Additional Dissenting Opinion.
[Filed December 27, 1906.]
Black, J.When this case was before the court upon the motion of the appellee to dismiss the appeal, and the motion of the appellant to dismiss the complaint'filed with the railroad commission, there was scarcely sufficient time for the proper examination of the important subject, the *470matter being somewhat hastily decided because it was deemed proper to dispose of those motions before our summer vacation.
After an opportunity to examine the opinion of the majority filed on the former hearing and the authorities cited therein, it seems proper to add something to what was said on that hearing concerning the character of the commission’s authority and this court’s jurisdiction.
It is said in that opinion of the majority: “While the statute does not make the commission a court, and it is not a court, yet the act of setting aside the rate complained of —and this must be done before another rate can be fixed to take its place — and fixing another, upon evidence introduced, upon a complaint filed — in fact, a trial had with the aid of judicial process — may properly be said to be the exercise of a quasi-judicial duty. In any event, the power exercised in this particular is more of a judicial than of an administrative character.”
The rate fixed by the carrier is set aside by the commission only in and by changing it. The decisions of the Supreme Court of the United States, cited later in that opinion, clearly are to the effect that the prescribing of changes of rates fixed by the carrier is a function to be exercised by the legislature by its own action or through its instrumentalities, and not by the courts. The provisions of our statute concerning the methods of the commission in gaining the information upon which it is to act are not all mentioned in the opinion of the majority in this connection. By section eleven the commission is given power to elicit all information deemed by it necessary to the hearing and consideration of any complaint made to it. It may submit blanks or interrogatories for eliciting information necessary to the consideration and determination of any and all questions over which it has jurisdiction. It “may use such other means or methods of securing such information as may be deemed expedient by it.”
*471However nearly the commission may imitate, or he expressly authorized to imitate, the proceedings in courts of justice, its action in changing rates cannot he regarded or treated as the action of a court or as the exercise of the judicial power. The question as to the reasonableness of a rate, whether fixed by the railroad company or by the railroad commission, may become a judicial question in a suit in equity, or sometimes in an action at law, but the court in such suit or action cannot assume to itself, or be given by statute, the authority to prescribe a rate in place of the one thus brought in question. It was said in the quotation in the principal opinion on the former hearing herein from Reagan v. Farmers Loan, etc., Co. (1893), 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014: “The province of the courts is not changed, nor the limits of judicial authority altered, because the legislature instead of the carrier prescribes the rates. The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all the circumstances would be fair and reasonable as between carriers and the shippers; they do not engage in any mere administrative work. * * * These cases all support the proposition that while it is not the province of the courts to enter upon the merely administrative duty of framing a tariff of rates for carriage, it is within the scope of judicial power and a part of judicial duty to restrain anything which, in the form of a regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property.”
That case was a suit instituted in the circuit court of the Hnited States to restrain the enforcement of rates fixed by the railroad commission of Texas. The defendant denied the power of the court to entertain an inquiry into the matter, insisting that the fixing of rates for carriage by a *472public carrier is a matter wholly within the power- of the legislative department of the government and beyond examination by the government; and it was in response to this proposition that the remarks of the court were made which are quoted in the opinion of the majority in the case at bar.
In Chicago, etc., R. Co. v. Minnesota (1890), 134 U. S. 418, 33 L. Ed. 910, 10 Sup. Ct. 462, which was a writ of error to review a judgment awarding a writ of mandamus, it is said in the concurring opinion of Mr. Justice Miller: “The proper, if not the only, mode of judicial relief against the tariff of rates established by the legislature or by its commission, is by a bill in chancery asserting its unreasonable character and its conflict with the Constitution of the United States, and asking a decree of court forbidding the corporation from exacting such fare as excessive, or establishing its right to collect the rates as being within the limits of a just compensation for the service rendered.” It was further said that in the proceeding by mandamus against the railroad company, “which is equivalent to establishing by judicial proceeding the reasonableness of the charges fixed by the commission, I think the court has the same right and duty to inquire into the reasonableness of the tariff of rates established by the commission before granting such relief, that it would have if called upon so to do by a bill in chancery.” Mr. Justice Bradley (Mr. Justice Gray and Mr. Justice Lamar concurring) was of the opinion that when the legislature or its railroad commission had fixed a tariff of fares and freights, the matter could not become a judicial question. In his .dissenting opinion he said on page 464: “Such a board would have at its command all the means of getting at the truth and ascertaining the reasonableness of fares and freights which a legislative- committee has. It might, or might not, swear witnesses and examine parties. Its duties being of an administrative character, it would have *473the widest scope for examination and inquiry. * * *' Such a body, though not a court, is a proper tribunal for the duties imposed upon it.”
