E. D. Clough & Co. v. Boston & M. R. R.

• Decision Date: 27 June 1913
• Citation: 90 A. 863,77 N.H. 222
• Parties: E. D. CLOUGH & CO. v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

90 A. 863

77 N.H. 222

E. D. CLOUGH & CO.

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 27, 1913.

On Rehearing, April 13, 1914.

Peaslee and Plummer, JJ., dissenting in part.

Transferred from Superior Court, Merrimack County; Chamberlin, Judge.

Action by E. D. Clough & Co. against the Boston & Maine Railroad. Transferred from the superior court on plaintiffs' motion to reject defendants' brief statement of defenses. Case discharged.

Assumpsit, to recover back freight charges of $1,636, alleged to have been unlawfully collected from the plaintiffs by the defendants on certain shipments of lumber, to wit, the sum of $2 per car upon 818 car loads shipped between points on the Concord & Montreal, Northern, Concord & Claremont, and Tilton & Belmont Railroads and other points situated on the defendants' railway system.

The shipments were of four classes: (1) From a point in this state on one of said roads to another point in this state on the same road, (2) from a point in this state on one of said roads to a point in this state on another of said roads, (3) from a point in this state on one of said roads to a point in this state on some other line of railway operated by the defendants, and (4) from a point in this state on one of said roads to a point in Massachusetts on some other line of railway operated by the defendants; but each shipment was transported by the defendants, either wholly or in part within this state, over one or more railways operated by the defendants by virtue of leases and unions effected under chapter 100 of the Laws 'of 1883, or chapter 5 of the Laws of 1889, or chapter 156 of the Public Statutes, and the rates charged by the defendants and paid by the plaintiffs were $2 a car in excess of the legal rates allowed by those statutes for such transportations, in that the same exceeded to that extent the rates in existence on August 1, 1883, and on July 24, 1889, for the like carriage.

The defendants pleaded the general issue, with the following brief statement of defenses:

(1) That the rates charged the plaintiffs by the defendants for the transportation of said 818 car loads of lumber were neither discriminatory nor unreasonable in fact. That, on the contrary, they were the rates fixed for such service by the defendants' regularly established tariffs, and charged by the defendants to all shippers for like service, at the time said car loads were transported, and did not exceed a fair and reasonable return for the service rendered, and that said rates in no respect contravened any statute or other law or regulation applicable in the premises, unless the mere fact that in certain instances they may have exceeded the rates in force August 1, 1883, or July 24, 1889, for the carriage of lumber of the same class between the same points in car load lots, taken by itself, constituted a violation of section 17, c. 100, Laws of 1883, or of section 17, c. 5, Laws of 1889, or of section 42,c. 156, Public Statutes.

(2) That the mere fact of such alleged excess, so far as it exists, did not constitute a violation of either of said statutes, because the rate limitations contained therein do not inhibit reasonable increases in rates on particular commodities when offset by decreases in rates on other commodities, provided that such increases and decreases in rates taken together do not result in collecting from the public a greater sum in the aggregate on the same volume and kind of traffic than would have been collected if the rates of 1883 and 1889 had been in effect. That during each year covered by the plaintiffs' shipments, while some of the rates for the transportation of lumber between certain points and on other particular commodities in certain in stances exceeded the corresponding rates of 1883 and 1889, such excess was much more than offset by decreased rates on lumber between other points and on other commodities, and that, on the whole, the rates were not increased, but much reduced as aforesaid, so that the cost to the public of the freight traffic over each of said roads did not exceed, but, on the contrary, was much less than, the cost thereof had the rates of 1883 and 1889 remained unchanged. That during each of said years the aggregate sum which the defendants collected from the public in freight rates upon all the roads leased or united under said statutes was less by the sum of $5,000,000 than the same would have been had the rates of 1883 and 1889 remained without readjustment, and that the plain tiffs' claim of unlawful overcharge is accordingly unfounded.

