State & Port Authority v. Northern Pacific Railway Co.

¹ Reported in 22 N.W.2d 569. These proceedings were instituted by the filing of two separate verified complaints with the railroad and warehouse commission, one by the Port Authority of Saint Paul (a municipal commission created under the harbor act, L. 1929, c. 61, as amended by L. 1931, c. 132, Minn. St. 1941, § 458.09 [Mason St. 1940 Supp. § 1372-7 1/2]), and one by the state through the attorney general. The complaints both alleged in substance that certain switching charges for carload traffic switched from the property of said Port Authority to industries in the St. Paul Switching District were unduly preferential, unreasonable, discriminatory, and unlawful.

The two proceedings were joined and tried before the commission as one action. After the hearing, on May 1, 1945, the commission made its order determining that certain of the switching rates complained of were excessive, unequal, and unreasonable, and unduly preferred certain shippers; all in violation of public convenience and necessity. Said order did not make "a tariff of rates, fares, charges, and classifications," as provided by Minn. St. 1941, § 216.19 (Mason St. 1927, § 4644), to be substituted for the tariff complained of, but fixed the maximum charges defendants might thereafter lawfully collect for switching services in said district. The order provided:

"That all carriers serving the St. Paul Switching District, as herein defined, shall by appropriate and lawful tariff publication, establish on not less than five days' notice, to become effective on or before June 1, 1945, the charges for the switching of carload traffic from points and places on the tracks of the Port Authority of the City of St. Paul to connections with connecting lines and industries on their respective lines, the charges herein found reasonable;"

Service of the order upon defendants was made on May 2, 1945. On May 17, 1945, they appealed therefrom to the district court of Ramsey county, as provided by §§ 216.24 and 216.25 (§§ 4650, 4651). On May 18, 1945, they moved said court for an order staying the effect of the commission's order pending the appeal. On May 23, 1945, the court stayed the commission's order until final determination of the appeal, and further ordered that, commencing June 1, 1945, defendants keep a detailed account of all switching charges in the district, showing the date of each switching movement, the names and addresses of each consignee of freight handled therein, and the amounts collected from such consignees in excess of the maximum charges fixed by the commission's order. The court's order further provided that each defendant file with the clerk of said court an undertaking with sureties in the sum of $1,000, conditioned that each of them would refund to any persons entitled thereto all sums collected in excess of the amounts finally authorized in these proceedings.

On May 28, 1945, this appeal was taken from the court's order staying enforcement of the original order of the commission.

On appeal, complainants contend (1) that the district court, by virtue of § 216.19 (§ 4644), was without power, either in its discretion or otherwise, to stay the enforcement of the commission's order pending the appeal; and (2) that, if the district court had discretionary power to stay enforcement of said order, its action in doing so was arbitrary and in effect an abuse of discretion.

1. We are of the opinion that the district court, by virtue of the applicable statutes, had discretionary power to stay enforcement of the order of the railroad and warehouse commission pending appeal. Section 216.19 (§ 4644) provides:

"Upon the verified complaint of any person or of any corporation, private or municipal, that any tariff of rates, fares, or charges, * * * is unequal or unreasonable, the commission shall proceed to investigate the matter * * *. If upon the hearing such tariff of rates, fares, or charges, * * * is found to be unequal or unreasonable, the commission shall make an order stating wherein the same are so unequal or unreasonable and make a tariff of rates, fares, charges, and classification which shall be substituted for the tariff so complained of. The tariff so made by the commission shall be deemed prima facie reasonable in all courts and shall be in full force during the pendency of any appeal or other proceedings to review the action of the commission in establishing the same."

