Chicago, B. & Q.R. Co. v. Winnett

• Decision Date: 17 April 1908
• Docket Number: 2,722.
• Parties: CHICAGO, B. & Q.R. CO. v. WINNETT et al., State Ry. Com'rs.
• Court: U.S. Court of Appeals — Eighth Circuit

162 F. 242

CHICAGO, B. & Q.R. CO. v. WINNETT et al., State Ry. Com'rs.

No. 2,722.

United States Court of Appeals, Eighth Circuit.

April 17, 1908

W. D McHugh, for appellant.

W. T Thompson, Charles H. Aldrich, and Halleck F. Rose, for appellees.

Before SANBORN and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

The record in this case discloses that on or about the 17th day of August, 1907, appellees, acting as the Nebraska State Railway Commission, issued a notice to appellant that on the 9th day of September, 1907, at 10 o'clock a.m., said Railway Commission would consider the question of fixing the rates on grain and grain products in straight car loads transported between points in Nebraska, and that the rates contained in a schedule attached to said notice would be adopted with such changes and modifications as should be deemed necessary unless good and sufficient cause should be shown why they should not be. The only good and sufficient cause shown by appellant pursuant to the invitation contained in said notice was the filing of the bill in this case on the 10th day of September, 1907, while said Railway Commission was engaged in considering the matter mentioned in said notice and before said Commission had reached any conclusion therein. Upon the filing of said bill, appellant obtained an order fixing the 23d day of September, 1907, as the time when the court would hear an application for a temporary injunction, and also in the meantime restraining appellees as members of the Nebraska State Railway Commission, from mailing to appellant any copies or copy of any order reducing the rates for the transportation of corn, wheat, and flaxseed, and from in any manner giving any notice to appellant of any order of said board reducing the rates for the transportation of corn, wheat, and flaxseed in the state of Nebraska, charged and maintained by appellant. At the time appointed for the hearing of the motion for a temporary injunction appellees appeared and filed a demurrer to the bill. In addition to the general ground of want of equity, said demurrer specified the following ground:

'(3) It appears on the face of said bill that the schedule of rates for the transportation by railroads within the state of Nebraska of the commodities of corn and wheat mentioned and complained of therein has not been fixed, determined on, or adopted by defendants, and the consequences alleged by said bill to be threatened are not cognizable in equity prior to the adoption of such rates by the Nebraska State Railway Commission.

'(4) The functions of the Nebraska State Railway Commission to fix and determine upon reasonable rates for transportation of commodities by railroads within said state are legislative, and are delegated to it pursuant to an amendment of the Constitution of said state, duly adopted, and the powers of defendants in that behalf as members of said commission are co-ordinate and independent of the judiciary and not subject to control or restraint by a court of equity till after its acts have been duly passed and finally adopted; and so upon the face of complainant's bill showing no final action has been had by defendants touching the adoption of the schedule of rates complained of this court has no jurisdiction to hear and determine this action.

'(5) It appears on the face of said bill that the fixing of schedules of rates for transportation of corn and wheat, the acts complained of, are not threatened to be done in any event till after complainants shall have been given a hearing and opportunity to show cause why the same should not be adopted, and that complainant had an adequate remedy at law.'

Upon said hearing the court sustained said demurrer, refused to grant a temporary injunction as prayed, and dissolved the restraining order theretofore granted. Appellants declining to plead further, final decree dismissing the bill was entered, and appellant has appealed therefrom to this court. The Circuit Court refused to continue the restraining order pending the appeal, and the record does not show what the Railway Commission has done as to the matters referred to in the notice of August 17, 1907. It was stated, however, at the argument in this court by counsel for the appellees, that the Railway Commission had never as yet concluded its consideration of said matters. In view of this condition of the record, we turn to the allegations of the bill with some interest. The demurrer admits all the facts alleged therein that are well pleaded. It does not admit conclusions of law or mere matters of opinion not justified by the facts. The following material facts appear in the bill: Appellant is a citizen of Illinois. Defendants are citizens of Nebraska, and constitute the Nebraska State Railway Commission. The requisite amount in controversy to give jurisdiction. Appellant is the owner and engaged in the operation of a system of railways extending through the states of Illinois, Iowa, Missouri, Kansas, Nebraska, Colorado, Wyoming, and Montana.

