Full opinion text
HENSHAW, J. The Tehama County Telephone Company and the Glenn County Telephone Company lodged with the railroad commission separate petitions or complaints, seeking orders of the railroad commission compelling the Pacific Telephone and Telegraph Company to permit a physical connection or physical connections to be made between its telephone lines and the lines of the complaining companies. The proceedings were consolidated, and, after hearing, the railroad commission made certain findings upon which was based its order in accordance with the prayers of the petitioners. The Tehama County Telephone Company may be described as a telephone company doing a local business in the county of Tehama. In like manner the Glenn County Telephone Company is engaged in the same business in the county of Glenn. The Pacific Telephone and Telegraph Company does a similar local business in each of those counties, and in addition thereto conducts a long distance business, reaching into many if not all of the counties of the state. The order of the railroad commission gives to the Tehama County Telephone Company and the Glenn County Telephone Company and their subscribers the use of all the extended long distance service maintained by the Pacific Telephone and Telegraph Company within the state of California, excepting therefrom an interchange for use of the Pacific Company’s lines between the two counties of Tehama and Glenn, the petitioning companies between themselves having established such communication. In conformity with the provisions of section 67 of the Public Utilities Act, (Stats. Ex. Sess. 1911, p. 55), the Pacific Telephone and Telegraph Company made application to this court for a writ of review. Hon. Ralph C. Harrison, as amicus curiae, filed a brief presenting to the attention of this court constitutional questions touching not only its own jurisdiction in the matter, but as well the jurisdiction of the superior court. Those questions demand first consideration, not alone from their gravity, but because their determination, the one way or the other, will greatly limit or enlarge the scope of the inquiry now before us. The argument of the learned friend of the court may be thus epitomized: Article VI of the constitution of the state vests judicial power in certain designated tribunals, and apportions the exercise of the judicial power between and amongst them. Section 4 of this article gives to the supreme court certain appellate jurisdiction and original jurisdiction to issue named writs, including the writ of certiorari or review. Section 5 of the same article confers upon the superior court original jurisdiction of great extent, in fact, and generally speaking, over all matters of consequence in law and at equity involving the enforcement of public or private rights or the redress of public or private wrongs. Next, so proceeds the argument, it is to be remembered that the jurisdiction thus conferred upon these judicial tribunals is not subject to legislative control, that is to say, that jurisdiction cannot be either enlarged or curtailed. “It is a well recognized principle that where the judicial power of courts, either original or appellate, is fixed by constitutional provisions, the legislature cannot either limit or extend that jurisdiction.” (Chinn v. Superior Court, 156 Cal. 478, [105 Pac. 580] ; Marbury v. Madison, 1 Cranch, 137, [2 L. Ed. 60].) It is then pointed out that at the time of the adoption of the present constitution the writ of certiorari had a limited and well understood scope, defined by sections 1068 and 1074 of the Code of Civil Procedure, and illustrated and expounded in conformity with these sections by many decisions of this court. The availability of its employment and the limitations of its scope may be thus summarized: 1. It is a writ issued by a superior judicial tribunal to an inferior officer or tribunal exercising judicial functions, and the proceeding'- sought to be brought up for review must in its nature be a judicial proceeding ; 2. To justify its issuance by a superior tribunal it must appear that the applicant for it has no other plain, speedy, and adequate remedy; 3. When issued, the superior tribunal reviews the action of the inferior officer or tribunal only to the extent of determining whether the inferior board or tribunal has exceeded its jurisdiction. (People v. Bush, 40 Cal. 346; Quinchard v. Board of Supervisors 113 Cal. 664, [45 Pac. 856] ; Cook v. Civil Service Commission 160 Cal. 589, [117 Pac. 663].) Thus in Central Pacific R. R. Co. v. Placer County, 46 Cal. 671, it is said: “A writ of certiorari is not the appropriate proceeding for the correction of mere errors of judgment, in respect either to the facts or the law of the case, in determining questions within the jurisdiction of the board.” In Sherer v. Superior Court, 96 Cal. 654, [31 Pac. 565], it is said that “ it must be deemed to be the settled law of this state that the writ of certiorari brings up for review but one question, and that is, whether the inferior tribunal or court exceeded its jurisdiction.” And in Spring Valley Water Co. v. Bryant, 52 Cal. 138, this court declared: “The resolution and ordinance sought to be annulled may be obnoxious to the criticism that they were attempts to deprive the corporation of its rights and property without due process of law, and violative of constitutional principles; but neither this, nor the circumstance that they were not authorized by the city charter to pass them, can justify a review of the action of the board and mayor by certiorari.” And, finally, the indisputable proposition is advanced that the legislature cannot enlarge the scope of any writ named in the constitution beyond that which it had at the time the constitution was adopted. (Camron v. Kenfield, 57 Cal. 550.) Such being the law, it is argued that the conclusion is irresistible that the legislature’s attempt to enlarge the purview of the writ of certiorari when in section 67 of the Public Utilities Act it declares that “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 California, ’ ’ is null and void, and that the attempt of the legislature to confer upon the supreme court the power to include in its. determination under the writ of review the question of the violation of constitutional rights is nugatory and in. direct conflict with the principle of the decision of Spring Valley Water Co. v. Bryant, 52 Cal. 138. Next it is insisted that the attempt to confer exclusive jurisdiction upon the supreme court to review the proceedings of the railroad commission, to the impairment of the general jurisdiction of the superior court, is itself violative of the constitution, in that it is a plain legislative attempt to curtail the jurisdiction vested in the superior court by the constitution. The language of the legislative act in this regard is that, “No court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to 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 performance of its official duties.” (Public Utilities Act, sec. 67, (Stats. Ex. Sess.) 1911, p. 55.) Therefore, concludes the argument of the learned friend of the court, it is conceded that this court has the constitutional power to issue a writ of review. In the case at bar, admitting that the railroad