SECTION 3.-ORDERS OF INDIVIDUAL APPLICATION— ADMINISTRATIVE AND QUASI JUDICIAL DETERMINATIONS FULLER et al. v. COUNTY OF COLFAX. (Circuit Court of United States, District of Nebraska, 1882. 14 Fed. 177.) On motion to remand cause to state court. DUNDY, District Judge. This cause was removed into this court from a state court held within and for Colfax county. The defendant moves to remand the same, for the reason that the suit was removed from an appellate court and not from the one in which the suit what extent, and in what manner, the exercise of a public trust requires it to subserve the 'security, convenience, and accommodation of the public.'" Section 6 of the New York act of 1882, above referred to, was subsequently changed, so as to read as follows: "If in the judgment of the board, after a careful personal examination of the same, it shall appear that repairs are necessary upon any railroad in the state, or that any addition to the rolling stock, or any addition to or change of the station or station-houses, or that additional terminal facilities shall be afforded, or that any change of the rates of fare for transporting freight or passengers or in the mode of operating the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, the board shall give notice and information in writing to the corporation of the improvements and changes which they deem to be proper, and shall give such corporation an opportunity for a full hearing thereof, and if the corporation refuses or neglects to make such repairs, improvements and changes, within a reasonable time after such information and hearing, and fails to satisfy the board that no action is required to be taken by it, the board shall fix the time within which the same shall be made, which time it may extend. It shall be the duty of the corporation, person or persons owning or operating the railroad to comply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board shall present the facts in the case to the Attorney General for his consideration and action, and shall also report them in its annual or in a special report to the Legislature." New York Railroad Law (Laws 1890, c. 565) § 161. See People ex rel. Linton v. Brooklyn Heights R. Co., 172 N. Y. 90, 64 N. E. 788 (1902). The way to compel action by railroad corporations is by first applying to the railroad commissioners, and not by judicial proceedings in the first instance. FIFTEENTH ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION FOR THE YEAR 1901. The work of the Commission which pertains directly to regulation involves two distinct kinds of procedure: One based upon formal petitions filed with the Commission under section 13 of the law, and involving regular hearing and investigation, the preparation of a report setting forth the material facts found and conclusions reached by the Commission, and issuance of an order dismissing the case or directing the carrier or carriers complained against to correct the rate or practice which may be held unlawful. The other kind of procedure arises in the performance by the Commission of its duty, under the twelfth section, to "execute and enforce the provisions of the act," and was brought. If this be true it must, of necessity, be decisive of the motion. In considering the motion two questions arise-First, is a board of county commissioners a court within the meaning of the removal acts of Congress; and, second, is a mere claim for damages for right of way for a public road, presented to the county board, a suit within the meaning of the said removal acts, so long as the claim there remains for consideration. The state law provides for paying for the right of way necessary in locating all public roads. If damages are sustained by the owners of land through which a road is located, the county is primarily liable therefor, and the manner of making the claim as well as the mode of making the payment is here perfectly well understood. After the location of the road all that seems to be necessary for the injured party to do is to make known to the county board the fact that damages are claimed for the right of way. If the claim is thought to be just and reasonable the county board allows it, and draws warrants on the county treasurer for the amount of damages awarded. If the claimant should be dissatisfied with the amount of damages so awarded him, he can appeal to the district court of the proper county, where the case is to be tried de novo. Thus it will be seen that the remedy provided by law in cases like the present one is alike speedy, efficacious, inexpensive. The plaintiffs were damaged, as they claim, in consequence of a public road being located through their lands; and they presented to the county board a claim in the sum of $5,000 therefor. The board reduced the claim, or sum allowed, to $250, and the claimants appealed to the district court, all of which was done in strict accord relates to complaints presented by letter, the examination of tariffs on file in the office in connection with such complaints, and correspondence with shippers and carriers concerning the same. Complaints of the latter class are called informal complaints, to distinguish them from the formal petitions or complaints which constitute the basis