Buskirk v. Red Buttes Land and Live Stock Company
| Decision Date | 23 October 1916 |
| Docket Number | 821 |
| Citation | 156 P. 1122,24 Wyo. 183 |
| Parties | VAN BUSKIRK v. RED BUTTES LAND AND LIVE STOCK COMPANY |
| Court | Wyoming Supreme Court |
Original Opinion of May 1, 1916, Reported at: 24 Wyo. 183.
Rehearing denied.
POTTER CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not participate in this decision.
ON PETITION FOR REHEARING.
This case is before the court at this time on a petition for rehearing. A candid and careful consideration of the able brief filed in support of the petition has not caused us to doubt the correctness of the decision, or convinced us that a rehearing ought to be granted. The only point made by the petition is that we erred in holding that the remedy provided by statute for securing a just and lawful distribution of the water of a stream through application to the water commissioner did not supersede and exclude the remedy of an action for damages for deprivation of the use of such water. Counsel courteously say in the brief that an examination of the opinion in the case has led them to conclude that they did not in the former brief and argument make clear in all respects their contention that the remedy of applying to the water commissioner to regulate the distribution of the water was exclusive of an action for damages; but that they are content if the court should feel, on reexamination of the subject, that it was clearly presented and fully understood upon the former hearing, insisting, however, that the question is one calling for the clearest possible exposition of the subject, and the most careful and comprehensive consideration of the origin, scope and purpose of the statutes, and the practical effect of the decision upon the future administration of the water laws, and the jurisdiction and functions of the courts.
We think that we appreciate to the fullest extent the importance of the question and the effect of the decision, though we do not entertain the view that the decision is in any way inconsistent with the scope or purpose of the statutes, or in disregard of their origin; nor that the effect of the decision will be to prevent, retard or embarrass the proper and effectual administration of the water laws.
We have again examined with care the cases decided under the Interstate Commerce Act, cited and strongly relied on by counsel, but remain of the opinion that they are not in point, except as previously stated. To show the point decided in those cases a reference to the case of Texas Pacific Ry. Co. v. Abilene Cotton Oil Co., mentioned in the former opinion in this case (156 P. 1122, 1127) will, we think, be sufficient. It was held in that case that a shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power to originally entertain proceedings for the alteration of an established schedule alleged to be unreasonable. The suit was brought to recover an alleged excessive amount exacted by the railway company on shipments of carloads of cotton seed, and it was alleged as ground for recovery that the rate charged was unjust and unreasonable. The court stated the fundamental question to be, "the scope and effect of the act to regulate commerce upon the right of a shipper to maintain an action at law against a common carrier to recover damages because of the exaction of an alleged unreasonable rate although the rate collected and complained of was the rate stated in the schedule filed with the Interstate Commerce Commission and published according to the requirements of the act to regulate commerce, and which it was the duty of the carrier under the law to enforce as against shippers."
In the course of the opinion in that case the court conceded the principle to be settled that at common law, where, on the receipt of goods by a carrier, an exorbitant charge is stated, and the same is coercively exacted either in advance or at the completion of the service, an action may be maintained to recover the overcharge, and then stated that as the act to regulate commerce did not in so many words abrogate such right, the contention that the right was taken away by such act rests upon the proposition that the result was accomplished by implication; and that in testing the correctness of the proposition the court must be guided by the principle that repeals by implication are not favored, and that a statute will not be construed as taking away a common law right, unless that result is imperatively required; "that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory." The court then referred to the pertinent provisions of the act to regulate commerce and among others the provisions requiring only just and reasonable rates to be charged, that schedules of rates be established, published and filed with the Commission, and conferring upon the Commission power "to hear complaints concerning violations of the act, to investigate the same, and, if the complaints were well founded, to direct not only the making of reparation to the injured persons, but to order the carrier to desist from such violation in the future, and to compel compliance with the award of reparation by invoking the authority of the courts of the United States in the manner pointed out in the statute." Following that the court proceeded to demonstrate that if power was left in the courts to grant relief on complaint of any shipper, upon the theory that the established rate could be disregarded and be treated as unreasonable, without reference to previous action by the Commission in the premises the enforcement of the act would be impossible, because a conflict might arise between the decision of a court and the action of the Commission, since the established schedule might be found reasonable by the Commission in the first instance and unreasonable by the court acting originally.
In other later cases the Supreme Court of the United States has held that the Interstate Commerce Act did not supersede the jurisdiction of the courts, where the decision does not involve the determination of matters calling for the exercise of the administrative power and discretion of the Commission. For example, that if the carrier's rule, fair on its face, has been unequally applied and the suit is for damages, occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff's damage; and that such suits may be prosecuted either in the State or Federal courts. (Penna. R. Co. v. Puritan Coal Min. Co., 237 U.S. 121.) That, while reasonableness of rates and permissive discriminations based upon differences in conditions are administrative matters for the Commission, the courts may determine whether differentials in rates can be allowed for the same commodity under similar conditions of traffic, on account of differences in the disposition of the commodity. (Penna. R. Co. v. International Coal Min. Co., 230 U.S. 184, 57 L.Ed. 1446, 33 S.Ct. 893.) That the state courts have jurisdiction in a case for damages against a carrier for failure to deliver cars in accordance with its own rules for distribution, where the rule itself is not attacked but discrimination against plaintiff notwithstanding the rule is the basis of the suit. (Ill. Cent. R. Co. v. Mulberry Hill Coal Co., 238 U.S. 275, 59 L.Ed. 1306, 35 S.Ct. 760.) And in other courts jurisdiction is upheld where no question of the reasonableness of rates is involved. Thus, that the courts have jurisdiction, in a suit to recover back the difference between fixed charges collected at destination on an interstate freight shipment and the prepaid charge, to determine whether there was an overcharge under the rates as established and published. (Wolverine Brass Works v. Southern P. Co. (Mich.) 153 N.W. 778.)
Thus in such cases, the right of action is denied where the claim is based upon the alleged unreasonableness of duly established and published rates filed with the Commission as required by law, for the reason that under the act to regulate commerce the power to determine whether the rate complained of is reasonable or unreasonable is conferred upon the Interstate Commerce Commission, with provisions for hearing and disposing of complaints as to that matter, and for awarding reparation to the injured person and...
To continue reading
Request your trial