commission in the matter in question was exercising judicial functions, this court’s consideration is limited to the single proposition whether or not the commission has exceeded its jurisdiction, or, what is the same thing in other words, “has regularly pursued its authority”; that this court will not, under the writ, undertake to determine whether constitutional rights have been violated or other errors have been committed, but must leave those questions to the superior court which, under the constitution, has authority to determine them under proper application to enjoin the enforcement of the order complained of, and that it is the manifest duty of this court so to hold and to declare. A minor branch or corollary of the main argument upon these jurisdictional questions rests upon the proposition that in the matter here under review the railroad commission was not exercising judicial functions, but that its acts were purely legislative or legislative-administrative. As the Public Utilities Act is here for the first time before this court, as the question is thus fairly within this case, and as to ignore it is but to necessitate its consideration in subsequent litigation, it is proper to say that we hold the powers and functions of the railroad commission in many instances, and in the present one, to be of a highly judicial nature. That judicial powers were with deliberation vested in the commission the language of the constitution and of the legislative enactments following the constitution leave no doubt. Thus the constitution itself declares: “The commission shall have the further power ... to hear and determine complaints against railroad and other transportation companies; to issue subpoenas and all necessary process and send for persons and papers; and the commission and each of the commissioners shall have the power to administer oaths, take testimony and punish for contempt in the same manner and to the same extent as courts of record.” (Sec. 22, art. XII.) While without quoting, a reading of sections 22 and 23 of article XII of the constitution and of sections 53 to 81 of the Public Utilities Act will establish beyond doubt that the railroad commission is empowered to sit, and in the performance of its most important duties must sit, as a tribunal exercising judicial functions of great moment. It may be said that the final order of the commission in many instances is legislative-administrative in character, but none the less the ordained procedure by which this result is to be reached, the determination of controverted facts between private litigants and disputants, and the decision upon these controverted matters, are strictly judicial. (Robinson v. Sacramento, 16 Cal. 208; Imperial Water Co. v. Board of Supervisors, 162 Cal. 14, [120 Pac. 780].) The answer of the commission insists that certiorari is not only a proper remedy, but is the sole remedy provided by law. It points out that in other jurisdictions, as in New York (Steward v. Railroad Commissioners, 160 N. Y. 202, [54 N. E. 697]), the writ of certiorari has been employed “to correct errors of law affecting property rights.” But these decisions, showing a broader use of the writ in other jurisdictions, can have no pertinency to the consideration of the laws of this state where the writ has never been used with such latitude, and where its use, defined by our very statutes, is restricted to questions of jurisdiction alone. To the argument that section 67 of the Public Utilities Act in providing for a writ of certiorari before this court has unconstitutionally enlarged the scope of the writ by including within it “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 California” respondent makes answer that this was not the legislative intent, for if the legislature had intended to add to the function of the writ of review it would have said “and also a determination” or “in addition thereto a determination” etc. But in consideration of the fact that the proceeding, and the only proceeding, as defined by the legislative enactment under which the action of the railroad commission can be considered at all, is under this writ of review, and as under the constitutional writ of review only the question of excess of jurisdiction can be considered, and as under the writ of review provided for by section 67 much more than this is to be considered, it is not a satisfying answer to say that the legislature did not mean to broaden its scope when by apt and precise language it actually has broadened its scope. As was said by this court in Camron v. Kenfield, 57 Cal. 554: “The new constitution was framed in view of the construction of the language used in the former constitution, unanimously concurred in by the members of the higher tribunals of the state. Yet the framers of the present constitution repeated the words embraced in the former. We are forced to the conclusion that they used these words in the sense which had been attributed to them by the supreme court.” It matters not, therefore, that the legislature used the word “including” and might have used the words “and also” or “in addition thereto.” The legal effect is necessarily the same in each instance, and that effect is to broaden beyond all former definitions, rulings, and decisions in this state the scope of the writ of review. To the argument of the unconstitutionality of the act in curtailing the jurisdiction and powers of the superior court, which jurisdiction and powers themselves have their origin in the constitution, the sole answer made is that because this court has the power to issue a writ of review and in this case has done so, the question here is a moot question and will be met when it properly arises. This response, too, fails of completeness in view of the fact, as above pointed out, that the proposition presented is one strictly within the case and that proposition is that, in the performance of its duties, it is compulsory on this court to declare what scope pertains to the writ of review which it has issued, and if it shall hold that its inquiry is limited to the question of jurisdiction alone, it must further declare whether or no the superior courts of the state are open to the redress of asserted wrongs which this court is incapable of correcting. In short it must declare whether the doors of the superior court are closed to petitioners of this class and whether the constitution and laws of this state leave an applicant for justice under such circumstances to the limited relief which this court may grant. The questions thus presented are of great public moment and of equal private consequence. The answer to 'them should not be postponed or evaded. The demand is immediate and insistent for their careful consideration and complete solution. In this consideration the first established fact is that section 67 of the Public Utilities Act does, in violation of all precedent and decision, seek to enlarge the purview of the writ of review. If the legislature has done this without sanction of the constitution, it would result merely in compelling a declaration from this court that the legislative attempt was unwarranted, and that the writ of" review must remain as defined at the time the constitution was adopted. The second fact, which cannot be blinked and must be faced, is