dissenting.
There are two issues presented for decision in this case. The first issue is of significance now only in respect to the relationship it bears to the second. The first is: Has plaintiff sustained the heavy burden it must bear in proving “by clear and satisfactory evi*378dence that the order of the commission① complained of is unlawful and unreasonable?” ORS 760.580 (4).
Second, if it is held that the Commissioner’s order was not supported by the evidence, does that permit a utility to arrogantly defy the lawful process required by the laws of this state? If the first question is answered in the negative it is, of course, obvious that plaintiff has been guilty of unlawful conduct. If it can be held that the evidence does not support the Commissioner’s order does that sanctify plaintiff’s conduct? The latter problem is the only thing remaining to be decided in this long, and thus far, inconclusive litigation. The majority leave the solution dangling for continued legal maneuvering. Every fact that could be presented is now here for the third time. It is the only issue actually urged by the parties. It was the only reason that the court did not declare this case moot when it was last here. Portland Traction Co. v. Hill, 1960, 222 Or 636, 639, 352 P2d 552, 353 P2d 838.
The history of the litigation is only partially revealed in the opinion in the former appeal and in another preliminary proceeding that came to this court in Morgan v. Portland Traction Co., 1958, 222 Or 614, 331 P2d 344. It would be useless to describe the legal gymnastics exercised by plaintiff to successfully delay any judicial review of the Commissioner’s order until sufficient time had passed to frustrate any attempt to enforce it or even to reasonably review it. Eeview is now an exercise in futility.
ORS 760.580 provides that any railroad aggrieved *379by an order of the Commissioner may appeal to the circuit court of Marion county for review. The statute requires the Commissioner to file an answer within 10 days after the filing of a complaint and thereupon the “suit shall be at issue and stand ready for trial upon 10 days’ notice by either party.” ORS 760.580 (2). Subsection (3) gives all suits brought within this statute precedence over all other civil litigation. ORS 760.585 by reference to 757.570 permits the circuit court to stay the order of the Commissioner pending determination of the review. This statutory form of review is “the exclusive method of testing the validity of the Commissioner’s order.” Morgan v. Portland Traction Co., supra 222 Or at 622. This remedy was available to plaintiff at any time after the order was entered on January 25, 1958.
The opinion in Portland Traction Co. v. Hill, supra, 222 Or 645 and 646 said:
“The foregoing discloses that there are two periods of time that are pertinent to the issues of this case. The first period began January 25, 1958, when the Commissioner entered order No. 35782, and extended to November 10, 1958, when the circuit court entered its order (quoted in a preceding paragraph) which stayed the operation of Order No. 35782. The stay order was entered pursuant to ORS 756.590. The second period began November 10, 1958, when the court’s stay order was entered, and ended December 26, 1958, when the Commissioner ‘rescinded effective this date’ Order No. 35782 and its two preceding auxiliary orders.”
Plaintiff’s status from January 25, 1958, until November 10, 1958, is now our only concern. It is only necessary to review the record to determine if the Commissioner’s order of January 25, 1958, was so absolutely void that it could be violated and frustrated into a nullity during that time with impunity.
*380It is my view that evidence in the record, not examined by the majority opinion, sustained the Commissioner’s order. At the very least, the evidence I propose to mention would have required remanding the case to the Commissioner for additional findings, if the ease had been brought here in the orderly process provided by law. Before proceeding to discuss facts I believe important to consider, it would be helpful to call attention to certain policy determinations made by the legislature by which we are, or should be, governed. The first is the basic concept of the power of the Commissioner and the clearly expressed functions delegated to that official. It is set forth in ORS 756.040 (1).
“In addition to the powers and duties now or hereafter transferred to or vested in the commissioner, he shall represent the patrons and users of the service and consumers of the produce of any public utility, and the public generally in all controversies respecting rates, charges, valuations, service and all matters of which he has jurisdiction.”
It is thus apparent that the Commissioner was not established to function as a referee only. He is to protect the public. Other provisions of the statutes in respect to the regulation of utilities justify this concept of the Commissioner’s duties. We may not agree that such was a wise policy but that is not our choice to make.
