sion upon the merits [as to rates fixed being unreasonable] for further experience." 69

Technical objections to the jurisdiction of the commission cannot be first urged on appeal.70

84569. Certiorari. Certiorari is often held to be a proper method of reviewing the regulations," and statutes in several of the states expressly provide for a review by that writ, or by the writ of review which is the statutory substitute for certiorari in many of the western states.72 In New York, the writ will not be issued unless sufficient reasons therefor are shown; and it seems that it is necessary to show facts tending to prove either that (1) the order is contrary to some provision of the federal or state constitution or laws, or (2) is beyond the power granted to the commission, or (3) is based on some mistake of law, or (4) there is no evidence to support it, or (5) it is so arbitrary as to be beyond the exercise of a reasonable discretion and judgment.73 In California the statute authorizing a writ of review by the Supreme Court to review whether the commission has regularly pursued its authority and whether any constitutional right has been violated has been held by a divided court not invalid as enlarging the scope of the old writ of certiorari, nor because it confers. exclusive jurisdiction upon the Supreme Court and curtails the jurisdiction vested in the superior courts; but in that state the Constitution itself provides that the legislation creating the public service

69 Cedar Rapids Gaslight Co. v. Cedar Rapids, 223 U. S. 655, 669, 56 L. Ed. 594.

70 In re Public Service Commission, First & Second Dists., 177 N. Y. App. Div. 444, 164 N. Y. Supp. 310.

71 State v. Railroad Commission of Arkansas, 109 Ark. 100, 158 S. W. 1076; People v. Board of Railroad Com'rs, 160 N. Y. 202, 54 N. E. 697; People v. Board of Railroad Com'rs, 158 N. Y. 421, 53 N. E. 163; People V. Public Service Commission for First Dist., 157 N. Y. App. Div. 698, 142 N. Y. Supp. 942; People v. Wilcox, 129 N. Y. App. Div. 267, 113 N. Y. Supp. 861.

In a federal decision, however, it is held that under the statutes of New York certiorari does not lie to review

an order of a public service commission requiring certain interstate trains to stop at a specified station. Delaware, L. & W. R. Co. v. Stevens, 172 Fed. 595, 605.

72 Gulf & S. I. R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Macon v. Atkinson, 266 Mo. 484, 181 S. W. 396.

Scope of review on certiorari, under California statute, see Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915 C 822, 137 Pac. 1119.

Scope of review on certiorari, in New Jersey, see Potter v. Board of Public Utility Com'rs, 89 N. J. L. 157, 98 Atl. 30.

73 People v. Public Service Commission of First Dist., 101 N. Y. Misc. 10, 166 N. Y. Supp. 825.

commission shall be supreme and not subject to any constitutional provisions.74

If the evidence or facts upon which the commission proceeded are not before the court, the review, on certiorari, is generally limited to whether the commission had jurisdiction and the regularity of the proceeding.75 On certiorari, the same as any other kind of review, the court cannot consider the wisdom or expediency of the order or substitute its own judgment for that of the commission.76

§ 4570.- Writ of prohibition. A writ of prohibition is sometimes petitioned for to restrain the commission from alleged usurpation of powers. However, a commission cannot be controlled in the exercise of its legal discretion by a writ of prohibition.77

§ 4571. Remedies to enforce orders. Generally the state, acting through its public service commission or otherwise, may sue to enforce regulations of corporations. Thus, the state may sue to enjoin a corporation from charging rates in excess of those fixed by law,78 and is not barred by laches; 79 and relief cannot be refused because specific injury to the public is not shown.80

The ordinary remedy in behalf of the public, however, is mandamus which lies in a proper case to compel the corporation to obey the regulations of the commission or other body.81 Generally, by the express terms of the statute, public service commissions may enforce

76 People v. McCall, 219 N. Y. 84, Ann. Cas. 1916 E 1042, 113 N. E. 795, rev'g on this ground 171 N. Y. App. Div. 580, 157 N. Y. Supp. 707.

77 State v. Stutsman, 24 N. D. 68, Ann. Cas. 1914 D 776, 139 N. W. 83.

78 State v. Wells-Fargo & Co., 85 Neb. 42, 122 N. W. 697; State v. Pacific Exp. Co., 80 Neb. 823, 18 L. R. A. (N. S.) 664 with note, 115 N. W. 619; State v. Boston & M. R. R., 75 N. H. 327, 341, 74 Atl. 542.

Information in nature of quo warranto is not an adequate remedy at law. State v. Boston & M. R. R., 75

N. H. 327, 340, 74 Atl. 542.

79 State v. Boston & M. R. R., 75 N. H. 327, 341, 74 Atl. 542.

80 Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425, holding it sufficient that court is satisfied that the disobedience may be productive of public injury.

81 Detroit & M. R. Co. v. Michigan Railroad Commission, 240 U. S. 564, 60 L. Ed. 802, aff'g 178 Mich. 230, 144 N. W. 696; Public Service Commission for First Dist. v. Richmond Light & Railroad Co., 163 N. Y. Supp. 64.

