Midland Valley R. Co. v. State , 24 Okla. 817 ( 1909 )

In the case of Atchison, Topeka Santa Fe Ry. Co. v. Love,23 Okla. 192, 99 P. 1081, this court held:

"At any time within 12 months from the date a final order is made by the Corporation Commission, any proper party, feeling aggrieved, may prosecute an appeal therefrom, by making application to the chairman of said commission for him, under the seal of said commission, to certify to this court all the facts upon which the action appealed from was based, and which may be essential for the proper decision of the appeal, together with such evidence introduced before or considered by the commission as may be selected, specified, and required to be certified by any party in interest, as well as such other evidence so introduced or considered as the commission may deem proper, and also a written statement of the reasons upon which the action sought to be appealed from is based, to be filed with the record of the case, which will constitute the record for review in this court."

See, also, Kansas City Southern Ry. Co. v. Love et al.,23 Okla. 224, 100 P. 22, to the same effect.

Under the rule laid down in these cases, the appeal in the case at bar was in due time. In the case of Pioneer Telephone Telegraph Co. v. Westenhaver et al., 23 Okla. 226,99 P. 1019, it was held:

"By section 22 of article 9 of the Constitution (Bunn's Ed. § 234), it is made the duty of the State Corporation Commission, upon hearing a petition for an order to reduce the rates charged by a telephone company for services on its local exchange, to make finding of facts upon which the order of the commission is based, and, on appeal to the Supreme Court from such order, to certify the facts found by it to the Supreme Court."

It was the duty of the commission to make the finding of facts upon which this order is based, and, having failed so to do, it cannot be permitted for that reason to have this court dismiss this appeal, and the motion is accordingly overruled.

In order to prescribe fixed charges for freight on such lines, it is necessary, first, for the commission to determine, by hearing evidence, the values of the property of each of said railway companies within the state, and also the entire earnings within the state, both interstate and intrastate, freight, passenger, and miscellaneous, of such roads, and also the entire expense of operation, including that for necessary repairs, etc. In addition, such earnings should return an amount in excess of such expenses, etc., sufficient to yield upon the actual value of the property a reasonable dividend.Wilcox v. Consolidated Gas Co., 212 U.S. 41, 29 Sup. Ct. 192;Knoxville v. Water Co., 212 U.S. 1, 29 Sup. Ct. 148; San DiegoLand Town Co. v. National City, 174 U.S. 739, 19 Sup. Ct. 804, 43 L.Ed. 1154; San Diego Land Town Co. v. Jasper, 189 U.S. 439, 23 Sup. Ct. 571, 47 L.Ed. 892. In the case of Pioneer Telephone Telegraph Co. v. Westenhaver etal., supra, the court said:

"The same section of the Constitution above referred to provides that the order of the commission, appealed from, shall be regarded as prima facie just, reasonable, and correct; but the court may, when it deems it necessary in the interest of justice, remand to the commission any case pending on appeal, and require the same to be further investigated by the commission and reported upon to the court before the appeal is finally decided. If the commission made no finding of facts upon which it based its order, it should have done so; and, if it did make such finding of facts, the same should be before this court, to aid and advise it in its consideration of the case on appeal. Section 23 of the same article of the Constitution (section 236, Bunn's Ed.) provides that, whenever this court shall reverse an order of the commission affecting the rates, charges, or the classification of traffic of any transportation or transmission company, it shall at the same time substitute therefor such orders as in its opinion the commission should have made at the time of entering the order appealed from."

If this court should reverse and set aside the order of the commission fixing the rates appellant may charge, it then and there becomes the duty of the court at the same time to substitute such order upon the subject as in its opinion the commission should have made upon the hearing before it, and the necessary facts upon which to fix rates should accordingly be before this court. These facts may have been found by the commission on the hearing before the making of said order, but do not appear in the record; and they must be before this court for the consideration of the questions raised on appeal. It is accordingly necessary that evidence should be heard on all the issues upon which the facts necessary to justify the order are found.

This case is therefore remanded to the commission, with instructions to proceed, in accordance with this opinion, to make such investigation of the evidence in the record, or any further evidence that may be tendered before the commission by any party interested, as is necessary to make a finding of facts, and, when this is done, to certify same to this court within 90 days.

All the Justices concur.