State v. Northern Pac. Ry. Co., 24278.
| Citation | 172 Wash. 37,19 P.2d 128 |
| Decision Date | 21 February 1933 |
| Docket Number | 24278. |
| Parties | STATE ex rel. DEPARTMENT OF PUBLIC WORKS v. NORTHERN PAC. RY. CO. et al. |
| Court | United States State Supreme Court of Washington |
Department 2.
Appeal from Superior Court, Thurston County; John M. Wilson, Judge.
Proceeding on the petition of the State, on the relation of the Department of Public Works, for a writ of mandate directed to the Northern Pacific Railway Company and others to enforce an order of the department. From an order granting a petition for the removal of the cause to the United States District Court, relator appeals.
Affirmed.
John H Dunbar, of Olympia, and John C. Hurspool, of Walla Walla, for appellant.
L. B da Ponte and Thos. H. Maguire, both of Seattle, A. C Spencer, of Portland, Or., F. T. Merritt, of Seattle, and Carey, Hart, Spencer & McCulloch, of Portland, Or., for respondents.
This is an appeal from an order granting a petition for the removal of a cause from the superior court of Thurston county to the United States District Court. The case is Before us upon appellant's petition for writ of mandate to enforce an order formerly made by the Department of Public Works, and respondents' counter-petition for removal. We shall hereinafter refer to appellant's pleading as the complaint, and to that of the respondents as the petition.
According to the complaint, it appears that the department of Public Works of Washington, which we will hereinafter refer to as the department, in cause No. 6013 Before it, entered upon an investigation of the rates for the carriage of grain and grain products within the state of Washington; the investigation was made in conjunction and connection with a general investigation of such rates in the western portion of the United States, conducted at the same time by the Interstate Commerce Commission. As a result of the dual investigation the commission found that the existing rates between certain points within the state were excessive, and thereupon established new and lower rates for such transportation, effective August 1, 1931, and canceling previously existing rates. Later the Commission vacated the order establishing and fixing such new and lower rates, and granted a rehearing in the general investigation; this latter order authorized, but did not require, the carriers concerned to re-establish the rates existing Before the new and lower rates were fixed. Up to this time the department had made no order with reference to intrastate rates.
Upon rehearing, jointly conducted by the two public bodies the department found that the rates in excess of those stated in the findings which it then made, over the lines of the respondent carriers between the points therein named, were, and in the future would be, unjust unreasonable, and unduly prejudicial. The department accordingly entered an order on August 13, 1932, requiring respondents to file and establish, on or Before September 5, 1932, rates not in excess of those prescribed in its findings. Upon the failure of respondents to comply with the order, appellant instituted this proceeding to compel obedience thereto.
What we have just stated is gathered and taken from what appears upon the face of appellant's complaint. In order, however, to get a more comprehensive picture of the actual situation, it is necessary to extend our statement. Appellant's complaint refers to, and by such reference expressly incorporates within it, the findings and order made by the department on August 13, 1932, here sought to be enforced. Those findings are too voluminous and elaborative to set forth in detail. They may be condensed somewhat into the following statement:
On July 6, 1930, the Commission, upon a general investigation of rates, including the so-called 'Columbia Basin Differential,' and after a hearing, rendered its decision in I. C. C. Docket No. 17,000, part 7, 164 I. C. C. 619, directing the respondent carriers to revise both their interstate and their intrastate rates on grain shipped from the differential territory to Portland, Or., and Vancouver, Wash., and also to Puget Sound ports, in such a manner as to secure to the cities of Portland and Vancouver a differential of 10 per cent. This differential had been originally established by the commission on November 3, 1930. See Inland Empire Shippers League v. Director General, Oregon-Washington R. & Nav. Co., 59 I. C. C. 321. The differential referred to appears to have been based upon the alleged differences in traffic and transportation conditions in the movement of grain to Columbia river ports, as compared with those involved in the movement of grain to Puget Sound ports, and the consequent difference in cost of such transportation. In 1926, or shortly Before , this differential had been attacked Before the Commission by certain producers in the differential territory. Walla Walla County Farm Bureau v. Northern Pacific Ry. Co., 107 I. C. C. 110. The relief sought in that proceeding was, however, denied by the Commission and the differential remained undisturbed. Rate Structure Investigation (No. 17,000) 164 I. C. C. 619, 684.