that the legislature has with deliberation restricted and curtailed the jurisdiction vested in the superior courts of this state by the constitution. And upon this but one thing can be said. If there be not in the constitution itself warrant and power to the legislature to do this thing, its effort must be declared illegal. Our inquiry is thus immediately brought to the constitutional amendments upon the authority of which the Public Utilities Act was adopted. Article XII of the constitution relating to corporations was upon October 10, 1911, amended by the people of the state in important particulars. A constitutional body known as the railroad commission was created. The appointment of the members by the governor and their terms of office were provided for. Upon this commission was conferred specified powers in the establishment of rates-and charges for transportation companies. This was done by section 22 of article XII, which further declared as follows: “No provision of this constitution shall be construed as a limitation upon the authority of the legislature to confer upon the railroad commission additional powers of the same kind or different from those conferred herein which are not inconsistent with the powers conferred upon the railroad commission in this constitution, and the authority of the legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this constitution.” Section 23 of the same article defined “public utilities” and brought all such utilities under the control of the railroad commission. Section 23 then declared: “The railroad, commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities, in the state of California, and to fix the rates to be charged for commodities furnished, or services rendered by public utilities as shall be conferred upon it by the legislature, and the right of the legislature to confer powers upon the railroad commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this constitution. . . . Nothing in this section shall be construed as a limitation upon any power conferred upon the railroad commission by any provision of this constitution now existing or adopted concurrently herewith.’’ Pursuant to this grant of power by the constitution to the legislature, the Public Utilities Act was passed and adopted. The act is altogether too long to be set forth in extenso, but summarized it provides for the organization of the commission, confers upon it large powers of control over all public utilities, prescribes heavy penalties in the way of fines upon public utilities violating the orders of the commission, and declares guilty of a misdemeanor the person who so violates or aids in violating an order with punishment fixed by a fine not exceeding one thousand dollars, by imprisonment not exceeding one year, or by both. Power to punish for contempt is likewise conferred, and the act contains a legislative declaration as follows: “If any section, subsection, sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The legislature hereby declares that it would have passed this act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases be declared unconstitutional.” Two constructions of the constitutional provisions above quoted have been presented to the consideration of the court. First, that the constitution itself has designedly conferred upon, the legislature the fullest possible powers to legislate concerning public utilities through the board of railroad commissioners ; that it was intended that upon the board of railroad commissioners should be conferred whatsoever powers the legislature saw fit, and that nothing in any other provisions of the constitution should hamper the legislature in so doing; that the board of railroad commissioners itself was especially exempted from the operation of the recall, to the end that it might exercise such powers as the legislature might confer upon it without possible embarrassment; that the railroad commission differs from all other officers of the state in that the legislature alone, and not the people, is authorized to unseat any of its members (Const. art. XII, sec. 22); that this constitutional meaning is precisely and aptly evidenced by section 22, when it declares that “No provision of this constitution shall be construed as a limitation upon the authority of the legislature to confer upon the railroad commission additional powers of the same kind or different from those conferred herein which are not inconsistent with the powers conferred”; that there is the fullest possible grant of authority, to confer all kinds of additional powers, with the sole limitation that whatever additional powers may be vested by the legislature in the commission shall not be inconsistent with the constitutional powers conferred; that this means and can only mean that the legislature may not curtail any of the powers vested by the constitution in the railroad commission, but that the legislative authority, to confer any kind of additional powers is, and" is expressly declared to be, “plenary and unlimited by any provision of this constitution ”; further, that the people in enacting these constitutional amendments designedly and deliberately did this thing, to the end that the railroad commission thus constituted should have its labors unvexed and their results untrammeled by the courts of the state; that the legislature itself adopted this view of the Public Utilities Act, which was framed with much care and passed with due deliberation; that this is shown in many passages of the act itself, not alone in that which deprives the superior courts of their constitutional jurisdiction, but as well in that which deprives this court of a jurisdiction which otherwise it would have. For it has universally been held by all courts, and specifically by the supreme court of the United States in reviewing the orders of the interstate commerce commission—a kindred board to our railroad commission—that the question of discrimination and reasonableness is always subject to judicial review. (Interstate Commerce Commission v. Northern Pac. R. R. Co., 222 U. S. 541, [56 L. Ed. 308, 32 Sup. Ct. Rep. 108].) Our Public Utilities Act in terms declares that the determination of the commission shall not be open to review upon the subject of “reasonableness and-discrimination.” When the legislature vested in this court alone this limited power of review and included therein the duty by this court to determine whether a petitioner’s constitutional rights were violated, it meant, so far as the constitution of the state is concerned, only those constitutional rights of which the petitioner had not been deprived by legislative enactment. While, so far as the constitution of the United States is concerned, it being a law paramount in dignity and force even to the state constitution, the state, not having the power to deny a petitioner the protection of the constitution of the United States, simply made recognition of that fact. This view is certainly borne out by the language of the constitution itself, by the action of the legislature under it, and by the position taken by Mr. Thelen, a member of and representing the railroad commission, at the oral argument. The grant of power to the legislature being that it may confer upon the railroad commission any additional