were necessary parties to the proceedings. Appellant did not ask to have them made parties, but proceeded with the hearing to its final adjudication without complaint."

Also it is a proper question for judicial review where a commission has ordered a railroad to establish a railway station.20 The question in this class of cases has come up for review in the courts, some of the cases proceeding on the theory, that unconstitutionality of the order depended on whether the cost was a justifiable imposition on a railroad as being or not a reasonably necessary facility. This question is quite well cleared up by a very recent decision,21 which declares, in effect, that a commission does not have to take into consideration alone the cost of such an equipment, but its judgment fairly may be exercised, whether it reasonably may be demanded as an adequate facility demandable by the public.22

Abundance of other cases might be cited along this line, but to save duplication of authority, it is considered preferable to instance the kind of procedure in which rightfulness of action by a commission is challenged by a public service corporation or asserted by commission and the assistance of courts is invoked.

20 Chicago, R. I. & P. R. Co. v. Nebraska S. R. Com., 85 Neb. 818, 124 N. W. 477, 26 L. R. A. (N. S.) 444; Mobile & O. R. Co. v. People, 132 Ill. 559, 24 N. E. 643, 22 Am, St. Rep. 556; Morgans L. & T. R. & S. S. Co. v. Railroad Com., 109 La. 247, 33 So. 214.

21 Chesapeake & O. R. Co. v. Pub. Ser. Com. (West Virginia), 242 U. S. 603, 37 Sup. Ct. 234, 61 L. Ed.

22 See also Atlantic C. L. R. Co. v. North Carolina Corp. Com., 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933, 11 Ann. Cas. 398; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472; Washington ex rel. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535, 56 L. Ed. 863; Chicago, B. & Q. R. Co. v. Railroad Com., 237 U. S. 220, 35 Sup. Ct. 560, 59 L. Ed. 926, P. U. R. 1915 C 309.

CHAPTER XXXVI.

REMEDIES FOR AND AGAINST ORDERS BY COMMISSIONS

8177. Acts within conferred powers.

178.

Mandamus by commission to enforce order. 179. Mandamus against a commission. 180. Injunction against commission.

$177. Acts Within Conferred Powers. It has been held1 that a legislature or a commission has the power to make a rate or rule that is not obliged to be based on past experience, and it amounts, therefore, to a mere prophecy that it will work out fairly and reasonably. The conclusion follows, necessarily, that a legislative act, or whatever a commission, acting by virtue of a conferred power, prescribes as a regulation, has the force of law until shown to violate some overriding law. This seems evident as to everything apparently within constitutional or conferred power. How stands the matter, however, when an order or regulation is, on its face, not within a commission's power? Does it have to be objected to or challenged, or may it be ignored by a public service company?

In speaking of the powers of the Interstate Commerce Commission, the United States Supreme Court said:2 "It has been settled that the orders of the commission are final unless (1) beyond the power which it could. constitutionally exercise; or (2) beyond its statutory power; or (3) based upon a mistake of law." Then

1 Sec. 172, supra.

2 Interstate Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. Ed. 308.

there are referred to mixed questions of law and fact, as to which it is said that: "The findings of the commission are made by law prima facie true, and this court has ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience," for which see case cited. By the rule expressio unius, exclusio alterius the prima facie rule goes no further. It is conceivable, for example, that, if a state railroad commission were to make an order which overstepped the control it exercised as to intrastate traffic and invaded that which was in the control of Congress, carriers engaged in interstate commerce might pay no heed to it-indeed it might be unlawful for them to do otherwise. Is it the same, however, in a case where there merely is question of the existence of conferred statutory power? Is there not color of jurisdiction in a commission assuming to act? And may a public service company waive question of legality and third persons, members of the public, be bound by such waiver, if a statute could have conferred the power? Be these queries answered as they may it is certain at least that, where a commission applies to a court to enforce its orders their legality will be inquired into, whether from the standpoint of prima facie validity or otherwise.