It is complainants' contention that the commission's order in effect constituted a tariff of rates, fares, charges, and classifications, and, hence, under § 216.19 (§ 4644), that the district court was not authorized to stay enforcement thereof during the pendency of the appeal. Examination of § 216.19 (§ 4644) indicates that the restrictive provisions thereof relate to tariffs of rates, fares, charges, and classifications made or established by the commission. In the instant case, we do not find that a tariff of rates, fares, charges, or classification was made by the commission. Its order was limited to a statement of the maximum charges over which defendants might not go in establishing their tariffs in the district involved. Defendants, and not the commission, by the terms of the order were to make and establish the tariffs required, presumably in compliance with § 218.35 (§ 4832), which provides:

"Every railroad company shall keep at every station or depot of its road, convenient for and open to public inspection, schedules printed in large type, showing all classifications, rates, fares, and charges for transportation of freight and passengers in force at the time upon its road. Such schedule shall plainly state the places between which persons and property will be carried, shall show the classification of freight, a distance tariff, a table of distances between stations, and state, separately, the terminal charges, and any rules or regulations in any way affecting the aggregate of such rates, fares, and charges."

In the commission's order there was no reference to classification of freight, tables of distances, schedules of rates, terminal charges, or to the rules and regulations contemplated by § 218.35 (§ 4832), nor could its order in the form issued "be substituted for the tariff so complained of" as specified in § 216.19 (§ 4644). It must follow, therefore, that the court order here under attack did not, in violation of § 216.19 (§ 4644), stay enforcement of a tariff of rates, fares, charges, and classification made by the commission and "substituted for the tariff so complained of."

(It may be of interest to note here that the United States Supreme Court, in Pacific T. T. Co. v. Kuykendall,265 U.S. 196, 44 S.Ct. 553, 68 L. ed. 975; Porter v. Investors Syndicate, 286 U.S. 461, 52 S.Ct. 617, 76 L. ed. 1226; and Mountain States Power Co. v. Public Service Comm.299 U.S. 167, 57 S.Ct. 168, 81 L. ed. 99, directly or by implication casts doubt upon the constitutionality of restrictive provisions such as are contained in § 216.19 [§ 4644], suggesting that in effect such provisions deny due process to litigants.)

2. In addition, subsequent sections of our statutes provide ample authority to support the court's action in suspending enforcement of the commission's order. Thus, § 216.25 (§ 4651) provides:

"* * * If the [district] court shall determine [on appeal] that the order appealed from is lawful and reasonable, it shall be affirmed and the order enforced as provided by law. If it shall be determined that the order is unlawful or unreasonable, it shall be vacated and set aside. Such appeal shall not stayor supersede the order appealed from unless the court uponexamination of the order and the return made on the appeal, andafter giving the respondent notice and opportunity to be heard,shall so direct. If such appeal is not taken such order shallbecome final, and it shall thereupon be the duty of thecarriers affected to adopt and publish the rates orclassifications therein prescribed." (Italics supplied.)

It is clear therefrom that the legislature intended to extend to the courts power to stay enforcement of the commission's orders, including orders relating to rates, under the procedure outlined therein. Complainants' contention that § 216.25 (§ 4651) has no application to rate orders is not sustained by the language of said statute. That the section is applicable to orders relating to rates is apparent from the words "If such appeal is not taken * * * it shall thereupon be the duty of the carriers affected to adopt and publish the rates orclassifications therein prescribed." (Italics supplied.) The language quoted is clear and conveys a definite meaning. The conclusion cannot be escaped that the court, by virtue thereof, was authorized to stay enforcement of the rate order made here by the commission pending appeal. Under such circumstances, there is no occasion to resort to rules of statutory interpretation or construction with reference to said provision, and it would be improper to give the language used another and different meaning than it plainly demands. 50 Am.Jur., Statutes, § 225.

Looking further at the statutes governing appellate procedure here, we find that § 217.30 (§ 4659) specifically provides:

"* * * no such appeal shall stay the operation of such order * * * unless the district or supreme court shall so direct and unless the carrier appealing from a judgment or order fixing rates for transportation of persons or property shall give bond in a sum and with sureties approved by a judge of the court ordering the stay, conditioned that the appellant will refund to the person entitled thereto any amount received for suchtransportation above the amount finally fixed by the court." (Italics supplied.)

