C. L. Merrick Company v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company
| Decision Date | 17 November 1916 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County, W. C. Crawford, J.
From a judgment in defendant's favor, plaintiff appeals.
Reversed and judgment directed for plaintiff.
Judgment reversed and judgment entered for plaintiff.
Miller Zuger, and Tillotson, for appellant.
The rate established in the manner prescribed by law is the lawful rate until it is set aside upon further evidence as the result of greater experience in applying it, and if then modified, it can only affect subsequent transactions. Wilcox v. Consolidated Gas Co. 212 U.S. 19-52, 53 L.Ed. 382-400, 48 L.R.A.(N.S.) 1134, 29 S.Ct. 192, 15 Ann Cas. 1034.
A rate fixed by the legislature shall remain in effect until a decision by the court. Reagan v. Farmers' Loan & T Co. 154 U.S. 360, 38 L.Ed. 1014, 4 Inters. Com. Rep. 560, 14 S.Ct. 1047; Stone v. Farmers' Loan & T. Co. 116 U.S. 307, 29 L.Ed. 636, 6 S.Ct. 334, 388, 1191; N.D. Const. § 142.
John L. Erdall, John E. Greene, G. F. Dullam, and William G. Porter (A. H. Bright, of counsel), for respondent.
The plaintiff in the Merrick Case was a citizen and resident of the state of North Dakota when the state case was commenced. The latter was brought on behalf of all of the citizens of North Dakota, and all citizens of the state are bound by the final judgment entered therein. State ex rel. Davis v. Willis, 19 N.D. 225, 124 N.W. 706.
These points once litigated, the public interest requires that it should be at rest. Ashton v. Rochester, 133 N.Y. 187, 28 Am. St. Rep. 619, 30 N.E. 965, 31 N.E. 334.
When a judgment is rendered by a competent court awarding a writ of mandamus against a board of supervisors or other body or officer having power to audit claims against a county or other municipality, commanding them or him to audit a claim or demand against the county or municipality, and it is audited in obedience to such command, the validity of the claim cannot be questioned subsequently by the taxpayers in any collateral action or proceeding. McConkie v. Remley, 119 Iowa 512, 93 N.W. 505; Fulton v. Pomeroy, 111 Wis. 663, 87 N.W. 831; People ex rel. Chilcoat v. Harrison, 253 Ill. 625, 97 N.E. 1092, Ann. Cas. 1913A, 539.
Where a proceeding is filed by the state's attorney in the name of the people on the relation of certain citizens and electors representing the general public, all individuals constituting the public are regarded as represented and will be bound by the decree or judgment rendered. McEntire v. Williamson, 63 Kan. 275, 65 P. 244; State ex rel. Howard v. Hartford Street R. Co. 76 Conn. 174, 56 A. 506; Bank of Kentucky v. Stone, 88 F. 383; Bear v. Brunswick County, 122 N.C. 434, 65 Am. St. Rep. 711, 29 S.E. 719; Stone v. Winn, 165 Ky. 9, 176 S.W. 933; State ex rel. Blair v. Center Creek Min. Co. 262 Mo. 490, 171 S.W. 356; Kansas City Exposition Driving Park v. Kansas City, 174 Mo. 425, 74 S.W. 979; Orcutt v. McGinley, 96 Neb. 619, 148 N.W. 586; Worrell v. Landis, 42 Okla. 464, 141 P. 962; Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224; Central Bank & T. Corp. v. State, 139 Ga. 54, 76 S.E. 587; State ex rel. Forgues v. Superior Ct. 70 Wash. 670, 127 P. 313; Greenberg v. Chicago, 256 Ill. 213, 49 L.R.A.(N.S.) 108, 99 N.E. 1039; People ex rel. Graff v. Chicago, B. & Q. R. Co. 247 Ill. 340, 93 N.E. 422; People ex rel. Atty. Gen. v. Detroit, G. H. & M. R. Co. 157 Mich. 144, 121 N.W. 814; Meza v. Pfister Co. 54 Wash. 7, 102 P. 871; Lee v. Independent School Dist. 149 Iowa 345, 37 L.R.A.(N.S.) 383, 128 N.W. 533; Pierce v. Pierce, 139 Mo.App. 416, 122 S.W. 1147; Leet v. Gratz, 137 Mo.App. 208, 117 S.W. 642; Davis v. Davis, 24 S.D. 474, 124 N.W. 715; Spokane Valley Land & Water Co. v. Jones, 53 Wash. 37, 101 P. 515; Freeman, Judgm. 4th ed. § 178; Black, Judgm. § 584; 23 Cyc. 1269.
