Southern Pacific Co. v. Railroad Commission

Pursuant to the provisions contained in Statutes 1935, page 878, as amended, in a proceeding which theretofore had been initiated by the respondent commission, an order was made by it by which minimum rates or charges for the transportation of various commodities by different types of highway common carriers, respectively, were fixed and determined. Thereafter, Southern Pacific Company, which was and is a common carrier by rail, that was relatively affected by such order, together with several other like carriers, filed with the respondent commission certain schedules or rates, wherein and whereby it was proposed that on a specified date the freight rates for the transportation of beverages (particularly beer) from San Francisco, and the adjacent area, to the city of Los Angeles and its immediate vicinity, be reduced from the flat rate of 25 cents per 100 pounds, in lots ranging from a minimum of 18,000 pounds to a maximum of 30,000 pounds (as theretofore had been established by the said order of the respondent commission for highway carriers), to a rate of 20 cents per 100 pounds in minimum lots of 50,000 pounds; furthermore, that on shipments of such beverages from San Francisco to the city of San Diego, the then-existing rate be reduced from 30 cents per 100 pounds to 25 cents per 100 pounds. Thereupon, in response to protests that had been filed with the respondent commission by various highway and water carriers, respectively, against the adoption of such proposed rates, an order was issued by the respondent commission by the terms of which, in effect, the putting in operation of such rates was suspended until further order might be made with respect thereto. With such objective in view, a reconsideration of that part of its former order, by which freight rates for highway common carriers had been established with reference to such beverages, was directed to be had at the same

Concededly, the specific authority, if any, of the respondent commission to make the order of which complaint is

“Nothing herein contained shall be construed to prohibit any common carrier from establishing and charging a lower than a maximum reasonable rate for the transportation of property when the needs of commerce or public interest require. However, no common carrier subject to the jurisdiction of the California Railroad Commission may establish a rate less than a maximum reasonable rate for the transportation of property for the purpose of meeting the competitive charges of other carriers or the cost of other means of transportation which shall be less than the charges of competing carriers or the cost of transportation which might be incurred through other means of transportation, except upon such showing as may be required by the commission and a finding by it that said rate is justified by transportation conditions; but in determining the extent of said competition the commission shall make due and reasonable allowance for added or accessorial service performed by one carrier or agency of transportation which is not contemporaneously performed by the competing agency of transportation. ’'

However, with respect to such authorization, petitioner asserts that its apparent effect is qualified and restricted by provisions of a later statute enacted in 1937, designated as section 32-d (Stats. 1915, p. 115, as amended by Stats. 1937, p. 2005). The following is a copy of that provision:

“It is hereby declared to be the policy of the State of California, in rate making to be pursued by the Railroad Commission of the State of California, to establish such rates as will promote the freedom of movement by carriers of agricultural commodities, including live stock, at the lowest lawful rates compatible with the maintenance of adequate transportation service.

“In any rate proceeding where more than one type or class of carrier, as defined in this act or in the Highway Carriers’ Act, is involved, the commission shall consider all such types or classes of carriers, and, pursuant to the provisions of this act or the Highway Carriers’ Act, fix as minimum rates applicable to all such types or classes of carriers the lowest of the lawful rates so determined for any such

type or class of carrier. This provision shall not be construed to prevent the commission from granting to carriers by water such differentials in rates as may be permitted under other provisions of law.”

In the course of much litigation that has engaged the attention of the many respective courts throughout the United States during the fifty or more years last past, great ability and energy have been devoted to a consideration of various problems of law that have arisen concerning the asserted right on the part of the state to regulate the dispatch of business of and various charges made or to be made by the several recognized public utilities. No useful purpose would be served either by a review of the historic cases wherein different phases of the general subject have been so ably discussed, or even by a passing reference to the controlling principles of law that have been therein enunciated. So well are they known and their application recognized by respective counsel in the instant proceeding that by mutual understanding in that regard many of the foundational questions which ordinarily might have occupied their attention, as well as that of the members of this court, have been assumed to exist as common knowledge. In that regard, in effect, the express or the implied stipulation of the parties includes the mutual concession that in the absence of controlling statutory authorization to the contrary, the respondent commission would possess no right to prevent the petitioner from establishing a freight rate in the premises that would lie within an elastic “zone of reasonableness”,— which latter expression imports a rate which is confined in its maximum to a figure not so excessive as to be “greater than the particular traffic will bear”, and in its minimum not so low that it will be destructive of the business of the common carrier, or that it will not return to the carrier at least the actual “cost of transportation”. It also is apparent that, excepting for valuable reference to pertinent principles of law, none of the authorities cited by the respective contending parties is directly applicable to the particular situation here presented, for the reason that each of such cases was decided without reference either to the provisions that are contained either in section 1 %y2. or in 32-d of the Public Utilities Act, or to any law of similar import; con

In such circumstances, as hereinbefore has been indicated, the important question that is presented to this court for its determination relates principally to an interpretation of the language that has been employed by the legislature in its enactment of section 13%, considered in connection with section 32-d of the Public Utilities Act.