The findings referred to further show that the effective date of the above decision of the Commission in Docket No. 17,000, supra, was postponed from time to time, but that the rates were finally made effective August 1, 1931. In January, 1932, the United States Supreme Court directed the issuance of an injunction against the orders of the Commission made in Docket No. 17,000, and ordered that the cause be reopened for further investigation and consideration. Atchison, T. & S. F. Ry. Co. v. United States, 284 U.S. 248, 52 S.Ct. 146, 76 L.Ed. 273. The injunctive order was based upon a showing of a radical change of economic conditions that had supervened since the close of the record Before the Commission. Pursuant to that decision by the Supreme Court, the Commission, on January 23, 1932, vacated its orders with reference to rates, by another order which authorized the cancellation of the previously prescribed rates and the re-establishment of the rates, rules, and practices that were in effect on July 31, 1931, on ten days' notice.
In consequence of the last order, the respondent carriers thereafter re-established the old rates on interstate and intrastate traffic in Washington, effective February 20, 1932, and the same are now the published rates in this state. By order dated February 8, 1932, and March 7, 1932, the Commission ordered the reopening of all the issues involved in its docket No. 17,000, part 7, and a further rehearing was had in July, 1932. The investigation by the Commission has not as yet been completed, however, and the matter of rates on grain and grain products has not yet been finally determined by that body.
The findings proceed with a statement to the effect that the Public Utilities Commission of Oregon had refused to permit the carriers to raise Oregon intrastate rates to the level existing prior to the effective date of the order in Docket No. 17,000, and that as a result the differential rate imposed by the Commission in favor of Portland placed an undue burden upon certain persons and localities in Washington. The findings conclude with a further statement to the effect that, pending the final determination by the Commission, the existing intrastate rates from the differential territory in Washington are, and will be, unjust, unreasonable, and unduly prejudicial and should therefore be reduced.
The facts contained in the findings, referred to and made a part of appellant's complaint, are also set forth generally in respondents' petition for removal and are further amplified by other alleged facts indicating that the present action was brought for the purpose of annulling and setting aside the orders of the Commission with reference to the differential formerly promulgated by it, and to anticipate the final decision and order of the commission upon its uncompleted rehearing and investigation. There is also a specific allegation in the petition to the effect that the true facts had been withheld from the complaint in order to defeat removal. Upon its face respondents' petition, considered alone, appears to make a case for removal to the federal court.
Upon a consideration of the record as disclosed by appellant's complaint, incorporating the findings of the department above referred to, and respondents' petition for removal, the lower court concluded that there was involved in the action an issue as to the existence or effect of an order made by the Commission involving the relation of rates between certain points in Washington and Oregon as well as intrastate rates between points in Washington; that some of those questions were determinable in the federal court, and of which the state court had no jurisdiction. The petition for removal was accordingly granted by the lower court.
The appellant first asserts that it is the duty of the state court to determine from the complaint and the record whether the case is removable, and that unless the case is removable the state court does not lose jurisdiction. Respondents do not dispute this proposition. In any event, it seems to be well settled in accordance with appellant's contention. Missouri, K. & T. Ry. Co. v. Chappell (D. C.) 206 F. 688; Southern Pac. Co. v. Waite (D. C.) 279 F. 171; Queensboro National Bank v. Kelly (D. C.) 15 F. (2d) 395; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462; 54 C.J. p. 331, § 253.
Appellant next asserts that the question of removability must be determined from the necessary allegations of its complaint alone, unaided by the petition for removal.
Approaching the matter suggested by appellant's contention from the...
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