Burlington, C. R. & N. Ry. Co. v. Dey

• Decision Date: 09 February 1891
• Citation: 48 N.W. 98,82 Iowa 312
• Court: Iowa Supreme Court
• Parties: BURLINGTON, C. R. & N. RY. CO. v. DEY ET AL., COMMISSIONERS.

82 Iowa 312

48 N.W. 98

BURLINGTON, C. R. & N. RY. CO.

v.DEY ET AL., COMMISSIONERS.

Supreme Court of Iowa.

Feb. 9, 1891.

Appeal from district court, Johnson county; S. H. FAIRALL, Judge.

Action in chancery to restrain and enjoin the defendants, acting as railroad commissioners of the state, from establishing and promulgating joint rates of charges for the transportation of freight and cars over plaintiff's and other connecting railroads. Upon the petition, before it was filed, an injunction was allowed, which, after the filing of the petition, the defendants moved to dissolve. The motion was overruled, and from the order to that effect defendants appeal.

ROTHROCK and ROBINSON, JJ., dissenting.

John Y. Stone, Atty. Gen., for appellants.

S. K. Tracy, John C. Bills, A. E. Swisher, T. S. Wright, and J. W. Blythe, for appellee.

BECK, C. J.

1. In view of the facts that the motion to dissolve the injunction operates as a demurrer to the petition, and the decision thereon is for review in this case, it becomes necessary to set out fully the pleadings upon which the decision was made. They are as follows:

“Petition in Equity. Your petitioner, the Burlington, Cedar Rapids & Northern Railway Company of Iowa, a corporation, duly organized and existing under and by virtue of the laws of Iowa, complains, and says: That defendants, Peter A. Dey, Spencer Smith, and F. T. Campbell, compose the board of railroad commissioners of the state of Iowa. That under and by virtue of chapter twenty-eight of the Acts of the 22d General Assembly authority is given to said board to fix, establish, and publish reasonable maximum rates of charges for the transportation of freight upon railroads within said state. That a schedule of rates has been adopted by said board for petitioner, which was by it duly accepted and adopted as reasonable and just. Your petitioner would now further show that by the act of the 23d General Assembly entitled ‘An act to amend chapter 28 of the Acts of the 22d General Assembly, giving authority for the making of rates for transportation of freight and cars over two or more lines of railroad within this state, and enlarging the powers and further defining the duties of the board of railroad commissioners,’ a copy of which act is attached hereto and made part hereof, it is provided that all railway companies doing business in this state, upon the demand of any person, shall establish joint rates for the transportation of freight between points on their respective lines, and shall receive and transport freight and cars over such routes as the shipper shall direct. It is further provided by said chapter 28 of the Acts of the 22d General Assembly that, when the rates for transportation charges are fixed by the board of railroad commissioners, such rates shall, in all suits, brought against any railroad company, wherein is in any way involved the charges of such railroad for the transportation of freight, be deemed and taken in all courts of this state as prima facie evidence that the rate thus fixed is a reasonable and just charge for the transportation of freight and cars upon such roads, and that any greater charge shall be deemed extortion. And it is further provided in said chapter 28 of the Acts of the 22d General Assembly that, for violating the charges or rates thus fixed by the board, the penalty therefor is to forfeit and pay to the state of Iowa not less than one thousand ($1,000.00) dollars nor more than five thousand ($5,000.00) dollars for the first offense, and not less than five thousand ($5,000.00) dollars nor more than ten thousand ($10,000.00) dollars for every subsequent offense, to be recovered in a civil action, by ordinary proceedings, in the name of the state of Iowa. Your petitioner would now further inform your honor that several demands have been sent to it under the last act, or joint rate law, demanding that it shall make joint rates with other railroads, as is in said act contemplated. That your petitioner has refused to make such joint rates upon such requests, and still does refuse to make such joint rates with other and distinct railroads. That by said last act of the legislature (known as the ‘Joint Rate Act’) it then becomes the duty of the board of railroad commissioners, upon such refusal, and upon application of any person, to establish joint rates between different and connecting roads. That said board has been so requested by interested parties to establish joint rates between petitioner and other railroads, and is about to so do and promulgate the same, and such joint rates will be established and promulgated, unless restrained by order of this court; thus subjecting your petitioner to the heavy penalties referred to in the event of non-complying with the joint rates thus to be established and promulgated. Your petitioner now avers that the act of the legislature of Iowa known as the ‘Joint Rate Bill,’ a copy of which is attached, marked ‘Exhibit A,’ is unconstitutional and void, and said commissioners have no right or authority thereunder to fix a joint rate, or promulgate the same. That said act deprives your petitioner of its rights guarantied by section 9, art. 1, of the constitution of Iowa, in that it deprives your petitioner of its property, and the right to contract, and deprives it of liberty, without due process of law, and prevents its acquiring, possessing, and protecting its property as guarantied by section 1 of article 1 of the constitution of Iowa, and by like powers of the constitution of the United States. That if defendants are allowed and permitted to establish and promulgate such joint rates, although the same will be void for the reasons stated, yet thereunder your petitioner will be subjected to a multiplicity of suits, by many different persons, to recover the penalties referred to, and otherwise harassed by vexatious litigation. To the end, therefore, that your petitioner may obtain the relief to which it is justly entitled in the premises, and being remediless at law, it now prays the court to grant it a temporary writ of injunction, restraining defendants,and each of them, and as the board of railroad commissioners, from establishing and promulgating joint rates with it in connection with other railroads, for the shipment of freight and cars over such different railroads, and that upon a final hearing it be ordered and decreed that defendants be permanently enjoined from establishing such joint rates. And, further, your petitioner prays for such other and further relief as may be just and equitable.”

