It appears, from the former opinion involving the duty of the railroad companies to the traveling public at Hoxie (176 Ark. 761,4 S.W.2d 910), that the order of the Railroad Commission was resisted upon five grounds, which we there stated as follows:
"First, that authority was not conferred upon the Railroad Commission by statute to order railroads to construct umbrella sheds over their platforms, or, to put it differently, that the Railroad Commission was without jurisdiction to order appellants to build sheds over their platforms from the depot to where they stopped certain of their trains to receive and discharge passengers; second, that the order was arbitrary and unreasonable, there being no necessity shown for the construction of the sheds; third, that the facilities already furnished are adequate; fourth, that the order of the Commission will deprive the railroads of their property without due process of law and in violation of 1, article 14, of the *Page 1140 Federal Constitution; fifth, that the order for the construction of these sheds is a burden on interstate commerce, and void."
The conditions existing at Hoxie were reviewed and the fact was found that these conditions required that the railroad companies afford passengers protection from inclement weather who wished to change trains at Hoxie while they were making this change, and we held that the testimony offered in support of the objections to this order made by the railroad companies set out above were not sufficient to make the order unreasonable, and void on that account.
We recognized, however, that protection to the traveling public could be given in either of two ways, one being to build the sheds, the other to make a second stop of the trains, and in this connection we said: "It is true that the testimony reflects that a union depot has been built at this point, modern and adequate for the protection of passengers when once in it. The argument that adequate facilities have been furnished because such a depot has been constructed does not meet the situation at Hoxie. It would, if the trains all stopped beside or near the depot where the passengers could reach it without exposing themselves to inclement weather. The depot, however, can furnish no protection to passengers who are compelled to go a distance of one hundred and fifty yards before they can board a train, or go that distance after debarking to reach the depot. The protection required against the elements is protection afforded at the place of getting on and off trains. We think it the clear and reasonable duty of appellants to stop their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are compelled to come and go one hundred and fifty yards in order to board the trains or reach the depot."
It is obvious that the two methods were equally efficacious to protect the traveling public, and we said so, and it should be assumed that the end desired was not to *Page 1141 burden the railroad companies, because the power existed to do so, but rather to protect the traveling public.
The railroad companies, after the former opinion was delivered, were left with no right to say that protection was not needed by the traveling public; they were left with the discretion only of affording this protection in one of two ways.
That this court had the power thus to modify the order of the Railroad Commission is not denied; indeed, the majority quotes the section of the act which expressly conferred this authority. It reads as follows: "Section 21. * * * And in such cause the appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable * * *." Act 124 of the Acts of 1921, page 177.
If it was not the purpose of this court to modify the order of the Railroad Commission in the respect mentioned, then we incorporated into the opinion a very misleading statement as to the duty of the railroads, and we submit that a fair interpretation of that opinion is that the railroads might discharge their duty to the traveling public either by building sheds or stopping the trains at an appropriate place, to-wit, beside or near the depot, where the passengers could reach it without exposing themselves to inclement weather. It is true the opinion concludes with the statement that the judgment of the circuit court was affirmed, but no practice is more common than that of modifying judgments and affirming them as modified.
That the opinion was so interpreted even by the law officers of the State engaged in enforcing the order as giving the railroads the option of building sheds or of stopping the trains at an appropriate place is shown by *Page 1142 the character of the prosecutions which were commenced against the railroad companies.
The informations filed in the justices' courts were identical in every respect except as to allegation of the dates upon which the order had been violated. Each of these informations contained two counts, the first charged the sheds had not been erected, and then, to negative the anticipated defense, that, although the sheds had not been erected, the trains had been stopped and the modified order thereby complied with, a second count was added which charged that the trains had not been stopped. The appearance of this second count in the information is explainable only on the assumption that it was thought the order might be complied with in either of two ways, but had not been complied with in either way.
No testimony was offered at the trial from which this appeal comes to the effect that the trains were not stopped, as our opinion said they might be, but it is here insisted that the second count was surplusage. It is not conceded by the railroad companies that the trains were not stopped. On this count there is an entire absence of testimony. Under the most elementary rules of criminal evidence, this burden was not on the railroad companies, and as the State did not offer any testimony on the second count the judgments are erroneous, if, in fact, the railroad companies had the option of stopping the trains, instead of building the sheds, as we think we have shown they had.
In our opinion the judgments appealed from are erroneous for the additional reason that the Railroad Commission had not sufficiently complied with the law in the matter of the promulgation of its order to make it such an order that its non-observance constituted a violation of law.
