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regulation is by a state public service commission, then the procedure is governed by the statutes creating the commission.

Generally,

§ 4551. Procedure before commission-In general. the procedure to be followed by the commission in determining questions which come before it, and over which it has jurisdiction, is fixed by the statute or statutes creating the commission, and in such a case, of course, must be complied with.96 Generally the commission acts pursuant to a complaint filed with it, but in most jurisdictions it may institute an inquiry on its own motion. Whether the person or company filing the complaint must have an interest, and the nature of such interest, if necessary, depends upon the wording of the governing statute, although generally the statute authorizes the filing of a complaint by any person, corporation (private or municipal), association or organization. The pleadings may be informal,97 and they are generally held not subject to the strict rules governing in courts of law. The commission may allow amendments.98 The party complained against should file an answer corresponding substantially to an answer in a court of law, under most of the statutes. Generally, however, these questions of pleading are governed by rules of practice adopted by the various commissions.

or

Usually, the burden of proof is on the complaining party,99 but the rules of evidence governing in actions in courts are not strictly adhered to.1

The commission is not required to comply in all respects with the strict formalities which obtain in courts of common law and equity jurisdiction. So far as the Interstate Commerce Commission is concerned, while the method of procedure before the commission conforms in most respects to the regular practice of courts, yet the

96 State v. Chicago, M. & St. P. Ry. Co., 86 Iowa 641, 53 N. W. 323; State v. Chicago, M. & St. P. R. Co., 16 S. D. 517, 94 N. W. 406.

97 So held as to Interstate Commerce Commission. Dickerson V. Louisville & N. R. Co., 187 Fed. 874, aff'd 191 Fed. 705.

98 Lehigh Valley R. Co. v. American Hay Co., 219 Fed. 539, which so holds as to Interstate Commerce Commission; State v. Chicago, M. & St. P. Ry. Co., 86 Iowa 641, 650, 53 N. W. 323. 99 The burden of showing reasonableness of rates is not on the

corporation, even where it increases commutation rates to suburban points in excess of what had been charged for three years. People v. Public Service Commission, 215 N. Y. 241, 109 N. E. 252, aff'g 159 N. Y. App. Div. 546, 145 N. Y. Supp. 513.

1 Interstate Commerce Commission v. Baird, 194 U. S. 25, 48 L. Ed. 860, so holding as to Interstate Commerce Commission.

2 Chicago & N. W. R. Co. v. Railroad Commission, 156 Wis. 47, 55, 145 N. W. 216, 974.

3 See Kentucky & I. Bridge Co. v.

procedure is not restricted by the technical rules prevailing in strictly judicial tribunals.

The commission has jurisdiction to determine questions as to the validity of asserted rights of property, where questions of fact essential to the proper exercise of its jurisdiction to make regulations.5

§ 4552. Notice and hearing. There has been hesitation in some of the decisions in regard to expressly deciding whether notice and a hearing are necessary before governmental regulation of public service companies, whether by a municipality or by a public service commission. In some cases, it seems to be held that notice is not necessary, at least where the regulation is by a municipality. But it has been held by a federal court that notice and a hearing must be provided for by statute or rules of the commission, in order to constitute due process of law, although in South Carolina, it is held that "express statutory requirement for such notice and hearing is not essential," for the reason that the constitutional provisions as to

Louisville & N. R. Co., 37 Fed. 567, 2 L. R. A. 289.

4"The Commission, therefore, being more of an administrative than a judicial tribunal, is not restricted in its procedure by the technical rules that prevail in tribunals that are entirely judicial." Philadelphia & R. Ry. Co. v. United States, 219 Fed. 988, 992.

5 Limoneira Co. v. Railroad Commission of California, 174 Cal. 232, 162 Pac. 1033.

6 See Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S. 265, 278, 53 L. Ed. 176.

7 Since the fixing of rates is a legislative rather than a judicial act, notice or a hearing before fixing the rates is not necessary whether the rates be fixed by the legislature, a public service commission or a municipality. State v. Maine Cent. R. R., 77 N. H. 425, 92 Atl. 837.

Notice to patrons of the public service corporation is ordinarily not necessary, on a question of change of rates. Randall Gas Co. v. Star Glass Co., 78 W. Va. 252, 88 S. E. 840.

