed. 176; Reagan v. Company, 154 U. S. 362, 398, 14 Sup. Ct. 10-17, 38 L. Ed. 1014; Minnesota Rate Cases, 230 S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511; Chesapeake, etc., Ry. v. Conley, 230 U. S. 513, 33 Sup. Ct. 985, 57 L. Ed. 1597; Allen v. Railway, 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. Ed. 1625.

As the fixing of rates is a legislative question, the allegation that this rate was fixed without judicial investigation of its reasonableness and without opportunity for the defendants to be heard is without merit. There is nothing in the case tending to show that the enactment of the statute was not preceded by legislative investigation. Whether it was or not is immaterial. Legislative hearings are not judicial proceedings, and conclusions reached thereby are not res adjudicata. Prentis v. Atlantic Coast Line, 211 U. S. 210, 226, 227, 29 Sup. Ct. 67, 53 L. Ed. 150. The defendants contend that, as the general rate-making power is lodged with the Public Service Commission (Laws 1911, c. 164, § 11), it was the intention of the Legislature to make the mileage rate arbitrary and to exclude evidence of its reasonableness or otherwise, and that hence the law is unconstitutional. But an intent to pass an unconstitutional law is never to be inferred. Although the act in question was passed in 1913, it was passed as an amendment of an act of 1909 (Laws 1909, c. 107), requiring the issuance and sale of 1,000-mile mileage books at the same rate. The only general legislation then in effect required rates to be equal and reasonable. P. S. c. 160, § 1. The legislation was not therefore enacted as a limitation upon the rate-making power confided to the Public Service Commission, hut as a legislative judgment of the reasonableness of a particular rate. The rate-making power confided in the commission, subject to the proviso "that the commission shall not allow an increase above any rate prescribed or limited by statute" (Laws 1911, c. 164, § 11a), if it referred to the mileage statute, simply withdrew from the jurisdiction of the commission a matter as to which a legislative judgment had already been rendered. It may be doubtful if the proviso of section 11 was intended to apply to the mileage statute. It is probably the product of the litigation over railroad consolidation and resulting rates which terminated in Clough v. Railroad, 77 N. H. 222, 90 Atl. 863.

In support of the contention that the rate is arbitrary and the statute unconstitutional, reliance is placed upon Chicago, etc., Ry. v. Minnesota, 134 U. S. 418, 456, 10 Sup. Ct. 462, 702, 33 L. Ed. 970. But that was the case of a statute which attempted to make the conclusions of a commission upon the reasonableness of a rate final. In Budd v. New York, 143 U. S. 517, 545-547, 12 Sup. Ct. 468, 476 (36 L. Ed. 247), it is said of this case:

"It is further contended that, under the decision of this court in Chicago, etc., Ry. v. Minnesota, 134 U. S. 418 [10 Sup. Ct. 462, 702, 33 L. Ed. 970], the fixing of elevator...