The power of the Commission is derived from the act of which 1640, C. M. Digest, is a part and which the majority opinion quotes. By reference to this act it will be seen that the Commission must, not only conduct a hearing under other sections of the act which the *Page 1143 majority cite, but, having had the hearing and having made what was deemed to be an appropriate finding, this finding must be filed, and the Commission has not sufficiently complied with the law to give its findings the force and effect of a statute until these findings have been filed as required by the act. The requirements of 1640, C. M. Digest, are that the Commission "shall file a copy of their findings and decrees with the Secretary of State, the Attorney General, the circuit clerk of the county wherein such decree is granted * * *." Until this is done, the law has not been complied with, and until the law has been complied with an essential requirement to give the findings the effect of law remains unperformed. It will not do to say that this filing was unnecessary and would accomplish no useful purpose. The General Assembly, and not this court, is the judge of that question. The General Assembly, in clothing the Commission with the power to make the order, had the right to say under what conditions that power might be exercised and when the violation of an order made pursuant to this power should become and be a violation of law.
The argument is made in the majority opinion that a person entitled to notice may waive the right to have the notice given, and that he does waive this right if, without demanding that notice be given, he becomes a party to a proceeding which could be had only after notice if that right were not waived. We do not question this statement of the law, but this is not the question we present. In addition to the authorities cited in the majority opinion to the effect that the requirement of notice may be waived, others from our own court could be cited. All the cases on that subject are to the same effect, but the cases cited do not relate to the question whether a rule, regulation or order of a governmental agency, acting under a delegated power of the General Assembly, takes on and has the force and effect of a statute where the statute under which the agency acted has not been complied with. Only the General Assembly has the power, under our system of government, to declare *Page 1144 what shall be crimes and misdemeanors throughout the State, and while there may be delegation of authority to some agency to make rules and regulations and findings the violation of which is unlawful, this result is effected only when this agency has fully complied with the law delegating the power, for then, and not until then, has the will of the General Assembly been executed. Indeed, it is true of the Acts of the General Assembly itself that, if it is provided in an act that it shall be effective after a certain time, or under certain conditions which are prescribed, the act is not the law until the time limited has expired or the applicable conditions have arisen. Summers v. Road Imp. Dist. No. 16, 160 Ark. 371,254 S.W. 696; Miller v. Witcher, 160 Ark. 479, 254 S.W. 1063.
With all deference to the majority we say, after examining the authorities cited, that none of them deals with the question here presented, that is, when a rule, regulation or order of a governmental agency, to which a quasi-legislative duty was delegated, becomes effective as a law and its violation punishable as in case of the violation of a statute.
It is settled law that, while the General Assembly may not delegate the authority to legislate, it may constitute an agency to make such regulations as are necessary to protect the public weal in certain cases, and may provide that violations of these regulations may be punishable by criminal prosecutions; but it is equally as well settled that such regulations are not given the force of laws until the agency promulgating the rules or findings has performed the requirements of the statute in their promulgation. Reading v. Farmers' Loan Trust Co., 154 U.S. 362; Snow v. Riggs, 172 Ark. 835. These legislative requirements take many forms, as that the rules, regulations, findings, or requirements be published in a certain way, or for a definite time, or that they become effective after a certain date, or that they be recorded in a particular way, or be filed in a certain place, and these requirements are conditions precedent, whether they are expressly declared so to be or not. *Page 1145
Section 1640, C. M. Digest, from which we have quoted, requires that the findings of the Railroad Commission be filed, and designates where they shall be filed, and the power does not inhere in the courts to say that the performance of this duty is not essential if, as in this case, the party affected has notice of the findings. This is true, because it is not the violation of the findings which is made unlawful; the act made unlawful is the violation of a finding which has been filed as the law requires.
This principle has been applied in many cases, and a recent application of it is found in the opinion of the Supreme Court of the United States in the case of Wichita Railroad Light Company v. Public Utilities Commission of the State of Kansas, 260 U.S. 48,43 S. Ct. 51.
That case arose out of an order of the Public Utilities Commission of the State of Kansas, which corresponds in its functions to the Railroad Commission of this State. In that case the rate charged for electrical energy was changed. This was done pursuant to the power conferred by 13 of the act creating the Utilities Commission. This section, as it appears in the opinion of the Supreme Court of the United States, supra, reads as follows: "It shall be the duty of the commission, either upon complaint or upon its own initiative, to investigate all rates, * * * fares * * * and if after full hearing and investigation the commission shall find that such rates * * * are unjust, unreasonable, unjustly discriminatory or unduly preferential, the commission shall have power to fix and order substituted therefor such rate or * * * rates as shall be just and reasonable."