Reverting to the language employed in section 13% of the Public Utilities Act, to which attention hereinbefore has been directed, it may be noted that, in substance, it provides, firstly, that, should the “needs of commerce or public interest” so require, a common carrier shall not be deemed forbidden to establish a rate which may be less than a “maximum reasonable rate”; but, secondly, considered solely from the standpoint of the issues here involved, that if the purpose in so doing should be that “of meeting the competitive charges of other carriers”, etc., it may do so only after it has been made to appear that the proposed rate will be justified by transportation conditions . . . ”.

Regarding such first precedent condition to a right of a common carrier to establish a rate which would be less than a “maximum reasonable rate”,—to wit, that it must appear that it is responsive to the “needs of commerce”, or that it is impliedly demanded by “public interest”,—in effect, it is contended by the respondent commission that the only showing of asserted merit consists of evidence from which inferences are or may be drawn, not that either “commerce or public interest” will either directly, or in anywise, benefit by the proposed reduction in rates, but rather that petitioner, in its private capacity and solely in its self-interest, will be rewarded. Specifically in that connection, the petitioner asserts :

“First, that the petitioner had lost substantially all of its beverage business under present ‘transportation conditions’; second, it was shown without substantial conflict in the record that the reduced rates would be productive of increased rail traffic; and third, that there is a tendency on the part of the brewing interests to reduce transportation charges by the construction of branch breweries in southern California , . . ” (Emphasis added.)

However, as a secondary proposition, even assuming that either “commerce” actually was in dire need of action such as that which was proposed by the petitioner, or that “public interest” was insistently demanding, or that it even impliedly required, that the freight rate on beer from San Francisco to Los Angeles be substantially reduced, that is to say, from a rate of 25 cents per 100 pounds to that of 20 cents for such poundage, not yet would it appear that by the terms of the statute, the petitioner possessed the absolute and unqualified right to establish a rate lower than that charged by its competitors for the transportation of the commodity in question. Precedent thereto, other conditions remained to be satisfied; that is to say, that if the reduction be sought ‘ for the purpose of meeting the competitive charges of other carriers ... ”, a “showing” must be made “that said rate is justified by transportation conditions”, et cetera, which fact must be evidenced by a “finding” by the Railroad Commission to that effect. And in the latter connection, from the record herein it is clear that, as written, whatever appropriately may be said in criticism of either the form or the substance of the so-called “finding” that was made by the respondent commission, in no sense, nor in any conceivable construction or interpretation of such “finding” may the necessary fact of justification, measured by “transportation conditions” be discovered or deduced. It thus results that, “presumptively”, both the facts and the law, as provided by section 13% of the Public Utilities Act, present a legal indication of the correctness and the legality of the order of which complaint is here made. But in that connection, the additional question is suggested for determination by this court of whether the broad powers that apparently

Again directing attention to the provisions of section 32-d (hereinbefore set forth) it will be noted that, in substance, the pertinent portion thereof requires that the respondent commission shall “fix as minimum rates . . . the lowest of the lawful rates” of the several types of carriers that may be engaged in the same line of business as that which may be affected by the rate proceeding then under consideration by the commission. It is not improbable that that language, standing alone, might import an absolute right in any carrier, within the “zone of reasonableness” to lower the freight rate on any commodity to a point that would return to it the exact cost to it of transporting such commodity between any specified designations,—which practical result, considered from a business standpoint, might require that all other carriers of the same commodity lower their respective rates to the same level. But nowhere within the provisions of the statute may language be discovered by which properly it may be inferred that other statutes in pari materia are to be repealed. Besides, repeals by implication are not favored. To the contrary, even though, in some particular or particulars, the provisions of two or more statutes apparently are in conflict one with the other, nevertheless, if possible and practicable, such seeming inconsistencies should be reconciled to the end that the law as a whole may be given effect. And so in the instant matter. An explanation of the two apparently conflicting statutes produces a harmonious result. Assuming the legality of section 13½, although by its provisions, as one of its basic propositions, a carrier may be permitted to establish a rate which may lie anywhere within the “zone of reasonableness”, nevertheless when such proposed rate is less than “a maximum reasonable rate” and its purpose is that of “meeting the competitive charges of

