Cahill & Redman v. Great Northern Ry. Co.
| Decision Date | 05 February 1918 |
| Docket Number | 4186. [*] |
| Citation | 166 N.W. 306,40 S.D. 55 |
| Parties | CAHILL & REDMAN et al. v. GREAT NORTHERN RY. CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.
The Board of Railroad Commissioners, at the instance of Cahill & Redman, ordered that the Great Northern Railway Company, a corporation, put into operation at a station a stockyards scale, and from the judgment of the circuit court, reversing the order of the Board, the State appeals. Order affirmed.
Oliver E. Sweet, Asst. Atty. Gen., for the State.
Aikens & Judge, of Sioux Falls, for respondent.
The Board of Railroad Commissioners made an order:
"That the Great Northern Railway Company construct and put in operation at its stockyards at its station at Albee in Grant county, in this state, not later than April 15 1916, a four-ton Fairbanks-Morse stockyards scale, in such manner as to permit of the weighing of local stock loaded into and unloaded from cars at that station, as well as the weighing of stock received into the stockyards at Albee."
The Great Northern Railroad appealed from this order to the circuit court of Minnehaha county, and that court, upon review of the evidence and proceedings before the Board of Railroad Commissioners, found as matter of fact that a scale at the stockyards at Albee was not a facility necessary for the convenience and accommodation of the public; that shipments of local stock from said station are made and freight charges thereon computed upon a basis not requiring the use of stockyard scales at said station; that live stock so shipped and loaded into cars is subject to tariff minimum weights, and is weighed upon track scales at the terminal market, and that the weight so ascertained is the basis upon which freight charges are computed; that stockyard scales at the town of Albee is not an instrumentality of shipment or carriage, and is not included in "transportation," and is not a facility for receiving, forwarding, or delivering property by the common carrier to and from its lines, or other lines and places connected therewith; that such scales would be useful and would be used only for the purpose of facilitating the consummation of business transactions between buyers and sellers of local stock, and would not be used at the station of Albee as the basis of weight for ascertaining or computing freight charges for transportation, or for any purpose connected with transportation of such property by the defendant; that carload lots of stock are always shipped subject to tariff minimum carload rates, and that weighing at terminal or other points en route is for the purpose only of ascertaining the excess of the load over minimum weight, upon which excess freight charges are computed to be added to the minimum carload rate.
The following facts, although not included in the express findings of the Board of Railroad Commissioners, or in the findings of the trial court, are shown by undisputed evidence in the record, viz.: From May, 1912, to April, 1915 inclusive, only 56 carloads of stock were shipped from the town of Albee to terminal points outside of the state, and during the same period not a single carload shipment was made to any point in South Dakota; also that in the same period only two shipments of single animals were made to a point in South Dakota.
As a conclusion of law the court found that the enforcement of the order would not be justified by public necessities which defendant could lawfully be compelled to meet, and would constitute an arbitrary and unreasonable taking of defendant's property. Thereupon judgment was entered, reversing the order of the Board of Railroad Commissioners, and the matter is before us upon appeal from the findings, conclusion, and judgment of the circuit court.
Appellant relies upon two propositions: First, that local buyers and sellers of live stock have the right to demand the installation of stockyard scales for their own convenience in buying live stock; and, second, that it is the duty of the carrier to furnish the shipper such facilities as will enable him to avoid underloading cars where the rate is fixed upon minimum loads, and to ascertain the cost of shipping stock in a car in excess of the minimum carload weight. The fallacy of the first proposition is so clear that discussion would be idle. The carrier owes no duty to the local buyer or seller of live stock until the stock is tendered at the stockyards for shipment. New Mexico Wool Growers' Ass'n v. Atchison, T. & S. F. R. R. Co., 20 N.M. 33, 145 P. 1077; McDonald v. Pittsburgh, C., C. & St. L. R. Co., P. U. R. 1916E, 801.
The evidence on...
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