$ 360. Mandamus to Commission on.-Provided, that the writ of mandamus shall lie from the supreme court to the Commission in all proper cases."

§ 361. Suspension of Commission's Order-None Pending Review. The pendency of a writ of review shall not of itself stay or suspend the operation of the order or decision of the Commission, but during the pendency of such writ, the supreme court in its discretion may stay or suspend, in whole or in part, the operation of the Commission's order or decision." $ 362. Stay by Supreme Court, Notice.-No order so staying or suspending an order or decision of the Commission shall be made by the supreme court otherwise than upon three days' notice and after hearing, and if the order or decision of the Commission is suspended, the order suspending the same shall conCommission depends upon the fundamental nature of these rules or orders. If such rules and orders are purely legislative and violate no constitutional law or supreme federal statute, it would be incorrect to say that their reason could be the subject of judicial review, because that would give the judicial branch of government a supervisory control over legislation, largely discretionary and limited only by the judicial opinion of what is reasonable. Minneapolis, St. P. & Ste. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 915.

77 Section 67, p. 56.

Action in mandamus lies to compel performance of some official or corporate act by a public officer or corporation when no other remedy specifically exists. Smalley v. Yates, 36 Kan. 519, 13 Pac. 845. See State ex rel. Taylor v. Missouri Pac. R. Co., 76 Kan. 467, 585, 92 Pac. 606.

Injunction restraining Railroad Commission from publishing and putting in force a schedule is no defense to an act for the violation of the order of the Commission where the law has already made the schedule effective without publishing at the time the injunction is granted. Hooper v. Chicago, M. & St. P. R. Co., 91 Iowa, 639, 60 N. W. 487.

In proceedings by mandamus in the supreme court, under the Kansas Act, the only question to be determined is whether the order of the Commission fixing rates is reasonable. State ex rel. Taylor v. MissouriPac. R. Co., 76 Kan. 467, 92 Pac. 606.

78 Section 68 (a), p. 56.

tain a specific finding based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage."

§ 363. Stay Effective When Bond Filed, Only. In case the order or decision of the Commission is stayed or suspended, the order of the court shall not become effective until a suspending bond shall first have been executed and filed with, and approved by the Commission (or approved, on review, by the supreme court), payable to the people of the state of California, and sufficient in amount and security to insure the prompt payment, by the party petitioning for the review, of all damages caused by the delay in the enforcement of the order or decision of the Commission, and of all moneys which any person or corporation may be compelled to pay, pending the review proceedings, for transportation, transmission, product, commodity or service in excess of the charges fixed by the order or decision of the Commission, in case said order or decision is sustained.80

§ 364.

Stay Granted-Money to be Paid into Court and Impounded-Deposit at Interest.—The supreme court, in case it stays or suspends the order or decision of the Commission in any matter affecting rates, fares, tolls, rentals, charges or classifications, shall also by order direct the public utility affected

79 Section 68 (b), p. 56.

Injunction not to issue against Commission's order except on application, notice and hearing. Both are contemplated under the provision of section 33 (Oregon Laws 1907, c. 53, p. 87, as amended by Laws 1909, c. 103, p. 163), upon the suspension of the order of the Commission pending refusal of such order, does not cover other penalties provided for in this statute. Oregon R. & Nav. Co. v. Railroad Commission, 173 Fed. 989.

80 Section 68 (c), p. 56.

to pay into court, from time to time, there to be impounded until the final decision of the case, or into some bank or trust company paying interest on deposits, under such conditions as the court may prescribe, all sums of money which it may collect from any corporation or person in excess of the sum such corporation or person would have been compelled to pay if the order or decision of the Commission had not been stayed or suspended.81

§ 365. Stay Granted-Act to be Kept Under Oath, Condition of-Penalty for Failure. In case the supreme court stays or suspends any order or decision. lowering any rate, fare, toll, rental, charge or classification, the Commission, upon the execution and approval of said suspending bond, shall forthwith require the public utility affected, under penalty of the immediate enforcement of the order or decision of the Commission (pending the review and notwithstanding the suspending order), to keep such accounts, verified by oath, as may, in the judgment of the Commission, suffice to show the amounts being charged or received by such public utility, pending the review, in excess of the charges allowed by the order or decision of the Commission, together with the names and addresses of the corporations or persons to whom overcharges will be refundable in case the charges made by the public utility, pending the review, be not sustained by the supreme court.82

§ 366.

Additional Securities may be Required. The court may, from time to time, require said party petitioning for a review to give additional security on, or to increase the said suspending bond, whenever in the opinion of the court the same may be

81 Ib., p. 57.

82 Section 68 (d), p. 57.

necessary to insure the prompt payment of said damages and said overcharges.8

§ 367. Disposition of Moneys on Final Decision. Upon the final decision by the supreme court, all moneys which the public utility may have collected, pending the appeal in excess of those authorized by such final decision, together with interest, in case the court ordered the deposit of such moneys in a bank or trust company, shall be promptly paid to the corporations or persons entitled thereto, in such manner and through such methods of distribution as may be prescribed by the Commission.84

§ 368.

Moneys not Claimed-Advertisement. If any such moneys shall not have been claimed by the corporations or persons entitled thereto within one year from the final decision of the supreme court, the Commission shall cause notice to such corporations or persons to be given by publication, once a week for two successive weeks, in a newspaper of general circulation, printed and published in the city and county of San Francisco, and such other newspaper or newspapers as may be designated by the Commission, said notice to state the names of the corporations or persons entitled to such moneys and the amount due each corporation or person.

85

§ 369. Final Disposition of Moneys not Claimed.—All moneys not claimed within three months after the publication of said notice shall be paid by the public utility, under the direction of the Commission, into the state treasury for the benefit of the general fund.8

83 Section 68 (d), p. 57.

84 Ib.

85 Ib.

§ 370. Court Proceedings-Preferences.-All actions and proceedings under this act, and all actions or proceedings to which the Commission or the people of the state of California may be parties, and in which any question arises under this act, or under or concerning any order or decision of the Commission, shall be preferred over all other civil causes except election causes and shall be heard and determined in preference to all other civil business except election causes, irrespective of position on the calendar. The same preference shall be granted upon application of the attorney of the Commission in any action or proceeding in which he may be allowed to intervene.87

§ 371. Physical Valuation-Hearings for.-For the purpose of ascertaining the matters and things specified in section 47 of this act, concerning the value of the property of public utilities, the Commission may cause a hearing or hearings to be held at such time or times and place or places as the Commission may designate.88

§ 372. Thirty Days' Notice in Writing-Conditions of. Before any hearing is had, the Commission shall give the public utility affected thereby at least thirty days' written notice, specifying the time and place of such hearing, and such notice shall be sufficient to authorize the Commission to inquire into the matters designated in this section and in said section 47 of this act, but this provision shall not prevent the Commission from making any preliminary examination or investigation into the matters herein referred to, or from inquiring into such matters in any other investigation or hearing.s

87 Section 69, p. 58. 88 Section 70, p. 58.

89