In connection with the order that here is the subject of complaint, the intended fairness of the respondent commission in attempting to equalize the rates of the respective carriers is made to appear by the terms of such order regarding accessorial services in its compliance with the additional provision of the latter section to the effect that in its consideration of the question of proposed rate reductions, it should “make due and reasonable allowance for added or accessorial service performed by one carrier or agency of transportation which is not contemporaneously performed by the competing agency of transportation”. With reference to the uniformity of such established rates and the pecuniary and other probable effects thereof upon the respective classes of carriers affected thereby, a consideration of the evidence adduced at the hearing discloses the fact and impels the conclusion that the order by which the several charges that were directed to be imposed for the performance of such services was adequately based upon substantial and pertinent evidence ; and although in practice such rates and charges may

But, as an exception thereto, herein it would appear that, by constitutionally authorized delegation of authority, at least impliedly, the legislature has waived its natural prerogative, in that it has conferred power upon its agent, the Railroad Commission, to determine not only the status of “ transportation conditions”, but also to conclude whether a proposed charge or rate for specified freight will or may be “justified” thereby. In the language of the statute, the Railroad Commission is charged with the particular duty of “finding” whether a proposed rate “is justified by transportation conditions”; that is to say, among other things, it is charged with the duty of weighing and considering each and all of the several and various pertinent facts and elements that should furnish a foundation for a “finding” or conclu

As hereinbefore has been indicated, the respective litigants in this controvery are in harmony one with the other with respect to the legal conclusion that a “zone of reasonableness” exists in the matter of fixing freight rates, within which, ordinarily, and in the absence of either express controlling statutory provision, or judicial construction thereof to the contrary, a common carrier has the right, in the exercise of its managerial discretion, to establish and maintain any desired rate. In addition thereto, it is conceded by the petitioner that since the business of a common carrier is affected by and with “public interest”, the basic right of the carrier to manage its business in its own way and in accordance with the dictates of its own managerial

Otherwise, and concretely stated, the question is,—conceding that section 13% provides specific statutory authority for the making of the order of which complaint is here registered,—whether the substance of such order is regulatory, or, to the contrary, whether it constitutes a taking of property, or the use thereof, without rendering either adequate or any compensation therefor.

As hereinbefore has been made to appear, the carrier is authorized to establish a rate lower than that which is “lawfully” charged by its competitors, only after, by a proper showing, it is able to secure from the commission a “finding” to the effect that the proposed rate is “justified by transportation conditions”. But even then, as is conceded by the respective litigants herein, the common carrier is limited to the extent that it may not establish a rate that is “unreasonably low”;—that is to say, that in no event-may the carrier be authorized to maintain a rate that will not yield to it at least the actual cost to it of transporting the commodity upon which the new rate is proposed to act. It is well settled that a given rate properly may be adjudged to be too low, as well as that another rate likewise may be determined by the commission to be too high. (United States v. Illinois Cent. R. R. Co., 263 U. S. 515 , 525 [ 44 Sup. Ct. 189 , 68 L. Ed. 417 ] ; Anchor Coal Co. v. United States, 25 Fed. (2d) 462, 471; Jefferson Island Salt Min. Co. v. United States, 6 Fed. (2d) 315.)

Whether a proposed or an already established and maintained rate is “justified by transportation conditions” is largely determinable by the existence of the preliminary fact of whether it will or does return to the carrier its cost of transportation. But the answer to such question is not necessarily susceptible of the exactitude that ordinarily might be desired or anticipated. So many different factors combine to produce the ultimate result, each of which is, or at least

It first may be useful to ascertain, if possible, in what sense the word “finding” was used, as it is expressed in the statute. In that regard, attention is directed to the fact that section 67 of the Public Utilities Act (Stats. 1915, p. 115, as amended by Stats. 1933, p. 1157) provides in part: that “ . . . The findings and conclusions of the commission on questions of fact shall be final and shall not be subject to review except as hereinafter provided; such questions of fact shall include ultimate facts and the findings and conclusions of the commission on reasonableness and discrimination. . . . ” ,(Emphasis added.)

As repeatedly hereinbefore has been indicated, the commission made the finding “that the reduced railroad rate . . . is unreasonably low and not justified by transportation con ditions.. ” (Emphasis added.) And with respect thereto, specifically it is urged by the petitioner that, standing alone, without the presence of specific or essential findings upon which it must be made to rest, such “finding” is insufficient. It is important to note that by the quoted language of section 67, the commission is authorized to include “ultimate” facts in its findings and conclusions on reasonableness and discrimination. In the case entitled American Toll Bridge Co. v. Railroad Commission, 12 Cal. (2d) 184 [ 83 Pac. (2d) 1 , 4], this court quoted from the case of St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 [ 56 Sup. Ct. 720 , 80 L. Ed. 1033 ], wherein it was said: “ ‘ . . . Exercising its rate-making authority, the legislature has a broad discretion. It may exercise that authority directly, or through the agency

