NORTH DAKOTA SUPREME COURT.

MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY

Appeal and review — Relief from daily passenger service — - Statutory construction.

The Board of Commissioners of Railroads of this state ordered a separate daily passenger service to be installed on the Ambrose-Flaxton branch of the appellant railway company, which appealed to the District Court, where the board's decision was affirmed, and it appeals to this court, alleging that the findings are insufficient to support the judgment of the district court. The board's order was a denial of the railroad's application to be relieved under chapter 200, Laws 1907, from running a daily passenger service, which had been ordered by the board. The board denies the right of the railroad to appeal, asserting that its order is final, and that a statute granting a right of appeal would be unconstitutional because administrative, instead of judicial, functions are concerned. Since the decision below was made this branch line has been extended into Montana. Both parties request a decision on the merits, and that the case not be treated as moot. Held, though chapter 200, Laws 1907, did not expressly grant an appeal to the courts, yet, as it is in pari materia with similar earlier statutes in themselves granting and contemplating generally a right of appeal from decisions of the board to the courts, a right of appeal exists as to the matters embraced in the statute in question. Constitutional law Departments of government — Powers of courts

That the subject-matter is legislative or administrative does not render a statute unconstitutional, authorizing a review of the action of the board in the courts on an appeal to them.

Appeal and review.

-

·Form of Commission order — Effect.

That the right of the railroad to apply to the Commission to be relieved from maintaining a separate daily passenger service (by in stallation of a daily mixed passenger and freight service on branch lines) is permissive in language, and not a positive direction to the board, and vests in it a discretion, does not negative a right of appeal. Railroads — Relief from daily passenger service

Service ings.

Earn

In determining whether such relief shall be granted, the earnings and cost of operation of branch line service must be determined as near as possible; and, where it plainly appears that the cost of oper

ating the branch line with separate daily passenger service installed greatly exceeds the railroad's earnings and revenues derivable from the operation of such branch line, the carrier is prima facie within the statutory exception, and prima facie is entitled to be permitted to operate a daily mixed passenger and freight train.

The statute granting such relief has particular application to branch lines, and the revenues from service and cost of branch line service only must be considered. The petitioner cannot be compelled to operate a separate daily passenger service on this branch line at a great loss, and be compelled to make up such loss from its main line revenues. The intent of the statute is that the revenues from branch lines shall justify a daily passenger service independent of whether the railroad as a whole within the state is returning a fair dividend on its investment.

Service - Railroads

When daily passenger service not warranted. The proof discloses that the Great Northern Crosby-Berthold line furnishes ample passenger service for four-fifths of the length of this Soo branch line. A separate passenger service should not be forced for the convenience alone of the town of Ambrose and vicinity, when to do so will cause an additional annual expenditure of $14,000, added to a loss already sustained under mixed train service; the revenues being inadequate to meet even the expenses of a mixed train service.

Commerce-Extension of railroad line beyond state-Effect of decision relieving company from daily passenger service.

The order and judgment appealed from are reversed. Since trial this line has been extended into Montana, and questions of interstate commerce may now be involved, which condition will be taken into consideration in future proceedings had herein.

(Bruce, J., and Burr, D. J., dissent.)

Headnotes by the COURT.

[April 23, 1915.]

APPEAL from District Court, Burke County; Frank Fisk, Judge. The appeal was by the Minneapolis, St. Paul, & Sault Ste. Marie Railroad Company, from a decision of the court sustaining an order of the North Dakota Board of Railway Commissioners requiring the installation of separate daily passenger and freight service between certain points on the appellant's railroad; reversed and remanded.

Appearances: Palda, Aaker, & Greene (John L. Erdall and Alfred H. Bright, of counsel), for appellant; W. H. Stutsman and Henry J. Linde, Attorney General, for respondent.

Goss, J., delivered the opinion of the court:

This appeal is from the decision of the district court, wherein trial was had on testimony taken relating to an application by the railroad company to the State Board of Railway Commissioners, made under chapter 200 of the Session Laws of 1907. Mixed train service was given on the Ambrose-Flaxton Soo branch line. In November, 1910, residents of Ambrose petitioned the Board of Railway Commissioners to order installation of separate daily passenger and freight service. On hearing had the petition was granted. The railroad immediately applied to be relieved therefrom, and upon a second hearing had the application of the railroad was denied and an order was entered June 24, 1911, directing installation of a separate daily passenger service. From this order the railroad appealed to the district court of Burke county. The matter came on for trial as an issue of fact and law on May 30, 1912, and a decision was rendered adverse to the railroad company. It appeals, assigning as error that the evidence is insufficient to justify certain findings entered and that the findings are insufficient to support the judgment rendered.

