State Ex Rel. Public Service Commission v. Great Northern Utilities Co. , 86 Mont. 442 ( 1930 )

Appeal from a judgment of dismissal in mandamus proceedings. The record herein discloses that the Great Northern Utilities Company, hereafter referred to as the Utility, has been in the business of furnishing natural gas to the people of Shelby for some years and, up to 1927, charged, based upon the amount used, from sixty down to thirty cents per thousand feet. In 1927 the Public Service Commission, hereafter called the Commission, gave notice of a hearing on these rates, whereupon the Utility reduced its maximum rate to fifty cents per M.

In October, 1928, a rival concern commenced serving a part of the city at rates of from thirty-five cents to twenty-two and one-half cents, and thereupon the Utility reduced its rates to from twenty cents down to fifteen cents per M. The rival complained to the Commission and, after a hearing the Commission ordered the Utility to file its schedule fixing its rates the same as those of its rival; the order to be in effect from and after February 1, 1929. The Utility did not comply with the order, but on February 8 commenced action in the district court of the first judicial district for the cancellation of the order as illegal. In its complaint filed the Utility asked for an injunction pendente lite but did not urge its issuance. The first judicial district has two judges; this action was pending on demurrer to a second amended complaint in department No. 2 presided over by Judge Horsky, when, on November 5, 1929, the Commission made application to Judge Poorman, in department No. 1, for a writ of mandate to compel the Utility to comply with the rate order pending final determination of the action. To this application the Utility interposed a motion to quash, which was sustained by an order which recites that this action was taken "without reference to the validity of the order made by the relator and solely on the ground that, at the time this proceeding was commenced, there was, and still is, an action 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." Judgment of dismissal followed, and the Commission has appealed from the judgment, contending that the pending action is no bar to the mandamus proceeding. With this contention we agree.

We have twenty judicial districts in this state (sec. 8812, Rev. Codes 1921); some have one judge, some two, and some three (sec. 8813, Id.). When a district has more than one judge, departments are created and the business is divided by rules of court adopted by the judges or by this court (sec. 8832, Id.), but the court presided over by each of the judges is the district court of the district and not a departmental court. The jurisdiction of the court extends to all matters properly before it, and neither department is "a court of concurrent jurisdiction" to the other. In the absence of rules, either judge has full authority to proceed in any matter properly before the court. (State ex rel. Little v. District Court, 49 Mont. 158,141 P. 151.)

It is true that when a matter is pending in one department, a judge of another department is not permitted to interfere therewith (Lutey Bros. v. Jackson, 55 Mont. 556,179 P. 459), but that situation is not presented here. The action pending in department 2 attacks the validity of the Commission's order, but, in terms, the statute prohibits the court in such an action from issuing an injunction pendente lite and declares that the "rates fixed by the Commission shall be deemed reasonable and just, and shall remain in full force and effect until final determination by the courts having jurisdiction" (secs. 3905 and 3906, Rev. Codes 1921), and sec. 3911, Id., specifically authorizes mandamus proceedings to compel obedience to the orders issued.

It is therefore clear that the statutes contemplate such a proceeding independent of, and without regard to, the action pending to test the validity of the order, and that the fact that such an action is pending did not justify the quashing of the writ. This conclusion, however, does not alone warrant a reversal of the judgment, if the trial court was acting within jurisdiction in passing on the motion to quash and the decision made is right on any theory which might have been adopted by the court in rendering it.

The rule that an appellate court is not concerned with the reason given for a decision, and will therefore affirm a correct ruling regardless of the fact that the trial court gave a wrong reason therefor, is of almost universal application and has been followed in this jurisdiction on the consideration of every conceivable species of decision which the trial court had authority to make, as shown by the reported cases from McMullen v. Armstrong, 1 Mont. 486, to Whitcomb v. Beyerlein,84 Mont. 470, 276 P. 430; in other words, whenever it appeared from the record that the trial court acted judicially. InMcMullen v. Armstrong, above, the territorial court said: "Admitting that the reasons assigned for, and by which the court was governed in making its ruling, are erroneous, yet it makes no difference if the ruling itself is proper and correct. It matters not by what process or method of reasoning, or by what form of argument or manner of deduction, whether true or fallacious, a conclusion is arrived at, provided the conclusion itself is right."

