tion taken conforms to the dictates of the statute, remains a question for the courts. School of Magnetic Healing vs. McAnnulty, 187 U.S. 94 (1902). In that case, the postmaster-general, instead of investigating the actual conduct of the complainant's business and holding it fraudulent, based his action in issuing the fraud order, upon the established fact that they offered medical advice founded on the proposition that the mind is largely responsible for physical ailments, and the race possesses the power through proper use of the mind to remedy those ills. The court observed that the statute never meant the question of fraud to depend upon the opinion of the postmastergeneral as to the efficacy of any particular method of healing, and ruled that since the facts found would in no aspect be sufficient to justify his action under the statute and the evidence before him in any view of the facts failed to show a violation of the law, his determination that such violation existed was a pure mistake of law on his part, against which the complainants were entitled to relief.

But the courts will not invariably review the determination of the administration simply because the complainant disputes the correctness of the application of admitted principles of law to a determined state of facts; or rather, the courts will not invariably substitute their application of the law to the facts for the application of the administrative officer. In Bates & Guild Co. vs. Payne, 194 U.S. 106 (1904), it is said:

Where there is a mixed question of law and fact, and the court cannot so separate it as to show clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive.

The necessity for the rule is again invoked: "The consequence of a different rule would be that the court might be flooded with appeals of this kind to review the decision of the postmaster-general in every individual instance." But the court insists on its power to review such determinations, and must in fact consider the law and the facts if properly raised, though they will substitute their determination for that of the postmaster-general only when clearly of the opinion he was wrong.

The construction of the statute given by the administrative officers has a certain presumption in its favor, but as the court says in Houghton vs. Payne, 194 U.S. 88 (1904):

The doctrine does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute.

In that case, the postmaster-general reversed the ruling of his predecessors as to the classification of certain mail matter, and, though

it was strongly urged that the doctrine of contemporaneous construction should be applied, the court ruled that such doctrine as a rule of interpretation was not an absolute one, and held that the subsequent ruling of the department was too clearly the one in conformity to the statute, to justify them in approving of the former classification, notwithstanding the length of time such classification had obtained.

METHODS OF JUDICIAL REVIEW IN RELATION TO THE EFFECTIVENESS OF COMMISSION CONTROL1

BY OSCAR L. POND OF THE INDIANAPOLIS BAR

(From Annals of the American Academy of Political and Social Science, May, 1914)

The effectiveness of the control of municipal public utilities by state commissions is determined by the thoroughness of their findings, the justice of their rulings and the extent to which the proceedings and orders of the commissions are sustained by the courts or made final and conclusive by statutory enactments. While the strength of commission findings and the validity of the orders issued thereon depend upon the scope and accuracy of their investigations and the integrity of their rulings, the force and effect of commission control depend ultimately upon the authority conferred on the commissions. by the legislatures in the first instance and the extent to which action by commissions is made conclusive of the controversy. The right of review or appeal to the courts from the proceedings of commissions limits and defines the sphere of their efficiency and determines the extent to which the courts may supplant, modify or set aside the action of commissions; thereby making their findings and orders conditional and qualified, and not absolute and final.

After an investigation of the facts on due notice, usually of not less than ten days, and a public hearing, the proceedings of the commission have been concluded and disposed of with an order or regulation, an interested party may generally apply to the commission for a rehearing because of additional evidence, changed conditions or errors and omissions in its original proceedings. The time within which a petition for rehearing may be filed is limited by statute in Ohio to thirty days, and in Pennsylvania to fifteen days; while in Illinois. only one rehearing may be granted, which, however, does not prevent any party after two years from again applying to the commission 2 Laws 1911, p. 549, Sect. 45. 3 Laws 1913, no. 854, Art. VI, Sect. 14.

1 Copyrighted.

upon a new and different state of facts,1 and in Washington any public service corporation, 'being affected and aggrieved by any order of the commission, may after two years file a petition for rehearing, and in cases where the order has not been reviewed by the court but complied with by the company, the petition may be filed within six months.2 An application for rehearing, which must specifically set forth the reasons therefor and be filed within a month, if not before the order takes effect, is frequently made a condition precedent to judicial review as in New Hampshire, Missouri, Ohio and California.

3

5

8

The commission may exercise its own discretion in granting a rehearing or dismissing the petition, and on a rehearing may in its discretion sustain, modify, or revoke its original action. The time within which a petition for rehearing shall be determined by the commission is fixed by statute in some states, being limited to thirty days after the same is finally submitted in Idaho, Missouri, and New York." And it is sometimes expressly provided that no legal proceeding to contest any order or regulation of the commission can be taken until it acts upon an application for a hearing as in Illinois 10 and Nebraska,11 While the commission has authority to make summary investigations they are generally supplemented later by formal hearings on due notice, if in the opinion of the commission sufficient ground exists to justify a further hearing, in which case it may be granted on motion of the commission itself or upon application by an interested party, as provided by statute in Indiana,12 Oregon,13 Maine, Wisconsin 15 and in the District of Columbia.16

Ample provision is made for a full and thorough investigation of all material facts after notice to interested parties and a complete public hearing in connection with practically all proceedings of any commission, which serves as the basis of the findings and orders or regulations in the forty or more jurisdictions which now have commissions. The commissions are created for the sole and express purpose of making such investigations and issuing the proper orders thereon. The members of the commissions are selected and trained especially for this service to which they devote their exclusive time and attention. They are peculiarly fitted for such work and their findings and orders

are very properly and necessarily presumed to be reasonable, lawful and correct. The burden of proof is placed on the party attacking their action and unless the weight of evidence is clearly against the findings of the commission they will be sustained and their orders enforced on appeal to the courts, unless they are clearly illegal.