In any event, no notice is necessary before making a preliminary order that an investigation should be made. Central of Georgia R. Co. v. Railroad Commission of Alabama, 209 Fed. 75.

8 Home Telephone & Telegraph Co. v. Los Angeles, 155 Fed. 554, 581, aff'd without expressly deciding this question 211 U. S. 265, 53 L. Ed. 176.

Notice of intention to fix the rates need not be given the company by county authorities where power to regulate is conferred by the Constitution which does not require notice. Spring Valley Water-Works v. San Francisco, 82 Cal. 286, 6 L. R. A. 756, 16 Am. St. Rep. 116, 22 Pac. 910, 1046.

Notice of hearing to fix rates of telephone company is not necessary where such rates were voted on by the people at large thereafter under the initiative and referendum. Southwestern Telegraph & Telephone Co. v. Dallas (Tex. Civ. App.), 131 S. W. 80. 9 Central of Georgia Ry. v. Georgia Railroad Commission, 215 Fed. 421, where this question is considered at length.

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due process of law in effect require due notice and opportunity to be heard.10

However, the statutes almost invariably require notice and a hearing before the making of orders by public service commissions.11 And, of course, if notice and a hearing are required by the statute, the commission has no jurisdiction to make an order where no notice is given nor a hearing had.12 So if a statute authorizes the fixing of rates after investigation, the fixing of rates without investigation is invalid.13 There is no denial of due process of law because the section. of the statute under which the order of the commission was made does not expressly provide for notice and an opportunity to be heard, where such section must be construed in connection with other parts of the commission law which do contain such provisions. Formal notice has been held unnecessary where provision as to time of fixing rates every year was made by statute; 15 and if notice is necessary, a notice given by a general ordinance of a city, where the regulation was by the municipality, has been held sufficient.16 Of course if the corporation actually appeared and was heard, it cannot complain of want of notice.17

A hearing is usually necessary,18 without regard to whether notice

10 Railroad Com'rs v. Columbia, N. & L. R. Co., 82 S. C. 418, 421-424, 64 S. E. 240.

11 Missouri Pac. R. Co. v. Board of Railroad Com'rs of Kansas, 85 Kan. 229, 116 Pac. 896; Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775, 187 S. W. 296.

12 Wilmington City Ry. Co. v. Taylor, 198 Fed. 159; In re Rutland R. Co., 79 Vt. 53, 64 Atl. 233.

"The giving of the notice is jurisdictional, and hence the rate fixed without it is not binding-is, in fact, of no validity whatever." State v. Chicago, B. & Q. Ry. Co., 90 Iowa 594, 605, 58 N. W. 1060.

13 Ft. Smith Light & Traction Co. v. Ft. Smith, 202 Fed. 581, 585.

If a statute authorizes an order "after investigation," it clearly implies that the question shall be determined upon testimony and after a hearing. Louisville & N. R. Co. v. United States, 225 Fed. 571, 580.

14 Wadley Southern R. Co. V. Georgia, 235 U. S. 651, 658, 59 L. Ed. 405.

15 San Diego Land & Town Co. v. National City, 174 U. S. 739, 752, 43 L. Ed. 1154.

16 Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, aff'g 155 Fed. 554.

17 Vandalia R. Co. v. Public Service Commission of Indiana, 242 U. S. 255, 260, 61 L. Ed. 276; Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S. 265, 278, 53 L. Ed. 176.

18 Connecticut Co. v. Norwalk, 89 Conn. 528, 94 Atl. 992; State Public Utilities Commission v. Chicago & W. T. R. Co., 275 Ill. 555, Ann. Cas. 1917 C 50, 114 N. E. 325.

There must be an investigation before a commission can lawfully rule as to the reasonableness of rates fixed by a public utility. Wilmington City Ry. Co. v. Taylor, 198 Fed. 159, 169. A company is not deprived of a