This opinion is written after a rehearing had. Prior to rehearing it was held that the order made by the Board of Railway Commissioners, and upon which the appeal was taken to the district court, was nonappealable, in that it was merely an order denying the carrier's application to be relieved from the general statutory requirement to run a daily passenger train, instead of an order directing or compelling action in the matter, and for the further reason that no right of appeal was considered as granted by chapter 200 of the Session Laws of 1907 concerning the matters there mentioned, and that the intent of that particular statute was to leave the board vested with a discretion as to said matters, uncontrolled by resort to the courts by appeal. It was also mentioned in said opinion that the case was moot, inasmuch as this Ambrose branch had been extended into Montana, pending the appeal, and now accommodates a much greater territory. Undoubtedly this case might be disposed of as moot, and the decision be within the law. However, the board and the corporation desire a decision as precedent for future action.

The legislature has seen fit to declare that both a daily passenger and daily freight train shall be run each way over every

railroad within this state: "Provided, however, that, if any railroad corporation shall make it appear to the Board of Railroad Commissioners of this state that the business on any line of its road will not justify its operating both the passenger and freight train herein provided for, and said board shall so order, said company may operate one mixed train on such line each way on every business day in the year for such time as said board may direct."

The order made is appealable, and a review of the action of the board may be had in the courts and in this court on appeal. Whether the order be merely negative, or, on the contrary, affirmative, action, does not affect the right of appeal. To hold otherwise would allow the right to an appeal to be dependent on the caprice of the board in the framing of its order. The right is absolute if granted by the statute, and it is plainly apparent from the codification of the laws pertaining to the powers and duties of the Railroad Commissioners, as codified in chapter 115 of the Session Laws of 1897, that it was the legislative intent that, as to all enactments, past and future, unless the contrary was clearly apparent from the future act itself, a right of appeal, retrial, and review should be allowed from the decision of that body to the courts. As nothing contained in chapter 200 of the Session Laws of 1907 manifests a contrary intention, it must be taken as in pari materia with similar existing enactment, and as having been enacted subject to an understood and generally applicable right of appeal in this as in all other similar and related Lewis's Sutherland, Stat. Constr. 2d ed. §§ 443-448;

matters.

36 Cyc. 1147.

The Board of Railroad Commissioners urges that it is a part of the executive department of the state, with functions purely administrative; that the courts have universally established and maintained a sharp distinction between purely administrative acts and those which are purely judicial, relegating one to the executive and the other as belonging to the judicial department of government respectively. It urges that such distinction here exists pertaining to the acts under review, and that "the judicial department is powerless to control or review the executive department so long as it does not exceed its legal authority;" that, if its acts are reviewable at all by the courts, it is only when they

are in palpable excess of jurisdiction or power, and that then they are reviewable only on certiorari if at all; and, if the power to review by appeal has been granted, the statute attempting to confer it is unconstitutional "for the reason that the courts have no power over a commission belonging to the executive department acting within the scope of its authority." It next contends that certiorari will not lie for a mere excess of jurisdiction exercised, and finally arrives at the conclusion that its acts, because administrative, and it constituting a branch of the executive arm of government, are practically wholly beyond judicial re

view.

The powers and duties of this constitutional board are not prescribed by the Constitution, but are left to the legislature to create and define. Section 83 of the state Constitution declares that they "shall be as prescribed by law." As well observed in Kermott v. Bagley, 19 N. D. 345, 124 N. W. 397, the powers of government, although divided generally into three distinct departments, legislative, executive, and judicial, are otherwise undistributed. In other words, our Constitution contains no distributing clause specifically apportioning the three different classes of governmental power. Merely because the duty is administrative, strictly speaking, and nonjudicial in the broad sense of the term, does not bar the legislature from requiring its exercise, nevertheless, by a district court, the constitutional court of general original jurisdiction. Kermott v. Bagley, supra, following Com. ex rel. Carson v. Collier, 213 Pa. 138, 62 Atl. 567. The Constitution does not prevent the legislature (upon which it has imposed the duty of prescribing the powers and duties of the Railroad Commission) from saying that such powers or duties, even though administrative in character, may be reviewable in the district court on appeal, and in which tribunal a trial de novo of even administrative issues may be had.

It is immaterial whether the duties of the Board of Railroad Commissioners may be technically legislative or judicial. There is nothing in the Federal Constitution to hinder a state from uniting "legislative and judicial powers in a single hand" (Prentis v. Atlantic Coast Line Co. 211 U. S. 210-225, 53 L. ed. 150-158, 29 Sup. Ct. Rep. 67; Dreyer v. Illinois, 187 U. S. 71-84, 47 L. ed. 79-85, 23 Sup. Ct. Rep. 28, 15 Am. Crim. Rep. 253;