Secondly, and previously mentioned, the statute places the burden on the utility to overthrow a Commissioner’s order and further provides, ORS 757.545, the order shall be “prima facie lawful and reasonable unless and until found otherwise in a suit brought for the purpose under ORS 757.565 to 757.585.” And further that a complaining utility is “not entitled to *381have the court below substitute its judgment for that of the Commission or determine matters which properly fell within the province of that body.” Southern Pacific Co. v. Campbell, 1913, 230 US 537, 552, 33 S Ct 1027, 57 L Ed 1610. This was a case in which the Supreme Court denied a constitutional challenge to the Oregon Act of 1907 creating the Railroad Commission.
The evidence before mentioned and the finding of the Commissioner based thereon which would have supported the order denying abandonment was summarized in the Commissioner’s challenged order of January 25, 1958, in these words:
“In the face of the management’s conduct, as revealed in the record of this and previous proceedings, it is difficult to escape a conclusion that Respondent sought in every way possible to ruin its passenger business and thereby lay claims to justifying the abandonment of this business.”
A similar specific finding was made by the Commissioner.
It cannot be disputed that if the evidence reasonably supports that finding, that the order should have been sustained. A railroad will not be permitted to abandon service for lack of passengers when it appears that the lack of patronage has been deliberately caused or results from mismanagement. Broad River Power Co. et al, v. Southern Carolina ex rel Daniel, 1930, 282 US 187, 51 S Ct 94, 75 L Ed 287, an opinion concurred in by four justices in an eight man decision. The court was divided in the reasons for dismissing the appeal. State ex rel Daniel v. Broad River Power Co., 1929, 157 S Car 1, 153 SE 537, the decision appealed from in the case just cited. Gardner v. Com*382merce Commission, 1948, 400 Ill 123, 79 NE2nd 71, a case in which the facts are similar to the one at issue.
The evidence in the record here does support that finding of the Commissioner. The best evidence is to be found by a review of similar findings made by the Commissioner in the several other hearings had in the long and turbulent history of this utility’s efforts to rid itself of the duty to carry passengers. It should be mentioned, however, that this was not so much a running fight between the respective Commissioners and plaintiff but between plaintiff and the people both it and the Commissioners were required to serve.
What efforts plaintiff made prior to 1952 to accomplish this purpose does not appear in the record. But in 1952 it did file with the Commissioner an application to abandon passenger service. It was denied. One of the findings of the Commissioner, entered by order dated February 10, 1953, was:
“The record is nearly void as to evidence of good faith efforts upon the part of the applicant its officers and employees, to encourage passenger patronage except for convenient operating schedules; * *
It is also important to note the Commissioner found plaintiff’s claimed estimated losses were not supported by actual records of revenues and expenses. For that reason the Commissioner declined to accept the verbal testimony of plaintiff’s general manager as to estimated losses.
There was no appeal from the February 1953 order of the Commissioner.
In July 1954, plaintiff again filed an application to abandon its passenger service and again extensive *383hearings were held. The Commissioner again denied the application and his order, dated April 22, 1955, contains these findings:
“There is little evidence of any real effort on the part of Applicant to encourage additional passenger patronage, aside from the purchase of some used passenger equipment which has proved to be a worth-while improvement. The record discloses that most of Applicant’s passenger stations are in need of repair and that maintenance of these facilities is sadly neglected. Furthermore, there appears to be an extremely limited concern upon the part of the Applicant, its officers and employees, regarding the welfare of passenger operations and service, and practically no effort has been made to solicit additional patronage. It would appear that the main reason patronage keeps nearly abreast of costs of operation is because there is no other adequate form of public transportation available along most of Applicant’s lines, and because of the undisputed dependability of the Interurban service schedules.”
It is also significant to note the Commissioner’s findings in respect to plaintiff’s claims of losses sustained for the operation of its passenger service. The plaintiff had claimed losses for 1953 and for the first nine months of 1954 totaling more than $44,000. The Commissioner analysed the losses claimed and made these findings:
“In other words the total out-of-pocket loss for the 21 months period of time was for all practical purposes $10,563, instead of $44,683.05.
