224 U.S. Argument for Plaintiff in Error. finding of the commission in that respect was not justified by the testimony." The cause was brought here by writ of error, in which it is contended that the Washington statute failed to furnish an adequate hearing or opportunity for judicial review, especially in prohibiting the submission to the court of competent evidence as to the unreasonableness of the order; and, further, there was no evidence of a public necessity and that the order was void as taking property without due process of law. Mr. Maxwell Evarts, with whom Mr. Zera Snow and Mr. W. W. Cotton were on the brief, for plaintiff in error: The Railroad Commission Law of Washington of 1905, as amended in 1907, and the method of enforcement of the regulation of railroads provided for by that law constitute a taking of the property of the plaintiff in error without due process of law and a denial of the equal protection of the laws because adequate or effective judicial remedies to the owners of railroad property in the State are not provided for the determination of controversies arising upon the question of whether there has been a just and reasonable exercise of the power of regulation. All regulation of the business of common carriers, whether taking the form of a regulation of rates or the making of track connections, must be reasonable, and the question of the reasonableness or unreasonableness of all such attempted regulations is essentially a judicial question, which if not permitted by the law under which it is undertaken, constitutes the taking of property without due process of law and amounts to a denial of the equal protection of the law. Railroad Commission Cases, 116 U. S. 307; Chicago &c. Railway v. Minnesota, 134 U. S. 418; Chicago &c. Railway v. Wellman, 143 U. S. 339; Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 397; Lake Shore &c. Railway Co. v. Smith, 173 U. S. 684, 697; Smyth v. Ames, 169 U. S. 466, 526. Argument for Plaintiff in Error. 224 U. S. If the State has no power to prevent a resort to the Federal courts to redress what is claimed to be a wrongful invasion of a property right, it should be equally powerless to prevent in the Federal court a full examination of the very questions at issue. It is an anomaly in judicial procedure to say that if the litigation proceeds in the state court it must be heard and determined on the evidence taken before the Commission, while if it proceeds in the Federal court a right to a full investigation of the facts exists. Chicago, Milwaukee &c. Ry. v. Tompkins, 176 U. S. 167, 172; Wisconsin &c. Railroad Co. v. Jacobson, 179 U. S. 287, 297; Louisiana & A. Railway v. The State, 85 Arkansas, 12. One of the main cases relied upon by the appellant, Chicago &c. R. Co. v. Minnesota, 134 U. S. 418, was decided expressly upon the theory that no judicial determination was permitted. A hearing before the Railroad Commission and the review in the Superior Court do not constitute due process because the Railroad Commission of the State of Washington is not a court; in the hearing before the Superior Court, § 8 places upon the railroad company the burden of setting aside the order of the Commission, but the statute requires that such hearing shall be had only on the evidence taken before the Commission and certified by the Commission. Prior to the order of the Commission, the railroad company had practically no knowledge of what the order would be and what proof should be introduced by it. The statute does not provide adequate means whereby the railroad company can obtain and introduce evidence before the Commission. While the Commission may provide for hearings, process to enforce the attendance of witnesses before the Commission, or to enforce testimony from contumacious witnesses can issue only by the Superior Court, and then only at the instance of the Commission-but not of the railroads. 224 U. S. Argument for Plaintiff in Error. If process to compel the attendance of a witness is necessary and the Commission should refuse to apply for it, there is no method of reviewing its action. If evidence is offered by the railways before the Commission and it is rejected, there is no method of review of the action of the Commission. The Commission may take testimony by depositionthe railroad companies may not. The Commission has no power to enforce its own orders, but a suit must lie at the instance of the State, and by the Attorney General, under direction of the Commission, to compel obedience to its orders. Rules of evidence to guide the Commission in taking or receiving testimony are not provided for, nor is any order of proof provided for. The Commission has power to limit the number of witnesses, and if this power is capriciously exercised, there is no method of review of the action of