(Exhibit A.)

“An act to amend chapter 28 of the Acts of the Twenty-Second General Assembly, giving authority for the making of rates for the transportation of freight and cars over two or more lines of railroad within this state, and enlarging the powers and further defining the duties of the board of railroad commissioners. Be it enacted by the general assembly of the state of Iowa:

Section 1. That chapter 28 of the Acts of the Twenty-Second General Assembly be, and the same is hereby, amended as follows: That said chapter 28 of the Twenty-Second General Assembly shall not be construed to prohibit the making of rates by two or more railroad companies for the transportation of property over two or more of their respective lines of railroad within this state, and a less charge by each of said railroad companies for its portion of such joint shipment than it charges for a shipment for the same distance wholly over its own line within the state shall not be considered a violation of said chapter 28 of the Acts of the Twenty-Second General Assembly, and shall not render such railroad company liable to any of the penalties of said act. But the provision of this section shall not be construed to permit railway companies establishing joint rates to make, by such joint rates, any unjust discrimination between the different shipping points or stations upon the respective lines between which joint rates are established. Any such unjust discrimination shall be punished in the manner and by the same penalties provided in chapter 28 of the Acts of the Twenty-Second General Assembly.

Sec. 2. All railway companies doing business in this state shall, upon the demand of any person or persons interested, establish reasonable joint through rates for the transportation of freight between points on their respective lines within this state, and shall receive and transport freight and cars over such route or routes as the shipper shall direct. Car-load lots shall be transferred without unloading from the cars in which such shipments were first made, unless such unloading in other cars shall be done without charge therefor to the shipper or receiver of such car-load lots, and such transfer be made without unreasonable delay; and less than car-load lots shall be transferred into the connecting railway's cars at cost, which shall be included in and made a part of the joint rate adopted by such railway companies, or established as provided by this act. When shipments of freight to be transported between different points within this state are required to be carried by two or more railway companies operating connecting lines, such railway companies shall transport the same at reasonable through rates, and shall at all times give the same facilities and accommodation to local or state traffic as they give to interstate traffic over their lines of road.

Sec. 3. In the event that said railway companies fail to establish through joint rates, or fail to establish and charge reasonable rates for such through shipments, it shall be the duty of the board of railroad commissioners, and they are hereby directed, upon the application of any person or persons interested, to establish joint rates for the shipment of freight and cars over the two or more connecting lines of railroad in this state; and in the making of such rates, and in changing or revising the same, they...