I concur fully with what Mr. Justice Matthews has said respecting that functions of judges of the same court and as to courts which for convenience are divided into departments. As Judge Horsky is expected to decide the merits of the main cause very soon, I am not especially concerned over the result of this appeal except as it affects the statute shortly to be quoted. It seems to me unfortunate that the "wrong reason, right conclusion" doctrine is applied to this case, for to do so practically nullifies the statute, which reads as follows: "In addition to all the *Page 453 other remedies provided by this Act for the prevention and punishment of any and all violations of the provisions thereof and all orders of the commission, the commission may compel compliance with the provisions of this Act and of the orders of the commission by proceedings in mandamus, injunction, or by other civil remedies." (Sec. 3911, Rev. Codes 1921.) All orders of the Commission are meant. The legislature said plainly that the Commission may compel compliance with its order by proceedings in mandamus. This is a special statute providing special means for the exercise of power by an arm of the government. The learned trial judge, assuming erroneously that the very matter before him was pending before his brother judge, invoked a rule of procedure and refused to proceed. The very matter was not and is not pending before Judge Hossky. He has the case before him on the merits. The Public Service Commission, in applying for a writ of mandate, attempted, as the statute commands, to put in force the rates fixed by it pending the determination of the case on the merits. That is all the trial court was asked to do. The Public Service Commission had no other remedy so far as I can see. Not by any course of procedure known to me, if section 3906 is valid (a subject into which we do not now inquire), can the Public Service Commission obtain the relief in the main action which it seeks in this proceeding. It certainly cannot obtain a writ of mandamus in the main action.
The exercise of jurisdiction is the exercise of power, and the refusal to exercise a particular power is to refuse to exercise jurisdiction in that particular. The trial judge refused to entertain jurisdiction of the case for the reason that in his opinion another action was then "pending in a court of concurrent jurisdiction between the same parties, based substantially upon the same facts and in which the same issues here involved may be raised." He was clearly in error, and it seems to me that the judgment should be reversed. The fact that the trial court acted judicially in its determination should not save the judgment. A court frequently has been compelled to proceed where it has refused "to take jurisdiction *Page 454 where by law it ought so to do, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof." (Ex parte Parker, 120 U.S. 737,30 L. Ed. 818, 7 Sup. Ct. Rep. 767, quoted in Raleigh v. DistrictCourt, 24 Mont. 307, 81 Am. St. Rep. 431, 61 P. 991, 993.) In the Raleigh Case the district court erroneously struck from the files a contest of a will on the ground that it was inadmissible because of a former contest. It seems to me that upon principle the doctrine of the Peel Case, supra, is applicable also.
Mr. High says if a trial court has erroneously decided some question of law or of practice presented as a preliminary objection, and upon such erroneous construction has refused to go into the merits of the case, mandamus will lie to compel it to proceed. (High on Extraordinary Legal Remedies, 3d ed., sec. 151.)
Here it is clear, if anything in the case is clear, that the trial court, owing to an erroneous determination of a preliminary question — a matter of procedure — refused to entertain the application for the writ upon the merits. If its action can be sustained, it is difficult to conceive of a case in which an order of the Commission can be maintained by mandamus. If the trial court is of opinion that the case presents a serious question, or that somebody may be injuriously affected, it may dismiss the proceeding — refuse to act — and then this court will give the case the final blow by refusing to interfere. Thus, with teeth drawn, the statute is practically useless.