E. L. Young Heading Co. v. Payne , 127 Miss. 48 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

(After stating the facts as above). The first question we will consider is as to what tariff rate was applicable to the shipment of these nine carloads of rough sawed heading from Longview to Aberdeen.

It is contended on behalf of the appellant that the tariff rate on heading bolts applied, which tariff provides for a milling in transit rate. It will be seen from this tariff on heading bolts that the rate prior to June 24, 1918, from Longview to Aberdeen was seven and one-half cents per one hundred pounds, and after that date and up to the time of the trial of this cause in the court below it was nine and one-half cents per one hundred pounds, and that the milling-in transit clause in this tariff provides that upon reshipment from Aberdeen over tlie line of the Illinois Central Railroad tbe rate shall be reduced to two and one-half cents per one hundred pounds up to and including June 24,1918, and after that date three cents per one hundred pounds. If this tariff on heading bolts applied, it is therefore evident that on the first six carloads of material in question the tariff should have been two and one-lialf cents per one hundred pounds, and on the other three cars three cents per one hundred pounds; instead of seven and one-half cents on the first six carloads and nine and one-half cents on the three carloads, the amount charged and collected.

The attorneys for the appellant rely on the case of St. L., I. M. & S. Ry. Co. et al. v. Hasty & Sons et al., 255 U. S. —, 41 Sup. Ct. 269, 65 L. Ed. —, decided by the supreme court of the United States on February 28, 1921, as decisive of this question in favor of their client. The shipment involved in that case consisted of rough materials (perhaps rough sawed heading) shipped to the mill to be manufactured into finished heading for barrels, as was the case here. The nearest applicable tariff in that case ivas in this language :

“Rough, material rates applicable on rough lumber, staves, flitches, bolts, and logs, carloads, between all points in Arkansas,” etc.

There was no triff in specific terms covering rough heading, sawed heading, split heading, or heading bolts, which was the chhracter of material shipped as shown by the evidence in that case. The supreme court held that rough heading, sawed heading, split heading, and heading bolts were covered by the language of the tariff above quoted.

In the absence of a freight tariff dealing specifically with rough saAved heading, under the authority of that case, the tariff rate on heading bolts Avould apply here because of being the nearest approach in description to the materials shipped. But in the present case, as shoAvn above in the statement of the case, there was a tariff dealing specifically with the character of materials here shipped — rough saAved beading. Whether there ivas any reason to apply a different tariff of charges on rough sawed heading from that on heading bolts, the court is unable to say. It would appear that there should be no difference; but, as will be shown later on in this opinion, that is a question for the Railroad Commission and not for the court in proceeding like this.

As shown by the tariff (rough sawed heading) the rate on the first six cars involved in this case was seven and one half cents per one hundred pounds, and on the other three cars at nine and one-lialf cents, which were the rates collected by the railroad company. There is no milling in transit rate on rough sawed heading, and why there should be on heading bolts and not on rough sawed heading does not appear. We conclude therefore that the rate collected by the railroad company was the published rate on file with and approved by the Railroad Commission.

Appellant contends, hoAvever, that even though it be a fact that the rate collected was in accordance with the published tariff on file with and approved by the Railroad Commission, still such rate was unreasonable, unjust, and extortionate, and under the Iuav the appellant had a right to ignore it and recover the difference between a reasonable rate and such unreasonable rate approved by the Railroad Commission. The contention involves the question Avhether a railroad common carrier in this state under the law can charge less than the published tariff rate on file with and approved by the Railroad Commission.

Section 4842, Code of 1906, Hemingway’s Code, section 7627, provides that the common carriers in this state shall furnish to the Railroad Commission their tariffs of charges for transporting passengers and freight, both intrastate and interstate, including joint tariffs AArith connecting lines, and that it shall be the duty of the Commission to revise such of said tariffs as are not subject to the exclusive regulation of Congress and determine in what particular any of the charges are more than reasonable compensation for the service to be rendered, etc., and provides further amona other things:

“In revising, fixing and regulating charges for transportation, the Commission shall take into consideration the character and nature of the service to be rendered and the. entire business of the railroad or other common carrier and its earnings from all kinds of traffic, and shall so revise, fix and regulate the charges as to allow reasonable comr pensation for the services to be rendered. It shall exercise a watchful and careful supervision over the tariffs of charges of every railroad and other common carriers, and shall revise the same from time to time, as justice to' the public and the railroad and other Common carriers may require ; and shall increase or reduce any of the rates as experience and business operations show to be just.”

And section 4844, Code of 1906, Hemingway’s Code, section 7629, among other things, provides that: It shall be unlawful for any carrier to “allow any rebate or reduction [italics ours] from the tariffs of charges fixed or approved by the Commission in favor of any person, place or corporation, by a change in or deviation from the rate so fixed or approved, unless such change or deviation be first allowed by the Commission.”

And in section 4839, Code of 1906, Hemingway’s Code, section 7624, it is provided that if any railroad corporation shall demand and receive more than is allowed by the tariff of rates fixed by the Commission, such carrier shall be guilty of extortion and be punished criminally, besides being liable to civil action.

