Village Board of Wheatland, Petition of

• Decision Date: 28 January 1950
• Docket Number: No. 7174,7174
• Citation: Village Board of Wheatland, Petition of, 42 N.W.2d 321, 77 N.D. 194 (N.D. 1950)
• Parties: Petition of VILLAGE BOARD OF WHEATLAND. NORTHERN PAC. RY. CO. v. McDONALD et al.
• Court: North Dakota Supreme Court

Page 321

42 N.W.2d 321

77 N.D. 194

Petition of VILLAGE BOARD OF WHEATLAND NORTHERN PAC. RY. CO. v.McDONALD et al.

No. 7174.

Supreme Court of North Dakota.

Jan. 28, 1950.

Rehearing Denied April 12, 1950.

Syllabus by the Court

1.The Administrative Agencies, Uniform Practice law, NDRC 1943, c. 28-32, as amended byS.L.1945, Chapters 218 and 219, is applicable to proceedings before the Public Service Commission and to appeals from the orders of the Commission.

2.A proceeding to require a railroad company to install warning devices at a grade crossing may be instituted before the Public Service Commission upon the written application of qualified applicants.Such proceeding may, also, be instituted by the Public Service Commission upon its own motion.

3.In a proceeding before the Public Service Commission for the installation of warning signs at a railroad grade crossing or for the change of grades at such crossing the applicants are required to prepare and file with the Commission a statement or complaint containing a statement of the claims or charges upon which the applicants rely and the relief sought and a copy of such statement or complaint and a notice of hearing must be served upon the railway company as provided by law.

4.When the Public Service Commission shall have instituted an investigation and upon its own motion determined to conduct a hearing to ascertain and determine whether the railway company should be required to construct warning signals or to change the grade at a railroad crossing the Public Service Commission is required to prepare and file a written specification of the issues which are to be considered and determined and to serve the same upon the railway company together with the notice of hearing.

5.A defendant in an action or a party who has been cited to appear before an administrative agency, who has made timely and proper objection to the jurisdiction of the court or agency over the person of the defendant or the party cited does not waive the objection by participating in the trial on the merits after the objection has been overruled, and exception taken to such ruling.Nor does he waive such objection where he participates in the trial on the merits where the court or agency reserves or defers ruling on the objection and directs that witnesses be called to testify, as the inference reasonably to be drawn from what transpires is that the taking of testimony will be subject to the objections which have been filed and to the ruling which eventually will be made thereon.

6.On an appeal from the Public Service Commission, the court will affirm the decision or determination of the commission unless it finds that such decision or determination is not in accordance with law, or that it is in violation of the constitutional rights of the appellant, or that any of the provisions of the Administrative Agencies Uniform Practice Law have not been complied with in the proceedings before the commission, or that the rules or procedure of the commission have not afforded the appellant a fair hearing, or that the conclusion and decision of the commission are not supported by its findings of fact.NDRC 1943, 28-3219.

7.In this case a notice of hearing was issued by the Public Service Commission and served upon the railway company stating that a 'petition for adequate warning signals at a crossing of the Northern Pacific tracks in the village of Wheatland, Cass County, North Dakota, will be considered and public hearing held thereon by the Public Service Commission' at a time and place specified in the notice.After the hearing the Commission made an order requiring the railway company to submit to the commission for approval plans for decrease in grades at two crossings at Wheatland and upon approval of such plans by the commission to proceed with the construction of such decrease in grades within ninety days after the approval of such plans by the commission; and to submit to the Commission plans and specifications for the installation of electrical warning devices at such crossings, and to proceed with the installation thereof within ninety days after the entry of said order.The statement on which the hearing was ordered mentioned only one crossing, and referred only to 'crossing signals', and made no reference to a change in or decrease of grades.It is held, for reasons stated in the opinion, that the provisions of NDRC 1943, 28-32 were not complied with in the proceedings before the commission.

