Alabama & V. Ry. Co. v. Railroad Commission of Mississippi
Decision Date | 08 May 1905 |
Citation | 38 So. 356,86 Miss. 667 |
Parties | ALABAMA & VICKSBURG RAILWAY COMPANY v. RAILROAD COMMISSION OF MISSISSIPPI. [*] |
Court | Mississippi Supreme Court |
FROM the chancery court of, first district, Hinds county, HON ROBERT B. MAYES, Chancellor.
The Alabama & Vicksburg Railway Company, the appellant, was complainant in the court below; the railroad commission of Mississippi was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.
Decree affirmed.
McWillie & Thompson, for the appellant.
First--It is claimed that the only question before the court is one of the correction of discrimination under Code 1892, § 4287, and not one of rate making under sec. 4290, and on this theory the important questions presented by the record are sought to be evaded. On this subject we beg to submit a few reflections, first quoting the order of the commission, as follows:
"That the Alabama & Vicksburg Railway Company is hereby ordered to put into effect over its line from Vicksburg, Mississippi, to Meridian, Mississippi, inclusive of both cities, from and after December 8, 1903, a flat rate of 3 1/2 cents per 100 pounds on grain and grain products, and no more."
The order is, by its terms, one fixing a rate, and we do not see how any authority can assert the right to look beyond its form. The object of the commission, save as expressed in the order, is wholly immaterial, and no intimation that it had any ulterior object would be proper. If the purpose of the commission was not to make a rate, but merely to correct a discriminatory feature of an existing rate which gave an advantage to Vicksburg dealers, why did it not direct simply that the appellant should no longer allow to those dealers the re-billing rate on expense bills for ninety days after payment? Certainly no flat rate of 3 1/2 cents per hundredweight was in force prior to the making of the order. In point of fact, apart from the making of a local rate, the commission was without authority in the premises, for the rebilling rate was part of the cost of carriage of a commodity that remained the subject of interstate commerce until it reached Meridian; and the correction of any discriminatory feature in its operation was confined to the interstate commerce commission. The commission did not assume to do anything except make a domestic rate from Vicksburg to Meridian, and why the validity of that rate may not now be inquired into passes conjecture.
Second--We insist that if the English language is an adequate vehicle for the communication of thought, the order of the commission is one which fixes a rate; and, so treating it, we respectfully insist that the order should be declared invalid, for the reason that the commission has no power to fix rates except such as it derives from Code 1892, § 4290, which, inasmuch as it requires the commission in fixing rates to take into consideration the entire business and earnings of the railroads, both state and interstate, is violative of the interstate commerce clause of the federal constitution and absolutely void. Smythe v. Ames, 169 U.S. 466; Nor. Pac. R. Co. v. Keys, 91 F. 47.
This cannot be properly answered by saying that the appellant itself voluntarily fixed the rate, for several reasons. In the first place, as the federal supreme court has declared Lake Shore, etc., R. Co. v Smith, 173 U.S. 697.
In the second place, such a response would be contrary to the fact. The rebilling rate agreed to was not a domestic rate, but applied only to shipments that reached Vicksburg over the Vicksburg, Shreveport & Pacific and the Alabama & Vicksburg lines. Unless, therefore, the rate ordered by the commission is also not a domestic rate and relates only to shipments received over the lines mentioned, it is not the same rate. We are not called upon to consider whether or not the rate put in by the appellant, with the sanction of the commission and by agreement between itself and the warring delegations from Vicksburg and Meridian, was valid or invalid, for it is not assailed. That it should not be assailed by shippers on the ground that limited the rebilling rate to shipments reaching Vicksburg over the Vicksburg, Shreveport & Pacific and the Alabama & Vicksburg lines is quite natural, since the interstate rate to Vicksburg was the same on all the railroads, and it made no difference to them over which line the grain came; and the Yazoo & Mississippi Valley Railroad Company, the only other line entering Vicksburg, has never complained. Moreover, it is not seen by what authority the commission can undertake the correction of abuses touching the operation of interstate rates. The rebilling rate was a part of an interstate rate, and if made the means of discrimination, resort should have been had to the interstate commerce commission.
The rate is also distinguished from the one to which the appellant consented by the fact that only on the rebilling rate can the appellant secure empty freight cars and save the cost of hauling empty equipment in which to handle the business, and this was an important consideration to induce appellant's acquiescence in a rate so low. The judgment of railway managers as to what is of advantage to their companies should not be ignored, and the plain, reasonable and uncontradicted evidence on this subject should not be dismissed from consideration. We respectfully call attention to the testimony of Messrs. Harvey and Steele on this subject.
Still another difference is to be found in the clearly proved fact that the appellant on the rebilling rate received from its western connections a part of the interstate rate to Vicksburg. There is no reason why the appellant should have been burdened with showing that it could not secure the same advantage from the Yazoo & Mississippi Valley Railroad Company, the fact that it did have it from the Vicksburg Shreveport & Pacific line being sufficient to make the difference between the rebilling rate to which it assented and the flat rate ordered by the commission.
The chancellor did not apparently question the binding authority of the decisions cited, but brushed them aside upon a misconception of the case before him, declining to pass upon the constitutionality of the statute. He erroneously says in his opinion that the answer of the commission shows that they did not consider the interstate earnings, and, there being nothing to disprove their assertion, it must be accepted as true. It will be observed that the answer distinctly states that the law was followed and that the commission "did take into consideration the entire business of the complainant and its earnings from all kinds of tariff," including necessarily the interstate business and earnings. No weight can be attached to the added statement that while the commission improperly considered the interstate business and earnings of the company they were not influenced thereby in fixing the rate in question. That is on a par with the declaration of a juror after verdict that incompetent evidence allowed to go to the jury did not affect his verdict, and should receive as scant respect.
The case of the railroad commission would not be in the least helped, however, by the admission that they did not take into consideration in fixing this local rate the interstate business and earnings of the company; for sec. 4290 of the code requires them to do so, and they have no power to fix rates at all except in the manner provided by that section. If they failed to comply with the state law by not considering such business and earnings, their act cannot be sustained without reference to the federal constitution; and if they considered such business and earnings, they have violated the federal constitution under cover of a void state law.
Third--The effect of the order of the commission as a regulation of interstate commerce is clear, for there is such a disproportion between the earnings of the domestic and those of the interstate traffic that any additional burden must come out of the profits derived from the latter. The only answer offered to the clear, conclusive, and wholly uncontradicted testimony on this subject is founded upon the fact that the witnesses were unable to state from the books of appellant the exact proportion of expenses attributable to each kind of traffic, domestic and interstate. When the same railway train carries both interstate and domestic shipments, it is readily seen that there is no way of reaching an exact apportionment of the cost of carriage between the two kinds of traffic, but this does not prevent a reliable estimate by experts, entirely familiar with the business of the particular railroad, nor affect the value of their conclusion that no net profit is derived from the domestic business. It will not do to reject such an estimate founded upon ascertained data in relation to a subsidiary matter while allowing juries to act directly upon estimates as to the value of crops destroyed before maturity and other matters not within the positive knowledge of any one.
Fourth--It is perfectly evident that if the Meridian dealers avail of the rate ordered they must do so by applying it to commodities which never lose their character as the subjects of interstate commerce until they reach Meridian. An examination of the evidence and of the petition on which the commission made the...
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