It is apparent that here again the legislature contemplated that it would be within the court's usual discretionary powers to stay enforcement of rate orders pending appeal. We conclude, upon consideration of all the foregoing statutes, that the court was not prohibited by virtue thereof from suspending by stay the order of the commission here involved pending final determination of the appeal.

3. We must still determine whether the court abused itsdiscretion in suspending the commission's order. Section 216.25 (§ 4651) provides that the order appealed from shall not be stayed "unless the court upon examination of the order and thereturn made on the appeal, and after giving the respondentnotice and opportunity to be heard, shall so direct." (Italics supplied.) It is not disputed that in the instant case the court had before it the order of the commission; that it duly examined it and the return made on the appeal; and that an opportunity for complainants to be heard thereon was presented. Accordingly, when the court made its order staying enforcement of the commission's order, it had strictly complied with theprerequisites set forth in said § 216.25 ( § 4651).

In this respect the instant case is distinguished from Public Service Comm. v. Wisconsin Telephone Co. 289 U.S. 67,53 S. Ct. 514, 77 L. ed. 1036, where the United States Supreme Court vacated a decree of interlocutory injunction made by the federal district court because the latter had failed to comply with that court's well-established rules of construction governing 28 USCA, §§ 381, 382, 383 (subsequently incorporated in Equity Rule 70 1/2 as amended in 1935 [28 USCA, § 723, Appendix], and Rule 52, Federal Rules of Civil Procedure, promulgated in 1937 [28 USCA, following § 723c]), requiring the order for injunction to set forth the reasons therefor, both as to facts and law. Here, there are no similar statutes, judicial precedents, or court rules involved, and the applicable statute (§ 216.25 [§ 4651]) was carefully followed by the trial court. Likewise, the decision in Matter of Long Island Lighting Co. v. Maltbie, 160 Misc. 165,289 N Y S. 1092, was based upon the specific requirement of a New York statute. There, subd. 2 of § 23 of the Public Service Law of New York (Cons. L. of N.Y. c. 48) specifically required, as a prerequisite to the granting of a stay in rate cases, evidence and a finding that great and irreparable damage would result to the appellant if a stay were denied. There, a stay was denied because of appellant's failure to comply with this statutory provision. Under the Minnesota statutes, no such prerequisites are specified.

Furthermore, here, in addition to the order and return submitted for examination, there was presented the affidavit of R.B. Leng, assistant general freight agent of the Chicago, St. Paul, Minneapolis Omaha Railway Company, one of the defendants, to the effect that he was familiar with defendants' existing tariffs; that he was present at the hearings on defendants' motion; and that if, pending the appeal, defendants were required to place in effect the reduced charges provided for by the commission's order and such order should be found invalid on appeal defendants would be forced to seek recovery of the additional freight charges due from numerous shippers, many of doubtful financial responsibility, or from nonresidents of Minnesota, indicating that a multiplicity of suits would follow reversal of the commission's order if the motion for stay were denied.

In 2 Dunnell, Dig., Discretion, p. 650, judicial discretion is defined as follows:

"Judicial discretion is that part of the judicial power which depends, not upon the application of rules of law or the determination of questions of strict right, but upon personal judgment to be exercised in view of the circumstances of each came. It is a fundamental rule of appellate procedure that the determination of a trial court of a matter resting in its discretion will not be reversed on appeal except for a clear abuse of discretion. If a trial court exercises its discretionary power wilfully, arbitrarily, or capriciously, or contrary to well established legal usage, its action may be reversed on appeal, for the power is not absolute but judicial."

As stated in LaPlante v. Knutson, 174 Minn. 344, 346,219 N.W. 184:

"* * * the subject matter of the order appealed from was within the field of judicial discretion, wherein the judge is left free from arbitrary rules so that he may be unhampered in fitting his action to the merits of each case as it arises."