is necessary.19 And the hearing to which the corporation is entitled must not be a mere form, but must include the right to secure and present evidence and, both by proof and argument, to controvert the claim asserted against it.20 There is no hearing, such as is necessary where there is a taking of property, where an order is based upon an ex parte examination or an investigation by agents of the commission.21 While a commission, in the investigation of any question, may bring to its solution the accumulated experience and expert knowledge of its members, yet there must be findings based upon evidence after a full hearing.22 "Nevertheless from the administrative nature of the tribunal, the requirements of expert knowledge, the nature of the duties required, and the subjects considered," says the Wisconsin court, "there must be a very considerable number of duties which the commission is authorized to perform without the formality of trial or hearing or the formal taking of evidence. This is true of all administrative tribunals. There is also a vast amount of acquired expert knowledge which the commission may apply to facts in evidence." 23 A commission is not bound, "as is a court, to acquire its information concerning all matters involved in the proceeding before it wholly and entirely from the evidence of witnesses or other evidence produced before it, but may take into consideration the results of its general investigations, general information upon a given sub

hearing because not made a party to proceedings before a commission, where the statute authorizes anyone pecuniarily interested to apply for a rehearing. Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210.

19 But it does not follow that because no notice is necessary the regulating body is for that reason excused from applying to corporations or individuals interested to obtain all information necessary to enable it to act intelligently and fairly in fixing the rates. "This is its plain duty, and a failure to make the proper effort to procure all necessary information from whatever source may defeat its action." Spring Valley WaterWorks v. San Francisco, 82 Cal. 286, 6 L. R. A. 756, 16 Am. St. Rep. 116, 22 Pac. 910, 1046.

20 Washington v. Fairchild, 224 U. S. 510, 525, 56 L. Ed. 863.

If the statute requires a hearing, it means a fair and bona fide hearing. Wilmington City Ry. Co. v. Taylor, 198 Fed. 159, 170.

21 Farmers' Elevator Co. of Yorkville v. Chicago, R. I. & P. R. Co., 266 Ill. 567, 107 N. E. 841.

Findings cannot be based merely upon an investigation caused to be made by the commission but must be based on evidence presented at a public hearing, with a full opportunity to cross-examine witness and to present, if desired, evidence in rebuttal. Farmers' Elevator Co. of Yorkville v. Chicago, R. I. & P. R. Co., 266 Ill. 567, 107 N. E. 841.

22 Atlantic Coast Line R. Co. v. Interstate Commerce Commission, 194 Fed. 449, 457.

23 Chicago & N. W. R. Co. v. Railroad Commission, 156 Wis. 47, 56, 145 N. W. 216, 974.

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ject within its powers, and all matters which affect the matter and concerning which it must determine the facts." 24 But a commission cannot fix rates for a public utility without an accurate and detailed inventory and appraisal of all the property of the corporation which is used for the benefit of the public, secured by competent engineers, and also a complete examination and audit of all books of account kept by the company showing the gross earnings together with the operating expenses and other necessary information,

§ 4553. Conclusiveness of expert evidence. The commission is not bound by the estimates of expert witnesses testifying before the commission as to value, as the ultimate weight to be given the testimony of such experts is a question for the commission, and they are not required to surrender their individual judgment or to give a controlling influence to the estimates of experts as to value.25

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§ 4554. Power of commission to compel production of books and papers for inspection. The commission may compel the corporation to produce its books and papers for the inspection of the patron or consumer in a proceeding to determine the reasonableness of its rates.26 This is often expressly provided for by statute.

§ 4555. Findings of fact by commission. The commission must make findings of facts as the basis for their orders. The effect of such findings, when the order is attacked in the courts, depends largely upon the wording of the statutes relating to such commissions. Generally it is expressly provided that such findings shall be deemed prima facie correct, the result of which is that the burden is on the complaining party to show that such findings are not supported by any evidence or to introduce evidence sufficient to overcome such findings, provided new evidence may be introduced in the court.27 In some states, however, such findings of fact have no force or effect where a review of the order is provided for in the supreme court and it forms its own independent judgment as to each requirement of the order, upon the evidence.28

24 State v. Public Service Commission, 95 Wash. 376, 166 Pac. 793, 163 Pac. 1143.

25 See Public Service Gas Co. v. Board of Public Utility Com'rs, 84 N. J. L. 463, 479, 87 Atl. 651, so holding as to going value.

Public Utilities Commission, 26 Idaho 391, L. R. A. 1917 F 1195 with note, 143 Pac. 1173. See also Interstate Commerce Commission v. Baird, 194 U. S. 25, 48 L. Ed. 860.

27 See § 4560, infra.

28 Seward v. Denver & R. G. R. Co., 26 Federal Mining & Smelting Co. v. 17 N. M. 557, 46 L. R. A. (N, S.)

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