power that it sees fit, the limitation upon this grant being merely that the powers shall not be inconsistent with those conferred by the constitution itself, the declaration of the constitution being that the legislature’s power is plenary and unlimited, it necessarily and conclusively follows that the legislature may confer upon the railroad commission in the matter of the management and control of public utilities, in the making of its orders and decrees, in the punishment for the violation of its orders and decrees (all of which subject matters are cognate and germane to and not inconsistent with the constitutional powers conferred) whatsoever authority it may see fit, and that that authority may be exercised without the slightest restraint; every constitutional protection and guaranty, civil and criminal, which the constitution has accorded to all other kinds of property and the owners thereof, are or may be denied to this class of property and its owners. That this was the view of the law to which the respondent inclined at the oral argument, is manifest from the inquiries put by the justices of this court and by the answers thereto. Thus, the Chief Justice said: “I don’t think there is any more important question in this ease than the question whether there is anything in any provision of the constitution of this state which limits the power of the legislature to confer powers upon the railroad commission, .and if there is any limitation I would like Mr. Thelen himself, as a member and representative of the board of commissioners, to state where he thinks that limitation is—if there is any provision of the state constitution of California to which the powers conferred by this act are in opposition.” “Mr. Thelen: No. It seems to me—my own personal view is they are absolutely clear.” Again: “Mr. Thelen: I think the constitution has given to the.legislature every possible authority on this question. “Mr. Justice Henshaw: It would seem the sole recourse is I the federal constitution. “Mr. Thelen: That is my point. . . . “My view is that the legislature has the right, irrespective of other provisions of the constitution of this state, to confer power upon the commission, . . . subject to the federal constitution. ’ ’' The second construction of these constitutional provisions is one which would limit the power which the constitution authorizes the legislature to'confer upon the railroad commission strictly to the matter of ‘‘supervising and regulating” public utilities. Thus all “additional and different” powers which the legislature is authorized to confer upon the commission must be powers within this defined and circumscribed limit. The learned attorney for the railroad commission in his printed brief recedes from the position which he took upon' oral argument, and contends for this latter construction, basing his contention upon “further study of the section and conference with some of the men who drew the section and who were instrumental in having it submitted to the legislature and having it adopted by the people of the state.” But this court in construing a constitutional enactment is limited to the language of the enactment itself. In this instance, as in all others, we may not be governed by what the framers of the amendments meant to say. We are of necessity controlled by what they did say. But, so far as respondent is concerned, the concession yields too much, for, under the first view, the legislature, acting in the matter without any constitutional restraint, was perfectly justified in conferring any powers that it saw fit upon the railroad commission. It could have declared that its decisions were not reviewable by any court of the state, and, of course, having that power, it could limit the scope of review to any particular court, and, still further, limit the hearing before that court. This is precisely what the legislature has done under the sanction of the constitution as first construed. If, however, the view last advanced by the railroad commission is to prevail and the legislative power is pent up and confined to matters of regulation only, then it necessarily follows that its clearly expressed attempt to deprive the superior court of all jurisdiction, its clearly expressed attempt to limit and circumscribe the jurisdiction of this court in some particulars, its further attempt to enlarge the scope of the writ of review, its declared intent to deprive all the courts of the state of the power to say whether a specific order of the commission is reasonable or discriminatory, are one and all violative of state constitutional provisions. More important still, many of the powers expressly conferred upon the commission by sections 40 and 41, giving to the railroad commission the unrestricted right based upon public convenience and necessity, to compel a physical surrender of the properties of one public utility for use by another, upon “a reasonable compensation and reasonable terms and conditions for the joint use” fixed by the railroad commission itself, themselves do violence to article I, section 14 of the state constitution, which forbids such a taking or injury without compensation fixed by a jury, first made and paid. For the taking of property devoted to a public use from the control of the owners, even though in so doing it be devoted to another public use, is a taking of property within the meaning of the constitution. (Chicago etc. R. R. Co. v. Chicago, 166 U. S. 226, [41 L. Ed. 979, 17 Sup. Ct. Rep. 581].) In view of these considerations we regard the conclusion as irresistible that the constitution of this state has in unmistakable language created a commission having control of the public utilities of the state, and has authorized the legislature to confer upon that commission such powers as it may see fit, even to the destruction of the safeguards, privileges, and immunities guaranteed by the constitution to all other kinds of property and its owners. And while, under our republican form of government (a form of government under which the three departments—administrative, executive, and judicial—have in the past one and all been controlled by the limitations of a written constitution. (In re Duncan, 139 U. S. 449, [35 L. Ed. 219, 11 Sup. Ct. Rep. 573]), it is perhaps the first instance where a constitution itself has declared that a legislative enactment shall be supreme over all constitutional provisions, nevertheless this is but a reversion to the English form of government which makes an act of parliament the supreme law of the land. It was at one time argued as to such acts of parliament that while not otherwise invalid they would be decreed invalid if ‘ contrary to natural justice or to natural right.” But as this determination itself involved a resort to the courts and thus made the decision of the courts to that extent superior to the law of parliament, the present day jurisconsults are agreed that an act of parliament is not controlled by natural right or natural justice, but is controlled solely by what is deemed to be expedient and wise to the law-making power itself. (Bryce’s American Commonwealth, chap. 23.) So, here, the state of California has decreed that in all matters touching public utilities the voice of the legislature shall be the supreme law of the