The discretionary power of the courts with reference to supersedeas or stay is defined in 4 C.J.S., Appeal and Error, § 635, as follows:

"* * * the statutes sometimes give an absolute right to a supersedeas or stay on appeal or writ of error on compliance with certain conditions, and do not leave the granting or refusal of the same to the discretion of the court. When, however, the matter is not regulated by statute, or when the statute does not give an absolute right, but leaves the matter to the court or judge, a motion for a supersedeas or stay is addressed to the discretion of the court or judge * * *."

And in Id. § 636, as follows:

"* * * As a rule a supersedeas or stay should be granted, if the court has the power to grant it, whenever it appears that without it the objects of the appeal or writ of error may be defeated, or that it is reasonably necessary to protect appellant or plaintiff in error from irreparable or serious injury in case of a reversal, and it does not appear that appellee or defendant in error will sustain irreparable or disproportionate injury in came of affirmance. It should begranted where * * * the loss or damage occasioned by the staycan be met by a money award, where important questions of law are raised, which, if decided in favor of appellant or plaintiff in error, will require a reversal, to avoid a multiplicity ofsuits, or to protect the appellate court's jurisdiction." (Italics supplied.)

From the foregoing quotations, which express the general rules applicable herein, it is apparent that the power to stay proceedings pending appeal is inherent in the courts and exists notwithstanding the statutes may be silent on the matter. Here, the statutory limitations upon the court's power were not disregarded, and it is clear that there was no abuse of its discretionary power. If the rate-fixing order were to be reversed, in the absence of the stay ordered, defendants would be compelled to engage in a multiplicity of suits in this and other states to enforce collection of charges due. While it is true that affirmance of the order would entitle the shippers to refunds for overpayments, the court took cognizance of this in requiring the filing of the bonds above described. In its discretion, it determined that, under all the facts and circumstances, less litigation would follow if the commission's order were stayed pending the appeal. In arriving at this conclusion, we cannot say that it exercised its discretion in such a wilful, arbitrary, or capricious manner as to compel interference by this court.

4. Complainants refer to § 216.19 (§ 4644), which specifically provides:

"* * * The tariff so made by the commission shall be deemedprima facie reasonable in all courts and shall be in full force during the pendency of any appeal or other proceedings to review the action of the commission in establishing the same." (Italics supplied.)

They contend that since, at the hearing on the motion, no evidence was presented to establish that the maximum tariff ordered by the commission was unreasonable, the court was bound to determine that such rate was prima facie reasonable, and hence that its order staying enforcement thereof constituted an abuse of discretion. We have previously held herein that the foregoing section, in the light of the other statutory provisions applicable, does not operate to forbid the court, upon a proper showing, from staying the enforcement of a rate-fixing order of the commission pending appeal there from. We do not feel that it should be construed to mean that upon a motion to stay enforcement of a rate-fixing order it is incumbent upon the carriers affected to present evidence at that time establishing that the order appealed from is unreasonable or confiscatory, and that, in the absence thereof, notwithstanding the court's compliance with the statutory prerequisites for the making of such an order, and notwithstanding the presence of other factors ordinarily justifying a stay, the court is without power to grant the motion. Ordinarily, the granting or denying of a temporary injunction involves no determination of the merits, and it is not necessary that at the time of the application therefor the applicant submit the evidence intended to be presented at the final hearing. See, 28 Am. Jur., Injunctions, § 268.

Our conclusion here is supported by § 216.25 (§ 4651), which again specifies that an order of the railroad and warehouse commission shall be deemed reasonable, and further provides that, upon appeal therefrom, the burden is upon the appellant to establish otherwise. This can only mean that at the hearing on appeal, rather than on the motion to stay, the evidence attacking the order is to be presented and considered. This was the procedure followed in State v. G. N. Ry. Co. 130 Minn. 57,153 N.W. 247, Ann. Cas. 1917B, 1201; Abrahamson v. Canadian Northern Ry. Co. 177 Minn. 136, 225 N.W. 94; and M. St. P. S. R. Co. v. Villages of Excelsior and Tonka Bay, 186 Minn. 573,244 N.W. 61.