If a maximum rate is fixed, the corporation cannot evade it either directly or indirectly. Tipton v. Tipton Light & Heating Co., 176 Iowa 224, 157 N. W. 844.

legal duties of public service corporations, and prevent violations of law by them, by mandamus.

If rates are fixed by a public service commission, the individual commissioners should compel obedience by instituting proper court proceedings; and if they are sued to enjoin them from enforcing a rate regulation, they should defend the suit by all lawful means.82

Without regard to whether the suit is for an injunction,83 or is a mandamus suit,84 the corporation may show that the rates as fixed are unreasonable.

§ 4572. Proceedings maintainable by individual consumer or patron. If the regulation is deemed unfair to the individual consumer or patron, he may generally resort to the courts for relief, and this right is generally recognized by the statutes providing for a review. Generally, one who pays rates in excess of those fixed by law, may sue to recover them back. And in some states, public service commissions are authorized, on complaint of the party aggrieved, to order an award of excessive charges by way of reparation, at least in case of excessive freight charges.85 Generally, where a patron or consumer claims discrimination against him in rates fixed by a company, he must first apply to the public service commission rather than to the courts.86

§ 4573. Judgment as res judicata. The judgment of a state court in a suit to enjoin the enforcement of a regulation of a corporation by the state, is res judicata in a subsequent suit brought for the same purpose in a federal court,87 except perhaps where the state court was acting in a legislative capacity, with power to substitute such order as in its opinion the commission should have made, rather than in a judicial capacity.88

82 Weil v. Black, 79 W. Va. 685, 86 S. E. 666.

83 See State v. Adams, Exp. Co., 85 Neb. 25, 42 L. R. A. (N. S.) 396, 122 N. W. 691.

84 State v. Minneapolis & St. L. R. Co., 80 Minn. 191, 89 Am. St. Rep. 514, 83 N. W. 60, holding this is true although order is not appealed from.

85 See Turner Creamery Co. v. Chicago, M. & St. P. R. Co., 36 S. D. 310, 154 N. W. 819.

CHAPTER 59

ΤΑΧΑΤΙΟΝ

I. GENERAL CONSIDERATIONS

§ 4574. Definition of tax; power to tax in general.

4575. Exactions under police power.

§ 4576. Power of taxation distinguished from power of eminent domain.

II. OF THE CORPORATION, ITS PROPERTIES, FRANCHISES AND BUSINESS

§ 4582. Equal privileges and immunities.

§ 4583. Impairment of contract obligations.

§ 4584. Relative state and federal powers.

§ 4585. Regulation of interstate or foreign commerce-In general. Property taxes.

$4586.

§ 4587.

§ 4588.

- Franchise and license taxes.

- Basis and mode of valuation.

§ 4589. Double taxation-Validity.

§ 4591. Federal agencies and agents-M 'Culloch v. Maryland.

§ 4599. Discriminations against national banks or their shares-Rate of taxation.

§ 4303.

Effect of exemptions.

-"Other moneyed capital in the hands of individual citizens.''

§ 4604. Tangible property of corporation in general.

§ 4605. Corporate franchises and privileges.

§ 4622. Taxation of corporate bonds.

§ 4623. Situs of shares of stock in general.

§ 4624. Nonresident-owned shares in domestic corporations.

§ 4625. Resident-owned shares in foreign corporations.

§ 4626. National bank shares.

§ 4627. Deposits of bonds, etc., by foreign corporations.

§ 4628. Assessment and valuation.

4629. Remedies for illegal tax or assessment.

§ 4630. In general.

IV. EXEMPTIONS FROM TAXATION

§ 4631. Constitutional exemption.

§ 4632. Legislative power-In absence of constitutional prohibition. § 4633.

When constitutional prohibition exists.

§ 4634. Consideration for grant of exemption.

§ 4635. Grant of exemption as bounty.

§ 4636. Impairment of contract of exemption-In general.

§ 4637.

- Reservation of power to alter, amend or repeal.

§ 4638. Necessity that grant be express.

§ 4639. Construction of exemption in general.

§ 4640. Corporations entitled to exemption.

§ 4641. Property included in exemption-In general.

§ 4642. Use of property.

§ 4643. Exemption of stock or capital stock as exemption of property.

§ 4644. Exemption of shares of stock as exemption of capital stock, franchises and property of corporation.

§ 4645. Exemption of property or capital stock as exemption of shares of stock.

§ 4646. Taxes included in exemption.

§ 4647. Duration of exemption.

§ 4648. Transfer of exemption.

4649. Effect of consolidation or merger.

§ 4650. Abandonment, surrender or waiver of exemption.

V. PRIVILEGE TAXES, LICENSES AND INCORPORATION AND STOCK-INCREASE FEES

§ 4651. Privilege taxes and licenses.

§ 4652. Incorporation and stock-increase fees.