a finding without evidence to support it or clearly contrary to the evidence is contrary to law and must be set aside. As said by the Federal Supreme Court, in regard to the findings of the Interstate Commerce Commission, which are by statute prima facie correct, "its conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision, involving as it does so many and such vast public interests, can be supported by a mere scintilla of proof-but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order."8 And undoubtedly the general rule in most jurisdictions is that conflicting evidence will not be reviewed further than to see that there is some substantial evidence supporting the findings of fact. In other words, the courts will not review findings of fact by a commission by passing upon the credibility of witnesses or conflicts in the testimony. Statutes making the findings of a commission prima facie evidence of the facts therein stated, since creating merely a rule of evidence and a rebuttable presumption, do not abridge the right of trial by jury nor operate as a denial of due process of law. 2. Discretion of the regulating body, i. e., courts will not substitute their judgment for that of the commission,7 except, perhaps, where v. Union Pac. R. Co., 222 U. S. 541, 547, 56 L. Ed. 308. 2 Philadelphia & R. R. Co. v. United States, 240 U. S. 334, 60 L. Ed. 675 (where facts reported afforded no foundation for findings of commission). 3 Interstate Commerce Commission v. Union Pac. R. Co., 222 U. S. 541, 547, 56 L. Ed. 308. 4 Louisville & N. R. Co. v. United States, 225 Fed. 571, 581; Louisiana & P. Ry. Co. v. United States, 209 Fed. 244, 250. 5 Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 92, 57 L. Ed. 431. 6 Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430, 59 L. Ed. 644, Ann. Cas. 1916 B 691. 7 Southern Pac. Co. v. Campbell, 230 U. S. 537, 552, 57 L. Ed. 1610; Grand Rapids & F. R. Co. v. Michigan Railroad Commission, 188 Mich. 108, 154 N. W. 15; Brogger v. Chicago, St. P., M. & O. R. Co., 137 Minn. 338, 164 N. W. 368, 163 N. W. 662. In so far as rate regulations by a commission suggest the enunciation of proper economic rules, the courts must, it is said, "defer largely to those who, by study, experience and calling, are in a better situation to determine what is and what is not a proper method of determination.'' Puget Sound Elec. Ry. v. Railroad Commission of Washington, 65 Wash. 75, 98, Ann. Cas. 1913 B 763, 117 Pac. 739. As said by the Supreme Court of the United States in regard to an order of the Interstate Commerce Commission, "power to make the order, and not the mere expediency or wisdom of having made it, is the question." Interstate Commerce Commission v. Illinois Cent. R. Co., 215 U. S. 452, 470, 54 L. Ed. 280. the court, as in Oklahoma, sits in a legislative capacity, or where, ment with respect to the reasonableness of rates for that of the legis- The appropriate questions for the courts would be whether the commission acted within the authority duly conferred by the legislature, and also, so far as the amount of compensation permitted by the prescribed rates is concerned, whether the commission went beyond the domain of the state's legislative power and violated the constitutional rights of property by imposing confiscatory requirements." 10 So in New York, in a late case, the Court of Appeals held that a court "has no power to substitute its own judgment of what is reasonable in place of the determination of the public service commission, and it can only annul the order of the commission for the violation of some rule of law"; and that a court cannot determine that an order of the commission is unreasonable in the sense that it is unwise or inexpedient but only that it is unreasonable because an unlawful, arbitrary or capricious exercise of power.11 And when this New York case was appealed to the Supreme Court of the United States it was reiterated that if the order of a commission is not in violation of the Federal Constitution, the court, even if it differs with Even where there is no dispute as to the facts, a court cannot substitute its judgment for that of the commission. United States v. Louisville & N. R. Co., 235 U. S. 314, 320, 59 L. Ed. 245. Whether a rule adopted by a public service company is itself unreasonable or discriminatory, as distinguished from whether the manner of the enforcement of the rule is unfair, is a question primarily for the commission and not for the courts. Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U. S. 121, 59 L. Ed. 867; 8 See supra, this section. 10 Louisville & N. R. Co. v. Garrett, 11 People v. McCall, 219 N. Y. 84, Ann. Cas. 1913 E 1042, 113 N. E. 795, rev'g 171 N. Y. App. Div. 580, 157 N. Y. Supp. 707. the commission as to the expediency or wisdom of the order, cannot substitute their views for those of the commission.12 So, in fixing upon the rate of return, the California court has said that it "is not to act upon what it, as an original question, might think to be fair and reasonable, but is, rather, to determine what is the lowest percentage that could properly be thought by the rate-fixing body to be fair and reasonable. On this question, there must be a certain range of discretion which may be traversed by the city council without infringing upon constitutional rights. If the ordinance gives a rate of return which, although low, is not palpably unreasonable, the court is not to upset the action of the council because it may think a higher rate more appropriate." 13 The rule has also been stated as follows: "The power to control and regulate public utility corporations is vested in the legislative and not in the judicial branch of the government. Courts can neither make rates nor review and revise those made by competent authority. Unless the law-making body so far transgresses fundamental law as to commit a legislative theft, the courts may not interfere. With reference to permitted returns upon invested capital, the margin between full and complete adequacy and confiscation may be quite wide. Hence, in a doubtful case, a court may not substitute its judgment for that of the legislature. Hence, also, the settled rule that, to warrant a decree declaring a rate statute invalid, the proof that such statute necessarily results in confiscation must be clear, satisfactory and convincing." 