And section 4840, Code of 1906, Hemingway’s Code, section 7625, provides that any person injured may recover of the carrier guilty of an extortionate charge twice the amount of the damages sustained by the overcharge or discrimination ; and section 4841, Code of 1906, Hemingway’s Code, section 7626, that if any railroad shall be guilty of extortion as defined by the supervision statutes, it shall be punish as a misdemeanor, and on conviction fined not less than one hundred dollars, but that the carrier shall not be punished criminally if its tariff of charges shall have been approved by the Commission and is not variant from that thereby allowed; and section 4845, Code of 1906, Hemingway’s Code, section 7630, that if any railroad shall make any rebate or redtiction (italics ours) or allowance of any freight or passenger rates from the rates fixed and approved by the Commission, without the consent of the latter, it shall be guilty of a misdemeanor and shall be fined not less than one hundred dollars on conviction.

And section 4849, Code of 1906, Hemingway’s Code, section 7634, provides for the hearing of complainants by persons interested in the tariff of rates, joint or several, made by any railroad, or fixed or approved by the Railroad Commission, on the ground that the same are unjust and unreasonable, and that complaints shall be in writing specifying the grounds of complaint, including the items in the tariff against which complaint is made, a copy of which the Railroad Commission is required to serve on the carrier with notice of the time and place of hearing the complaint; at which hearing the parties are allowed to introduce evidence, both oral and written; and the Railroad Commission is authorized to make such change in the tariffs, etc., of the carrier as it may deem just and right, and require compliance therewith by such carrier.

It therefore plainly appears from the language as well as the spirit of these statutes that the outstanding purpose in their enactment was that there might be fixed and stable freight rates, as well.as reasonable and just rates; that all shippers should pay exactly the same rate for like service; and to that end, that all tariffs should be published by the carrier and filed with and approved by the Railroad Commission ; and that no carrier should charge either more or less than such rates so fixed; and for an excess'charge the carrier is made liable both criminally and civilly, and where the charge is less than the tariff so fixed, it is made criminally liable.

The shipper is furnished by the statute (Code of 1906, section 4849,, Hemingway’s Code, section'7634) with a remedy for any extortionate rate authorized by such tariffs by means of complaint to the Railroad Commission, and after a hearing that body is fully authorized (when shown to be unjust) to reduce any rate, and enforce compliance therewith by the carrier.

If the contentions on bebalf of the appellant were sound, the whole scheme and plan of the supervision statutes would be upset, because varying judgments might be rendered by different courts in suits brought by different shippers, even though each case was based upon identically the same state of facts. Thus instead of having uniform and fixed rates the result could and might be a different rate for every shipper, who chose to go into court in a suit against the carrier to test an alleged overcharge. And furthermore it is evident that in such a suit, especially in a court of law, it would be impracticable to put before the court the evidence as to the reasonableness of the rate in question based on the considerations named in said section 4842, Code of 1906, Hemingway’s Code, section 7627, which requires that the evidence shall be addressed to the nature of the service to be rendered by the carrier, its entire business, and its earnings from all kinds of traffic.

This court held in Stone v. Railroad Co., 62 Miss. 646, that the action of the Railroad Commission in fixing rates for common carriers was nnly prima-facie correct and subject to judicial review. But the principle declared in that case has no application here for the reason that that was a direct proceeding in the courts by the carrier for the purpose of testing the rate-making power conferred on the Commission. That was a direct attack upon the action and power of the Commission. This proceeding in the present case is in the nature of a collateral attack on the action of the Commission, and in such a proceeding the action of the Commission fixing the rates is unassailable and conclusive. The shipper has the remedy alone of going before the Railroad Commission in the character of proceeding provided by the statute for the purpose of having the rate complained of revised.

It is true that section 4839, Code of 1906, Hemingway’s Code, section 7624, provides among other things that a railroad common carrier shall, not demand and receive unreasonable compensation for the service rendered in the transportation of passengers or freight. But this provision must be construed in connection with other sections of the statute referred to in this opinion. So construed, this clause of the statute could have no application to rates which had been submitted to and approved by the Railroad Commission. It was intended to cover freight charges in cases alone where the carriers had failed to have their tariffs filed with and approved by the Commission.

Appellant relies on the principle laid down in 10 Corpus Juris, 451, and the cases cited in the notes, especially Cullen v. Railroad, 63 Fla. 122, 58 So. 182, to the effect that an observance by the carrier of the rate fixed by the Commission will not defeat a common-law action for a charge in excess of a reasonable rate. An examination of the cases cited to support this text (so far as we have been able to peruse them) shows that the statutes there involved only provided for the fixing of maximum rates by the Commission, and not rates neither above nor below which the carriers were allowed to charge, as does our statutes. In 10 Corpus Juris, 451, section 709, it is stated further that under statutes giving the Commission the power to fix rates and hear complaints of persons aggrieved by the rates, the common-law remedy is not saved.

And it is contended further on behalf of the appellant that the rate of four and one-half cents per one hundred pounds agreed on by the shipper and the carrier in this case and set out in the waybills was a binding contract as to the first six cars shipped, and therefore the carrier could charge no more, notwithstanding its tariff on file with and approved by the Railroad Commission expressly permitted the higher charge which was made. This contention is based on a clause in section 4839, Code of 1906, Hemingway’s Code, section 7624, in this language, “or more than the rate specified in a bill of lading issued by authority of the railroad.” Constructing this provision in connection with the other sections of the statute, which should be done, and it is clear that it was intended to cover alone shipments where there is no applicable tariff rate on file and approved by the Commission, and where the carrier and the shipper agree on a rate, and embody the same in the bill of lading.

We find no error in the action of the trial court in directing a verdict for appellee.

Affirmed.