The petitioner has cited several recent cases (Wichita R. & Light Co. v. Public Util. Com., 260 U. S. 48 [ 43 Sup. Ct. 51 , 67 L. Ed. 124 ]; Beaumont, S. L. & W. Ry. v. United States, 282 U. S. 74 [ 51 Sup. Ct. 1 , 75 L. Ed. 221 ]; Florida v. United States, 282 U. S. 194 [ 51 Sup. Ct. 119 , 75 L. Ed. 291 ] ; Panama Refining Co. v. Ryan, 293 U. S. 388 [ 55 Sup. Ct. 241 , 79 L. Ed. 446 ]; Atchison, T. & S. F. Ry. v. United States, 295 U. S. 193 [ 55 Sup. Ct. 748 , 79 L. Ed. 1382 ] ; Morgan v. United States, 298 U. S. 468 [ 56 Sup. Ct. 906 , 80 L. Ed. 1288 ] ; United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499 [ 55 Sup. Ct. 462 , 79 L. Ed. 1023 ]; Norwegian Nitrogen Co. v. United States, 288 U. S. 294 [ 53 Sup. Ct. 350 , 77 L. Ed. 796 ] ; Great Northern Ry. Co. v. Department of Public Works, 161 Wash. 29 [ 296 Pac. 142 ] ; People’s Fruit & Vegetable S. Assn. v. Illinois Commerce Com., 351 Ill. 329 [ 184 N. E. 615 ] ; Baltimore & O. R. Co. v. United States, 22 Fed. Supp. 533; Saginaw Broadcasting Co. v. Federal C. Com., 96 Fed. (2d) 554 [ 68 App. D. C. 282 ] ; United States v. Baltimore & O. R. Co., 293 U. S. 454 [ 55 Sup. Ct. 268 , 79 L. Ed. 587 ]), which it is urged enunciate the rule| that an “ultimate” finding of fact by an administrative; tribunal must be supported by essential underlying findings \ of fact. However, it is to be observed that none of those / cases presented a situation where the requirements of the particular act under review were expressed in language similar to that employed in section 67; and that although the decisions to which petitioner has referred might be most persuasive were the language of section 67 not so authoritative and inclusive, it is apparent that in the light of the legislative pronouncements set forth in that section, the several rulings indicated in the cited eases are not controlling.

“It is first insisted that the order of the commissioner is void, on the ground that he did not make detailed and specific findings of fact relating to the matter before him, and that the failure to make such findings of fact invalidates his entire order. This contention is based on the wording of sections 62—125 and 62-134, Oregon Code 1930. The first of these sections, with reference to investigation of rates, provides that ‘if upon such investigation the rate or rates, fares, charges ... or any joint rate or rates ... or service complained of shall be found to be unreasonable,’ the public utilities commissioner ‘shall have power to fix and order substituted therefor such rate or rates’ as he ‘shall have determined to be just and reasonable and which shall be charged, imposed and followed in the future. ’

“Section 62-134, as far as material here, is as follows: ‘Whenever, upon an investigation made under the provisions of this act,’ the public utilities commissioner ‘shall find any existing rate or rates, fares, charges, or classifications, or any joint rate or rates . . . affecting the transportation of . . . property . . . are unreasonable,’ he ‘shall determine and by order fix a reasonable rate, fare ... or joint rate to be imposed, observed, and followed in the future in lieu of that found to be unreasonable ’.

“The commissioner is granted power to change existing rates only in the event that he finds such rates unreasonable. The law does not confer upon him legislative authority to require the substitution of other and different rates as in his discretion he may from time to time deem desirable. He is given authority to prescribe other and different rates only in such instances as he finds existing charges unreasonable.

“The sections of the code above referred to do not require the commissioner to make what commonly are considered findings of fact. They merely provide that in the event he finds certain rates to be unreasonable, it then becomes his duty to prescribe what are reasonable rates. In the order

above mentioned he found definitely that certain rates were unreasonable and specified what would be reasonable rates.