land. Therefore, the following conclusions appear to be irresistible: That when the constitution itself, as here, declares that a legislative enactment touching a given subject shall not be controlled by any provisions of the written constitution, such a legislative enactment addressed to that subject ex proprio vigore carries with it all the force of an act of parliament. Therefore, the same power vested in the legislature which admittedly authorizes it to limit or destroy the jurisdiction of the courts of this state, must necessarily authorize it to confer upon such courts such jurisdiction as it sees fit. To say that the legislature may deprive the courts of all jurisdiction, but may not in any respect enlarge their jurisdiction, where the acts of the railroad commission are involved, is but a stickling over words. There can be no question but that the legislature meant to enlarge the jurisdiction of this court by enlarging the scope of the writ of review, since, if it intended merely that the writ of review should remain with the scope which this court and the statutes had previously given it, the act need have said no more than that a writ of review should issue. But the declaration in the act itself that the judgment under the writ of review besides determining “whether the commission has regularly pursued its authority” shall “include” a determination “whether the order or decision under review violates any rights of the petitioner under the constitution of the United States or the state of California” is either deliberately designed to enlarge the purview of the writ of review, or else the language is utter and meaningless surplusage. It is true that the question whether or not an inferior tribunal has exceeded its authority may depend upon whether or not a constitutional right has been violated. If that was all that the legislature meant by its language, it was unnecessary to have added the including clause, since the original scope of the writ of review always has embraced the consideration of such a problem. But it is equally true that many cases arise where constitutional rights are violated, or where it is asserted that they are violated, and where the inferior board and tribunal in so doing has in fact “regularly pursued its authority.” This is in precise words declared in Spring Valley Water Co. v. Bryant, 52 Cal. 138, where it is said, “The resolution and ordinance sought to be annulled may be obnoxious to the criticism that they were attempts to deprive the corporation of its rights and property without, due process of law, and violative of constitutional principles. But neither this nor the circumstance that they were not authorized by the city charter to pass them can justify a review of the action of the hoard and mayor by certiorari.” So, to repeat, if the legislature had meant that only those constitutional questions which may legitimately arise under the 'writ of review should be considered, there was no occasion for its saying so. Such questions have always been considered. But if it did mean this, why did it with deliberation add 'the including clause and declare that under the writ of review which it authorized and prescribed there should be an inquiry as to whether any constitutional right of the petitioner had been violated ? Therefore, there is the clearest evidence that the legislature did mean to enlarge the scope of the writ of review arid so to enlarge the jurisdiction of this court in reviewing proceedings, under this writ." And it may not be said that the legislature cannot do this, if it has, as is unquestioned, the power to take away all jurisdiction, which power equally with the power to enlarge jurisdiction is safeguarded by the general provision of our constitution and our decisions under them? Could not the legislature have declared that in any case the railroad commission may demand and obtain from the supreme court a writ to review the legality of its orders and decrees, under which writ the court shall determine whether the constitutional rights of any of the parties interested have in any respect been violated? It is not to be perceived how snch a provision, if it were contained in the act, could be denied efficacy upon the ground that it was enlarging the jurisdiction of this court, and equally difficult is it to see how it can be said that the legislature has not done this precise thing by other but equally apt words. This constitutional decree is, of course, binding upon this court, and under it it becomes the duty of this court to lend its aid in giving effect to every power and prerogative with which the legislature may vest or clothe the railroad commission. This, however, is subject to one all-important limitation. There is still the constitution of the United States—the supreme law of this state, supreme over its constitution and over its legislature; and of no protection accorded by that instrument to a litigant before this court can that litigant be deprived. Therefore, if it shall be that among the powers conferred by the legislature upon the railroad commission are those whose exercise by that commission do violence to a petitioner’s rights under the constitution of the United States, protection under that constitution will be awarded him. The fourteenth amendment to the constitution of the United States prohibits a state from depriving -any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws. The petitioner here insists that by the order of the commission it is deprived of the equal protection of the laws of this state in violation of its rights under the constitution of the United States. To that inquiry we are next brought. The subject matter of that inquiry may be thus stated. The constitution of the state of California (art. I, sec. 14) guarantees that private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court, and that this compensation shall be ascertained by a jury in a court of record, unless a jury be waived. The petitioner insists that the execution of the order of the railroad commission in the case at bar involves a plain taking of its property, that compensation for this taking has not been made or paid in advance as the constitution provides, has not been made by a jury as the constitution contemplates, and has not been made at all saving as the railroad commission may see fit in the future to apportion rates or tolls for the use of the property which is taken away from the petitioning company and given to its rivals in business. The petitioner thus asserts that the railroad commissioner’s order is an exercise of the right of eminent domain, in violation of the state constitution, in that as to every other class of property and the owners thereof these constitutional guaranties are in full force; that this exceptional exercise of the power of eminent domain by the railroad commission denies to the petitioner the equal protection of the law. The railroad- commission makes answer that its order and the fulfillment of its order are referable solely to the police power of the state and not at all to the power of eminent domain, and that its order amounts to no more than a reasonable regulation touching the use of property held in private ownership, but devoted to a public use.. Is the order of the railroad commission properly