§ 392. Summary Proceedings-Injunction to Prevent Violation of Order, etc.-Whenever the Commission shall be of the opinion that any public utility is failing or omitting or about to fail or omit, to do anything required of it by law, or by any order, decision, rule, direction or requirement of the Commission, or is doing anything or about to do anything, or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order, decision, rule, direction or requirement of the Commission, it shall direct the attorney of the Commission to commence an action or proceeding in the superior court in and for the county, or city and county, in which the cause or some part thereof arose, or in which the corporation complained of, if any, has its principal place of business, or in which the person, if any, complained of, resides, in the name of the people of the state of California, for the purpose of having such violations. or threatened violations stopped and prevented, either by mandamus or injunction.109

109 Section 75, p. 60.

As to jurisdiction of court on proceedings in mandamus to compel obedience to an order made by the Board of Railroad Commissioners, see State ex rel. Taylor v. Missouri Pac. R. Co., 76 Kan. 467, 92 Pac. 606.

In proceedings in mandamus, under the Kansas Act, to compel obedience to an order of the Commissioner, the order properly made and promulgated is prima facie reasonable, and the burden of proof is upon the complaining carrier to establish its unreasonableness. State ex rel. Taylor v. Missouri Pac. R. Co., 76 Kan. 467, 92 Pac. 606.

On mandamus proceedings to compel obedience to an order of the Railroad Commission, the order is prima facie reasonable and the burden of proof is upon the person seeking to set it aside to establish its unreasonableness. State ex rel. Taylor v. Missouri Pacific R. Co., 76 Kan. 467, 92 Pac. 606.

Under the Kansas Act creating the Board of Railroad Commissioners, the supreme court has jurisdiction of original proceedings in mandamus to compel obedience to an order of the Commission. The power thus conferred upon the court is a legislative or nonjudicial power, but is

§ 393. Attorney of Commission to Proceed in Superior Court.-The attorney of the Commission shall thereupon begin such action or proceeding by petition to such superior court, alleging the violation or threatened violation complained of, and praying for appropriate relief by way of mandamus or injunction.110

§ 394. Court to Fix Hearing-Copy of Petition to be Served.-It shall thereupon be the duty of the court to specify a time, not exceeding twenty days after the service of the copy of the petition, within which the public utility complained of must answer the petition, and in the meantime said public utility may be restrained.111

§ 395.

Procedure in Case of Default.-In case of default in answer, or after answer, the court shall immediately inquire into the facts and circumstances of the case.112

judicial, pure and simple. State ex rel. Taylor v. Missouri Pac. R. Co., 76 Kan. 467, 92 Pac. 606.

In mandamus to enforce tariff of Railroad Commission, under the Minnesota Act, the carrier is entitled to an examination of matters of fact in which evidence de novo may be taken. State ex rel. Railroad & Warehouse Commission v. Minneapolis & St. L. R. Co., 80 Minn. 191, 83 N. W. 60.

Where a Railroad Commission is empowered by statute to fix rates for the transportation of freight, and its order in this respect is disregarded or refused by any common carrier, the Commission can institute suit in the name of the state for the purpose of enforcing obedience thereto. On such action being instituted, the court will require the carrier to conform to the order of the Commission fixing the rate. State v. So. Pac. Co., 23 Or. 424, 31 Pac. 960.

110 Section 75, p. 60.

111 Ib.

State ex rel. Board of Railroad Commrs. v. Duluth, W. & P. R. Co., 25 S. D. 100, 125 N. W. 564, 1910, establishes right of Railroad Commission to bring suit by petition for enforcement of its order to a common carrier.

112 Section 75, p. 60.

§ 396. Joinder of Parties - Discretion of Court. Such corporations or persons as the court may deem necessary or proper to be joined as parties, in order to make its judgment, order or writ effective, may be joined as parties.113

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§ 397. Final Judgment on Hearing. — The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that the writ of mandamus or injunction issue or be made permanent as prayed for in the petition, or in such modified or other form as will afford appropriate relief.114

§ 398. Appeal to Supreme Court - How Taken. An appeal may be taken to the supreme court from such final judgment in the same manner and with the same effect, subject to the provisions of this act, as appeals are taken from judgments of the superior court in other actions for mandamus or injunction.115

118 Ib., p. 61.

In proceedings in suits against substituted rates under Wisconsin Railroad Commission Act (sections 16 and 16e), it was held that a statutory suit to enforce the order of the Commission, similar to the suit provided for in the Oregon Railroad Commission Act, section 32 (Oregon Laws 1907, c. 53, p. 87), cannot be joined with another suit to prevent a third party from violating the order of the Commission, notwithstanding the provision of the statute as to the joinder of actions. City of Superior v. Douglas County Telephone Co. (Wis.), 122 N. W. 1023. 114 Section 75, p. 61.