“* * * Although in light of fully distributed costs generally, the Applicant has experienced operation losses respecting its passenger operations, nevertheless, the actual normal out-of-pocket losses are nominal. In light of overall net incomes to earned surplus, after deduction of passenger losses, and in *384view of dividends paid ont, the actual normal out-of-pocket losses are negligible.”
On August 20, 1955, plaintiff abruptly reduced its passenger schedules. The Commissioner later found that this was done without “request for approval by the Commissioner, * * Patrons of plaintiff protested and again extensive hearings were held and on February 17,1956, the Commissioner entered order No. 34218 by which plaintiff was ordered to restore most of the reduced service and was also ordered to “provide clean and well-lighted passenger stations and equipment.”
“The present reduced operating schedules (except for midday service Mondays to Fridays, inclusive, concerning which little complaint was found by staff witnesses) are generally arranged in such a manner that they do not fit in with the employment hours of the riders, especially during the early morning hours and late evening hours on week days including Saturdays. Many patrons, in pursuit of their occupations, have been unable to use the new schedules and thus have been virtually deprived of any means of transportation to and from their employment. The present reduced schedules are so arranged—principally during peak hours including Saturdays—that they force patrons to leave home from one-half hour to an hour earlier than usual in order to accommodate themselves to the only transportation available to them and to wait after work from periods ranging from one-half hour to an hour for transportation to their homes. The inadequacy and inconvenience by reason thereof is not only opposed to the public interests, but is also causing loss of patronage.”
“The operations picture indicates that passenger patronage has been and is being presently discouraged rather than solicited and encouraged.”
*385tí* * * reeent reduction of schedules, together with the limited concern upon the part of Defendant for the welfare of passenger operations and service, is establishing conditions which tend to bring about a gradual disintegration of passenger patronage.”
“There has been little effort on the part of Defendant to provide an efficient public service so far as cleanliness of stations and equipment are concerned.”
And, again, the Commissioner analysed plaintiff’s claim of operating losses. As a result this finding was made:
“* * * piras the normal estimated out-of-pocket loss to Defendant from passenger operations for the first eight months of 1955 was $17,318.84 instead of $60,687.18 as represented by Defendant.
“Notwithstanding this actual out-of-pocket loss of $17,318.84, financial reports of Defendant for the first eight months of 1955, as compared with the first eight months of 1954, disclose that it enjoyed an increase in Net Income to Earned Surplus in the amount of $54,333.63. Furthermore, as shown by Appendix ‘B’ attached hereto (a computation of estimated rate of return upon operating property and investment of combined freight and passenger interurban service, based upon annual reports on file with the Commissioner) Defendant enjoyed an average annual rate of return of approximately 28.44% during the first eight months of 1955, which is nearly seven times greater than the average rate of return of American Railroads as published in official reports of the Interstate Commerce Commission. Generally speaking, then, it may be safely assumed that actual out-of-pocket losses are negligible and not jeopardizing the financial health of the Defendant nor unduly burdening Defendant.”
No appeal was taken from that order.
*386This and other determinations by the Commissioner create a donbt that must be expressed as to plaintiff’s claims of excessive financial loss. It appears that plaintiff’s annual rate of return has not, at any time, been less than four times that of the average of American Railroads. I also reproduce and underscore this last finding of the Commissioner to show plaintiff’s distortion of its financial condition that has been common through all of these proceedings. We abuse our power of review when we refuse to accept these repeated findings of the Commissioner; each one buttressed by detailed evidence.
On September 17, 1956, plaintiff’s rails across the Hawthorne bridge in Portland were severed. Both before and after that date various orders were entered by the Commissioner in attempt to compel plaintiff to continue to provide service to the west side of the Willamette river by bus. It is unnecessary to detail the several orders that were made to endeavor to require plaintiff to provide some reasonable service to its patrons. Some of the orders were ignored, others performed perfunctorily. On November 29,1956, plaintiff gave notice it would discontinue any shuttle service across the river as of January 1, 1957. Again, the Commissioner’s jurisdiction was invoked and extensive hearings were had which resulted in an order of the Commissioner dated March 18, 1957. That order directed plaintiff to restore the shuttle service to and from the west side of the Willamette river in accordance with a former order of the Commissioner. It also directed plaintiff to provide a suitable passenger station and shelter facilities for the use of its patrons at the terminus of the interurban line.
