Modeste v. Public Utilities Commission , 97 Conn. 453 ( 1922 )

The plaintiff made application to the Public Utilities Commission under § 3 of Chapter 77 of the Public Acts of 1921, for a certificate to operate a jitney over certain specified routes.^* As to each route specified there were several applicants, and the Commission heard all applicants at the same time, and found that public convenience and necessity required a jitney service over the specified routes, and thereupon selected from the several applicants for certificates one applicant (not the plaintiff) as to each route, and granted a certificate to such applicant, and found that public convenience and necessity did not require the operation of the jitneys of the plaintiff on either route.

The Public Act in question is not attacked by the plaintiff as invalid for any reason. It is recognized by the plaintiff as a valid exercise of the police power of the State. The plaintiff urges, however, that the Commission, under the Act, is not authorized to select one person or company, and by granting it alone a certificate as to a certain route, to create what is in effect a monopoly.

This contention raises a question of law, that is, a question as to the construction of Chapter 77, and is therefore properly reviewable on the appeal to the Superior Court. That court held that this claim was untenable. This was clearly correct. If there is to be any regulation of a jitney service on a route where public convenience and necessity requires jitneys, the Commission of necessity must have the power to confer on one or more persons what amounts to a monopoly. The only alternative is to permit anyone to run jitneys on the route who desires to do so, a condition which the Act was designed to terminate. It should, however, be borne in mind in this connection, that under the Act the Commission has power to supervise the holders of certificates as to their routes, fares, speed, schedules, continuity of service, and the convenience and safety of passengers and the public, with power to amend or revoke any certificate.

Turning to the plaintiff's appeal to find what other action of the Public Utilities Commission he complained of and sought to have reversed by the Superior Court, we find that in paragraph 5 he alleges that "at the time of said applications and hearing, and at the date of this petition and appeal, public convenience and necessity required the operation of a jitney over the routes embraced in the appellant's . . . applications, any other and similar service to the contrary notwithstanding," and in paragraph 7 he alleges that notwithstanding such fact his application for a certificate was denied. There is no allegation of any other claimed illegal action.

The Commission found that public convenience and necessity required a jitney service over the routes for which the plaintiff sought a certificate, and the Commission, out of several applicants for certificates for such routes, granted a certificate to one applicant for each route, and prescribed what it deemed to be adequate service for such routes, to be provided by the applicant to whom it gave the certificate.

In failing to find that public convenience and necessity required the operation of a jitney by the plaintiff over such routes, was the Commission exercising an administrative function purely, or a quasi-judicial function which, under the statute relating to appeals from the Commission, could properly be brought before the Superior Court for review? This leads us to briefly review the law of this State as to appeals for the acts of administrative bodies. Section 7 of Chapter 77 of the Public Acts of 1921 provides as follows: "Any person, association or corporation aggrieved by any act or order of the Public Utilities Commission may appeal to the Superior Court in the same manner and with the same effect as any person, association or corporation may appeal from orders relating to street railway corporations." This refers to General Statutes, § 3828, which in turn refers to General Statutes, § 3753, where the right of appeal is defined.^** That the legislature intended in § 3753 to give an appeal that should be plenary, seems apparent. But such legislative intent does not conclusively establish the authority of the Superior Court to hear de novo, both as to facts and law, the matter heard by the Commission. InSpencer's Appeal, 78 Conn. 301, 305, 61 A. 1010, under a similar state of facts, we stated, in effect, what we had repeatedly held before, that under the Constitution of this State, which confides the powers of government to three separate and distinct departments, the legislative, the executive, and the judicial, the General Assembly cannot authorize the courts to exercise powers which are clearly administrative and not incidental to the discharge of any legitimate judicial function; and held that an administrative question pure and simple could not constitutionally be made the subject-matter of judicial determination, and that a statute purporting to give the Superior Court jurisdiction of such a matter by an appeal from an administrative body, was to that extent null and void. An appeal from an administrative body to a court may be given as a convenient method of bringing before the courts such judicial questions as may arise in the proceedings and action of an administrative body, instead of leaving the interested party to such relief as he may secure by injunction, by mandamus or by other legal remedy. When such appeals are taken from orders passed by an administrative body in the exercise of a purely administrative function, the only question which the court can inquire into is whether the tribunal in question has acted illegally, or has exceeded or abused its powers. In Norwalk v. Connecticut Co., 88 Conn. 471,478, 91 A. 442, we said: "There seems to be no reason why a quasi-judicial function — that is, one which may constitutionally be exercised either by the courts or by an administrative tribunal — may not, by a plain expression of legislative intent, be committed to an administrative tribunal in the first instance, and then, at a second stage of the proceedings, to the courts for the purpose of review." Hopson's Appeal, 65 Conn. 140,31 A. 531, and Norwalk v. Connecticut Co.,88 Conn. 471, 91 A. 442, are instances of the review by a court of the exercise of a quasi-judicial function by an administrative body. Where the action of an administrative body involves only a purely administrative matter, the court, on a statutory appeal from such a body, has before it only the question, if properly raised, whether the body has acted illegally or has exceeded or abused its powers; otherwise the action of an administrative body involving only an administrative matter, is to be accepted as final. The question whether such a body has acted illegally or has exceeded or abused its powers, would involve such questions, among others, as whether its action was beyond its statutory powers, or was beyond its jurisdiction, or whether it had acted arbitrarily as without notice and due hearing. InterstateCommerce Com. v. Union Pac. R. Co., 222 U.S. 541,32 Sup. Ct. 108; Interstate Commerce Com. v. IllinoisCentral R. Co., 215 U.S. 452, 30 Sup. Ct. 155. InOhio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287,289, 40 Sup. Ct. 527, the United States Supreme Court has held, in effect, that in orders by an administrative body fixing rates or imposing expenditures, if a person or corporation claims that confiscation of its property will result, the State must provide a fair opportunity (by appeal or otherwise) for submitting the issue to a judicial tribunal for determination upon its own independent judgment as to both law and fact; otherwise the order is void because in conflict with the "due process" clause of the Fourteenth Amendment. Under this ruling the case of Root v. New Britain GasLight Co., 91 Conn. 134, 99 A. 559, falls, in so far as it required a plenary hearing of the appeal.

Under our law as to appeals from administrative bodies, if the Commission had found that public convenience and necessity did not require a jitney service over either of the routes applied for, we should have deemed that it was an arguable question whether such a decision as to either route was a quasi-judicial question, and hence subject to review on appeal. But that question having been decided in the affirmative in accord with the plaintiff's contention, we deem it obvious that the subordinate questions as to which of several applicants should receive a certificate for such route, and the extent of jitney service that was required over the route, were purely administrative questions; and that in so far as the exercise of such purely administrative functions were the matters complained of on the appeal, the only legal course open to the Superior Court was to dismiss the appeal. The fact that the Superior Court investigated the matter de novo and confirmed the action of the Commission, is immaterial, since it finally took the only action that the law permitted, and dismissed the appeal.

There is no error.

In this opinion the other judges concurred, except GAGER, J., who concurred in the result, but died before the opinion was written.