We can now avoid the determination of further questions presented by the motion to quash, only by declaring that the trial court, in effect, refused to assume jurisdiction of the motion and did not act judicially in determining it. A somewhat similar action was taken in the case constituting the basis of an application for a writ of mandate in State ex rel. Peel v.District Court, 59 Mont. 505, 197 P. 741, 743, wherein this court declared that in striking a petition for letters of administration which the petitioner was entitled, under the statute, to have heard, the court did not act within jurisdiction, and therefore mandamus would lie to compel reinstatement, quoting in support thereof from High on Extraordinary Legal Remedies, section 151: "Refusal to take jurisdiction, or, after having acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a preliminary question of law, upon which the court refused to examine the merits, will be corrected by mandamus."

But in the Peel Case the conclusion was reached only because it was declared that the trial court had no jurisdiction to strike a proper and authorized pleading from the files, and therefore acted without jurisdiction, permitting mandamus. In other words, this court held that the trial court had no jurisdiction to pass on the motion to strike, as it was not a proper motion, the statute (sec. 10077, Rev. Codes 1921) declaring that the court "must hear" the petition to which the motion to strike is addressed. The decision in the Peel Case is an exception to the general rule in mandamus proceedings. No matter how erroneously, or even arbitrarily, a court may act, if it had jurisdiction to make the order or enter the judgment of which complaint is made, its act is judicial and mandamus does not lie to compel it to recall the order or judgment and make a new and different one. (McMullen v. Armstrong, above.)

After careful consideration of the Peel Case, we have come to the conclusion that the reason for holding there that the court did not act judicially cannot be applied to the instant case. The decision of a motion properly presented to a trial court is a judicial act (State v. Wolever, 127 Ind. 306,26 N.E. 762), while the action taken in the Peel Case was held to be not a judicial act.

A few cases have been found in which appellate courts have refused to follow the rule or to consider grounds not passed upon by the trial court for technical reasons, but no case has been found wherein such a ruling as that under consideration has been declared outside the rule. The nearest approach to the case at bar which we have been able to discover is that of PacificPaving Co. v. Vizelich, 141 Cal. 4, 74 P. 352, 355, in which a case was dismissed because the summons was not returned within three years. On appeal the respondent sought to have the judgment affirmed on the ground that the complaint did not state facts sufficient to constitute a cause of action; it was there held that "such an objection to a complaint is not, however, available on a motion to dismiss an action, and cannot be considered on this appeal as tending to sustain the ruling of the court below." But that decision is not in point here, as, in the case at bar, the ground stated in the motion to quash is that "the affidavit in support of the application does not state facts sufficient to authorize the issuance of a peremptory writ of mandamus." Strictly, the "motion" does not reach the defect alleged, which should be attacked by general demurrer, but in modern practice motions are often permitted to take the place of demurrers (14 Ency. Pl. Pr. 91), and, in fact, the so-called motion is but a notice of motion; the motion is that made on presentation orally to the court, at which time it is clear the movants added to their ground of motion stated, — that on which the court ruled. The motion before us is, in effect, if not in fact, a demurrer to the application for the writ, and the ruling thereon must be treated as a ruling on a demurrer.

The above rule as a correct ruling on a demurrer, based on a wrong reason, has always been applied in this jurisdiction. (Porter v. Plymouth Gold Min. Co., 29 Mont. 347, 101 Am. St. Rep. 569, 74 P. 938.)