Also, in this order, the Commissioner again made specific findings as to acts and omissions of plaintiff *387to discourage passenger traffic. This included a finding that plaintiff’s officers had encouraged bus lines to enter the area served by plaintiff and compete with it for patronage. Some of the findings were:
“From the foregoing it is concluded that continuously since January 1, 1957, Respondent has wilfully refused to furnish the adequate passenger service required by Order No. 34218, issued February 17, 1956, and Order No. 34761, issued September 10, 1956, providing for a minimum passenger service schedule and suitable accommodations for its patrons.
“It is further concluded that Respondent’s failure to comply with these Orders has had a damaging effect upon its patronage which could not have been unexpected by Respondent’s management.
“It is further concluded, and is abundantly shown by the record, that the Respondent has embraced every circumstance adverse to the encouragement of and proper service to its patrons, while failing, neglecting and refusing to take prudent advantage of the long-continued and presently-existing circumstances which favor a steady and remunerative passenger traffic upon its rail lines.”
There were also detailed findings as to plaintiff’s financial ability to provide the service ordered. And a finding that plaintiff’s efforts to discourage passenger use of its facilities were inspired by opportunities to very profitably sell its lines to one or more of the major railroads if it could divest itself of the passenger traffic.
This order of March 18, 1957, was appealed to the circuit court of Multnomah county. The court heard additional evidence and, in the person of Judge Herbert Hardy, sitting pro tempore, made this pertinent finding:
“Under this cause of suit plaintiff first alleges that the defendant’s findings of fact and conelu*388sions are insufficient to support the order, and then argues that the findings are unsupported by the evidence. In view of the plaintiff’s burden in a suit of this nature, it would have been more appropriate specifically to set forth what findings were necessary to the order that have been omitted. However, because of plaintiff’s charges and the importance of this case this Court has considered each finding; has read the entire record of the hearings before the defendant, which consist of seven volumes of testimony; has reviewed portions thereof several times; has heard and thereafter read the evidence presented before this court; and is of the opinion that each fact found by the defendant and set forth in the order is based upon cogent, competent, material and substantial evidence.” (Emphasis ours.)
The circuit court’s order of affirmance was appealed to this court and later dismissed. However, that does not detract from the weight of the trial court’s determination as to what the evidence proved.
The shabby treatment afforded its patrons by plaintiff during the several years in question gives plentiful support to the finding in the Commissioner’s challenged order of January 18, 1958, “* * * that the losses in passenger revenues incurred by [plaintiff] have been the result of deliberate attempts on the part of [plaintiff] to curtail its service, * * It is unnecessary for present purposes to extend this long opinion and detail the evidence which supports the several findings of the respective Commissioners. Plaintiff has not sustained its burden of showing that the findings are not true. Indeed, it could not. The findings are supported by evidence. We are obliged to give these findings the respect required by law. If that were done, it would require that we sustain the attacked order.
*389But assuming the majority’s view of the evidence to be correct, does that enable plaintiff to take the law into its own hands and defy the lawful authority of this state? This issue is vital to the legislative, administrative and judicial processes by which we are governed. The answer must be in the negative. Otherwise we would be confronted with the chaotic condition that any person whose conduct may be subject to regulation by the state could ignore any restraint upon his absolute freedom of choice. That would be true whether the authority was exercised by the judiciary, an administrative body or otherwise. The orderly processes provided by law for the expeditious determination of such issues would be meaningless and empty. No one doubts the power of the state to continue to confine one charged with or convicted of a crime pending trial or review by appeal although there has been a substantial claim that the conviction violated constitutional rights. And if it be ultimately held that the conviction was unconstitutional the loss of liberty pending decision suffered by the imprisoned is deemed to be one of the costs we pay for living in an ordered society regulated by law.