“In United States v. Baltimore & O. R. Co., 293 U. S. 454 [ 55 Sup. Ct. 268 , 273, 79 L. Ed. 587 ], the court pointed out that an order of the Interstate Commerce Commission could not be supported where there was complete absence of the" basic or essential findings required to give the commission jurisdiction of the matter. With further reference to this) subject, the court there said: ‘In the Florida Case (Florida v. United States, 282 U. S. 194 [ 51 Sup. Ct. 119 , 75 L. Ed. 291 ]), the legal distinction was pointed out between what may be termed g-mm'-jurisdictional findings, there held to be indispensable, and the “complete statement of the grounds of the Commission’s determination” which was declared in Beaumont, S. L. & W. R. Co. v. United States, 282 U. S. 74 , 86 [ 51 Sup. Ct. 1 , 75 L. Ed. 221 (229)], to be desirable for a proper consideration of the case in the courts. The lack of such a complete statement, while always regrettable, because unnecessarily increasing the labor of the reviewing court (compare Virginian R. Co. v. United States, 272 U. S. 658 , 675 [ 47 Sup. Ct. 222 , 71 L. Ed. 463 , 472]), is not fatal to the validity of the order. It is true that formal and precise findings are not required, under section 14 (1) of the Interstate Commerce Act (49 U. S. C. A., sec. 14 [1]), which declares that the report “shall state the conclusions of the commission, together with its decision”. Compare Manufacturers’ R. Co. v. United States, 246 U. S. 457 , 487 [ 38 Sup. Ct. 383 , 62 L. Ed. 831 (846) ] ; Meeker v. Lehigh Valley R. Co., 236 U. S. 412 , 428 [ 35 Sup. Ct. 328 , 59 L. Ed. 644 (656), Ann. Cas. 1916B, 691, P. U. R. 1915D, 1072]. That provision relieves the commission from making comprehensive findings of fact similar to those required by Equity Rule 70% (28 U. S. C. A., see. 723). But section 14 (1) does not remove the necessity of making, where orders are subject to judicial review, quasi-jurisdictional findings essential to their constitutional or statutory validity. ’

“In Wichita R. & Light Co. v. Public Utilities Commission, 260 U. S. 48 [ 43 Sup. Ct. 51 , 67 L. Ed. 124 ], relied upon by the appellant herein, it was held that the order of the commission failed to find the existing rates to be unjust and unreasonable, and that the commission under the Kansas law had no power to substitute other rates unless it did so find.

In support of this conclusion, the court cited State Public Utilities Com. v. Springfield Gas Co., 291 Ill. 209 [ 125 N. E. 891 , 902], In the Illinois case, with reference to the duty of the regulatory body of that state, the court quoted from the Public Utilities Act as follows: ‘At the conclusion of such hearing the commission shall make and render findings concerning the subject-matter and facts inquired into, and enter its order based thereon. ’

“It will readily be seen that the requirements of the Illinois act are more exacting, as to what the findings shall consist of, than those of the Oregon statute. Although the Illinois ease was cited by the United States Supreme Court in Wichita B. & Light Co. v. Public Utilities Com., supra, there is nothing in the opinion in the latter case from which it can be inferred that anything more is necessary than the quasi-jurisdictional findings, that is, of the unreasonableness of existing rates.

“Following the Illinois decision is the ease of Northern Pacific Railway Co. v. Baher, (D. C.) 3 Fed. Supp. 1, 6, which is based upon a statutory provision closely similar to, if not identical with, the Illinois act, requiring the department of public works of the state of Washington to ‘make and render findings concerning the subject-matter and facts inquired into’.

“In State of Florida v. United States, 282 U. S. 194 [ 51 Sup. Ct. 119 , 75 L. Ed. 291 ], it was held that before the Interstate Commerce Commission could fix intrastate rates, it was necessary for that body to make a finding as to the effect of such rates on interstate rates, and without- such a finding it had no legislative authority to act. . . .

“As said in the case of United States v. Baltimore & O. R. Co., supra, it would be ‘ desirable for a proper consideration of the case in the courts’ that a complete statement of the grounds of the commissioner’s determination be given, and the lack of such a complete statement is always regrettable. The failure, however, in a case of this nature, to make comprehensive findings of fact does not invalidate the order prescribing new rates. A ‘basic or essential’ finding that the existing rates are unreasonable is all that the statute demands. f

“See, also, in this connection, Mills v. Lehigh Valley Railroad Co., 238 U. S. 473 [ 35 Sup. Ct. 888 , 59 L. Ed. 1414 ].” (Emphasis added.)

In that connection, the petitioner urges the additional point that the provisions of law that are contained within section 13½ of the Public Utilities Act are violative of its constitutional rights in that, in effect, the statute deprives petitioner of its property without rendering to it either adequate or any compensation therefor.

Preliminarily, in accordance with authorities herein-before cited, it should be remembered that if a proposed rate is “unreasonably low”, it is not within the “zone of reasonableness”, in that, impliedly, it will not return to the petitioner the cost of transportation. However, as herein-before has been suggested, as to whether in fact, at the time of the hearing, such foundational condition existed is also a subject of controversy between the interested parties. It is obvious that if, in actual operation of the proposed rate, the petitioner would not receive its cost of transportation,— instead of being damaged by the denial of its asserted right to reduce freight charges, in truth, eventually, as far as might concern the particular commodity proposed to be transported, the petitioner would be the recipient of a benefit. In that connection, one of the minor reply arguments that is made by the respondent commission is that if the proposed rate were put in operation, before the petitioner would even receive as much gross revenue as theretofore it had received from the transportation of beverages from the city of San Francisco to the city of Los Angeles, necessarily, in volume, it would have to transport 29 per cent more of such freightage than it had been transporting prior to the effective date of the establishment of the new rate. On first thought, in existing conditions of competition, such a percentage requirement would seem almost prohibitive of success. But when the total number of cars of transported beverage, as compared with the quantity thereof that at present is handled by the petitioner is taken into consideration, the barrier does not seem insurmountable. To illustrate: Out of a total of

