NORTH DAKOTA SUPREME COURT. CITY COMMISSION OF BISMARCK V. BISMARCK WATER SUPPLY COMPANY. STATE EX REL. P. C. REMINGTON et al. 1. In an original proceeding in the supreme court, the state is the actual plaintiff, and the relator is a mere incident. 2. A suit by the state in one of its own courts cannot be removed to a Federal court, unless it is a suit arising under the Constitution or laws of the United States or treaties made under their authority. Procedure Removal of causes - Suit arising under Federal Con stitution or laws. 3. A suit cannot be said to be one arising under the Constitution or laws of the United States or treaties made under their authority until it has in some way been made to appear on the face of the record that some title, right, privilege, or immunity, on which the recovery depends will be defeated by one construction thereof or sustained by an opposite construction. 4. A majority of the courts are of the opinion, and it is held, that the instant case (relating to and involving the validity of an order purported to have been made by the Board of Railroad Commissioners granting the Bismarck Water Supply Company a 60 per cent increase in rates, and which order it is asserted by the relators was made contrary to and without authority of law) is one within the original jurisdiction of the supreme court. Procedure Necessity for hearing Water rates. 5. Under the Public Utilities Act (chapter 192, Laws 1919), an increase in rates of a public utility can be ordered only after hearing had on that question. In the instant case it is held, that a rate increase is void because it was made without notice and hearing. [January 4, 1921.] Headnotes by the COURT. APPLICATION for writ to review and set aside and annul an order of the Board of Railroad Commissioners granting increased water rates; order reversed and canceled. Appearances: Newton, Dullam & Young and H. F. O'Hare, all of Bismarck, and Lawrence & Murphy, of Fargo, for relators; Miller, Zuger & Tillotson, of Bismarck, Butler, Mitchell & Doherty, of St. Paul, Minnesota, and Simpson & Mackoff, of Dickinson, for Bismarck Water Supply Company. Per Curiam: This is an application for an original writ to have reviewed and set aside and annulled as unlawful and in excess of jurisdiction a certain order made by the Board of Railroad Commissioners of this state on or about October 2, 1920, whereby the said Board of Railroad Commissioners granted an increase in rates to the Bismarck Water Supply Company. The petition alleges that the city of Bismarck is a municipal corporation having a population of about 7,000; that on June 23, 1919, the city Commission, by resolution duly adopted, made the following complaints against the service rendered by the Bismarck Water Supply Company: "(1) Unsanitary condition of reservoirs. "(2) Unprotected condition of reservoirs. "(3) Insufficient fire and water protection, in this that there is only one water pump which may at any time break down and repairs are difficult to procure, thus endangering the property, health, and lives of the citizens of Bismarck. “(4) Plant is insufficient to take care of supply and demands of service. “(5) There is an unnecessary delay in extending water mains after demand is made therefor. "(6) There is no filtration plant. "(7) The mixing chamber is not in fit condition to insure a proper mixture of the chlorine used to purify the water. "(8) The rates are excessive for home consumption, lawns, and gardens.. "(9) The water is muddy and full of sediment.” That such resolution was filed with the Board of Railroad Commissioners; that thereafter the Bismarck Water Supply Company filed an answer to the effect that it denied generally and specifically each and every charge so made by the city Commission against the Bismarck Water Supply Company; that 'the issues thus framed were the only ones before the Board of Railroad Commissioners to determine; that after hearing and taking of evidence the Board of Railroad Commissioners on or about October 2, 1920, "wrongfully and unlawfully and in excess of their jurisdiction and foreign to the issues created at said hearing," did make and file an order wherein it granted the Bismarck Water Supply Company permission to increase its rates in amounts, aggregating approximately 60 per cent increase in existing rates (the order also contained other provisions relating to the matters mentioned in the charges filed by the city commissioners); that subsequently the city commissioners appealed to the district court from the entire order and determination of the Railroad Commissioners; that a determination of such questions will require a considerable length of time and that in the meantime the unlawful rates and increases purported to be authorized by the Board of Railroad Commissioners will be put into effect; that there are approximately 1,400 users of waters, including the municipality and the state; that the relators are resident taxpayers of the city of Bismarck, and users of water furnished by the Bismarck Water Supply Company. It is further averred in said petition that the Board of Railroad Commissioners did not at any time during the progress of said hearing initiate or conduct any examination relating to the increase of rates; and that no notice of said proposed increase in rates was given as required by chapter 192, Laws 1919, or at all. It is further averred that