115 Ib.

On appeal to the supreme court, point cannot be raised when no attention was called to it on motion for new trial, although there was a general exception to instruction allowing interest in addition to treble damages. Hooper v. Chicago, M. & St. P. R. Co., 91 Iowa, 639, 60 N. W. 487.

Unconstitutionality of statute providing for Railroad Commission, in that it deprives of right of jury trial, cannot be raised for the first time on appeal. Hooper v. Chicago, M. & St. P. R. Co., 91 Iowa, 639, 60 N. W. 487.

§ 399. Penalties for Violation by Public Utilities. Any public utility which violates or fails to comply with any provision of the constitution of this state or of this act, or which fails, omits or neglects to obey, observe or comply with any order, decision, decree, rule, direction, demand or requirement or any part or provision thereof, of the Commission, in a case in which a penalty has not herein before been provided for such public utility, is subject to a penalty of not less than five hundred dollars nor more than two thousand dollars for each and every offense.11

116 Section 76 (a), p. 61.

In action against railroad company to recover treble damages allowed by the Illinois statute for a violation of its provisions, the two years' limitation may properly be pleaded, as in that state action for a statutory penalty must be brought within two years next after the cause of action accrues. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247.

Treble damages being provided for by the statute, interest cannot be recovered, Hooper v. Chicago, M. & St. P. R. Co., 91 Iowa, 639, 60 N. W. 487.

The penalties imposed by the Oregon Act are not exorbitant or burdensome for willful violation for the provisions of the act, and do not interpose any impediment to prevent carriers concerned from having ample recourse to any court having jurisdiction to grant relief. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957, 990.

The penalties imposed by the Oregon Act were intended to be of a nature to practically deprive a carrier of the protection of the law. The act provided that the railroad company must either obey the order of the Commission or resort to a court for an injunction, suspending or staying the order; but that if resort be had to injunction, the company shall give a bond conditioned (1) to answer for all damages caused by the delay in the enforcement of the order of the Commission (2) and all penalties that would attach against the company; and (3) for restitution of whatever sum for transportation service any person or corporation shall be compelled to pay in excess of the sum such person or corporation would have been compelled to pay if the order of the Commission had not been suspended.

The first condition, relating to damages that would ensue by reason of delay in enforcing the order, does not involve penalties of a character to practically deprive carrier of the equal protection of the law.

Second condition-in relation to penalties that would attach against the carrier-relates to the provision specified in section 51 of the act, to the effect that any railroad company omitting to do any act made or thing required to be done by it shall be rendered liable to the first

$ 400. Each Day's Continuance a Separate Offense. Every violation of the provisions of this act or of any order, decision, decree, rule, direction, demand or requirement of the Commission, or any part or portion thereof by any corporation or person is a separate and distinct offense, and in case of a con

person, firm or corporation injured thereby in treble the amount of damage sustained in consequence of such violation, together with reasonable attorney fees. Just what damages would ensue to any person, or corporation, or to the state for a refusal to obey an order fixing the rates are not patent; but this item, if there was any damage, is expressly provided for by the three conditions above named, which exclude it from the obligation of the second. The damage, whatever it may be, cannot be large or oppressive, even if trebled.

By section 52, four things are enumerated and a penalty attached, if any officer, agent or employee shall fail or refuse to do and perform the same, the penalty being a fine of from one hundred dollars to one thousand dollars, and the recovery of from five hundred dollars to one thousand dollars from the company for each offense when the officer, agent or employee acts in obedience to its direction. These enumerated things are as follows: (1) Shall refuse to fill out and return any blanks required by the act; or (2) shall refuse to answer any question therein propounded; (3) shall give false answers to any such questions; or (4) shall, upon proper demand, refuse to exhibit any books, papers, accounts, etc., in his possession or under his control. But none of these things are covered by the second condition in the bond required to be given as above specified.

Section 53 provides that if the railroad shall violate any provision of the act, or shall fail or refuse to obey any lawful requirement of the Commission or judgment or decree of the court, for every such offense it shall forfeit to the state from one hundred dollars to ten thousand dollars.

It is thought that the penalties above specified would not be covered by the bond in the case of injunction staying execution of the order, because the injunction is provided for by law, and the company would be availing itself of a lawful right, and, while so doing, it would seem that it could not at the same time be held for a violation of section 53, by a refusal to obey an order of the Commission or a judgment or decree of the court. Hence the bond executed can be no impediment of substantial moment, standing in the way of the carrier obtaining a speedy and complete adjudication touching the reasonableness of the rates fixed by the Commission. Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957, 989.

The penalties provided by section 52 of the Oregon Railroad Commission Act (Laws 1907, c. 53, p. 97) are not unconstitutionally exorbitant