To entitle a judgment to be pleaded as res judicata it must be a final judgment, covering the same issues. Willcox v. Consolidated Gas Co. 212 U.S. 19, 53 L.Ed. 382, 48 L.R.A.(N.S.) 1134, 29 S.Ct. 192, 15 Ann. Cas. 1034; 23 Cyc. 1128; Bostwick v. Brinkerhoff, 106 U.S. 3, 27 L.Ed. 73, 1 S.Ct. 15; Kingman & Co. v. Western Mfg. Co. 170 U.S. 675, 42 L.Ed. 1192, 18 S.Ct. 786; Dusing v. Nelson, 7 Colo. 184, 2 P. 923; Lamprey v. Pipe, 28 F. 30; Macfarland v. Byrnes, 187 U.S. 246, 47 L.Ed. 162, 23 S.Ct. 107; Clark v. Kansas City, 172 U.S. 334, 43 L.Ed. 467, 19 S.Ct. 207; Hasletine v. Central Nat. Bank, 183 U.S. 130, 46 L.Ed. 117, 22 S.Ct. 49; McCurdy v. Middleton, 90 Ala. 99, 7 So. 655; Roemer v. Neumann, 26 F. 332; Australian Knitting Co. v. Gormly, 138 F. 92; Union & Planters' Bank v. Memphis, 107 Tenn. 66, 64 S.W. 13; Harrow v. Johnson, 3 Met. (Ky.) 578; Wolfe v. Potts, Tenn. , 42 S.W. 189; People ex rel. Johnson v. Miller, 195 Ill. 621, 63 N.E. 504; Johnson v. Hesser, 61 Neb. 631, 85 N.W. 894; Minor v. New Orleans, 115 La. 301, 38 So. 999.
"The general rule is that a judgment is conclusive, for the purposes of a second action between the same parties or their privies, of all facts, questions, or claims which were directly in issue and adjudicated, whether the second suit be upon the same or a different cause of action." 23 Cyc. 1302.
The rule is that the estoppel extends to every material allegation or statement which, having been made on one side and denied on the other, was at issue in the cause, where the judgment was rendered upon the merits, whether on demurrer, agreed statement, or verdict. Aurora v. West, 7 Wall. 82, 19 L.Ed. 42; New Orleans v. Citizens' Bank, 167 U.S. 371, 42 L.Ed. 202, 17 S.Ct. 905.