of contested cases. No order can be issued upon an informal complaint and inquiry. The main object of that method of procedure is the speedy disposition, through settlements, readjustments plainly required by the statute, or advice given by the Commission, of matters in which regulation is demanded, and thus to limit the number of contested cases upon the docket. It would be an injustice to complaining shippers and communities, amounting frequently to denial of relief, to compel the institution of a regular proceeding every time cause of complaint is brought to the attention of the Commission; and the number of cases requiring the hearing of witnesses, oral or written argument, and formulated decision would probably be greater than the Commission could dispose of properly or without intolerable delays. The great mass of complaints are handled and disposed of by the Commission by preliminary investigation and correspondence or conference with carriers and shippers. The matters considered and acted upon in this way range from overcharges upon small shipments to rate relations affecting the interests of entire communities, and are of the same nature as those which find their way to the regular case docket of the Commission. 6 Act Cong. March 3, 1875, c. 137, § 3, provided that the petition for removal must be filed "in such suit in such state court before or at the term at which said cause could be first tried and before the trial thereof." ance with the law. In presenting a claim to the county board for allowance, no formal proceedings are at all necessary, no pleadings of any sort are required to be filed, no process issued for any purpose whatever connected with the matter, and no formal judgment follows either the rejection or allowance of a claim by the board. The claim, when so made, is simply audited, allowed, or rejected, as justice and reason seem to require. In case of an appeal to the district court, the appeal is docketed, and pleadings are filed, and the cause then in all respects proceeds in the usual and ordinary way. The cause is then, in every sense of the term, in a court, and is also, then, in every sense of the term, a suit. Now, what is usually understood by the words "court" and "suit," where we find them in legislative enactments or in legal proceedings? Blackstone says a "court is a place wherein justice is judicially administered." To administer justice judicially, there must be a judge, and usually, though not always, there are also other officers, such as clerk and sheriff or marshal. That also implies the right to issue compulsory process to bring parties before the court, so that jurisdiction may be acquired over the person or property which forms the subject-matter of the controversy. To administer justice judicially two parties to a controversy must exist; there must be a wrong done or threatened, or a right withheld, before the court can act. Then a hearing or trial follows, and the "justice to be judicially administered" results in a formal judgment for one of the parties to the controversy. The judgment to be pronounced usually has full binding force, unless modified or reversed. The courts can issue the proper process to carry their judgments into effect, and in that way subserve the great ends of their creation. But this is not so with the county boards in this state. They are not clothed with the necessary power to issue compulsory process to bring parties litigant before them. They cannot, in cases like the one under consideration, issue process to compel the attendance of witnesses. They cannot and do not enter formal judgments in cases presented to them for their consideration. They have no authority to execute any judgments if they should thoughtlessly undertake to enter them. They have but one party before them on whom their orders can operate. In short, the county board is so totally unlike a court, and so different in its constitution and its objects, that I am unable to see any similarity between them. If the county board cannot be regarded as a court, it will follow as a necessary consequence that no suit was pending in this case until the appeal from the order of the board was filed and docketed in the district court. Two parties to a suit seem to be almost indispensable: one who seeks redress, and the other who commits a wrong or withholds what is justly due another. The parties must stand in such relation to each other that the machinery of the court will operate on them when their powers and their aid are invoked. No such a con dition of things existed so long as this claim remained before the county board. But when the appeal was taken, and docketed in the district court, we then for the first time find a suit pending in the court where none of the elements of either are wanting. It is such a suit that can be removed from such a court, as the removal acts of Congress contemplate. I conclude, then, that the board of county commissioners of Colfax county is not a "court," and that this "suit" was never pending in any other court than the district court of Colfax county, from which it was removed to this court, and that it was, therefore, properly removed herein. The motion to remand is overruled." KENTUCKY & I. BRIDGE CO. v. LOUISVILLE & N. R. CO. (Circuit Court of United States, District of Kentucky, 1889. 