Board of Railroad Commissioners v. Symns Grocer Co. , 53 Kan. 207 ( 1894 )

The opinion of the|court was delivered by

JOHNSTON, J.:

For several months prior to March 5,1892, the board of railroad commissioners had been considering the complaint of the wholesale merchants of Wichita, Hutchinson, Salina, and Arkansas City, that the freight rates upon certain merchandise were excessive, unreasonable, and unjust. After considerable controversy with the railroad companies, the board finally reached the decision that the car-load rates on sugar, coffee, beans and canned goods were too high, and, upon the date named, a finding and decision were announced, fixing the car-load rates, from the eastern cities of the state to the interior cities which have been named, on sugar 15 cents per hundred pounds, and on the other commodities which have been mentioned at a rate of 22 cents to Salina, 25 cents to Wichita and Hutchinson, and 28 cents to Arkansas City. The decision was to become effective on March 16, 1892, but before that time, and upon the application of the Symns Grocer Company, a wholesale dealer at Atchison, a temporary order was obtained, enjoining the board of railroad commissioners, as well as the railroad companies, from putting in force the schedule of rates which the board had established. There was considerable testimony taken with respect to the cost of transportation of the commodities named, and what were reasonable charges for the same, and also as to the difference in the expense of transporting such merchandise in car-load lots and in less quantities, as well as the difference in charges usually made between the two methods of transportation. We have examined this testimony, but the view which we take renders an analysis of the same unnecessary.

Railroad commissioners— .rates of freight —reduction— 'discrimination — injunction. At the outset, the right of the plaintiff below, a shipper, to maintain an action enjoining the board of railroad commissioners, and preventing the promulgation and enforcement of their order, is challenged. There is no contention by the plaintiff below that the rates established are too low, nor that they are unremunerative to the carrier. None of the railroad companies have appeared here, except the Atchison, Topeka & Santa Fé, and it has filed a cross petition, alleging that the court erred in granting and in sustaining the order of injunction. The rates which were fixed by the board must, therefore, be regarded as just and reasonable in themselves, and the only complaint is, that other rates are too high, and therefore the board should not be permitted to put one schedule or revision in force until another schedule has been revised and reduced. The rates established are open alike to the plaintiff below and •■all other shippers who desire to send merchandise in car-load dots. Can a shipper who anticipates that at some time he will send goods in smaller quantities tie the hands and stay the action of the board which has entered upon a revision of rates, and has established a schedule for car-load lots, which of itself is confessedly just, because it has not yet reached and revised a rate for shipments of like merchandise under different conditions and in smaller quantities? We think not. It is well settled that it is competent for the state legislature to establish rates and classifications to be charged by railroad companies for the transportation of passengers or freight between points on their lines within the state, and also that this power may be largely delegated to boards of commissioners. (Munn v. Illinois, 94 U. S. 113; Railroad Co. v. Minnesota, 134 id. 418; Budd v. New York, 143 id. 517.)

Under the act of 1883, as since amended, a code of rules is provided for the regulation and control of railroads, and it confers upon a board of railroad commissioners the power to establish or revise rates of transportation, and the finding and adjudication of that board as to rates is to be accepted by the railroad company, posted up in the depots on the line of its road, and taken as a reasonable compensation for the service for which they are provided, until the contrary is proved. The finding and adjudication of the board is prima fa.oie evidence of the matters therein stated, and of what is a reasonable charge in all actions for such service. (Gen. Stat. of 1889, ¶¶ 1334, 1337, 1339, 1341.) The classification of freights and the adjustment of rates, so devolved upon the board, is a matter of considerable difficulty, as it involves so many elements, and is affected by so many circumstances. In •determining what are reasonable and just rates, much discretion is necessarily invested in the board, and, so long as it acts within the limits of that discretion, its acts cannot be enjoined «or interrupted. The courts cannot trench upon its jurisdiction, nor exercise the discretion and power vested in it. Members of that tribunal are presumed to have been chosen with reference to their judgment, discretion, and special fitness, and it is presumed that by special study and experience they will become qualified to master the details and intricacies of rates and tariffs. Much of the information respecting transportation is under the control of the railroad companies, and not accessible to the occasional patron of the roads, and hence the commissioners are created with the right to inquire, to classify, and to decide. Although not clothed with all the functions of a court, they are authorized to determine what are just and reasonable rates. In a certain sense, they stand as guardians of the public, for the protection of shippers and patrons. Their determination is binding and conclusive, unless the railroad companies can show that their findings and decisions are unjust and unreasonable.