the Commission. An investigation by such a tribunal with such powers, and without "the machinery provided by the wisdom of successive ages for the investigation judicially of the truth of a matter in controversy" cannot be said to afford to the owners of railway property the judicial protection which, by the many decisions of this court, it has been held they are entitled to in the determination of the question of reasonableness or unreasonableness of the Commission's orders; such a court is a court without rudder or compass. Davidson v. New Orleans, 96 U. S. 107; Hagar v. Reclamation District No. 108, 111 U. S. 708; Chicago, Burlington and Quincy Railroad v. Chicago, 166 U. S. 240. The Commission failed to make return of very important evidence, which might have aided the court in its determination; nevertheless under § 3, the case must be heard in the Superior Court upon the evidence certified to by the Commission. The Railway Commission Law is unconstitutional be Argument for Defendants in Error. 224 U. S. cause of the excessive penalties which follow a refusal to comply with the Commission's orders, rendering a compliance necessary rather than resort to the courts for a decision as to the validity and reasonableness of the orders of the Commission. Ex parte Young, 209 U. S. 123. There was no public necessity or public convenience to be subserved by the track connections ordered; the order was an unreasonable and arbitrary exercise of bald power, and as such it constituted a taking of the property of the plaintiff in error without due process of law. The testimony clearly indicates that all the connections ordered were unnecessary, and such is the finding of the chairman of the Commission. In fact the ordering of all the connections in the order was a bald exercise of power by the Commission unsupported by any evidence showing any reason or necessity therefor. Under such conditions the order constitutes the taking of property without due process of law. Wisconsin R. R. Co. v. Jacobson, 179 U. S. 287; Louisiana & A. Ry. v. The State, 85 Arkansas, 12. When the question of reasonableness of the regulation of a carrier is up for consideration, the evidence leading up to the regulation must be examined. C. N. & St. P. Ry. v. Tompkins, 176 U. S. 167, 172; Wisconsin R. R. v. Jacobson, 179 U. S. 287; Atl. Coast Line v. N. Car. Commission, 206 U. S. 1; Louisiana & A. Ry. v. The State, 85 Arkansas, 12. Mr. W. V. Tanner, Attorney General of the State of Washington, with whom Mr. Walter P. Bell and Mr. S. H. Kelleran were on the brief, for defendants in error: The Railroad Commission Law of Washington does not deny the due process of law clause. After the order of the commissioners becomes a finality the Attorney General may institute an equitable action in the name of the State in the Superior Court to procure the 224 U. S. Argument for Defendants in Error. enforcement of the same. Provision is made for the railroad company to petition for modification of any order of the Commission whenever surrounding circumstances have changed, and the same appellate or review proceedings are provided for a decision on that order as in original cases. An act which provides for personal notice and service of a copy of the complaint, with full and complete opportunity to appear, introduce witnesses, with compulsory process for their attendance, and a full hearing before a special tribunal, legally constituted by appointment by the Governor of the State, subject to the confirmation of the state senate, members under oath and bond, does not deprive a railroad company, whose facilities are subject thereto, of its property without due process of law, because the provision in the act giving a right of appeal to the state court from an adverse decision of the Commission requires the state court to decide the case upon the evidence adduced before the Commission. Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685; Voigt v. Detroit, 184 U. S. 115; Goodrich v. Detroit, 184 U. S. 432; Ross v. Board of Supervisors, 128 Iowa, 427; S. C., 104 N. W. Rep. 506; Fallbrook Irrigation District v. Bradley, 164 U. S. 112. Due process is not necessarily judicial process. Reetz v. Michigan, 188 U. S. 505; Public Clearing House v. Coyne, 194 U. S. 497; United States v. Ju Toy, 198 U. S. 253; Murray's Lessee v. Hoboken &c. Co., 18 How. 272. Nor is the right of appeal essential to due process of law. Reetz v. Michigan, 188 U. S. 505; Andrews v. Swartz, 156 U. S. 272. While the state legislature cannot deny the right of review altogether, the judicial review, provided by the act in question, is not such as to deprive the plaintiff in error of its property without due process of law. The state legislature could not, if it would, deny to a railroad company access to the Federal courts to set |