This act confers the power to make findings as to rates which are just and reasonable, but it will be observed that the Kansas act does not require, as our act does, that these findings be reduced to writing and be filed or otherwise promulgated. If the Kansas statute were liberally construed, as the majority have done in the case of our statute, it could have been said that the *Page 1146 order of the Utilities Commission changing the rate necessarily implied a finding that the rate changed was either too much or too little; indeed, the opinion of the Court of Appeals states that the Commission must have found that the rate charged was not compensatory.
The Federal District Court enjoined the execution of the findings and order of the Utilities Commission, but on the appeal to the Circuit Court of Appeals (268 F. 37) the decree of the District Court was reversed and it was held, in an opinion written by our own late deceased and much lamented Judge Trieber "that the Commission, when making the order complained of, made no special findings of fact, is wholly immaterial, as there is nothing in the act creating the Commission and defining its duties and powers requiring it."
The learned judge further said: "Springfield Gas Electric Co. v. Barker (D.C.) 231 F. 331, 344, and Public Utilities Commission v. Springfield Gas Co.,291 Ill. 209. 125 N.E. 891, relied on by counsel for appellee, are not applicable, as the statutes of Missouri and Illinois expressly provided that the Commission shall make and file its findings of fact in writing. In the Barker case the opinion quotes that section of the Missouri statutes. There is no such provision found in the Kansas statute. The only act in writing required by the statutes is found in 16 of the act (Laws 1911, c. 238), which provides: `All orders and decisions of the Public Utilities Commission whereby any rates * * * are altered, changed, modified, fixed or established, shall be reduced to writing, and a copy thereof, duly certified, shall be served on the public utility or common carrier affected thereby, by registered mail.'"
As our statute, like those of Missouri and Illinois, requires a finding in writing, and also requires that this finding be filed, the same distinction in regard to our statute would, no doubt, have been made by the learned judge had it been involved, instead of the Kansas statute, as was there made in regard to the statutes of Missouri and Illinois. *Page 1147
An appeal was duly prosecuted to the Supreme Court of the United States, where, in an opinion by Chief Justice Taft, the decision of the Circuit Court of Appeals was reversed, and as the opinion concretely applies the legal principle here involved we quote somewhat extensively from it. It was there said:
"The proceeding we are considering is governed by 13. That is the general section of the act comprehensively describing the duty of the Commission, vesting it with power to fix and order substituted new rates for existing rates. The power is expressly made to depend on the condition that after full hearing and investigation the Commission shall find existing rates to be unjust, unreasonable, unjustly discriminatory or unduly preferential. We conclude that a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void.
"This conclusion accords with the construction put upon similar statutes in other States. Public Utilities Commission v. Springfield Gas Electric Co.,291 Ill. 209, 125 N.E. 891; Public Utilities Commission v. Baltimore Ohio Southwestern R. R. Co., 281 Ill. 405,118 N.E. 81. Moreover, it accords with general principles of constitutional government. The maxim that a Legislature may not delegate legislative power has some qualifications, as in the creation of municipalities, and also in the creation of administrative boards to apply to the myriad details of rate schedules the regulatory policed power of the State. The latter qualification is made necessary in order that the legislative power may be effectively exercised. In creating such an administrative agency the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined and show a substantial compliance therewith to *Page 1148 give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective.
"It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this. It is doubtful whether the facts averred in the petition were sufficient to justify a finding that the contract rates were unreasonably low; but we do not find it necessary to answer this question. We rest our decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State."
It will be observed that the holding, that an express finding to give the order of the Utilities Commission effect was made in the construction of a statute which did not provide that the finding should be a condition precedent, nor did the Kansas statute provide, as does ours, that the finding should be promulgated by filing it in any particular place. The principle involved and applied by the Supreme Court of the United States was that an agency discharging a delegated power could bind persons affected by its order only when it had exercised its power in the manner provided by the statute delegating the power. If that principle were applied here, as we think it should be, it would result in holding that, as the Railroad Commission had not complied with the law in promulgating its finding by filing it as required by law, a violation of its finding was not an offense, and, as it was admitted at the trial from which this appeal comes that the finding had not been filed as required by law, it is our opinion that the judgments imposing fines should be reversed.
The CHIEF JUSTICE and Mr. JUSTICE KIRBY concur in the views here expressed. *Page 1149