It can hardly be that the decision of a board so constituted, which is applicable to the entire state, can bs stayed or set aside at the suit of an individual for whom no service has yet been performed, and who may or may not bring himself within the operation of the decision. The schedule of rates sought to be enjoined is designed for the whole state, and for all who may desire to avail themselves of it. Every shipper, and, indeed, every purchaser of the commodities shipped under the schedule established, will be more or less affected by it. It is a matter of public concern, and a private individual cannot invoke the extraordinary remedy of injunction unless he has some personal and peculiar interest not shared by the public. As has been said, “It is not enough that his damages are greater than those sustained by the general public, thus differing only in degree; but they must be different in kind.” (Comm’rs of Barber County v. Smith, 48 Kas. 333, and cases cited.) The Symns Grocer Company may, by virtue of its larger facilities, be affected in a greater degree than other shippers in the state, but the injury, if there be one, does not differ in kind from that suffered by other shippers throughout the state who may utilize the rate in the transportation of merchandise. The matter, then, being a question of public interest, decided by a public gwasi-judieial tribunal, it would seem that a private shipper could not maintain an action to enjoin the announcement and enforcement of the decision of the board; but if for any cause an action would lie, it should be brought in the name of the state, on the relation of some public officer. Every time a schedule of rates applicable throughout the state is changed, the interests of a great many are necessarily affected. A change may operate beneficially as to some, while as to others it may not be as favorable as were the preexisting rates. Can it be that some one of the thousands of individuals affected may challenge the reasonableness of the rate made, and maintain an action in his own name to prevent the board from putting into operation such a state schedule until he can have an adjudication as to whether it injuriously affects him? It has been well said, that if one shipper may maintain the action, another shipper liable to be affected by the rate, living in another part of the state, may likewise maintain the action, and in this way there might result a conflict in the various courts of the state. The district court in one county might find the order or rate reasonable, while the district court in another county might find it unreasonable. One court might enjoin the enforcement of the decision, and another decide that it should be put in operation. These illustrations only show the confusion that might arise if an individual or shipper who has no special interest should be allowed to enjoin the putting in effect of such a decision.

We are cited to cases where injunction was maintained by the railroad company against the enforcement of the order of such a board; but in these cases it was held to be maintainable because the rates proposed to be put in force were so unreasonable as to be confiscatory. The railroad company, being a public carrier and obliged to transport commodities offered for shipment and use its property in so doing, it was held that a provision requiring the carriage of persons or property without reward amounted to the taking of private property for public use without just compensation, or without due process of law, and hence a court of equity might prevent the enforcement of such a provision. (Railway Co. v. Day, 35 Fed. Rep. 866; Railroad Co. v. Minnesota, supra; Budd v. New York, supra.) The shipper, however, who is not compelled to ship does not stand in such a position. He may utilize the rate prescribed, or he may not, and, if an in-, jury is inflicted, it is not one peculiar to himself. Our attention is also called to Schofield v. Railway Co., 43 Ohio St. 571; but, as will be seen, that was not a case against a board of railroad commissioners, but was an action against a railway company to prevent a plain discrimination against particular individuals. We are referred to no case which can be regarded as a precedent for the claim made in the one at bar.

As has been said, the rates sought to be enjoined are not claimed to be unreasonably low, but the complaint is that the enforcement of the same would operate injuriously to the plaintiff below, unless a corresponding reduction was made in the rates for the shipment of less than car-load lots. It may be that the rates upon smaller quantities should be reduced, and it may be that the disparity between the two classifications is so great as to result to the detriment of some of the shippers. If that be the case, the plaintiff is hot without remedy. The board of railroad commissioners is a continuous body, and presumably is open at all times for the readjustment of rates, or to correct any inequalities which the practical operation of a rate or regulation may disclose. The construction of new roads, the building of trade centers and the development of the country necessarily cause a disturbance of rates, and when such changes occur and new circumstances arise, the board may be required to revise and change existing rates.

It is conceded by all that a distinction may be made between the carriage of commodities in car-load lots and in less quantities. The reasons for making such classification are easily seen. It is clear that the enforcement of a reduction of rates upon one class ought not to be prevented by judicial interference because the board has failed to reduce the rate upon another class. Under various provisions of the statute, application may be made to the board to adjust the rates charged for the class which would embrace the shipment of smaller quantities of the commodities in question. The fact that there may be too great a disparity between the rates charged for the two classes pan hardly be treated as a statutory discrimination, within the meaning of § 10 of the act providing for the regulation and control of railroad companies. It prohibits a railroad company from charging or receiving a greater sum from one than another “for a like service from the same place, or upon like conditions and under similar circumstances.” The difference in conditions and circumstances appears to afford sufficient ground for a different classification and a different charge. But if the classification operates prejudicially to the interests of the complaining parties, they may appeal to the board to adjust the rates and correct any inequality that may exist. The same statute affords a complete remedy for any discrimination that may be made. In this respect it operates as a substitute for the remedy which existed at common law. In Beadle v. K. C. Ft. S. & M. Rld. Co., 51 Kas. 248, it was decided that by this act the legislature had nót only given to the shipper all his remedy at the common law, but had given him a much better and broader one, whereby he was permitted to recover three times the excess of any overcharge exacted by the common carrier, or treble damages, with attorney’s fees and costs. It was said that the legislature intended that this statute should supersede the common law concerning unreasonable prices or excessive charges, and that a shipper would not be permitted to waive the statute and avoid its limitations by an action at common law, and that, a full remedy being given, the parties are and ought to be confined to it.

There is no reason for the claim that the decision of the board is an unlawful interference with interstate commerce. By its terms, it is limited to shipments from one point to another within the state, and cannot be construed to affect, or as an attempt to affect, interstate transportation.

It follows from what has been said that the order and judgment of the district court must be reversed.

All the Justices concurring. ,