New Britain herald., 1923-03-14
USE OF STREET FOF NEW
 TRACK IS DENOUNCED
Continued from Firstelge,

(continued from FirstPlge) srtuction of such Q spur tick on the numerous grounds which re set out In It's appeal to this court. Upon this appeal the principal queion which the city of New Britain rees is that of its right to judicial reew of the ruling of the public utilits commis- sion. The city of New Brain claims that 1t is entitled to a jut,ial review dc novo of the ruling of Ie commits sion.
 Encroachmcnts Of Law
 Tn recent years thcrihas been a growing apprehension ht adminis- trative law. as it is belt developed, ia seriously encroachind upon the Fundamental safeguard liberty and property provided by thdue process clause of the fourte4h amend- ment to the United Stfs Constitu- ton. The question arisedo what ex- tent does due process rtuire a judi cial review of administrtve rulings? In order to answer this bestion ade- quately it will be necetry to de- termine the precise natH of the &C., ton of the public utilitdcommssion
 "Our government is Fided into three parts: the executit the legis- lative and judicial departents. There is a fourth department mich falls under the head of admitrative law which in its nature maibc one of these three or may be attending of all.
 When the Public titles Com mission ruled that the CoHcticut Co. might lay another spur hck upon | Chestnut street, was it acag execu- lively. legislatively or judidlly?
 We may all assume thahe action of the public utilities comnsion was legislative in character. Tl distinc- ton between judicial and gislative action has been pointed o1by the Supreme Court of the unih States in the Sinking Fund CasesA9 U. S. 70, 761 (1s7S).
 The one (iudiciaD dlrmines fwhat the law is and what rights of the parties are with refence to transactions already had; tl other (legislative) prescirbes what Ie law shall be in future cases arisirunder 1t.
 If we apply that distinctiolp the facts of the principal cases, thdction of the public utilities commissltmay well be considered legislative, the commission seeks to fix rule the future-to say that this spur ack can hereafter be used on Chmut street in the city of New Brita It makes law. so the theory of rew should be to determine whetheihe public utilities commission led within its jurisdiction when ittd down the ruling. That. of courseh- cludes the question whether the or was confiscatory. In determining Is question the court should not be ! stricted to review of questionst law with conclusive effect given | findings of fact based on adequate q dence, but should give as broad that given in passing on the constlt tionaity of legislative act.
 Tn Ohio Valley Water Co. agaii | Ben Avon Borough. 253 U. s. ? 2S9, the United States Supreme Co., has held in effect that in orders by administrative body fixing rates imposing expenditure, if a person corporation claims that confiscation it's property will result, the state m provide a fair opportunity by app or otherwise for submitting the iss . to a judicial tribunal for determir ton upon it's own independent jut ment as to both law and fact; oth wise the order is void, because in e flict with the due process clause of fourteenth amendment.
 Confiscation is Claimed The city of New Britain clai that confiscation of it's property , result from the enforcement of ruling of the public utilities comm sion. That entitled the city of N Britain to a judicial review de no
 "The legislative action of the co mission is oppressive and due proc of law is violated. A federal quest is raised. A judicial review de m Should be according.
 The action of the public utili commission may well be held to h been judicial or quasi judicial.
 "(1) The public utilities conn sion has the power to make bind decision. Judicial power is the p' CT of court to decide and pronou d judgment and carry it into eff between persons and parties bring a case before it for decision
 "(3) The public utilities comm sion has the power to effect priv personal or property rights as
 courts have.
 "(4) The use of procedure machinery of the public utilities e mission resembles that employed the courts with its power to admil z ter paths, require written pleadil take testimony and conduct hearl in a manner similar to that Of
 courts.
 "(5) The character of the set be performed is in this case the
 indication of the question whether not the switch track may be laid
 is the same as if determined by
 courts Quasi judicial power has |
 defined as the power to perform administrative in character, but
 ouiring incidentally the trial and termination of questions of law H fact.