If either of such statements properly may be said to indicate a direct conclusion, it is manifest that neither nor both of them combined respectively is or are supportive of the so-called “finding” that the proposed rate is “unreasonably low”. To the contrary, to ordinary understanding, such declarations would carry the significance either that the proposed rate ivould return to the petitioner its “out-of-pocket cost of transportation”, or, failing in that regard, that the respondent commission had reached no conclusion with reference thereto. Aside from the assertion in its brief that the evidence is “ample ... to support this finding”, the respondent commission has referred this court to nothing of an affirmative character that properly may be regarded as evidence in support of its conclusion. Its statement in that regard appears to be founded upon an asserted inference which, it is contended, may be deducible from two exhibits that were filed in the matter, one of which is said to show that in 1930 the rate was 35% cents per 100 pounds, and that “The 35% cent rate was progressively reduced for competitive reasons until it reached the present level of 25 cents”. The contents of the other exhibit merely disclose the fact that as compared with then-existing rates between San Francisco and some other cities, as well as between Los Angeles and some other cities, the proposed rate would be considerably lower. But nowhere in either of such exhibits, or elsewhere, is the attention of this court directed to any statement or any positive evidence regarding the precise point here in dispute, to wit, whether the proposed rate would be below out-of-pocket cost of transportation, as hereinbefore has been

As hereinbefore has been indicated, in substance, the statute provides that for the purpose of meeting competition,—without first having obtained the consent of the commission—a common carrier may not establish a rate which will be less than the maximum reasonable rate. And petitioner contends that if, within the “zone of reasonableness”, by reason of its superior equipment, facilities and efficient management of its business, it is able to transport freight at a rate that is less than that at which its competitors can afford to transact the business, a conferred statutory power which purportedly prevents it from doing so amounts to a taking of property, or the use thereof, in violation of the several ‘ ‘ due-process” clauses of both the state and the federal Constitutions.

In Words and Phrases, volume 3, page 2229, it is said: " The definitions of ‘ due process of law ’ are so various that it is unsatisfactory to attempt an accurate definition. It is sufficient to say that it was intended to protect property from confiscation by legislative enactments, and from seizure, forfeiture, and destruction without trial and conviction by the ordinary modes of judicial proceedings. Davis v. State, 68 Ala. 58 , 62, 63 [ 44 Am. Rep. 128 ].” To the same effect

Having in mind such principles, we pass to a consideration of the contention of the petitioner that the order, viewed in the light of the provisions of section 13%, deprives it of its property without due process of law. In the course of its argument to the effect that the provisions of that section as applied by the commission denies it the right, theretofore enjoyed by it, to fix its own rates within a so-called “zone of reasonableness”, the petitioner relies in part upon certain rulings which appear to have been made in the following eases: Lang v. Railroad Com., 2 Cal. (2d) 550 [ 42 Pac. (2d) 639 ]; Interstate Commerce Com. v. Alabama Midland Ry., 168 U. S. 144 [ 18 Sup. Ct. 45 , 42 L. Ed. 414 ] ; Interstate Commerce Com. v. Chicago G. W. Ry., 209 U. S. 108 , 118, 119 [ 28 Sup. Ct. 493 , 52 L. Ed. 705 ] ; Texas & Pac. Ry. Co.

In Lang v. Railroad Commission, supra (decided prior to the enactment of section 131/2), the fact was recognized that under the provisions of the act as it then stood, there existed a “zone of reasonableness’’ wherein the carriers might “ad just their rates so as to obtain or retain the desired traffic for their own lines”. Also, in the case entitled Interstate Commerce Com. v. Alabama Midland Ry., 168 U. S. 144 , 172, 173 [ 18 Sup. Ct. 45 , 42 L. Ed. 414 ], it was said: “ ‘ . . . within the limits of the exercise of intelligent good faith in the conduct of their business, and subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers, as they were at the common law, free to make special rates looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce and of their own situation and relation to it, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits. The carriers are better qualified to adjust such matters than any court or board of public administration, and, within the limitations suggested, it is safe and wise to leave to their traffic managers the adjusting of dissimilar circumstances and conditions to their business. ’ ’ ’ And in the case entitled Interstate Commerce Com. v. Chicago G. W. Ry., 209 U. S. 108 , 118, 119 [ 28 Sup. Ct. 493 , 52 L. Ed. 705 ], the court said that: “It must be remembered that railroads are the private property of their owners; that while from the public character of the work in which they are engaged the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities, yet in no proper sense is the public a general manager. . . . It follows that railroad companies may contract with shippers for a single transportation or for successive transportations, subject though it may be to a change of rates in the manner provided in the Interstate Commerce Act—Armour Packing

