I am unable to concur in the judgment annulling the order of the railroad commission, and in view of the importance of the case deem it proper to state very briefly my conclusions upon what I consider the material questions presented.
I concur in the conclusions reached by Mr. Justice Sloss in his concurring opinion, numbered in the summary at the end thereof as 1, 2, 3, 4, and 5, and in the reasoning upon which the same are based. Nor can there be any doubt that the conclusion in said summary numbered "6" is correct. It is not so clear to me, however, that, even if we assume that under the facts of this case, the execution of the order in question involves a prohibited taking of private property without compensation, anyexcess of jurisdiction on the part of the railroad commission is shown, or anything other than such a violation of a right guaranteed by the federal constitution, as, in view of the provisions of our state constitution and those of the Public Utilities Act, can be alleged and determined only in the federal courts.
However this may be, I am not convinced that there is shown by the facts of this case any "taking" of petitioner's property within the meaning of that term as used in our law prohibiting the taking of property without compensation to the owner. Not being satisfied of the correctness of the conclusion that such a taking is shown, I am unable to concur in the judgment.
It is clear enough to me that the legislature in enacting section 40 of the Public Utilities Act considered that it was simply providing for the regulation, under the police power of the state, of the use of property by the owner thereof for the purposes to which it had been dedicated for public use, and that it was not at all providing for the taking of private *Page 704 property for a public use, or the taking of property already subjected to a certain public use for a different public use. The absence of any provision at all for the ascertainment of the compensation to be made for the taking of any property, and the limiting of such matter to compensation for the service to be rendered, when considered in connection with the language of the section, would appear to sufficiently indicate this. Clearly section 40 does in terms effectually authorize anything specified therein that amounts to no more than a reasonable regulation, under the police power of the state, of the use of property by the owner thereof for the purposes to which it has been dedicated.
While the question presented is one not entirely free from doubt in my mind, it seems to me that the situation presented by the facts of this case is analogous to that presented where two railroad companies are required to connect their tracks, and each company is required to receive at the point of connection for transportation over its route cars delivered to it for such transportation at such point, proper compensation for such service of transportation being made to it. The validity of orders requiring this, where authorized by constitutional or statutory provisions of a state, appears to have been declared by decisions of the United States supreme court, on the theory that there is no prohibited taking of property, and that the order is a lawful exercise of the police power of regulation, demanded by the public interest. The carrying company in such a case is simply engaged in using its line of railroad for the purposes towhich it has dedicated it, the carrying of passengers and freight presented for transportation at a point on its route, receiving proper compensation for its service, and the fact that it is compelled to do this with cars delivered to it by another company involves no prohibited taking of any part of its property. Such appears to me to be the theory of the decisions of the ultimate tribunal upon this point, the United States supreme court. Such a case is very different from one where it is sought to compel one railroad to admit another to the use of its tracks by trains operated by and under the control of the employees of the other road, involving as it does, a physical occupation and control of the property of the road by the other road for its own purposes. It is urged that such is the situation here. To me this *Page 705 conclusion appears to be based upon an entirely immaterial factor which is necessarily incidental to the use of the telephone, viz.: that the exclusive use of a wire of the petitioner is essential to the carrying on of a conversation between a subscriber of one of the independent companies and the person on petitioner's system with whom the conversation is being had. This, as I understand it is claimed, would render the order one constituting a taking of petitioner's property by the independent company for the period of the conversation. But this is the same kind of a taking that any member of the public conducting a conversation from a public exchange of petitioner in Willows or Red Bluff, with a person anywhere on petitioner's system, would enjoy. It is simply an essential part of the service for the rendition of which, for a proper compensation, the property of petitioner is dedicated, and as long as proper compensation for the service is made, there is no prohibited taking. It cannot be claimed that petitioner could lawfully refuse to allow any of the subscribers of the independent companies who present themselves, personally or by agent, at their public exchange in Willows or Red Bluff, to use its system upon paying the toll prescribed for the service demanded. Except in so far as the mere matter of convenience is concerned, is there anything more involved here, material on the question of a "taking" of petitioner's property? The independent companies may well be said to be simply the agents of their subscribers for the purpose of procuring at the exchanges of petitioner, Willows and Red Bluff respectively, the long distance service offered to the public generally at those points by petitioner. They propose to so physically connect their systems with that of petitioner at the points named, at their own expense, that their subscribers may at those points, upon payment by such companies to petitioner of the prescribed rate therefor, obtain the service offered to the public generally. The petitioner's system remains under the exclusive control of petitioner through its own employees. They alone, so far as any service over petitioner's system is concerned, furnish the service. Without their co-operation, not an inch of petitioner's system may be used for such service by the independent companies or by any subscriber thereof, and such use is at all times under their exclusive control. The service *Page 706 is to be furnished in precisely the same way that it is furnished to any other person obtaining such service, the subscribers of the independent companies having no preferential right over any other person in the matter of such service. There is no question properly presented in this proceeding as to inadequacy of the rate to be paid for the service.
I do not dispute the proposition made in the opinion of Mr. Justice Sloss to the effect that if the physical connection ordered in this case compels petitioner to allow a use of its lines for other purposes than those for which it may fairly be held to have been dedicated, which is held to be the fact in the prevailing opinions, a very different situation would be presented. My difficulty is in seeing that such will be the effect of the physical connection ordered. It seems to me that the dedication of the property of petitioner includes the use here ordered, which is, as I look at it, simply the use by itself of its own system for the transmission of long distance telephone messages of the public, for a compensation, the order of the commission confining the use under the physical connection solely to long distance messages. And I cannot see that the fact that each of the independent companies is a rival of petitioner in the matter of local business in the particular locality served by it, is at all material upon the question whether there is a "taking" of petitioner's property in the prohibited sense. That fact might be material in determining whether, under the circumstances of this case, the regulatory order of the commission was reasonable and without discrimination, a question which the state courts appear to be precluded from considering in view of certain provisions of the Public Utilities Act, and as to which petitioner's only recourse is the federal courts.
The question of a prohibited taking, which I have briefly discussed, is, as I have said, one not entirely free from doubt. My own opinion, in the light afforded by the decisions of the United States supreme court, is that there is here no such taking of petitioner's property. I deem it unfortunate that a decision of this court holding to the contrary precludes a consideration of the question by the United States supreme court, the final authority on such questions. This result, however, is due solely to what I consider a serious defect in the law, and in no degree to this court, the members of which *Page 707 are bound to decide the question in accord with their conclusions thereon, regardless of whether or not there is a power of review lodged anywhere. But that a decision of this court to the effect that a person's rights under the federal constitution are not violated by the enforcement of a state statute may be reviewed by the United States supreme court at the instance of the party complaining, and that one to the effect that such rights are violated may not be so reviewed at the instance of the state, with the result that the decision of the state court is final and conclusive against the state on a purely federal question, appears to me to present a situation that is not only most unfortunate, but also one for which there is no warrant. Yet such appears to be the law as it now stands.