Atchison, T. & S. F. R. Co. v. State

Citation200 P. 232,1921 OK 296,82 Okla. 288
Decision Date26 July 1921
Docket NumberCase Number: 12072
PartiesATCHISON, T. & S. F. R. CO. et al. v. STATE et al.
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. Carriers--Rates for Switching Service--Reasonableness. A careful examination of the evidence establishes that the service rendered by the railway companies in this case was a switching service; that the rate heretofore charged by the railway companies was exorbitant and excessive.

2. Corporation Commission -- Duties and Powers. The State Corporation Commission is established and its powers are defined by the Constitution of the state. Among its duties, it exercises the authority of the state to supervise, regulate, and control public service corporations, and to that end it has been clothed with legislative, judicial, and executive powers.

3. Same--Orders of Commission--Presumptions--Appellate Jurisdiction. An appeal may be taken by the corporation whose rates are affected or by any person or corporation deeming themselves aggrieved by such action, and such appeal shall be of right and shall be taken to and reviewed by the Supreme Court only. The jurisdiction of the Supreme Court on such appeal is to consider and determine the reasonableness and justness of the action of the commission appealed from, or any other matter arising under such appeal. The order of the commission or rate fixed by it shall be regarded as prima facie just, reasonable, and correct; if in the opinion of the court the evidence taken before the Corporation Commission and certified to the court overcomes this prima facie presumption, it is then the duty of this court to make such order or fix such rate as it deems just, reasonable, and correct.

4. Carriers -- Freight Rates -- Order of Corporation Commission -- Modification. On an examination of the record, the order of the commission and the evidence, we think the rate fixed by the Corporation Commission should apply to all crushed rock, gravel, and sand transported by the railway companies in the territory covered by the rate, and that the order should be modified to that extent.

Cottingham, Hayes, Green & McInnis, M. D. Green, O. E. Swan, and Kleinschmidt & Grant, for appellants. S. P. Freeling, Atty. Gen., for the State.Henshaw & Hough, for appellees Standard Paving Company and J. T. Lantry.

MILLER, J.

¶1 A complaint was filed by the Standard Paper Company and J. T. Lantry against the Atchison, Topeka & Santa Fe Railway Company, Chas. E. Schaff, receiver of Missouri, Kansas & Texas Railway Company, Midland Valley Railway Company, and St. Louis-San Francisco Railway Company, before the Corporation Commission asking that the Corporation Commission adjust and fix a rate to be charged by the defendant railway companies on gravel, crushed rock, cement, sand, and other road building materials to such a base as will not be prohibitive. The adjustment of rates asked for is to govern in the vicinity of Tulsa. A hearing was had before the Corporation Commission. It adjusted and fixed the rate on a basis of the length of the haul. The railway companies have joined in an appeal to this court from the ruling of the Corporation Commission, and appear here as appellants.The railway companies make six assignments of error, as follows:

"1. The Corporation Commission of Oklahoma was without jurisdiction or authority to enter and promulgate said order No. 1855.
"2. The Corporation Commission erred in entering and promulgating order No. 1855.
"3. Said order No. 1855 of the Corporation Commission is unreasonable and unjust.
"4. Said order No. 1855 of the Corporation Commission is not based upon sufficient evidence and is contrary to law.
"5. Said order No. 1855 of the Corporation Commission is confiscatory and will result in depriving appellants and each of them of their property without due process of law, and without due compensation, contrary to the provisions of the Constitution of the United States and of the Constitution of the State of Oklahoma.
"6. Said order No. 1855 of the Corporation Commission fixes rates which are unduly low and discriminatory, and require these appellants to afford service to one locality and to certain shippers at materially lower rates than are prescribed for similar service to other localities, and to other shippers of the same commodities over the same route and distances in that locality."

¶2 Then they say:

"The various assignments of error above numbered may, for convenience, be considered together."