14 3. Closely allied to what has just been stated is the rule that the courts themselves cannot fix rates where they decide that the rates fixed by the regulating body are unreasonable.15 Where a statute gives an appellate court power to review orders of the commission and to "set aside" such orders where without evidence to support them or beyond the jurisdiction of the commission, the court must either affirm or set aside in toto; it cannot revise or modify an order of the commission.16 On the question of reasonableness of rates, it has been held that whether rates are so unreasonable as to be confiscatory must be answered by the court from its own independent investigation, without reference to the methods of investigation pursued by the municipal 12 People v. McCall, 245 U. S. 345, 62 L. Ed. 337, aff'g 219 N. Y. 84, Ann. Cas. 1916 E 1042, 113 N. E. 795, 219 N. Y. 681, 115 N. E. 1048. 13 Contra Costa Water Co. v. Oakland, 159 Cal. 323, 329, 113 Pac. 668. 14 Ann Arbor R. Co. v. Fellows, 236 Fed. 387, 390. 15 See § 4484, supra. 16 Erie R. Co. v. Board of Public Utility Com'rs, 90 N. J. L. 271, 100 Atl. 346. or state board or officer.17 Furthermore, if the rates fixed are not less than those authorized by the contract between the municipality and the company, relief will not be granted because the rates are so inadequate as practically to result in confiscation of property.18 A reduced rate fixed by law cannot be said to be unreasonable or confiscatory when its effect is to yield the company as much or more revenue than was produced under its former higher rate which it had voluntarily adopted for years.19 § 4563. Separable provisions. The fact that certain provisions in a statute or ordinance regulating rates are invalid as confiscatory, does not invalidate the provisions relating to rates where the invalid provisions are clearly separable.20 This applies, for instance, to separable provisions imposing penalties for violating the regulation, where the penalties imposed are so excessive as to render the provision in regard thereto invalid.21 § 4564. -Who may attack. A regulation may be attacked either by the company affected thereby or by patrons or consumers who are affected by the regulation. However, the reasonableness of the rates of a public utility company cannot be raised at the instance of a patron or consumer, by suing in the courts, so long as the rate does not exceed the maximum fixed by ordinance, statute or otherwise, where no attack is made upon the validity of such rate regulation.22 A trustee under a railroad mortgage which is being foreclosed cannot sue to enjoin a rate statute unless it clearly appears that the mortgaged property is not sufficient in value to pay the mortgage debt.23 § 4565. Particular methods of review-In general. Independently of statute, governmental regulations of corporations may be reviewed by bringing an injunction suit against their enforcement,24 or by mandamus or other proceedings brought to enforce them.25 Gener 17 Spring Valley Waterworks v. San Francisco, 192 Fed. 137, 145. 18 Leadville Water Co. v. Leadville, 22 Colo. 297, 45 Pac. 362. 19 Central of Georgia R. Co. v. Railroad Commission of Alabama, 209 Fed. 75, 81. 20 Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 48 L. R. A. (N. S.) 1134, 15 Ann. Cas. 1034. 21 Southern Pac. Co. v. Campbell, 230 U. S. 537, 57 L. Ed. 1610. 22 St. Paul Book & Stationery Co. v. St. Paul Gaslight Co., 130 Minn. 71, L. R. A. 1918 A 384, Ann. Cas. 1916 B 286, 153 N. W. 262. 23 Winthrop v. Fellows, 230 Fed. 24 See § 4566, ally, however, where the order is that of a public service commission, the method of review is expressly fixed by statute,26 and it is often held that the statutory method of review is exclusive,27 at least unless the order is absolutely void.28 § 4566. Injunction suits. It is well settled that, except where some other exclusive method of review is provided for by statute,29 injunction lies to prevent the enforcement of invalid regulations. Thus, a corporation whose rates have been fixed by law, where it deems the rates unreasonable, may bring an injunction suit to prevent their enforcement.30 This is too well settled to require any extensive citation of authorities. Whether the rates fixed are so unreasonable as to require a decree preventing their enforcement has already been noticed.31 However, a court cannot enjoin action by a board before rates have been fixed.32 The federal courts have jurisdiction where rates fixed by law are attacked as unremunerative and 26 See § 4567, infra. 27 Illinois. Chicago v. O'Connell, 278 Ill. 591, 608, 116 N. E. 210. Indiana. Southern Indiana R. Co. v. State Railroad Commission of Indiana, 172 Ind. 113, 87 N. E. 966. Oregon. Gates v. Public Service Vermont. Sayers v. Montpelier & Whether the statutes of California 28 Southern Indiana R. Co. v. Rail- against it in the regular way, the party affected is not deprived of the right to defend, when such order is attempted to be enforced in a court of equity." Southern Indiana R. Co. v. Railroad Commission of Indiana, 172 Ind. 113, 119, 87 N. E. 966. 29 Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210, and see § 4558, supra. 30 Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 311, 58 L. Ed. 229. The rate-making proceedings, being legislative in kind rather than judicial, are not proceedings in a court so as to be res judicata and not subject to attack by an injunction suit. Prentis v. Atlantic Coast Line R. Co., 211 U. S. 210, 226, 53 L. Ed. 150. 31 See § 4558, supra. 32 McChord v. Louisville & N. R. Co., 183 U. S. 483, 46 L. Ed. 289; Southern Pac. Co. v. Bartine, 170 Fed. 725. See also Southern Pac. Co. v. Board of Railroad Com'rs of California, 78 Fed. 236. But see Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866, 1 L. R. A. 744. |