By statute in California the findings and conclusions of the commission on question of fact are properly made final and not subject to judicial review; and it is provided that questions of fact shall include ultimate facts and the findings and conclusions of the commission on reasonableness and discrimination. In Colorado it is provided that the findings and conclusions of the commission on disputed questions of fact shall be final and shall not be subject to review by the courts.2 The statutory provisions of Idaho make the findings and conclusions of the commission on questions of fact prima facie just, reasonable and correct; such questions of fact to include ultimate facts and the findings and conclusions of the commission on reasonableness and discrimination.3 In Illinois the statute provides that the findings and conclusions of the commission on questions of fact shall be prima facie true, and their rules, regulations, orders or decisions prima facie reasonable; thereby shifting the burden of proof on all issues, as is done in practically all other states, upon the party appealing therefrom. The New Hampshire statute provides that all findings of the commission upon all questions of fact properly brought before it shall be prima facie lawful and reasonable. And in Pennsylvania the orders of the commission are made prima facie evidence of their reasonableness.6

Within a limited time, usually thirty days, after the final action of the commission, appeal therefrom lies to the county or district court where the matter in question arose, to such courts having jurisdiction where the commission sits or to the supreme or the court of last resort in the state. Appeals may be taken only within thirty days and directly to the supreme court in the state of California, where on review the court may only determine whether the commission has regularly pursued its authority and whether the order or decision being reviewed violates any constitutional right of the petitioner; and the judgment of the supreme court must either affirm or set aside the order or decision of the commission. In Colorado the right of appeal is likewise limited to the supreme court which has authority in addition to that granted the California court to determine whether

1 Stats. 1911, 1st ex. sess., chapter 14, Sect. 67.

2 Laws 1913, chapter 127, Sect. 52.

Ibid. chapter 61, Sect. 63.

4 Ibid. p. 459, Sect. 68.

Ibid. chapter 145, Sect. 18.

Ibid. no. 854, Art. VI, Sect. 23.

7 Stats. 1911, 1st ex. sess., chapter 14, Sect. 67.

the order of the commission is just and reasonable and whether its conclusions are in accordance with the evidence, and the court may affirm, set aside or modify the order or decision of the commission.1 Similar provisions for review on certiorari by the supreme court are made by the statutes of Idaho where, however, the judgment of the court must either affirm or set aside the action of the commissions.2 In Maine the right of appeal is expressly limited to a decision by the supreme court on questions of law, submitted on an agreed statement of facts or on facts found by the commission which together with copies of the arguments of counsel must be filed with the court. The supreme judicial court of Massachusetts is given jurisdiction in equity to review, annul, modify or amend rulings and orders of the commission in so far as they are unlawful.1

Any party affected and dissatisfied with the action of the commission in Nebraska may resort to the supreme court which may reverse, vacate, or modify such action.5 In New Hampshire provision is made for appeal direct to the supreme court which shall not set aside the order or decision of the commission except for errors of law unless the court is clearly satisfied under the evidence that the order is unjust and unreasonable, when in its judgment the court must dismiss the appeal or vacate the order in whole or in part, in which case the matter may be remanded to the commission for such further proceedings not inconsistent with the judgment, as in the opinion of the commission justice may require. Review of the proceedings of the commission by the supreme court alone is also provided for in New Jersey,7 New Mexico, Ohio, Oklahoma,10 Rhode Island," Vermont,12 Virginia,13 and in West Virginia.14

Within fifteen days after final action by the Connecticut commission, which it may extend to thirty days, an appeal lies to the superior court of the county in which the matter arose, or if the question is not local, to the court of Hartford County, the seat of the commission. The decision of this local court is made conclusive, subject to review by the supreme court of errors on questions of law. 15 In Georgia the court of Fulton County, the domicile of the commission, is given

1 Laws 1913, chapter 127, Sect. 52.

Ibid. chapter 61, Sect. 63.

Ibid. chapter 129, Sect. 53, pending on referendum.

Acts 1913, chapter 784, Sect. 27.

Stats. 1911, Sect. 10655.

Laws 1913, chapter 145, Sect. 18, adding Sect. 22 to 1911, c. 164.

7 Laws 1911, chapter 195, Sect. 38.

8 Const., Article XI, Section 7.

Laws 1911, p. 549, Sect. 33.

10 Const., Article 9, Section 20.

11 Laws 1912, chapter 795, Sect. 34.

12 Laws 1908, chapter 116, Sect. 12.

13 Const., Section 156.

14 Acts 1913, chapter 9, Sect. 16.

15 Pub. acts 1911, chapter 128, as amended 1913, c. 225.