and certified by the clerk thereof to the chief justice of the supreme judicial court with the arguments of counsel, if any have been received by him, within sixty days after such exceptions have been allowed. SEC. 58. In all trials, actions, and proceedings arising under the provision of this chapter or growing out of the exercise of the authority and powers granted herein to the commission, the burden of proof shall be upon the party adverse to the commission or seeking to set aside any determination, requirement, direction, or order of said commission complained of as unreasonable, unjust, or unlawful as the case may be. NOTE. This court has no power * * * to review the entire proceedings before the commission. It is expressly precluded from reviewing the findings of fact, unless they are made without any evidence to support them. Re Samoset Company, 125 Me. 141. MARYLAND * * * * * * SEC. 43. Any corporation * ** and any person in interest being dissatisfied with any order of the commission fixing any rate or rates, rolls, charges, schedules, joint rate or rates, or any order fixing any regulations, practices, acts or services, may commence any action in the circuit court to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates, fixed in such order is unlawful, or that any such regulation, practice, act, or service fixed in such order is unreasonable SEC. 46. In all trials, actions, and proceedings * * * the burden of proof shall be upon the party adverse to such commission, or seeking to set aside any determination, requirement, direction, or order of said commission, to show by clear and satisfactory evidence that the determination, requirement, direction, or order of the commission complained of is unreasonable or unlawful, as the case may be. MASSACHUSETTS * * NOTE.-Law not available. "Under existing statutes * * * the action of the city council is not final, but rests ultimately upon the department of public utilities, whose decision upon questions of fact is conclusive *. The question before the department under the statute is legislative and not judicial in character, and the judgment of the department thereon, when exercised in good faith, is not open to review by the court. Salem v. E. Mass. St. R. Co. (254 Mass. 42). MINNESOTA SEC. 4651. The person serving such notice of appeal shall * * * no further pleadings than those filed before the commission shall be necessary. Such findings of fact shall be prima facie evidence of the matters therein stated, and the order shall be prima facie reasonable, and the burden of proof upon all issues raised by the appeal shall be upon the appellant. If said court shall determine that the order appealed from is lawful and reasonable it shall be affirmed and the order enforced as provided by law. If it shall be determined that the order is unlawful or unreasonable it shall be vacated and set aside. * MISSOURI SEC. 111 (10522). Within thirty days * * * the applicant may apply to the circuit court * * * for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or the order or decision on rehearing inquired into or determined. * * No new or additional evidence may be introduced upon the hearing in the circuit court but the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it * * *. Upon such hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. NOTE. The writ of certiorari only raises questions of law. MONTANA SEC. 26. Any party in interest * * * may within ninety days commence an action * * * to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates, fixed in such order is unlawful or unreasonable, or that any such regulation, practice or service, fixed in such order is unlawful or unreasonable * * (e) In all actions under this act the burden of proof shall be upon the party attacking or resisting the order of the commission to show that the order is unlawful or unreasonable, as the case may be. NEW HAMPSHIRE * * * SEC. 22. (d) Within thirty days * * * the applicant may appeal by petition to the supreme court. Such petition shall state and the grounds upon which the same is claimed to be unlawful or unreasonable upon which the petitioner will rely in the supreme court. * * * (e) Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful, and all findings of the commission upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable, and the order or decision appealed from shall not be set aside or vacated except for errors of law unless the court is satisfied by a clear preponderance of the evidence before it that such order is unjust or unreasonable. NEW JERSEY SEC. 38. Any order hereafter made by the board may be reviewed upon certiorari by the supreme court * * *. The supreme court is hereby given jurisdiction to review said order of the board and to set aside such order in whole or in part when it clearly appears that there was no evidence before the board to support reasonably the same or that the same was without the jurisdiction of the board. NORTH DAKOTA SEC. 4609 e 34. Any party to any controversy heard by the commissioners feeling aggrieved by the decision or by the entry of any final order of the commissioners therein may appeal therefrom * * * SEC. 4609 c 35. On such appeal the lawfulness of the decision or final order shall be inquired into and determined on the record of the commissioners as certified to by it. No new or additional evidence shall be taken on such appeal or introduced in evidence by any party to such hearing on appeal in the district court. OHIO SEC. 544. A final order made by the commission shall be reversed, vacated, or modified by the supreme court, on a petition in error, if upon consideration of the record such court is of the opinion that such order was unlawful and unreasonable. NOTE. It is well settled that this court will not substitute its judgment for that of an administrative body as to matters within its province. Before the court will interfere with any order of the public utilities commission, it must appear from a consideration of the record that the action was unlawful or unreasonable. Lima T. and T. Co. v. Public U. Comm., 98 Ohio St. 110. OREGON * * * SEC. 6083. Any public utility or other person, persons, or corporation interested in or affected by any order of the commission fixing any rate or rates, tolls, charges, schedules, classifications, joint rate or rates, or