Although it might be argued that the language set forth in the foregoing quotations, considered alone, would support the contention of the petitioner that there exists a zone of reasonableness within which a rail carrier may lawfully fix its rates, nevertheless it would seem well-settled law that such asserted right on the part of a public utility to do so is limited by the terms of any particular act to the contrary thereof under which the carrier may assume to operate. With respect to such a situation, the commission concedes that prior to the enactment of section 13% there existed a zone of reasonableness within which a carrier might fix its rates, subject to any other limitations prescribed by law; however, it contends that by the enactment of section 13% the legislature has limited the preexisting right, to the extent indicated by that section; that the authority conferred by that section is a “regulatory” power, referable to the police power of the state, and therefore lawful;—and that it necessarily follows that the power conferred upon the commission by the provisions of that section is not violative of the due process provisions of either the federal or the state Constitution. In that connection, the commission asserts that there has been a gradual legislative encroachment upon the right of a public utility to fix its own rates within the limits theretofore prescribed, pointing out particularly the enactment of the Transportation Act of 1920 (49 U. S. C. A., sec. 15 (1)), wherein power was conferred upon the Interstate Commerce Commission to fix minimum as well as maximum rates; and that the delegation to a commission or administrative agency of legislative power to fix rates of a public utility is a valid delegation of the rate-making power of the legislature. In volume 22, California Jurisprudence, page 65, it is said: “A power to regulate the rates which may be demanded by public service corporations is inherent in the state. ... A general power over rates is now lodged,

“The constitutionality of statutes creating or empowering public utility commissions is governed by the rules applicable to statutes generally. Thus, except when otherwise provided by the constitution, the legislature, in pursuance of its general power to regulate public utilities, may by statute delegate to a commission the administration of laws and regulations, enacted in the proper exercise of the police power, governing utilities, subject to such limitations or restrictions as it may see fit to impose, . . . ’’

In a footnote on page 33 it is said: “In California (1) under Const., art. 12, secs. 22, 23, providing that the commission shall have such power to supervise and regulate utilities as shall be conferred upon it by the legislature, and that the legislature may confer any additional powers not inconsistent with those granted by the constitution, the legislature may delegate to the commission whatsoever authority it may see fit in the matter of management and control of utilities, the making of its orders and decrees, and the punishment for the violation thereof, all of such subject matters being germane to, and not inconsistent with, the constitutional powers conferred. East Bay Municipal Utility Dist. v. State R. Com., 193 Cal. 603 [ 229 Pac. 949 ] ; Pacific Tel. etc. Co. v. Eslileman, 166 Cal. 640 [ 137 Pac. 1119 , Ann. Cas. 1915C, 822, 50 L. R. A. (N. S.) 652 ].

Additionally, the recent case entitled American Toll Bridge Co. v. Railroad Com. et al., 12 Cal. (2d) 184 [ 83 Pac. (2d) 1 ], would seem to be a conclusive answer to the contention that the provisions of section 13½ are a valid delegation of legislative power of a regulatory nature, permitted under the exercise of the police power of this state. In that case it was held that the conferred power of fixing rates for a toll bridge was a valid legislative enactment and that the legislature had the power to exercise such authority directly or through an agency which it might create or appoint to act for that purpose.

However, notwithstanding the existence of a presumption of validity that attends the enactment of such legislation, if unreasonable in their effect, laws of the ldnd here in question may be judicially declared void. In that respect, since the necessary element of unreasonableness of the questioned statute is not capable of certain or definite measurement, it is manifest that before a determination of that condition properly may be adjudged, the quality of unreasonableness must be made clearly to appear. Primarily, in the enactment of a statute the question of its reasonableness is one for prior legislative determination, and ordinarily the legislative conclusion in that respect is regarded as final. It will be disturbed by a contrary judicial conclusion in that regard only when the questioned legislation is so manifestly unnecessary for the promotion or the preservation of the public welfare that the tribunal charged with the duty of adjudicating the matter may fittingly declare that no rational ground existed as a reason for its enactment (5 Cal. Jur., p. 714 et seq., and authorities there cited). In the instant matter, it is obvious that no unreasonableness in the provisions of the statute has been shown. To the contrary, as herein-before has been indicated, its reasonableness is most apparent.

With reference to a further and separate contention of the petitioner, it may be noted that section 24 of article IV of the Constitution of this state provides that:

“Every act shall embrace but one subject, which subject shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in its title, such act shall be void only as to so much thereof as shall not be expressed in its title. No law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be re-enacted and published at length as revised or amended; and all laws of the State of California, and all official writings, and the executive, legislative, and judicial proceedings shall be conducted, preserved, and published in no other than the English language.”