St. Louis, etc., R. Co. v. Gill (1895), 156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct. 484, was an action to recover judgment for penalties for charging and receiving fares in excess of the rate per mile fixed by statute.
Railroad Commission Cases (1886), 116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334, were suits to enjoin the railroad commission of Mississippi from enforcing against certain railroad companies the provisions of the railroad commission statute of that state.
In Smyth v. Ames (1898), 169 U. S. 466, 42 L. Ed. 819, 18 Sup. Ct. 418, and other cases decided at the same time, the plaintiffs sought a decree enjoining the enforcement of certain rates of transportation, upon the ground that the statute prescribing them was repugnant to the Constitution of the United States.
Burlington, etc., R. Co. v. Dey (1891), 82 Iowa 312, 48 N. W. 98, 31 Am. St. 477, 12 L. R. A. 436, was a suit to enjoin a railroad commission from establishing joint rates for certain railroad companies.
Chicago, etc., R. Co. v. Jones (1894), 149 Ill. 361, 37 N. E. 247, 24 L. R. A. 141, 41 Am. St. 278, was an action in debt to recover from a railroad company penalties for alleged overcharges of freight in excess of rates fixed by a railroad commission.
In Atlantic Express Co. v. Wilmington, etc., R. Co. (1892), 111 N. C. 463, 16 S. E. 393, 32 Am. St. 805, 18 L. R. A. 393, there was an appeal from the railroad commission to a county court and an appeal from that court to the supreme court. In the statute, the commission was expressly “created and constituted a court of record;” but it was held in Caldwell v. Wilson (1897), 121 N. C. 425, 28 S. E. 554, to be an administrative court, and not a judicial court. And in Pate v. Wilmington, etc., R. *474Co. (1898), 122 N. C. 877, 29 S. E. 334, it was held that the commission was (somewhat like the board of county commissioners) an administrative court; that its orders and regulations were merely the basis of judicial action in the superior court to enforce them or to punish their violation; and, though the statute provided for an appeal directly from the commission to the Supreme Court, it was held that if the latter court entertained such appeal it would be assuming original jurisdiction of a matter as to which, though heard and determined by a board of competent jurisdiction, there had been no judicial adjudication of its validity nor proceedings to punish its violation, whereas the jurisdiction of the Supreme Court was appellate only except in claims against the state. Accordingly, the appeal was dismissed.
In State, ex rel., v. Minneapolis, etc., R. Co. (1900), 80 Minn. 191, 83 N. W. 60, which was an appeal in a proceeding for a writ of mandamus, the statute there referred to which provided for an appeal authorized the appeal to the district court, and provided that “ ‘upon such appeal, and upon the hearing of any application by the commission or by the attorney-general, for the enforcement of any such order made by the commission, the district court shall have jurisdiction to, and it shall, examine the whole matter in controversy, including matters of fact as well as questions of law, and to affirm, modify or reverse such order in whole or in part as justice may require,’ ” and that “ ‘the remedies herein provided for shall be in addition to all existing legal and equitable remedies.’ ” It was said by the court that no effect would be given to the language italicised, “if it was not intended that in a proceeding like this, to enforce an order made by the commission, there should be just such a trial as there would be if an appeal had been taken from the order. On such appeal, the court will examine matters of fact to ascertain whether there is any evidence reasonably tending to *475support the disputed findings of fact, taking evidence de novo.” See, also, Minneapolis, etc., R. Co. v. Minnesota (1902), 186 U. S. 257, 46 L. Ed. 1151, 22 Sup. Ct. 900; In re Railroad Commissioners (1884), 15 Neb. 679, 50 N. W. 276; Board, etc., v. State, ex rel. (1897), 147 Ind. 476, 495.
It is said in the opinion of the majority of this court in the case now before us: “The question then presents itself: May the legislature require that a court shall determine these same questions, not by a trial, but by a review of all proceedings and evidence taken by the commission?”
Eeference is then made to a class of cases where an appeal is always tried de novo, the court to which the appeal is taken assuming to act only as a court of original jurisdiction in such cases. It is then argued that it is within the province of the legislature to confer original jurisdiction upon this court, or “jurisdiction other than strictly appellate jurisdiction,” which, of course, can properly mean nothing but original jurisdiction, Tet it is said, further, that “it is clear that the legislature did not intend that there should be a ‘trial’ in this court in the ordinary .meaning of the term” — a statement in which I concur. The court then indicates its belief that the function of this court under the statute is only to review the case upon the transcript as a court of appellate jurisdiction, for the correction of errors, the same presumption prevailing in favor of the action of the commission that prevails in a review of a judgment in a civil action. It is not clearly stated that this court is not to weigh the evidence, but it is stated that it cannot be said that the only question presented would be the weight of the evidence, and that, if the contrary could be said, the objection that the statute delegates to a nonjudicial body the duty of hearing the evidence upon which a court is to render a decision would not be tenable, the instances mentioned being of the taking of evidence under a court’s own sanction for its use in rendering a judicial de*476cisión, on appeal 'from which the evidence would not and could not he weighed by the appellate court (Parkison v. Thompson [1905], 164 Ind. 609; Pence v. Garrison [1884], 93 Ind. 345, 354), while in the present instance the evidence is taken by the nonjudicial body for its own use by way of providing itself in part with the information on which it acts.