any order fixing any regulations, practices, act, or service, being dissatisfied therewith, may commence a suit in the circuit court against the commission as defendant to vacate and set aside any such order or specified portion thereof on the ground that the order or portion thereof is unlawful, in which suit a copy * * * SEC. 6087. * * * In all trials, actions, suits, and proceedings arising under the provisions of this act the burden of proof shall be upon the party adverse to such commission or seeking to set aside any determination, requirement, direction, or order of said commission to show by clear and satisfactory evidence that the determination, requirement, direction, or order of the commission complained of is unreasonable or unlawful, as the case may be. * * * NOTE. Whether a rate is unjustly discriminatory is a question on which the finding of the commission, supported by substantial evidence, is conclusive unless there was some irregularity in the proceeding or some error in the application of rules of law. Oregon-Washington R. & N. Co. v. Corey, 120 Ore. PENNSYLVANIA SEC. 22. At the hearing of the appeal the said court shall, upon the record certified to it by the commission, determine whether or not the order appealed from is reasonable and in conformity with law. SEC. 23. In all such cases the orders of the commission shall be prima facie evidence of the reasonableness thereof, and the burden of proving the contrary shall be upon the appellant. * * * SEC. 24. If the court shall, upon the record, find that the order appealed from is reasonable and in conformity with the law, it shall enter a decree dismissing the appeal and affirming the order of the commission. If the court shall, upon the record, find that the order appealed from is unreasonable or based upon incompetent evidence materially affecting the determination or order of the commission, or is otherwise not in conformity with the law, it may enter a final decree reversing the order of the commission or, in its discretion, it may remand the record to the commission with directions to reconsider the matter and make such order as shall be reasonable and in conformity with law. * * * SOUTH DAKOTA SEC. 9591. Within thirty days * * * the applicant may apply to the supreme court of this State for a writ of certiorari for the purpose of having the lawfulness of the original order or decision, or the order or decision on rehearing, inquired into and determined. * * * SEC. 9593. The review upon the writ shall not be extended further than to determine whether the board of railroad commissioners has regularly pursued its authority, including the determination of whether the final order or decision under review violates any right of the petitioner under the Constitution or laws of the United States of America or of the State of South Dakota. The findings and conclusions of the board on questions of fact shall be final and shall not be subject to review. Upon the hearing the supreme court shall enter judgment either affirming or setting aside the final order or decision of the board. TENNESSEE NOTE.-Law not available. "The orders of the commission are final unless (1) beyond the power which it could constitutionally exercise, or (2) beyond its statutory power, or (3) based upon a mistake of law. But questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that (4) the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property without due process of law; or (5) if the commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or (6) if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance and not the shadow, determines the validity of the exercise of the power. The findings of the commission are made by law prima facie true, and this court has sacribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience. * * * Its conclusion of course is subject to review, but, when supported by evidence is accepted as final. * * * "The 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." Tenn. E. E. Co. v. Comm. (Tenn Cir. Ct.) P. U. R. 1928 D 722. UTAH SEC. 4834 (C. L. 1918). The review shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of the petitioner under the Constitution of the United States or of the State of Utah. The findings and conclusions of the commission on questions of fact shall be final and shall not be subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the commission on reasonableness and discrimination. VIRGINIA SEC. 3734. The Commonwealth or any party aggrieved by any final finding, order, or judgment of the commission shall have, of right, regardless of the amount involved, an appeal to the supreme court * award a writ of * * * * supersedeas to any such final finding, order or judgment, and may review, affirm. reverse, or modify the same, as justice may require, and enter therein such order as may be right and just *. This section, however, shall not be construed to interfere in any way with the provisions of subsections (d), (e), (f), and (g) of section one hundred and fifty-six of the constitution, as to appeals from the action of the commission prescribing rates, charges, or classifications of traffic, or affecting the train schedules of any transportation company, or requiring additional facilities, convenience, or public service etc. (other exception). NOTE. In any appeal from a judgment of the State Corporation Commission, it is to be remembered that its findings are to be treated as prima facie just, reasonable, and correct-made so by express constitutional mandage. subsection (f) Sec. 156, of the Constitution. Norfolk Southern R. Co. v. Com- | monwealth, 141, Va. 179. WASHINGTON * * * SEC. 48. The commission * * * or any complainant may prosecute an appeal to the Supreme Court of the State of Washington. SEC. 59. Whenever the commission has issued or promulgated any order or rule, in any writ of review brought by a public service company to determine the reasonableness of such order or rule, the findings of fact made by the commission shall be prima facie correct, and the burden shall be upon said public service company to establish the order or rule to be unreasonable or unlawful. NOTE. We hold that this court will not substitute its judgment for the judgment of the commission, that every presumption will be given to the correctness of the findings of fact made