On the 17th day of August, 1907, said Railway Commission served a notice upon appellant in words and figures as follows:

'Lincoln, Nebraska, August 17, 1907.

'Notice is hereby given the Chicago, Burlington & Quincy Railroad Company that at 10 o'clock a.m., September 9, 1907, the Nebraska State Railway Commission will consider the question of fixing the rates on grain and grain products in straight car loads, transported between points within this state, and the rates hereto attached will be adopted, with such changes and modifications as may be deemed necessary, unless good and sufficient cause is shown why they should not be.

'(Seal.) Nebraska State Railway Commission, 'By H. J. Winnett, Chairman.

'Attest: Clark Perkins, Secretary.'

The rates now in force on appellant's lines in Nebraska were established by the Legislature of said state by an act approved April 8, 1907. Said act is as follows:

'Section 1. (Maximum freight rates.) It shall be unlawful for any railway company or common carrier, operating or doing business in the state of Nebraska, to charge, collect or receive for the transportation of live stock, potatoes, grain and grain products, fruit, coal, lumber, or building material in carload lots, within the state of Nebraska, more than eighty-five per cent. (85%) of the amount fixed in the classification and schedules of such railway companies or common carriers for the transportation of such property in force and effect on their various lines of railway on the first day of January, 1907, until after the State Railway Commission shall have provided a greater rate upon any article or property in such schedules from the rate herein fixed.

'Section 2. (Reasonableness of rate; hearing.) The State Railway Commission shall have the power to hear and determine whether or not the freight rate upon any article or articles in such schedule or classification of rates is either so high as to be unjust to shippers, or so low as to be unremunerative or unjust to any common carrier affected thereby and upon complaint in writing, of any person or corporation affected thereby, particularly specifying the article or articles upon which such rates are either too high or too low and the facts in connection therewith, said railway commission shall set such cause for hearing and upon a trial thereon and a full hearing after notice thereof, shall either raise or lower the rate herein fixed upon such article or articles to the end that the same shall be just and reasonable to all parties concerned. ' Laws 1907, p. 345, c. 95.

The bill further alleges: That the rates fixed by said act are unjust, unreasonable, and confiscatory; that the rates between points in Nebraska for the transportation of corn, wheat, and flaxseed as stated in the schedules attached to the notice served on appellant on or about August 17, 1907, are very much lower than the rates on said commodities fixed by the Legislature in said act of April 8, 1907; that the rates stated in said schedule attached to said notice are confiscatory, unjust, and unreasonable and will directly interfere with interstate commerce if established and enforced; that no complaint by any person or corporation affected by the rates named in said act of April 8, 1907, has been filed with or presented to the said defendants or either of them or the Nebraska State Railway Commission. The bill then proceeds as follows:

'Your orator further avers that, notwithstanding the facts aforesaid, the said defendants, constituting the said Nebraska State Railway Commission, threaten and intend, and unless restrained by the order of this honorable court will attempt, to establish, and establish, as the rates for the transportation of said grain within the state of Nebraska, the rates named and set forth in said schedules, and will require your orator to make, keep, and publish the schedules showing the said rates and charges and will at once and without opportunity to be heard mail copies thereof to your orator and give notice thereof to your orator, and will require your orator to transport said grain within the state of Nebraska at said rates, and will attempt to enforce its said orders, and will institute proceedings against your orator for any violation of said order, and will institute various proceedings against your orator for penalties for violation of the said order, and will institute various proceedings against the officers and agents of your orator for violations of the said order, all of which will give rise to a great multiplicity of suits, and will constitute a continuous and serious interference with and an interruption of the business of your orator, and will be a continuing

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