It has been held, that the enforcement of a void order by a railroad commission may be enjoined, though there was failure to seek relief from it in the regular way. If this is true as to a court a fortiori should it be deemed true as to a special tribunal.

3 Illinois Central R. Co. v. Inters. Com. Com., 206 U. S. 441, 27 Sup. Ct. 700, 51 L. Ed. 1128.

4 Southern Ind. R. Co. v. Railroad Com., 172 Ind. 113, 87 N. E. 166.

§ 178. Madamus by Commission to Enforce Order. -By Interstate Commerce Act a court may be applied to by Interstate Commerce Commission for a mandamus to compel railroads engaged in interstate commerce to submit inquiries by the commission regarding such business. Its power has been held not unlimited." In this case there was an order by the Circuit Court, obtained by mandamus, applied for by the commission, that Harriman and Kahn answer certain questions put during an investigation by the commission. Justice Holmes said the commission's power to require testimony is limited to the obtaining of information and data that may be considered of value in the determination of questions connected with the regulation of commerce, and the questions asked were held not to come within such limitation. And it was ruled that this provision, in its general language, does not include confidential correspondence of a railroad company between itself and its counsel."

As to a state commission, it was held, that validity of an order may be questioned in mandamus for its enforcement against a company which had taken no steps to install a connection between two telephone companies. This case cited authority to the effect that, if an order is void and there was failure to appeal from it so as to obtain a review, yet the company affected is not deprived of the right to defend, when the order is attempted to be enforced, in a court of equity.

5 Harriman v. Inters. Com. Com., 211 U. S. 407, 29 Sup. Ct. 115, 53 L. Ed. 253. See note 41, end of this chapter.

6 United States ex rel. v. Louisville & N. R. Co., 236 U. S. 318, 35 Sup. Ct. 363, 59 L. Ed. 598, P. U. R. 1915 B 247.

7 Public Service Com. v. Skagit River Tel. & Tel. Co., 85 Wash.

29, 147 Pac. 885, P. U. R. 1915 C 902.

8 Southern Indiana R. Co. v. Railroad Com., supra.

Where a railroad company was operating under a franchise, and doing what it was contemplated it should do, mandamus by a commission may be applied for and granted, notwithstanding it suffers loss from complying with a duty lawfully required. But for a commission to institute a proceeding by mandamus it must be specially authorized, as such a writ is of prerogative character and can be brought only by a party in interest.10 And it is necessary for a commission to be entitled to mandamus, that there be a clear right thereto." Thus, in this case, where the evidence showed that the order sought by mandamus to be enforced was indisputably contrary to evidence it loses the presumption of prima facie reasonableness and, thus, the status of a lawful demand. If there is a plain, adequate and complete remedy at law otherwise, mandamus will not be granted.12

Manadmus has been held not an appropriate remedy by a commission to compel the performance of a continuing duty,13 because: "The proper function of the writ of mandamus is to compel the doing of a specific

9 Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472; Chesapeake & O. R. Co. v. Pub. Service Com., 242 U. S. 603, 37 Sup. Ct. 234, 61 L. Ed.; Rowland v. Railroad Co., 119 Ark. 239, 177 S. W. 896, P. U. R. 1915 E 191; Oklahoma City v. Oklahoma R. Co., 20 Okla. 1, 93 Pac. 48, 16 L. R. A. (N. S.) 651.

10 State ex rel. v. Vandalia R. Co., 183 Ind. 49, 108 N. E. 47, P. U. R. 1915 B 981.

11 State ex rel. Commission v. Florida E. C. R. Co., 69 Fla. 165, 67 So. 906, P. U. R. 1915 C 207.

12 Oklahoma Nat. Gas Co. v. State ex rel. West (Okla.), 150 Pac. 475, P. U. R. 1915 F 731.

13 New York Pub. Ser. Com. v. Interborough R. T. Co., 158 N. Y. Supp. 480 (App. Div.), P. U. R. 1916 E 343; S. C. affirmed 219 N. Y. 355, 114 N. E. 387, P. U. R. 1917 B 323.