the law under which the Board of Railroad Commissioners purported to act is unconstitutional and void; and that the said Board of Railroad Commissioners has no legal authority or power whatever to exercise any control over, or to act upon or grant rate increases to, any utilities except railroad and street car companies. It is further averred in the petition: "That said Board of Railroad Commissioners is proceeding to act under the said chapter 192, Laws of 1919, and is prescribing rates for and making orders with reference to public utilities doing business in every community of the state of North Dakota. That it is constantly and continuously making orders of the character herein described under circumstances and conditions similar to those existing in the proceeding instituted as hereinbefore alleged for the purpose of securing a reduction of rates charged by the Bismarck Water Supply Company and requiring certain other acts and things to be done. That in its said proceedings every municipality, community, and citizen of the state is interested and affected, and that by reason of the promises the acts of the Commissioners under said chapter 192 affect the rates and privileges and franchises of this state. That the matters herein involved are of great public interest and of public concern and involve questions affecting the sovcreign rights of the state and of said boards and officers and the operation of said state statute, and are not local in character, but will affect each and every municipality and community in the state of North Dakota and the rights of all the citizens of such municipalities and communities with reference to their rights as against the action of public utilities, and of the state Board of Railroad Commissioners pretending to exercise power to increase rates thereof. That the state of North Dakota is a user of such water in its state institutions at Bismarck." The respondent Bismarck Water Supply Company appe specially, and, so appearing, moved the court: ared “(1) To dismiss the alternative writ issued in this cause and all proceedings herein and to vacate the restraining orders is sued herein, on the ground that this court has no jurisdiction to entertain the petition, and on the further ground that proceeding is not within the original jurisdiction of this court. this Con "(2) To dismiss all proceedings herein and to vacate the restraining orders issued in this cause as to the respondent, Bismarck Water Supply Company," on the grounds that the troversy between the city of Bismarck and the Bismarck Water Supply Company was, at the time of the issuance of the order by this court, duly pending in the district court of Burleigh county upon an appeal taken by the city from the determination of the Board of Railroad Commissioners; and that said water supply company (which is a corporation organized under laws of the state of West Virginia) had, prior to the filing of the petition in this court, requested that said cause be removed to the United States district court for the district of North Da kota, and submitted to, and filed for approval by, the district court a removal bond in due form. the [1] The only question necessary to consider in connection with this motion is the first one raised. If this action is one within the original jurisdiction of the court, then it is an action. by the state, and not an action by the individuals who appear as relators. The original jurisdiction is "reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises, or the liberties of its people; the state uses it to punish or prevent wrongs to itself or to the whole people; the state is always the plaintiff and the only plaintiff, whether the action be brought by the Attorney General, or, against his consent, on the relation of a private individual under the permission and direction of the court. It is never the private relator's suit; he is a mere incident; he brings the public injury to the attention of the court, and the court, by virtue of the power granted by the Constitution, commands that the suit be brought by and for the state. The private relator may have a private interest which may be extinguished (if it be severable from the public interest), yet still the state's action proceeds to vindicate the public right." State ex rel. Linde v. Taylor, 33 N. D. 76, 84, 156 N. W. 561, 563 (L.R.A.1918B, 156, Ann. Cas. 1918, 583); State ex rel. Bolens v. Frear, 148 Wis. 456, 500, 134 N. W. 673, 135 N. W. 164, L.R. A. 1915B, 569, 606, Ann. Cas. 1913A, 1147. [2, 3] A suit by a state in one of its own courts cannot be removed to a Federal court, unless it is a suit arising under the Constitution or laws of the United States or treaties made under their authority. Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 7 Sup. Ct. Rep. 260, 30 L. ed. 461. And "a suit cannot be said to be one arising under the Constitution or laws of the United States until it has in some way been made to appear on the face of the record that 'some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by an opposite construction."" Germania Insurance Co. v. Wisconsin, supra. The record in this case discloses that it does not arise under the Constitution or laws of the United States, or any treaty made under their authority. It arises under, and involves only a construction of, the Constitution and laws of this state. So clearly the cause which it is |