37 Fed. 567, 2 L. R. A. 289.) * * * JACKSON, Circuit Judge.8 In support of their position. that judicial powers are conferred upon and exercised by the commission, counsel refer to various provisions contained in sections 12, 13, 14, 15, 16, 17, and 18 of the act [Act Feb. 4, 1887, c. 104, 24 Stat. 383-386 (U. S. Comp. St. 1901, pp. 3162-3168)], which, together with the rules of practice adopted, show, as they insist, that a proceeding before the commission, like the one in question, involves and embodies features and earmarks of judicial procedure and action in the following particulars, viz.: First, a petition, corresponding with the petition or bill in equity, is filed; second, notice is issued for, and service thereof made upon, the defendant or party complained of, conforming to, and corresponding with, the process of subpoena in courts of the United States, requiring such defendant to satisfy the complainant, or to appear and answer the same; third, the filing of defendant's answer, as in equity, which makes up or forms the issue; fourth, the issuance of subpoenas requiring the attendance of witnesses, or for the taking of depositions, upon the issues made up by the answer; fifth, the assignment of a time and place for the hearing, when and where the parties appear in person or by attorney, witnesses are sworn and examined, and arguments are made orally or by brief; sixth, when the conclusion is reached, a written report, corresponding in all re 7 "The right of appeal from the action of boards in their administrative character is frequently conferred by statute. The appeal in such cases is not permitted because the action of the board is considered judicial; but it is granted as a method of getting the matter involved before a court, that it may be determined judicially." Board of Commissioners of Huntington County v. Heaston, 144 Ind. 583, 591, 41 N. E. 457 (1895). See, also, United States v. Ritchie, 17 How. 525, 15 L. Ed. 236 (1854). * Only a portion of the opinion is printed. spects to an opinion, is delivered, filed, and published; seventh, the order of the commission is recorded by its secretary, as decrees in equity are recorded by clerks of court; and, eighth, a copy of such order, under the seal of the commission, issues to the defendant, requiring obedience thereto. This mode of procedure certainly conforms in many respects to the regular practice of courts, and is no doubt authorized by the law; but does it involve the performance of judicial acts, and the exercise of judicial powers, by the commission, as claimed? It is well settled that Congress, in ordaining and establishing "inferior courts," and prescribing their jurisdiction, must confer upon the judges appointed to administer them the constitutional tenure of office, that of holding "during good behavior," before they can become invested with any portion of the judicial power of the government; and if the act to regulate interstate commerce does in fact establish an inferior court, the commissioners appointed thereunder for certain fixed periods are clearly not such judges as can be invested with any portion of the judicial power of the United States, and their decision in matters affecting personal or property rights could have no force or validity. But does the interstate commerce law undertake either to create an "inferior court" or to invest the commission appointed thereunder with judicial functions? We think not. While the commission possesses and exercises certain powers and functions resembling those conferred upon and exercised by regular courts, it is wanting in several essential constituents of a court. Its action or conclusion upon matters of complaint brought before it for investigation, and which the act designates as the "recommendation," "report," "order," or "requirement" of the board is neither final nor conclusive; nor is the commission invested with any authority to enforce its decision or award. Without reviewing in detail the provisions of the law, we are clearly of the opinion that the commission is invested with only administrative powers of supervision and investigation, which fall far short of making the board a court, or its action judicial, in the proper sense of the term. The commission hears, investigates, and reports upon complaints made before it, involving alleged violations of or omission of duty under the act; but subsequent judicial proceedings are contemplated and provided for, as the remedy for the enforcement, either by itself or the party interested, of its order or report in all cases where the party complained of or against whom its decision is rendered. does not yield voluntary obedience thereto. By the fourteenth and sixteenth sections of the act it is provided that the report or findings made by the commission "should thereafter, in all judicial proceedings, be deemed prima facie evidence as to each and every fact found.” The commission is charged with the duty of investigating and reporting upon complaints, and the facts found or reported by it are only given the force and weight of prima facie evidence in all such judicial proceedings as may thereafter be required or had for the |