The majority not only said that this court has been given exclusive “appellate jurisdiction,” but the court refused to consider at that stage of the case the motion of the appellant to dismiss the complaint, saying that it was not filed in this court, but came to it in the transcript of the proceedings of the commission. If this court had been regarded as having the case before it as an original case, it, of course, could have taken up that motion when it thus refused to do so.
■ It is said that this court is designated as the tribunal to determine finally certain controversies arising “between the railroad commission and the persons or corporations with whom it has to deal;” and it appears that the majority treated the case as before this court for its action as a court of appellate jurisdiction only, though it foreshadowed a disposal of the appeal as if upon the theory that this court, instead of having the power to render judgment as directed by the terms of the statute, and as intended by the legislature, had the authority to dispose of the case much in the way in which such a matter might be determined upon an original judicial investigation of the question as to the reasonableness of the rate fixed by the commission.
In seeking to construe and apply the statute in question, the manifest intention of the legislature should be kept constantly in view, and it should be assumed that the legislature intended to employ the terms of the statute in the sense in which they are and have been understood and applied. From the beginning of the judicial history of this State it has been uniformly the usage of the legislature and. *477the practice of the courts to employ and apply the term “appeal,” when used with reference to the removal of a proceeding from.a court not of record, or from an inferior court of limited or merely statutory powers, or from an administrative body or officer, having quasi-judicial authority, to a court of record, in such a sense as to require that court to take original jurisdiction and to try the matter de novo, according to the methods and with the powers which obtain in courts of justice; but when the legislature provided for the hearing and determination of the appeal here in question upon the transcript of the record of the commissioners, it cannot be doubted that the law-making body did so having in view the method of taking appeals from the circuit courts to the Supreme Court and the Appellate Court, and intended that this record should be treated by the Appellate Court as having the same qualities and effect as the record of a court of general, superior jurisdiction.
The statute, upon careful reading, indicates the intention of the legislature to confer in such a case as that, before us appellate jurisdiction, and not original jurisdiction. This court is to hear and determine the appeal upon the transcript of the proceedings of the commissioners. In the same section which makes these provisions for appeal, provision is made also for a proceeding of another kind, whereby, in case of dissatisfaction with certain orders of the commission, the dissatisfied company or party may file a petition in the circuit or superior court, making the commission a defendant, the cause to be heard and determined as a suit in equity, without a jury. It was clearly the intention to recognize this court as a court of appeals, and to confer upon it appellate jurisdiction, and not original jurisdiction, in cases to be removed to it from the commission.
The legislature cannot invest this court with judicial, duty as a court of appeal for the correction of errors, except in cases which have been decided by judicial courts, prop*478erly so called. In. that capacity we can review only judicial decisions, not questions, whatever their nature, which have been before only bodies which are not courts.
It need not be said in this case that this court might not be- given original jurisdiction to determine judicially the question as to the reasonableness of a rate fixed by the railroad commission. It has not been given such jurisdiction.
Without authority to take evidence de novo, and to proceed as in an original case, there cannot be an examination according to judicial methods; and, if the decision of this court on such an appeal as this is to have the conclusive effect of a judgment, the parties in interest will be deprived of a judicial investigation according to the principles and rules of law and equity.
If there had been a mere allowance of an appeal, the question would have arisen whether this court might not take thereunder original jurisdiction and have a trial de novo. But the legislature did not leave opportunity so to apply the word “appeal” used by it; on the contrary, it designated the procedure in this court. See Hays v. Merchants Bank (1895), 10 Wash. 573, 39 Pac. 98.
We cannot treat the action of the commission as merely prima facie correct. No method is provided for meeting in this court a prima facie case. If the information on which the commission proceeds, so far as it is shown by the transcript, merely tends to support the commission’s decision, its determination, by the requirements of the statute, would be conclusive here. Can one who has passed through such a nondescript proceeding be said to have had his day in court ?
This opinion, to supplement my former dissenting opinion, is filed at this time because my service on the bench of this court will terminate at the end of this month and before the final hearing of the pending cause.