The estoppel extends to every material allegation or statement which, having been made on one side and denied on the other, was an issue in the cause, and was determined therein. Aurora v. West, 7 Wall. 102, 19 L.Ed. 49; Van Pelt v. McGraw, 4 N.Y. 113; Bryan v. Atchison, 2 La.Ann. 462; Scuddy v. Shaffer, 14 La.Ann. 576; Plicque v. Perret, 19 La. 318; Gilman v. Horseley, 5 Mart. N. S. 664; Dufour v. Camfranc, 11 Mart. 607, 13 Am. Dec. 360; Patterson v. Bonner, 14 La. 233; Martin v. Martin, 5 Mart. N. S. 170; Manhattan Trust Co. v. Trust Co. of N. A. 46 C. C. A. 322, 107 F. 328; Iowa County v. Mineral Point R. Co. 24 Wis. 118; Lamb v. Wahlenmaier, 144 Cal. 91, 103 Am. St. Rep. 66, 77 P. 766; Litch v. Clinch, 136 Ill. 410, 26 N.E. 580; Casler v. Shipman, 35 N.Y. 545; Roarty v. McDermott, 146 N.Y. 302, 41 N.E. 30; Hermann v. Allen, 103 Tex. 382, 128 S.W. 116; Thornton v. Berry, 101 Ga. 608, 29 S.E. 24; Franklin County v. German Sav. Bank, 142 U.S. 93, 99, 35 L.Ed. 948, 950, 12 S.Ct. 147; 23 Cyc. 1300-1302; Southern P. Co. v. United States, 168 U.S. 48, 42 L.Ed. 376, 18 S.Ct. 18; Stone v. Winn, 165 Ky. 9, 176 S.W. 939; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; State ex rel. Blair v. Center Creek Min. Co. 262 Mo. 490, 171 S.W. 358; Kansas City Exposition Driving Park v. Kansas City, 174 Mo. 429, 74 S.W. 979; Greenberg v. Chicago, 256 Ill. 213, 49 L.R.A.(N.S.) 108, 99 N.E. 1041.
The prohibition of the Constitution was doubtless intended simply to prevent a common carrier from applying a different rate than that fixed by the legislature pending litigation. It was not the intention to prevent an adjustment between the carrier and the shipper after the litigation should be ended in accordance with the final judgment entered. This construction is in accord with the law as it is generally understood and administered, and avoids any conflict with the Federal Constitution. N.D. Const. § 142; Reagan v. Farmers' Loan & T. Co. 154 U.S. 362, 38 L.Ed. 1014, 4 Inters. Com. Rep. 560, 14 S.Ct. 1047; Solum v. Northern P. R. Co. Minn. , 157 N.W. 996; Smyth v. Ames, 169 U.S. 466, 42 L.Ed. 819, 18 S.Ct. 418; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Scott v. McNeal, 154 U.S. 34, 38 L.Ed. 896, 14 S.Ct. 1108; Huntington v. Attrill, 146 U.S. 657, 683, 684, 36 L.Ed. 1123, 1133, 1134, 13 S.Ct. 224; Mobile & O. R. Co. v. Tennessee, 153 U.S. 486, 492-495, 38 L.Ed. 793, 795, 796, 14 S.Ct. 968.
Plaintiff seeks to recover a sum alleged to have been wrongfully exacted from it in excess of the legal rate for hauling lignite coal between July 1, 1907, and March 5, 1910.
Defendant had judgment in the lower court and plaintiff appeals. The facts are not in dispute, and, as found by the trial court, are as follows, omitting the first two findings relating to the corporate capacity of the parties:
(3) That between the first day of July, 1907, and the first day of March, 1910, the defendant received and transported for the plaintiff a considerable number of carloads of coal within the state of North Dakota; that the defendant charged and collected therefor the rates duly prescribed by its tariffs, which rates so charged and collected exceeded in the aggregate the rates prescribed by chap. 51 of the Laws of North Dakota for the year 1907, by the sum of three hundred thirty-two and 8/100 dollars ($ 332.08).
(4) That the defendant refused to deliver said coal or any part thereof unless the plaintiff would pay said tariff rates, and plaintiff paid the same under protest.
(5) That before the commencement of this action plaintiff demanded of defendant that it refund to the plaintiff all rates charged and collected on such coal shipments in excess of the rates prescribed by said chap. 51, but defendant refused to repay the same or any part thereof.
(6) That on or about the 7th day of August, 1907, the attorney general of North Dakota, on behalf of and in the name of the state of North Dakota, commenced an action in the supreme court of that state against the defendant. In his petition the attorney general pleaded in substance that chap. 51, of the...
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