referable to the police power, or does it involve, under the guise of a regulatory measure, the taking of petitioner’s property? The courts, even the highest court of the land, have despaired of giving a satisfactory definition to the police power of a state—a definition which will delimit the boundaries of that power. Thus, by Mr. Justice Brewer of the supreme court of the United States, it has been said that “by reason of its undetermined extent, it is the bete noir of the courts.” By this court, many years ago, it was declared: “So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurks no small danger to the republic. For the difficulty which is experienced in defining its just limits and bounds, affords a temptation to the legislature to encroach upon the rights-of citizens with experimental laws, none the less dangerous because well meant.” (Ex parte Jentzsch, 112 Cal. 468, [32 L. R. A. 664, 44 Pac. 803].) But within the legitimate exercise of this great power comes the unquestioned right to place restrictions upon personal liberty and limitations upon the use of private property. One conspicuous example of the legitimate exercise of the police power is evidenced by the right of regulatory control exercised by courts, boards, and commissions over property held in private ownership, but devoted by the owners to a public use. Over against the undue or illegitimate exercise of the police power is set the limiting and protecting shield of the constitution both of the United States and of this state, that property shall not be taken for public use without compensation to the owner. It must be apparent that in the exercise of the sovereign police power many important questions will arise as to the reasonableness of the law or order. For, if reasonable, then the law or order is but a fair exercise of the sovereign power. If unreasonable it transgresses the constitutional provisions against the taking of private property for public use and unlawfully restricting personal liberty. It is for these reasons that, as has been previously said, the courts have declared it to be a part of their manifest duty to inquire into the question of reasonableness, which right of inquiry, as has also been said, has by the Public Utilities Act, been denied to the courts of this state. But in the exercise of the police power in the regulation of public utilities, while each ease which is rested upon the exercise of that power, must be subject to its own individual consideration, there are certain fundamental principles which are not disputed and which govern all. The first of these is that this power goes merely to the regulation- of the public utility, and that when an order passes beyond proper regulation it amounts to a taking of the property and the order is then referable not to the police power but to the power of eminent domain. The second of these is that this regulatory power falls into three natural subdivisions: 1. The right to regulate tolls and charges, to the end that fair compensation may be returned and excessive charges be forbidden; 2. The right to prevent discrimination -upon the part of the public utility directed against those who employ it, or make use of its agencies, or the commodity which it furnishes; 3. The right to make orders and to formulate rules governing the conduct of the public utility, to the end that its efficiency may be built up and maintained and the public and its employees be accorded desirable safeguards and conveniences. Beyond these matters regulation, as regulation, does not and from the very meaning of the word cannot go. Nor is it of consequence that the law or order be in terms and in form regulatory, if, in effect, it is a taking of property or a deprivation of the use of property within the meaning of the constitution. No public convenience, no public necessity, however urgent, will justify such a taking. Thus, it might be to the great convenience of the public that a hundred foot strip of a railroad’s private right of way should be made into a public crossing and highway. The order of a commission regulating the use upon the part of the railroad of its right of way by exacting of it that it grant permission to the public to cross and recross would not be a regulation, but a confiscation, and this, notwithstanding the fact that the right of way itself was devoted to one public use and the only effort made was to subject it to another public use. (Chicago etc. R. R. Co. v. Chicago, 166 U. S. 226, [41 L. Ed. 979, 17 Sup.. Ct. Rep. 581].) In the case cited the order was not even the order of a commission, hut was the judgment of a court, yet it was held that the proceedings were in eminent domain and that the railroad company for this new use of its right of way, which amounted to a taking of its property, was denied the compensation to which the constitution entitled it. Another principle, quite as important and quite as fundamental, is that “taking” of property within the meaning of the constitution is not restricted to a mere change of physical - possession, but includes a permanent or temporary deprivation of the owner of its use. The principle is thus stated by Lewis on Eminent Domain as follows: “If property then consists not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that when a person is deprived of any of those rights he is to that extent deprived of his property and hence that his property may be taken in the constitutional sense though his title and possession remain undisturbed; and that it may be laid down as a general proposition based upon the nature of property itself that whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the power of eminent domain, his property is pro tanto taken and he is entitled to compensation.” (2d ed. sec. 56, 3d ed. sec. 65.) “It is also clear that to take the use of property is to take property within the meaning of the constitution. It follows that one company cannot be authorized to take the joint use of another’s tracks, except by an exercise of the eminent domain power. All the cases practically concede this by holding that compensation must be made. That it is competent for the legislature to authorize a railroad company to take the right to use the tracks of another railroad jointly, upon making compensation' as required by the constitution, is a proposition almost unanimously supported by the authorities.” (3d ed. sec. 423.) Wyman thus states the principle: ‘ ‘ The principles discussed do not go so far as to give one common carrier the right to demand the use of the facilities of rival common carriers in order to compete against' them. Thus it seems- plain that one railroad cannot be. required to make physical connection with its rival so that it may take its business away from it.” (Wyman on Public Service Corporations, sec. 698.) And Dillon: “But whatever may be the extent of legislative power in this respect it is clear that the legislature cannot without compensation to the first company authorize the second company to take or use the track of the first although with compensation this might be done under the power of eminent domain if in its judgment the public good required it.’’ (Dillon on Municipal Corporations, 4th ed., sec. 727, 5th ed., sec. 1280.) This principle, it is to be noted, is not that the legislature, acting directly or through its authorized mandatories, may not subject property devoted by its owners to a public úse to another public use, or to the same public use by its rivals, but that the doing of this is an act referable to the power of eminent domain and not to the police power, and that compensation must be made accordingly. Herein lies the vital distinction between the legitimate exercise of the police power and the exercise of the power of eminent" domain. In the former, uncompensated obedience to the order is imperative. In the latter, the order may not be enforced without compensation first made. And, finally, it may not be amiss to point out that the devotion to a public use by a person or corporation of property held by them in ownership does not destroy their ownership and does not vest title to the property in the public so as to justify, under the exercise of police power, the taking away of the management and control of the property from its owners without compensation, upon the ground that public convenience would better be served thereby, or that the owners themselves have proven false or derelict in the performance of their public duty. Any law or order seeking to do this passes beyond the ultimate limits of the police power, however vague and undefined those limits may be. With these indisputable principles before us, we may come directly to the consideration of the order in question. But, at the outset, that consideration is somewhat embarrassed by a very radical change of view upon the part of the attorney of the railroad commission. In oral argument that position seemed to be in consonance with the interpretation which we have put upon the constitutional amendment,—namely, that the legislature had the power, and had exercised the power, to confer upon the railroad commission the right of eminent domain, and in bestowing upon the commission that power had likewise authorized it to fix the compensation when its orders involved a taking of property. Thus, upon oral argument, the record shows the following: “Mr. Justice Shaw: Your position is that the commission, if empowered by the legislature, could direct one railroad to turn over its whole plant to another railroad without any compensation at all so far as the state constitution is concerned. “Mr. Thelen: Yes, sir. But the legislature has provided in that case that compensation shall be recovered. I hardly assume any legislature would ever make such a provision, but it might. ’ ’ Again, the discussion being addressed to the effect of the order here under consideration: “Mr. Thelen: I may have to concede that it is a taking of property, but if it is a taking of property it is a taking of property under an order of an administrative tribunal and I will refer your honors to a large number of cases where they hold the state has the right to provide that compensation shall be fixed by an administrative tribunal and not by a jury. As long as the party gets- his compensation he gets as much as he is entitled to. “Mr. Justice Shaw: Their claim under the constitution is that if they are entitled to compensation at all—this old company—they are entitled to it in advance. “Mr. Thelen: If that is their claim we would have to combat that claim under the statute. There was no provision made for compensation. They are going to get a share of the tolls. For all they know they are going to get all or nearly all of them. Their own local exchange is not affected at all. That is certainly sufficient compensation. They are going to get compensation in the shape of a portion of the tolls they are going to get.” In the printed brief of respondent, however, the sole argument is based upon the following declaration: “The railroad commission’s order is a regulation under the state’s police power of the use of property by a public utility for the purpose to which it has been dedicated and is not a taking of property in the constitutional' sense. ’ ’ It would seem, therefore, that the commission’s first interpretation of the law-was that which the court has here given, and that subsequent reflection had prompted a modification of this view. We repeat, however, that we are still satisfied that it is the only view which can be justly taken of the constitutional provisions, and certainly it is the only view which would give to the legislative enactments the efficacy and power which were meant to he theirs. But, of course, it does not follow, because the legislature has authorized the. railroad commission to exercise the power of eminent domain and take property for public use, that in this particular instance the commission has actually done so. That still is to be determined by the language of the order, under the restrictions imposed upon this court denying it the power to consider the reasonableness of the order. For this discussion must be had, so far as this court is concerned, under the limitations imposed upon it by the Public Utilities Act. We cannot consider the reasonableness of the order, but can and must determine whether any of the petitioner’s rights guaranteed it by the constitution of the United States have been violated. But while the reasonableness of the order may thus not be questioned, resort is permitted to the findings of the commission to aid in determining the meaning and effect of the order. These findings disclose that for many years the Pacific Telephone and. Telegraph Company had maintained a long distance service in the state of California which passed through the counties of Glenn and Tehama, and in connection with this long distance service maintained an exchange service in cartain of the towns; but that the local service in each county and the exchange service between these counties, as maintained by the company, was incomplete and inefficient. The company for a long time failed to develop the local territory of these counties. This poor quality of service and failure to develop the local business of the counties resulted in the formation of two companies, the one in Glenn, the other in Tehama County, one commencing operations in 1908, the other in 1911. They developed the territory and gave a local service superior to that of the Pacific Company. After January, 1912, but before this railroad commission came into existence, the Pacific Company took steps itself to develop the territory, and prior to March 23, 1912—the effective date of the Public Utilities Act—it proceeded to parallel “with feverish haste” and to a considerable extent the lines of the other companies “in an apparent effort to crush them.” It not only paralleled existing lines of the other companies, but gave free exchange service between towns which therefore had not received such service. Upon April twenty-ninth the Tehama County company had 698 subscribers, of whom 457 did not have a Pacific Company telephone. The Glenn County company had 889 subscribers, of whom 570 did not have a Pacific Company telephone. The Pacific Company .operated 870 telephones in Glenn County, and 1003 telephones in Tehama County. This company’s investments in each of these counties are greater than that of its competitors. It asserted that it served the same territory that,the rival companies do and was ready and able to furnish telephone services to every one of their