¶3 On the hearing before the Corporation Commission a number of witnesses testified, and a large amount of documentary evidence was offered in the form of rate schedules in force in different states. After considering this evidence the Corporation Commission made its findings of fact. It then promulgated its order No. 1855, which, omitting the caption, is as follows:

"This case being at issue upon complaint and answers on file, and having been duly heard and subjected by the parties and full investigation of the matters and things involved having been had, and the commission having on the date hereof made and filed a report containing its findings of fact and conclusions thereon, which said report is above referred to and made a part hereof:

¶4 "It is ordered, that the above named defendants according as they may participate in the transportation, be and they are hereby notified and required to cease and desist, on or before February 16th, 1912, and thereafter to abstain, from publishing, demanding, or collecting for the transportation of sand gravel and crushed stone in carload lots, rates that exceed the rates for distances indicated in the following table from points of origin within that radius to Tulsa and West Tulsa, for street paving and any point of origin or destination within that radius in Tulsa county, for road-building purposes for single line movements, and that one (1) cent be added to the single line rate for a two (2) line movement:

10 Miles and Under 2c per 100 lbs.
20 Miles and Over 10 2 1/2c per 100 lbs.
30 Miles and Over 20 3c 100 lbs.
"It is also ordered that distances now published in Oklahoma Mileage Table No. 1-B Supplements theretoo r re-issues thereof be used in applying such charges.
"It is Further Ordered that the rates above designated shall be published on or before the 16th day of February, 1921, upon notice to this commission and to the general public by not less than one (1) day, and that they shall continue in effect for the period of one year from the effective date of this order, unless sooner changed or canceled by this commission.
"Done at Oklahoma City this the 5th day of February, 1921.
"Corporation Commission of Oklahoma.
"(Signed) Campbell Russell, Chairman."
"E. R. Hughes, Commissioner. Art L. Walker, Commissioner.
"Attest:
"P. E. Glenn, Act. Secy."

¶5 The only thing that is necessary for this court to determine is the reasonableness and justness of the action of the commission appealed from. The rate fixed by the Corporation Commission for the purpose of this appeal shall be regarded as prima facie just, reasonable, and correct; if in the opinion of the court the evidence taken before the Corporation Commission and certified to the court overcomes this prima facie presumption, it is then the duty of this court to make such order or fix such rate such it deems just, reasonable, and correct. St. Louis-San Francisco R. Co. v. State, 81 Okla. 298, 198 P. 73. There are many things urged by the appellants: That the rate is an unjust discrimination in favor of a certain class of shippers; that it is an unjust discrimination in favor of certain localities, to wit, Tulsa; that by a comparison of rates it is unjust. The appellants also claim that the rate was made for the purpose of relieving the complainants from loss they claimed they would sustain by reason of certain contracts they had already made. We think the order of the Corporation Commission should be modified, and the modification we will make will dispose of all of these contentions. The findings of fact of the Corporation Commission are in part as follows:

The evidence introduced by the complainants show that the present rates on sand and gravel for short hauls are unreasonable and unjust, considering all matters and things involved. At the opening of the hearing the applicants dismissed the case in so far as the Chicago, Rock Island & Pacific Railroad was concerned, as it was not the purpose to bring in issue the rates as applied on cement from Hartshorne, Oklahoma, to points in Oklahoma.

¶6 The evidence further shows that on or about May 22, 1919, the complainants and other contractors in Tulsa, Oklahoma, contracted to pave some of the country roads in Tulsa county, Oklahoma. These contracts were all made after the Director General issued circular No. 9, which directed that on all sand, gravel, crushed rock and other road building material consigned to and the freight paid by federal, state, county, parish, township or municipal authorities, the rate would be ten cents per ton less than regularly published tariff rates in effect for the transportatin of these materials or commercial uses at the time shipments moved but with minimum charge of forty (40) cents per net ton. This made the rate for haul of ten miles under Frisco Tariff 1199-Series, on shipments moving from Price-Switch and Garnett, which are within a radius of ten miles of Tulsa, 2 1/2c per 100 lbs. Quoting from defendant's witness (Mr. Conley) he stated as follows:

On or about September 25, 1918, we published between Kengle-Prices spur and Crusher spur (opposite Price spur) to points within switching limits of Tulsa, Oklahoma, five miles and under 2c per cwt., ten miles and over five 3c per cwt., on sand and gravel and 2 1/2c and 3c on crushed stone, which rates continued in effect until the recent 35% increase which brought these rates up to 2 1/2c per cwt. for distances under five miles, which really means from these various producing points to West Tulsa, and
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