(3) That during each year covered by the plaintiffs' shipments the rates for passenger fares on all roads operated by the defendants, by virtue of leases and unions effected under chapter 100 of the Laws of 1883, or chapter 5 of the Laws of 1889, or chapter 156 of the Public Statutes, greatly decreased from the corresponding rates in force when said statutes were enacted, so that the cost of passenger traffic to the public over said roads has been much less, to wit, $500,000 annually, than the cost thereof had the rates of 1883 and 1889 not been adjusted by the defendants as set forth in paragraph 2 here of. That said decrease in passenger rates and the net decrease in freight rates has resulted in a net decrease of more than $1,000,000 annually paid by the public below the amount that would have been so paid if the rates for fares and freights in 1883 and 1889 had not been decreased as aforesaid, and that the plaintiffs' claim of unlawful over charge is accordingly unfounded.

(4) That, even if the abovementioned rate limitations in the statutes of 1883 and 1889 and chapter 156 of the Public Statutes can be deemed to inhibit the increasing of any particular rates, notwithstanding more than an equivalent decrease in other rates as here in set out, the plaintiffs cannot maintain this action because:

(a) Said limitations were not designed to, and do not expressly or by implication, entitle a shipper to recover back freight charges paid by him in excess of the rates of 1883 and 1889, where the charges so paid are not discriminatory or unreasonable in fact; but said limitations can be invoked and enforced only by the state, in its sovereign capacity and in its sole discretion, by quo warranto, injunction, or other appropriate proceeding.

(b) With respect to each and all of the 818 car loads of lumber mentioned in the plain tiffs' specification and accompanying schedule, the plaintiffs voluntarily, and without protest, paid to the defendants the freight charges which they now complain of as excessive.

(c) In the case of rates on interstate traffic, the repayment of such alleged excess rates would be a violation of the penal provisions of the Interstate Commerce Act and amendments thereto, inasmuch as the rates collected were lawfully filed and published according to the provisions of said act.

The plaintiffs thereupon moved to reject the brief statement, as follows:

As to the first specification of defense, because the matters therein set forth are wholly immaterial, and also because the defendants are estopped, as matter of law, to claim that rates charged by them in violation of section 17, c. 100, Laws of 1883, or of section 17, c. 5, Laws of 1889, or of section 42, c. 156, Public Statutes, are reasonable, and are legally binding on the plaintiffs.

As to the second and third specifications of defense, because the matters therein set forth are immaterial, and because the claim therein made, that said statutes do not inhibit increases in particular rates on particular commodities, is erroneous as matter of law. Said statutes prohibit the increasing of any rates whatever upon any railroad leased or united under them, above the corresponding rates of 1883 or 1889, and it is accordingly immaterial whether the total transportation cost of their freight traffic to the public, or the freight traffic of such road, or of the freight and passenger traffic thereon taken together, were increased or lessened.

As to the fourth specification of defense, because the averments thereof are immaterial and erroneous as matter of law. As to subdivisions (a) and (b) of said specification, it is the legal right of a shipper to recover back of the carrier, to the extent of the excess, any rate or fare paid by him on a railroad subject to said statutes, which exceeds the limit fixed by said statutes, no protest being required by him at the time of the payment of such rate or fare as a prerequisite to such recovery, as the plaintiffs were compelled to pay said excess in order to ship their lumber; and as to subdivision (c) of said specification of defense, it is erroneous as matter of law and immaterial.

It appearing that the questions of law presented by the brief statement and motion to reject the same are likely to be decisive both of the present action and of the other pending actions of like character, and that, even if, a decision of those questions does not finally dispose of said cases, their determination is necessary before the material issues of fact can be ascertained, and the cases intelligently and expeditiously tried, the presiding justice, by agreement of the parties, reserved questions so raised and particularly the following:

(1) Whether the provision of section 17, c. 100, Laws of 1883, of section 17, c. 5, Laws of 1889, and of section 42, c. 156, Public Statutes, forbidding an increase of fares and freights on railroads leased or united under said statutes above the fares and freights in force on August 1, 1883, and on July 24, 1889, respectively, inhibit the increasing of any given rate on any given commodity, as claim ed by the plaintiffs, or whether the same merely forbid increasing the total cost to the public of (a) the aggregate freight traffic over such a road, or of (b) the aggregate freight and passenger traffic over such road taken together, above what would have been the cost of the...