Willmar tribune., 1899-07-05

No. 81
action OF the commissioners to sthe district
court. The propriety Of their determination
can only be inquired into upon suit instituted
for the enforcement of the commissioners de-
cision. See the case cited, Al Minn, page s96.
The "Steenerson case" which IS the most
important case that we have had in our courts
under the law up to the present time, was de.
c1ded upon a review of the action take . by the
dlstrlct court upon the trial of an appe. taken
from the commissioners decision pre .ribinp
lower rates. See the statement OF the case
oy Judge Canty on page ia, vol. 72, Northwest
ern Reporter. He says: "After summoning the
railway company and having hearing, as pro-
Vlded by the statute, the commission made an
order reducing the rates on grain on all the
INES OF the railway company within the state
From this order the railway company appealed
TO the district court and after hearing on the
appeal the court
REVERSED THE ORDER
OF the commission, From the order of the
court the attorney general appeals to this
court ETC." This appeal was taken under
Subdivision D, section 49, just cited. A trial
character is undoubtedly the most important
feature in a proceeding under the law for
upon the record as there made the case will be
reviewed by the supreme court and eventually
in the supreme court of the United States, If a
writ OF error is taken to the latter court
This trial in the district court upon an appeal
IS now virtually a trial de novo, asT suggested
in my message, and it was this section that I
recommended should be amended so that it
would not be necessary to go owe, again in the
district court the same ground that had been
Travelled before the commissioners, for q re-
trial upon new evidence necessarily consumes
more time
Senate File No. "a did not assume to correct
this defect, as you appear to think, but steps
IN to amend section %, page 26, OF the pamph-
let, which simply relates to the enforcement
OF the orders or decisions OF the commission.
These orders or decisions are OF two kinds:
Administrative orders and final orders or de-
cisions involving the rate-making power, when
such orders have not been appealed from to
the district court. In regard to the latter
class of orders, where the railroad company
had the right of appeal il they saw fit, it is
well settled principle OF law that where an In
dividual or corporation has ntigated question
before a tribunal upon the merits and had the
right OF appeal from the order or decision OF
such tribunal to the district court and omitted
to exercise it, it cannot subsequently raise any
question as to the merits OF the order or deci-
sion when it is sought to secure enforcement
of such order or decision in the courts. It
stands
UPON THE SAME FOOTING,
when not appealed from, as judgment Of the
district court rendered upon an appeal un der
the provisions of Subdivision D, of section Is.
Therefore, when such an order comes up for
enforcement in the district court, no question
can be raised as to it's validity or its reason
ableness, provided the company had due
notice Hence the only class of orders or de-
cisons that can be litigated under the provi-
sions of section %, which you sought to amend
by Senate File "A, as the law now stands, are
those relating to administrative proceedings.
You will observe by Subdivision B, OF Sec
tion Is, that on the hearing OF the appeal pro-
Vided that section tss..the record OF satd
commission shall be prima facie evidence Of
the matters therein stated" The same provi-
sion exists in section 22 in regard to proceed
ings for the enforcement of the orders or de-
cisions of the commission under that section.
trial of such case, the findings Of fact OF said
commission as set forth in it's record, shall be
prima facie evidence of the matters therein
stated" have underscored these provisions
in the pamphlet which send you. These two
provisions are the most important features
regulating the practice under the railroad act.
They have the effect OF throwing the burden
of proof upon the railroad company to show
that the decisions of the commission is wrong
in case of an appeal under section IS, and like
wise that the order or decision was wrong or
unjustifable in proceedings for its enforce
ment under section22. On this point let me
call your attention to the
LANGUAGE OF JUSTICE CAVITY,
N. w. Reporter u, page us, who, after quot
ing this provision says: 'Then the burden is
on the railroad company to show that the rates
fixed by the commission are unreasonable"
Justice Collins, page 73 (same vOlume), COM
menting ON the same provision in the statute,
said: Here We find that by legislative enact
ment an order of the commission fixing and
prescribing tariff on rates must be deemed
and taken in all of the courts of our state as
prima facie evidence that the tarin so fixed
and prescribed is equal and reasonable; the
onus being thus fixed upon the appealing car
rier, in all our legal tribunals and in all pro-
ceedings to show that it is not The burden OF
proof was therefore upon this respondent car
rier Great Northern Railroad company to
overcome prima facie case presented In the
court below by means of the order Of the CON-
mission" have no hesitancy in saying that
but for this statutory provision the judgment
rendered in the Steenerson case could not and
would not have been rendered by our supreme
court The decision, as you viii observe, IS
simply to the effect that the record does not
show the rates established are unreasonable
or confiscatory. In other words. the court
simply held that the railroad company had
failed to overcome the determination of the
commission, which the statute said and
which the court said was prima facie just
and reasonable. realize that tits difficult
and practically impossible to make one who
has had no experience at the bar appreciate
the immense advantage Of going into court
with q prima facie case, instead of being
called upon to establish the case by affirm
ative evidence, particularly in matters of
this character. Ifft were Incumbent upon
the state to establish the reasonableness or
unreasonableness Of the rate by. affirmative
evidence, such as would be admissible in
court, it would be :: =
NEXT TO IMPOSSIBLE
under existing conditions to do so. It GER
tainly could not be done without the CO.
operation of railroad experts. Notwith-
standing these facts, the proposed amend
ment to section G nv Snnafo Ei1o No O4