“The rule of law—the preservation of government under law—depends upon the principle of legitimacy— upon voluntary acceptance of decisions arrived at and written into law by estabished legislative and judicial processes. Those who seek to escape the force of legal obligations until compelled by superior power are guilty of gross disservice to the cause of freedom because when law loses the power to secure voluntary compliance, it is all too likely to be replaced by force.”②
*390It is my view that plaintiff’s duty to obey the order until stayed by judicial review was conclusively decided in Morgan v. Portland Traction Co., supra 222 Or 614. We there held that the procedure for review provided by statute was exclusive. It follows that until plaintiff availed itself of that right it was bound to conform to the lawful mandate of the Commissioner. It must also be recognized that the decision in Morgan v. Portland Traction Co., supra, affirmed a mandatory injunction directing plaintiff to obey. So plaintiff has not only refused to obey the Commissioner’s order, it ignored the order of the court.
It cannot be claimed that the Commissioner did not have jurisdiction of plaintiff and of the subject matter. If there was error at all it was not such error as would have rendered the order absolutely void. In United States v. United Mine Workers of America, 1947, 330 US 258, 293, 67 S Ct 677, 91 L Ed 884, the court said:
“* * * proceeding further we find impressive authority for the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the act under which the order is issued.”
In Atlantic Coast Line R. Co. v. State of Florida, 1935, 295 US 301, 311, 55 S Ct 713, 79 L Ed 1451, 1458, the court had for consideration the effect of a rate order of the Interstate Commerce Commission that had previously been set aside by the Court, it was said:
“* * * Thereafter the order was adjudged void by a decision of this court * * *, but void solely upon the ground that the facts supporting the conclusion were not embodied in the findings. Void in such a context is the equivalent of voidable
*391* * * [citing cases]. The carrier was not at liberty to take the law into its own hands and refuse submission to the orders without the sanction of a court.” 79 L Ed 1458.
City of Gainesville v. Gaines. G. & E. Pow. Co., 1913, 65 Fla 404, 411, 62 So 919, 921, was a case quite similar to the instant one. There the City had passed certain ordinances regulating the defendant utility. The latter claimed that the ordinances were unduly arbitrary and burdensome. The trial court had refused an injunction to compel the utility to conform to the ordinances pending judicial review. The court held:
“* * * If the regulations imposed by the city are in law and in fact illegal for any reason, the company has its complete and adequate remedy by appropriate proceedings; but the company being engaged in rendering a public service must continue to do so in a reasonably adequate manner until relieved of its duty by due process of law. Illegal municipal regulations are not binding; but persons and corporations cannot be permitted to arbitrarily assume to remedy an alleged wrong by refusing to render a public service voluntarily undertaken.”
Thermoid Western Co. v. Union Pacific Railroad Co., 1961, 12 Utah 2d 256, 259, 365 P2d 65, 67, decided that:
“* * * It is to be remembered that generally when a court or administrative body is dealing with a controversy of the kind it is authorized to adjudicate, and has the parties before it, it has jurisdiction. And jurisdiction does not depend upon the regularity of the exercise of its power or the correctness of decisions made.*” (Footnote omitted).
United States v. Shipp, 1906, 203 US 563, 27 S Ct *392165, 51 L Ed 319, has meaning here. The ease came to the Supreme Court on a charge of contempt against a Tennessee sheriff. The sheriff had been responsible for the custody of a negro who had been convicted of murder. The convicted man was lynched, with the connivance of the sheriff, while a habeas corpus appeal had been pending in the Supreme Court. It was argued in behalf of the sheriff that the Court could not have had jurisdiction in the habeas corpus proceeding, and, therefore, it was beyond the power of the Court to exercise any restraint upon the sheriff while the habeas corpus ease was pending. The Court held that even if it had not had jurisdiction it was wrongful for the sheriff to act until that question had been decided by the Court. The court recognized that the order of a court not having jurisdiction cannot be enforced but that the party could not gamble on the Court’s ultimate decision while the case was being decided. Chicot County Drainage Dist. v. Baxter State Bank et al, 1939, 308 US 371, 60 S Ct 317, 84 L Ed 329, is also worthy of consideration in reaching decision in this case.
