State v. Portland Traction Co.

O’CONNELL, J.,

dissenting.

In Morgan v. Portland Traction Co., 222 Or 614, 331 P2d 344 (1958) we held that the commissioner’s *55order in question, even if confiscatory, was enforceable unless defendant stayed the enforcement of tbe order by tbe proceeding provided for in ORS 760.585.①

If tbis order was valid until properly challenged then tbe failure to comply witb tbe order would empower tbe commissioner to invoke tbe penalty for noncompliance provided for in ORS 756.170. To bold otherwise would render meaningless our bolding in tbe Morgan case. We would in effect be saying that tbe *56order was enforceable until challenged by a stay proceeding but that no statutory sanction is available to enforce the order. This would make no sense.

*55“For present purposes, we may assume that the Commissioner’s order is confiscatory, and that a danger of daily confiscation exists while review of the order is pending. Still the Company is in no position to resist the enforcement of the order pending review in the statutory proceeding. A stay pending review of the order is available under ORS 760.585. We were told on the argument by counsel for the Company that he had filed a suit in Marion County to test the validity of the order, but that no application for a stay was made. Neither has there been any such application in the case pending in this court which involves particularly the Company’s operation within the city of Portland. No explanation of the Company’s failure to avail itself of the statutory stay has been vouchsafed us.
“If we are to assume for the purposes of this case that the Company’s constitutional rights are in jeopardy, we must also assume that an adequate showing to that effect can be made in the circuit court for Marion County and that if this were done, that court would grant appropriate relief pending the ultimate decision of the case. It is true that such an application would be addressed to the discretion of the court (State ex rel v. Duncan, 191 Or 475, 230 P2d 773), but we will not assume that its discretion would be abused.
“* * * The statute imposed upon the Company the duty of compliance with the order, and this it knew. A way of avoiding compliance, if its claim of deprivation of constitutional rights is well founded or if the order is otherwise unreasonable or unlawful, was pointed out to it by the statute, but this way it chose to ignore. It took and clings to a position which, if sustained by the courts, would deprive the statute of most of its efficacy. We think that this position can not be sustained.”

*56What we held in Morgan v. Portland Traction Co., supra, is the law of the case and it is now binding upon us.② The present proceeding is an integral part of the original proceeding brought to enforce the commissioner’s order and we must abide by what we have decided unless it could be said that our prior decision was patently wrong. I believe that the reasoning in the Morgan case is unassailable. It should bind us in the present stage of the proceedings.

In the Morgan case, at pages 632-634, we said:

Bonfitto v. Nationwide Mutual Insurance Co., 195 Pa Super 546, 172 A2d 176 (1961); Girard Trust Co. v. City & County of Philadelphia, 359 Pa 319, 59 A2d 124 (1948). See also, State of Kansas v. Occidental Life Insurance Co., 95 F2d 935 (10th Cir 1938); Union Oil Co. v. Reconstruction Oil Co., 58 Cal App2d 30, 135 P2d 621 (1943); Tally v. Ganahl, 151 Cal 418, 90 P 1049 (1907); Overlander v. Overlander, 118 Kan 340, 235 P 93 (1925); U. S. Pipe, Etc., v. United Steelworkers of America, 37 NJ 343, 181 A2d 353 (1962).