In adding section 13% to the Public Utilities Act, the legislature made use of the following title:

“An act to amend the Public Utilities Act by adding two new sections numbered sections 13½ and 32½ relating to public utilities.”

In that regard, it is contended by the petitioner that the said title is insufficient in that it purports to amend the Public Utilities Act by “adding two new sections . . . relating to public utilities”; whereas without a reenactment and publication at length, as amended, the effect of the provisions of section 13½ is to completely revise the existing statutory powers and duties of the respondent commission, contrary to the express mandate of the constitutional provisions to which reference has been had.

It is obvious that the foundation upon which the asserted unconstitutionality of the act must rest is a precedent determination of the fact that by the provisions of the act, the powers and duties of the respondent commission with respect to the fixing of freight rates have been so amended as to work a complete revision of such powers and duties. In that regard, an examination of sections 13 and 32c of the Public Utilities Act, which were in force at the time when section 13½ was added to said act, discloses the situation that by the terms of the former section it was provided that: “All charges made ... by any public utility . . . shall be just and reasonable.

Broadly speaking, an examination of the several provisions of section 13% discloses the pertinent facts, first that “when the needs of commerce or public interest require”, a common carrier is not “prohibited” from establishing a “lower than a maximum reasonable rate”. It is clear that under all then-existing statutes a lower than a maximum rate would be the only kind of rate that a common carrier might legally establish. Unquestionably a rate that would be higher than a maximum reasonable rate would be unlawful. In that respect section 13% made no change in the law. In substance, as far as here is practically applicable, the second provision of section 13% merely gives a common carrier a contingent, right to establish a rate less than a maximum reasonable rate, to meet the competitive charges of other carriers, dependent upon a precedent “showing” by such common carrier and a subsequent “finding” by the commission that the proposed rate “is justified by transportation conditions”. It thus becomes apparent that the only purported additional statutory requirement or condition which is expressed in section 13½ is that the proposed rate shall be “justified by transportation conditions”. But as hereinbefore has been indicated, it is clear that such a requirement or condition was impliedly contained within the statutory provisions that were in force prior to the enactment of section 13½. By virtue of such former statutes, in order that a proposed rate might be established, it was necessary that it be “just, reasonable and sufficient”; and in addition thereto, by judicial construction, the “zone of reasonableness” determined its limits. In a determination of the justness, the reasonableness and the sufficiency of any proposed rate, necessarily the question of whether it was or would be “justified by transportation conditions” had not only to be considered by the commission, but also decided

“ An act is not revised nor a section amended, within the purview of the above inhibition, by an act which adds new sections which leave in full operation all the language of the statute which it purports to amend. ... It is evident that if this amends the Vrooman act at all it does so only by implication. It does not purport to amend any section of that act. It simply adds new sections as a whole relating to a subject which is stated. As already said, every word and sentence of the prior act is left in full operation and effect ; ...”

The case of People v. Oates, 142 Cal. 12 [ 75 Pac. 337 ], is fully as persuasive in favor of respondent’s position as is the case just cited. In deciding the pertinent issue, the language employed by the court was in part as follows:

“It is claimed that the act approved April 9, 1880, is unconstitutional and void. It is entitled ‘An act to amend sections [then follow 108 sections of the Penal Code, numbered consecutively as they there occur], and to repeal sections 969 and 1025 of the Penal Code, and to add a new section thereto, to be known as section 809, to provide for prosecutions by information, and to adapt the provisions of said code thereto. ’ The contention is,—1. That the act is a revision of the Penal Code, and hence required a republication of the entire code; ... We do not think the act before us is anything more

than what its title declares it to he,—viz., ‘An act to amend’ the sections named and ‘to repeal’ certain sections named, and ‘to add a new section’ to the Penal Code. It is in no sense a revision of the entire code.” (Emphasis supplied.)

See, also, In re Byers, 21 Cal. 446 [ 27 Pac. (2d) 641 ] ; Los Angeles City School Dist. v. Odell, 200 Cal. 637 [ 254 Pac. 570 ], and authorities there cited.

It thus becomes apparent that the contention of the petitioner to the effect that the title to the act by which section 13½ was added to the Public Utilities Act was defective, in that it was violative of the provisions of section 24 of article IV of the Constitution, cannot be sustained.

It becomes unnecessary to devote attention to other points that have been suggested by the respective parties herein for determination by this court.

As hereinbefore has been indicated, for the reason that the “finding” by the respondent commission to the effect that the rate proposed by the petitioner “was unreasonably low and not justified by transportation conditions” was not supported by the evidence, but in fact that the evidence was contrary to such “finding”, it is ordered that the order here in review be and it is annulled.

Curtis, J., Waste, C. J., and Shenk, J., concurred.

Edmonds, J., concurred in the judgment.

Rehearing denied.