The concurring opinion of Justice Frankfurter in United States v. United Mine Workers of America, supra, 91 L Ed 920, should be required reading for those who may think that rigid adherence to lawful process can be avoided when that process is inconvenient or difficult for either the state or the citizen. Or if one has doubt that a citizen should be required to conform to that process until its fulfillment reaches ultimate judgment, he should read that opinion.
There are not many cases involving the right of a party to ignore an administrative order or process. Most of the cases, including the important one of Yakus v. United States, 1944, 321 US 414, 64 S Ct *393660, 88 L Ed 834, are mentioned or discussed in the former opinion of this court in Morgan v. Portland Traction Co., supra, 222 Or 614, 628. Further discussion is unnecessary. It is my view that during the period of time that plaintiff refused to seek the expeditious judicial review available to it plaintiff stood in the position of an outlaw. And, further that that question should be decided now.
Two other arguments advanced by plaintiff require consideration. First, plaintiff claims that the Commissioner could not look to its total earnings, both freight and passenger, to determine if continued operation of its passenger service at a loss would, ipso facto, result in confiscation of its property. The law is clearly to the contrary.
“* * * It has long been settled, however, that a requirement that a particular service be rendered at a loss does not make such service confiscatory and thereby an unconstitutional taking of property.” Frankfurter, J., in a concurring opinion in Alabama Comm’n v. Southern R. Co., 1951, 341 US 341, 352 71 S Ct 762, 95 L Ed 1002, 1010, citing numerous eases, not necessary to repeat here.
In the several findings and orders of the Commissioner, before mentioned, the Commissioner properly considered the total financial health of plaintiff. Detailed findings as to earnings and costs were made. In each instance it was found that plaintiff’s financial status was excellent. In the years beginning with 1952, when plaintiff first attempted to abandon, through 1957, plaintiff’s parent company received dividends in the amount of $2,455,000 upon its investment in plaintiff and the intracity transit lines in Portland. Nearly all of the earnings came from plaintiff. The total investment allocated to plaintiff was about *394$1,000,000. Other indicia of prosperity has already been mentioned. The evidence referred to satisfied the Commissioner in each instance that plaintiff would not suffer confiscation if the passenger service were to be continued.
Second, plaintiff contends that the enforced continuation of its passenger service would interfere with interstate commerce and was, therefore, invalid. Plaintiff claims that only about four percent of its revenues were derived from intrastate service; the remainder was interstate; that to use interstate revenue to provide intrastate service would impair its interstate obligations. The Supreme Court has consistently held that such a determination must first be made by the Interstate Commerce Commission. The Court has refused to consider the question until the ICC had first decided it. Western & Atlantic v. Public Comm., 1925, 267 US 493, 45 S Ct 409, 69 L Ed 753; Alabama Comm’n v. Southern R. Co., supra, 341 US 341.
There is one reason for decision advanced by the majority that requires mention: It is said that there was no difference in plaintiff’s condition on December 26, 1958, when the Commissioner rescinded prior orders, and its condition on January 25, 1958, when the Commissioner entered the order requiring continued service. The majority ignore the compelling fact that on and prior to January 25, 1958, plaintiff’s passenger service was in actual operation. On December 26, 1958, by reason of plaintiff’s unlawful conduct, the service was dead beyond recall, and so was any need for further administrative or judicial proceedings. But we do not remain powerless to hold plaintiff to the penalties it has earned. We, no less than the Supreme Court of the United States in the cases cited, *395have a responsibility to preserve lawful process. We should not evade that responsibility.
The decree should be reversed.
O’Connell, J., joins in this dissent.This statute was initially enacted as a part of Chapter 53, Oregon Laws 1907, which created the Railroad Commission. The Revised Code still uses the word “Commission” in part, rather than the word “Commissioner.”
Solicitor General Archibald Cox, Law Day Address, Portland, Oregon, May 1, 1962.