The action of the court here is the same, in legal principle, as that considered in State v. Hughes, 78 Mont. 87,252 P. 320, and Warren v. Chouteau County, 82 Mont. 115,265 P. 676. In the first of these cases the court refused to consider a "supplemental motion" for a new trial on the ground of recently discovered new evidence, for the reason that the motion was not properly before the court; declaring the court in error, this court invoked the "wrong reason, right conclusion" rule, considered the motion on its merits, and sustained the trial court notwithstanding its erroneous refusal to consider the merits of the motion. In the Warren Case, after a full hearing, the trial court dismissed an action to quiet title as against the record of a county road never legally laid, on the ground that it lacked jurisdiction by reason of the fact that statutory provision was made for the abandonment of county roads. This court proceeded to determine the matter on its merits, despite the fact that the trial court had refused to pass on the merits of the suit.

In Western Acceptance Co. v. Simmons Co., 71 Colo. 127,203 P. 1096, for the purpose of sustaining a judgment dissolving a receivership, the court held that the matter was to be considered as though the trial court had refused to entertain the petition for insufficiency, and went back to the petition to discover whether such action would have been an abuse of discretion.

In the ordinary action challenging an order requiring a utility to lower its rates on the ground that the order is unjust and unreasonable, the only question presented on application for mandamus to enforce the rates pending final determination would be as to the constitutionality of the statutes authorizing such enforcement. Here the order is not that the Utility should lower, but that it should raise, its rates, and the constitutionality of the statutes could only be raised on a showing of injury or prejudice. As the question of the constitutionality of the statute prohibiting injunction and authorizing mandamus to compel obedience to the order pending final determination was properly before Judge Horsky on application for the injunction pendente lite and could be presented at any time in the action pending, that "due sense of propriety" mentioned in Lutey Bros. v. Jackson, above, might be sufficient ground for refusal, on Judge Poorman's part, to consider this question; but we need not base a decision on this question of propriety. This question of the constitutionality of the statutes was not raised before Judge Horsky, as the Utility did not urge the issuance of an injunction pendente lite, and the Commission could only raise the question by an application for mandamus in Judge Horsky's department in the same manner as it was raised in Judge Poorman's department; any application there made would be a separate proceeding and not a part of the action pending, even if it could be brought in by cross-complaint or application, since such a pleading brings in a new cause of action and its determination constitutes a judgment, apart from the original proceeding, as in the case of application for temporary alimony in a divorce proceeding, or the condition of the pleadings considered in Ringling v. Biering, 83 Mont. 391,272 P. 688. It cannot be assumed, therefore, that the trial court considered that ground for the quashing of the writ.

However, the question was squarely presented as to the validity of the Commission's order. Whether or not, under the laws of this state, the Commission has power to so order is the main question to be determined in the action pending before Judge Horsky.

The issuance of the writ of mandate lies within the sound legal discretion of the court to which application is made; in order to invoke favorable action, the relator must show a clear legal right to the writ. (38 C.J. 549-551; State ex rel. Danaher v.Miller, 52 Mont. 562, 160 P. 513.) If there is doubt of its necessity or propriety it will not go, and even when the applicant shows a clear legal right to the writ and that there is no other adequate remedy, the writ may properly be denied where by its issuance the public or third persons might be injuriously affected. (38 C.J. 550.)

Called upon to pass upon the sufficiency of the showing made, Judge Poorman found himself in the embarrassing situation of being asked to determine, in advance, the question presented to Judge Horsky in a proceeding regularly instituted to test the legality of the order. This question is at least debatable, and its presentation raises a grave doubt as to the propriety of issuing the writ of mandate under the peculiar circumstances of this particular case. This consideration, coupled with the fact that the rights of the public and of third parties at Shelby, the consumers of gas now paying but twenty cents per thousand feet, would be injuriously affected thereby, is sufficient to warrant the exercise of discretion in denying the writ.

For the reasons stated the judgment is affirmed.

MR. JUSTICE GALEN concurs.