On Petition for Rehearing

8.A party who has been cited to appear before an administrative agency and who has made timely and proper objection to the jurisdiction and authority of the agency and by such objection has called to the attention of the agency that there has been noncompliance with material provisions of the law under which the agency purports to have ordered and conducted the hearing does not waive the objections so made upon the hearing before the administrative agency by taking an appeal from the final determination of the agency.

9.The Constitution of North Dakota provides that the 'powers and duties' of the Public Service Commissioners 'shall be prescribed by law.'The powers conferred upon the Public Service Commissioners by law pursuant to the constitutional requirement must be exercised by them in accordance with the statute bestowing such powers and they cannot rightfully dispense with any of the essential forms of proceedings which the lawmakers have prescribed for the purpose of investing them with the power to act.

10.A party aggrieved by a final determination of an administrative agency is not required to request a rehearing as a condition precedent to taking an appeal from such final determination.

Conmy & Conmy, Fargo, for appellant.

Roy K. Redetzke, Fargo, and Richard P. Gallagher, Bismarck, Commerce Counsel and attorney for Public Service Commission, for respondents.

CHRISTIANSON, Judge.

This is an appeal from a judgment rendered by the district court of Cass County on an appeal to that court from an order of the Public Service Commission, requiring the Northern Pacific Railway Company to submit to the Commission for approval plans for decrease in grades at two crossings at Wheatland and upon such approval to proceed within ninety days after the entry of said order with the construction of such decreased grades; and to submit to the Commission plans and specifications for the installation of electrical warning devices at such crossings, and to proceed with the installation thereof within ninety days after the entry of said order.

The questions presented on this appeal involve, among others, the regularity of the proceedings had before the Public Service Commission.This latter question involves in turn the application and construction of the statutes of this state relating to railroad crossings; to the authority of the Public Service Commission to make investigations and to order and hold hearings to ascertain and determine whether any railroad grade crossing over a state, county or township highway is dangerous to life and property and needs protection further than that set out in NDRC 1943, Chapter 24; and to the notice to be given to the railway company to such hearing.

The laws of this state provide:

'Warning signs at Railroad Crossings.The commission shall adopt and prescribe uniform warning signs for use at grade crossings in this state which will furnish adequate warning of the existence and nature of such grade crossings and shall make regulations as to the place of installation.There shall be at least three distinct types of such warning signs, to-wit:

'1.Home-crossing sign, for use in the immediate vicinity of the crossing;

'2.An approach-crossing sign, to indicate the approach to a grade crossing; and

'3.Stop sign, which shall have the word 'stop' plainly appearing thereon, to indicate the necessity for persons on the highway approaching the crossing, whether in vehicles or otherwise, to come to a stop before proceeding over the grade crossing, according to the provisions of this chapter.'NDRC 1943, 24-0902.

'Railroads to Establish Signs.At each grade crossing in this state hereafter established and at each grade crossing where and when the existing crossing signs are replaced, the railway company operating the railroad thereat shall erect and maintain on the highway on each side of the railroad track or tracks, and within a distance of seventy-five feet from the nearest rail, one or more of such uniform home-crossing signs.'NDRC 1943, 24-0903.

'Additional Signs May Be Required by Public Service Commission.At each grade crossing where, because of the conditions surrounding the same, the reasonable protection to life and property makes it necessary for additional warning signs to be placed on the highway at a greater distance from the crossing than the home signs, such approach-warning signs shall be installed.The commission may designate any such grade crossings requiring such additional signs or either or both sides of said crossing.When the crossing is designated by the commission as requiring such additional protection, it shall notify the railway company operating the railroad thereat and the public authorities having the care of the highway.Such railway company, within thirty days after such notification shall furnish the uniform signs to the public authorities, and the public authorities shall erect the signs in conspicuous places on the highway on either or both sides of the grade crossing, as the case may be, not less than two hundred feet from the crossing, and thereafter shall maintain the same.'NDRC 1943, 24-0904.

'Stop Signs May Be Required.At each grade crossing where, because of the dangers attendant upon its use, the reasonable protection to life and property makes it necessary for all persons approaching the same to stop before crossing the railroad tracks thereat, stop signs shall be...