Public Service Comm. v. Wisconsin Telephone Co. 289 U.S. 67,53 S.Ct. 514, 77 L. ed. 1036, supra, and Matter of Long Island Lighting Co. v. Maltbie, 160 Misc. 165, 289 N.Y. S. 1092,supra, urged as supporting a rule that upon motion for stay of a rate order the utility affected must present clear and convincing proof that the rate prescribed will result in confiscation, as previously indicated, were dependent upon interpretations of statutory provisions distinct from the Minnesota statutes involved and are inapplicable as authorities here. We conclude that if, after compliance with § 216.25 (§ 4651), the court had reasonable grounds for determining that a stay was necessary to avoid a multiplicity of suits, or ordered a stay for other reasons commonly the basis of such an order, its discretion was not abused, even though defendants did not at that time present additional evidence on the principal issue.

5. Our construction of the foregoing statutory provisions is not in conflict with the well-established rule (incorporated in § 216.25 [§ 4651]) that rates fixed by authorized rate-making bodies are presumed to be reasonable and that the burden of establishing otherwise rests upon the carriers affected. American Toll Bridge Co. v. Railroad Comm. 307 U.S. 486,59 S.Ct. 948, 83 L. ed. 1414. The rule thus expressed has no reference to the discretionary power of the court to stay such an order until the carrier affected is afforded an opportunity of sustaining the burden thus placed upon it. It relates to the presumption and procedure applicable at the final hearing. It may be noted in the case cited that the rate order there under attack was thus stayed pending the appeal therefrom. American Toll Bridge Co. v. Railroad Comm. 12 Cal.2d 184,83 P.2d 1. Cases such as State ex rel. Ohio Bell Tel. Co. v. Common Pleas Court, 128 Ohio St. 553, 192 N.E. 787, and City of Cleveland v. Public Utilities Comm. 126 Ohio St. 91,183 N.E. 924, involved statutes distinct from the Minnesota statutes above referred to and have no bearing on the issues here to be determined.

6. The rule expressed in 43 Am. Jur., Public Utilities and Services, § 186, that a court will not enjoin the collection of rates established under legislative sanction unless they are palpably unreasonable or confiscatory, does not relate to orders staying enforcement thereof pending appeal, but rather expresses the rule applicable after full presentation of the evidence at the final hearing on such appeal. As a general rule, the courts follow the practice here adopted of staying enforcement of challenged rates pending appeal from the rate-fixing order. See, Arkadelphia Milling Co. v. St. Louis S.W. Ry. Co. 249 U.S. 134, 39 S.Ct. 237, 63 L. ed. 517; St. Louis 1. M. S. Ry. Co. v. McKnight, 244 U.S. 368, 37 S.Ct. 611, 61 L. ed. 1200; Newton v. Consolidated Gas Co.258 U.S. 165, 42 S.Ct. 264, 66 L. ed. 538; Annotation, 131 A.L.R. 878; New York Edison Co. v. Maltbie, 150 Misc. 200,270 N Y S. 409; and Niagara Falls Power Co. v. Water Power and Control Comm. 267 N.Y. 265, 196 N.E. 51.

7. We do not attempt to determine now whether the maximum rates prescribed by the commission's order are unreasonable or confiscatory. Neither do we attempt to characterize the rates as established prior to the order. It may be that many of such prior rates were excessive and unreasonable. The function of the trial court will be to determine whether the commission's order is reasonable and valid, or otherwise, after the parties have had a fair opportunity of presenting such additional evidence as may be material to this issue. See, State v. G. N. Ry. Co. 130 Minn. 57, 153 N.W. 247, Ann. Cas. 1917B, 1201,supra. A discussion of existing rates, or of the maximum rate fixed by the commission based upon the present record, would serve no purpose now.

The order appealed from is affirmed.