by the commission, and, if there is substantial evidence on which the findings of the commission may be based, that those findings will not be disturbed. Bryan v. Dept. Public Works, 144 Wash. 219. * * WEST VIRGINIA * * * * * SEC. 16. Any party feeling aggrieved may present his or its petition * praying for the suspension of such final order The commission shall file with the court before the day fixed for the final hearing a written statement of its reasons for the entry of such order, and after arguments by counsel the court shall decide the matter in controversy as may seem to be just and right. * * Note. We can not substitute our judgment for the judgment of the commission on the weight of the evidence * Findings of fact by the public service commission, based upon evidence to support them, generally will not be reviewed by this court. Harrisville v. Comm. 103 W. Va. 526. WISCONSIN * * SEC. 1797m-64. Any public utility and any person or corporation in interest being dissatisfied with any order of the commission fixing any rate or rates, tolls, charges, schedules, joint rate or rates or any order fixing any regulations, practices, acts or service may commence an action in the circuit court * to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates, fixed in such order is unlawful, or that any such regulation, practice, act or service fixed in such order is unreasonable * * * SEC. 1797m-70. In all trials, actions, and proceedings arising under the provisions of sections 1797-1 to 109, inclusive, or growing out of the exercise of the authority and powers granted herein to the commission, the burden of proof shall be upon the party adverse to such commission or seeking to set aside any determination, requirement, direction or order of said commission, to show by clear and satisfactory evidence that the determination, requirements, direction or order of the commission complained of is unreasonable or unlawful as the case may be. STATE DECISIONS ALABAMA Birmingham v. Southern Bell T. & T. Co., 203 Ala. 251, 82 So. 519, P. U. R. 1919 F 250. We find nothing in the statutes dealing witn this subject which gives the right of appeal from order of said commission to the Supreme Court, or providing for the obtaining or establishment of a bill of exceptions. The supervisory * power of a superior over an inferior legal tribunal by means of a common-law writ of certiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. ARKANSAS Chambliss et al. v. Clear Creek Oil & Gas Co., 161 Ark. 549, 256 S. W. 873, P. U. R. 1924 C 53. There is a presumption as to the reasonableness of the rate fixed by the railroad commission, and the rate thus fixed should not be disturbed except when testimony sufficient to overcome the presumption thus raised. Clear Creek Oil & Gas Co. v. Fort Smith Smelter Co., 161 Ark. 12, 255 S. W. 903. CALIFORNIA * * * Holmes v. R. Comm., 197 Cal. 627, 242 Pac. 486, P. U. R. 1926 C 664. We find no merit in the suggestion that the act is unconstitutional in that it vests an arbitrary discretion in the railroad commission. It also provides that this shall be a question of fact and that the finding of the commission thereon shall be final and shall not be subject to review. We agree with petitioners that the finding is, however, subject to review, notwithstanding the last mentioned provision of the statute, for the reason that the fact in question is one which is essential to the jurisdiction of the commission. Such review, however, can not extend beyond the inquiry as to whether or not there is some substantial evidence to support the finding. If there is, the finding must be sustained, no matter how much evidence there may be in conflict therewith. People v. Hadley, 66 Cal. App. 370, 226 Pac. 836, P. U. R. 1924 E 820. SEC. 67 of the public utilities act provides, in part, that: No court in this State (except the supreme court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the execution or operation thereof or to enjoin, restrain, or interfere with the commission in the performace of its official duties. * * * In the case of Pacific Teleph. & Teleg. Co., v. Eshleman, 166 Cal. 640, 137 Pac. 1119, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915 C 822, also in the case of Sextion v. Atchison, T. & S. F. R. Co., 173 Cal. 760, P. U. R. 1917 B 786, 161 Pac. 748, the constitutionality of the section just quoted is upheld by the Supreme Court. That such an order is a final adjudiction of the correctness and validity of the decision which it is attempted to have reviewed is decided in the case of Napa Valley Electric Co. v. Railroad Commissioners, decided by the United States Supreme Court, and reported in 251 U. S. 366, 64 L. ed. 310, P. U. R. 1920 C 849, 40 Sup. Ct. Rep. 174, where the court cited several authorities, and in the course of the opinion said: "In those cases (referring to cases. cited) the applications for writs of certiorari were denied, which was tantamount to a decision of the court that the orders and decisions of the commission did not exceed its authority or violate any right or the several petitionrs under the Constitution of the United States or of the State of California. Richardson v. R. Comm., 191 Cal. 16, 218, Pac. 418, P. U. R. 1924 A 775; Ashley V. R. Comm., 188 Cal. 234, 204 Pac. 25, P. Ú. R. 1922 D 195; Van Hoosear v. R. Comm., 184 Cal. 553, 194 Pac. 1003, P. U. R. 1921 C 447; Trabor v. R. Comm., 103 Cal. 304, 191 Pac. 366, P. U. R. 1921 A 67. COLORADO Pirie v. Public Utilities Commission, 72 Colo. 65, 209 Pac. 640, P. U. R. 1923 A 315. The determination of the right to such certificate is for the commission, and we are bound by its findings on that question. Counsel for plaintiff in error argue strenuously against the action of the commission, but the argument goes, in fact, to the policy of granting the commission such power as is granted to it by the law. Possibly the effect of the statute may be, as counsel suggest, to depreciate the value of power plants, to discourage further building of such plants, and to create monopolies; but that is for the consideration of the legislature. It is also asserted that the public utilities act violates certain sections of the State constitution. One objection is that it confers upon the commission judicial powers. This is fully met by the case of People ex rel. Hubbard v. 97627-30- 4 |