subscribers at the rates charged them. The finding upon this is that the Pacific Company, while it had duplicated the major portion of the lines of the independent companies, had not duplicated all, and that to serve all the subscribers of the independent companies would require further extensions of its lines. The Glenn and Tehama companies made demand upon the Pacific company for telephonic connections which would enable their subscribers to use the long distance service of the company, and, upon refusal, lodged their complaints. The findings further declare that the Pacific Company had failed to do its duty in the matter of extending its service and affording convenient local communication. This, of course, is not a finding of its -present unwillingness or refusal to perform this duty, for it expressed its willingness and urged that it be allowed to perform whatever duties the commission thought incumbent upon it to perform, and it will not be contended, and could not successfully be contended, that a failure to perform a duty is a justification for the taking of property without compensation. The finding is that the local service of the Glenn and Tehama County companies is superior to that of the Pacific Company. An order requiring the Pacific Company to improve its service to the standard fixed by the commission would unquestionably be regulatory in its nature. But the inferiority of service actually rendered is not, of course, a justification for the taking of property. It would undoubtedly, as the commission finds, be a great public convenience and there was great public need for long distance service on behalf of the subscribers of the Glenn and Tehama County companies who did not have the advantage of the long distance service of the other company. But no necessity, however urgent, justifies a taking of property without compensation, and, as is said in Evansville etc. Co. v. Henderson etc. Co., 134 Fed. 973, quoted with- approval in 1 Wyman on Public Service Corporations, paragraph 699: “One water company or one telephone company or one telegraph company or one street railway or one railroad company, while bound appropriately to serve the general public, cannot, unless under express statutory enactment and by due process of law thereunder, be compelled to give its property to the uses and benefits of a rival except by some form of condemnation. The rival is not ordinarily to be included in the term ‘ General Public.’ ” These findings of fact have thus been reviewed not at all as touching the reasonableness of the order which the commission made which we repeat is not within our purview, but to make plain the proposition that no one nor all of these findings of fact are sufficient to sustain the legality of the order, if in truth it amounts to a taking of property within the constitutional inhibition. In precise terms then, what is the order and what is its legal effect? It is not an order that the Pacific Telephone and Telegraph Company should improve its own service in these •counties up to the standard fixed by the railroad commission—an order which would .be unquestionably regulatory. It is not an order that the Pacific Company should develop and extend its service to meet the existing demands of the. public within the territory it has undertaken to supply—an order which would certainly in its nature be regulatory, and a compliance with which would meet every possible demand which the public could rightly urge. But it is an order compelling the Pacific Company to permit a connection between its long distance lines and the local lines of the petitioning companies, under which, by the use of the switchboards, operators, and lines of the Pacific Company, its property and its agencies, the petitioning companies' and their subscribers would have the same rights to all the long distance instrumentalities of the Pacific Company as its subscribers and patrons. That the order is not primarily designed to benefit the public, is made plain from the fact that it is not an order directing the Pacific Company to make betterments and extensions for the service of the public, though admittedly such betterments and extensions could and would by it be made. That it is primarily designed to benefit the rivals of the Pacific Telephone and Telegraph Company in the local business of the two counties is plain from a consideration of the circumstances, 'and was admitted by the learned attorney for the railroad commission upon argument, when he declared: “If they (the petitioning companies) cannot get long distance in this way, I assume, unless long distance connection is made, that eventually the local companies will have to give up business.” It would appear, therefore, that it is not the necessities of the public but the necessities of and benefits to the rival companies which have prompted an order devoting the property of the Pacific Company to the uses of the rival companies. But it is argued that this use imposed upon the Pacific Company for the benefit of the petitioning companies is not a new use, but is a use for which the telephone company had already dedicated its property to the public. But to this the telephone company makes answer, which is unquestioned, that it has never dedicated its property to the use of rival and competing companies; that it has dedicated its property to ' telephone service conducted by itself for the benefit of its own patrons; and to the service of local companies in noncompeting territory; that it is prepared within reason to furnish telephone service to all who are or may desire to become such patrons, and that it has never permitted a connection and use such as here ordered upon the part of a rival company doing a competitive business in a local field and seeking to maintain and improve that business at the cost of the Pacific Company by the advantage which would fall to it from the use of the Pacific Company’s long distance lines and service. . Again it is said that the order does not involve a taking of property or the use of property, but is to be likened in principle to those cases where a regulatory order requiring direct connections between two intersecting or contiguous railway companies has been upheld as a not improper exercise of the police power. Finally, the proposition is advanced that, conceding the effect of the order to be a taking of the property, it is a taking by administrative order, referable to the police power—a taking where the injury or damage follows as but an incident to the legitimate exercise of that power, and where, accordingly, under the august authority of the-supreme court of the United States, the taking is not such as is inhibited by the constitution unless compensation be made therefor. In these contentions respondents greatly rely upon the exact analogy and precise parallelism which they assert exist between this case and those upholding orders for railroad-connections. A consideration of the more important of these eases is thus demanded. The first, and that upon which supreme reliance is placed, is that of Wisconsin etc. R. R. Co. v. Jacobson, 179 U. S. 287, [45 L. Ed. 194, 21 Sup. Ct. Rep. 115]. By statute the state of Minnesota had ordered common carriers to provide and bad ordered its railroad commission to see that they made pr