Sunburst Oil & Refining Co. v. Great Northern Ry. Co.

• Decision Date: 04 January 1932
• Docket Number: 6843.
• Citation: 7 P.2d 927,91 Mont. 216
• Parties: SUNBURST OIL & REFINING CO. v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

7 P.2d 927

91 Mont. 216

SUNBURST OIL & REFINING CO. v. GREAT NORTHERN RY. CO.

No. 6843.

Supreme Court of Montana

January 4, 1932

Rehearing Denied Feb. 5, 1932.

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

Action by the Sunburst Oil & Refining Company against the Great Northern Railway Company. From judgment for plaintiff defendant appeals.

Affirmed.

W. L Clift, of Great Falls, and R. J. Hagman and J. P. Plunkett both of St. Paul, Minn., for appellant.

Hurd, Hall & McCabe, of Great Falls, for respondent.

GALEN J.

This is an appeal from a judgment of the district court of Cascade county, entered October 17, 1930, awarding the plaintiff $3,262.25, together with interest and costs, by reason of alleged unjust and unreasonable freight charges collected by the defendant from the plaintiff for the transportation of 266 cars of petroleum distillate on the defendant's railroad from Kevin and Sunburst to Great Falls, between August 28, 1926, and August 4, 1928. The rate charged was in accordance with the published tariff of the board of railroad commissioners then in effect, prescribing a rate of 20 1/2 cents per hundred pounds on crude petroleum distillate from Kevin and Sunburst to Great Falls, subject to an estimated weight of 7.4 pounds per gallon.

On April 19, 1929, the plaintiff filed a complaint with the board of railroad commissioners, in which it is alleged that the correct weight on crude petroleum distillate is 6.653 pounds per gallon, and that as a result of the defendant having computed its charges on the basis of an estimated weight of 7.4 pounds per gallon, the plaintiff was required to pay unjust and unreasonable charges on such shipments. The board found the rates charged to be unjust and unreasonable to the extent that the prescribed estimated weight exceeds or exceeded an estimated weight of 6.6 pounds per gallon. This action was instituted to recover the amount of alleged overpayments. On appeal to this court the cause was consolidated with No. 6845, Montana Horse Products Co. v. Great Northern Railway Co., 7 P. (2d) 919, and the two were argued and presented together, it being conceded that each involved the primary question of whether, under the laws of this state, the board of railroad commissioners has power and authority to make a retroactive order finding that the rates charged and collected on the shipment of petroleum distillate from Kevin and Sunburst to Great Falls of 20 1/2 cents per hundred pounds on an estimated weight per gallon of 7.4 pounds (which rate had been approved by the board and was in effect at the time the shipments were made), were unjust and unreasonable, thus permitting the plaintiff to recover the amount charged and collected on the basis of such tariff and the amount found by the commission to be a reasonable rate based upon the actual weight of crude petroleum distillate.

We have made careful examination of the authorities and are of opinion that our decision this day rendered in the case of Montana Horse Products Co. v. Great Northern Railway Co. is controlling.

In computing freight tariffs, both rate and weight are factors in the equation, and it is common practice with respect to commodities like petroleum to fix an estimated weight which shall govern in computation of the tariff rather than the actual weight. 12 I. C. C. 306. In the case of Northern Pacific Ry. Co. v. Department of Public Works, 136 Wash 389, 240 P. 362, wherein it appears that the commission fixed rates on intrastate shipments of certain wood on a basis of 128 cubic feet per cord, and later, in a supplementary order established 192 cubic feet per cord, as the estimate on which to base the tariff, it was by the court held that the second order was prospective and not retroactive, and that a shipper who shipped such wood during the period the first tariff was in effect on estimated measurement could not recover reparation of the difference between what he was charged on a 128 cubic foot basis and what the charge would have been on a 192 cubic foot basis, inasmuch as at the time of shipment, rates on the basis of 128 cubic feet were standard and lawful. In the case of Actual Weights on Crude and Fuel Oil, 69 I. C. C. 194, 195, it is said: "The practice of shipping petroleum oils under estimated weights has long been in effect." In that case the Interstate Commerce Commission ordered the carriers serving the oil fields in Kansas, Oklahoma, and Texas to cancel a tariff by which they proposed to substitute actual...