CARTER v. SOUTHERN PAC CO

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District Court of Appeal, Second District, Division 2, California.

CARTER v. SOUTHERN PAC. CO.

Civ. 10397.

Decided: September 26, 1935

F. W. Turcotte, of Los Angeles, for appellant. Laselle Thornburgh, of Santa Barbara, and J. E. Lyons and Burton Mason, both of San Francisco, for respondent. Ira H. Rowell, Roderick B. Cassidy, and Frank B. Austin, all of San Francisco, amici curiæ.

Availing himself of section 71(a) of the Public Utilities Act of the State of California (Stats. 1915, pp. 115, 164, as amended by St. 1931, p. 1687), plaintiff applied to and obtained from the railroad commission a reparation award ordering defendant to refund to plaintiff certain freight charges in the aggregate sum of $431.79, found by the commission to have been in excess of the reasonable rates for gravel hauled from Fillmore, Ventura county, to certain Santa Barbara county points. As to this award no application was made to the railroad commission for a rehearing and no petition was made to the Supreme Court for a writ of review.

When defendant failed to make payment of the award, plaintiff filed this suit to recover judgment for the same, following the permissive language of section 71(b) of the Public Utilities Act. Defendant sought to avoid the award upon the ground that the rates under consideration by the commission were not excessive, that such rates had theretofore in other railroad commission proceedings been found to be reasonable, and that therefore the commission acted in excess of its jurisdiction in making any reparation award. Submitted upon an agreed statement of facts, the case was decided by the trial court in conformity with defendant's contention, and plaintiff appeals.

We are of the opinion that judgment should have been rendered for plaintiff. The superior court has no power to review or annul the order of the railroad commission involved herein. Pacific Telephone Co. v. Eshleman, 166 Cal. 640, 137 P. 1119, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915C, 822. As provided in the Public Utilities Act, the remedy of defendant, if dissatisfied with the commission's order, was to seek a rehearing or apply to the Supreme Court for a writ of certiorari. And it makes no difference, so far as we can determine, whether the proceeding to fix the reparation award be regarded as judicial, quasi-judicial, administrative, or legislative. The order of the commission, however it be designated, is reviewable only by the Supreme Court; and in fact that procedure has the implied sanction of such court in its review of reparation cases. Los Angeles & Salt Lake R. Co. v. Railroad Commission, 207 Cal. 123, 277 P. 324; Atchison, T. & S. F. R. Co. v. Railroad Commission, 212 Cal. 370, 298 P. 991.

The judgment is reversed, with directions to the trial court to enter judgment in favor of plaintiff in the sum of $431.79, together with interest as prayed, and to hear and determine the prayer of the complaint for exemplary damages; appellant to recover his costs on this appeal.

GOULD, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.