Duluth-Superior Milling Co. v. N. Pac. Ry. Co.

• Decision Date: 20 March 1913
• Citation: Duluth-Superior Milling Co. v. N. Pac. Ry. Co., 152 Wis. 528, 140 N.W. 1105 (Wis. 1913)
• Parties: DULUTH-SUPERIOR MILLING CO. v. NORTHERN PAC. RY. CO.
• Court: Wisconsin Supreme Court

152 Wis. 528

140 N.W. 1105

DULUTH-SUPERIOR MILLING CO.

v.NORTHERN PAC. RY. CO.

Supreme Court of Wisconsin.

March 11, 1913.

Concurring and Dissenting Opinions March 20, 1913.

Syllabus by the Court.

The State Railroad Commission does not have jurisdiction to regulate service charges in the conduct of interstate commerce.

If the State Railroad Commission erroneously assumes jurisdiction to pass upon the reasonableness of compensation demanded by a railroad company for elements of service rendered wholly within a state, but forming part of an entire interstate transit, its decision is void for want of power to deal with such matters.

In determining whether an element of service in the transportation of freight from a point in one state to an unloading point in another, is within the field of interstate commerce. the circumstances of a through tariff rate, a through bill of lading, or absence of it, and continuity of ownership and consignee from the time of delivery at the origin of the freight to the point of unloading, are evidentiary but not controlling.

Between the point of delivery of freight for transportation and the point for discharge thereof, there may be changes of ownership, changes of consignee, successive bills of lading, or no bill of lading at all for some section of the transit, and the subject of the carriage be, yet, that of interstate commerce from beginning to end.

In case a car of freight is started for a point without to a point within the state and the transit is characterized by a bill of lading which does not expressly call for delivery at an unloading point, but the general custom is to place such cars at a terminus within the scope of the expressed delivery point--to be removed therefrom to an unloading point, determined after arrival thereat, or at the start or in the meantime--either by the initial or some connecting carrier, there being no expectation from the start, of the freight being discharged at the point of temporary break in the transit, nor facilities therefor,--the presumption is that the shipper purposed, in the beginning, that the freight should go beyond such terminus to a place for unloading, and the whole is a unit as regards whether the service is inter or intrastate, regardless of the fact that such terminus answers the literal call in the bill for the end of the shipment and in fact as to the particular tariff rate specified therein.

In the case suggested in the foregoing, the temporary place of stoppage, though satisfying the literal call of the bill of lading, is to be regarded only as marking the end of part of the entire transit covered by the tariff rate mentioned in such bill, where continuance to the unloading point is required to be over another line,--the additional movement does not militate against the subject of the shipment being interstate to such unloading point.

When property is delivered to a carrier in one state for the purpose of having the same transported to an unloading point in another state, it is matter of interstate commerce until it is unloaded at the terminus of the service sought or tendered for unloading, regardless of the number of elements making up the entirety of the transit and that the last is a mere switching movement not covered by a bill of lading.

In general, it is the character of the service required, intended and rendered, not the manner in which it is accomplished, which determines interstate character. Such service impresses the subject of the transit at the start, and delivery at the unloading point where the person entitled to receive the freight has reasonable opportunity to accept discharge of it, removes such impress.

Appeal from Superior Court, Douglas County; C. Smith, Judge.

Action by the Duluth-Superior Milling Company against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

Vinje, Kerwin, and Barnes, JJ., dissenting.

Action to recover seven hundred and thirty-five dollars, claimed to have been illegally demanded for switching charges and paid by plaintiff to the Minneapolis, St. Paul & S. Ste. M. Ry. Co. for use of defendant. Plaintiff, by appropriate allegations, pleaded that the defendant switched 490 cars of grain from the initial carrier's terminal yard in Superior, Wisconsin, to plaintiff's mill therein; that the service was rendered by defendant at such company's request and that it claimed and received $3 per car therefor which was charged by such carrier to plaintiff; that in due course before the Railroad Commission of Wisconsin the amount received for such service was held exorbitant to the extent of $1.50 per car, or $735 in the whole, which defendant was ordered to refund.

Defendant answered, claiming the switching to have been done for the Minneapolis, St. P. & S. Ste. M. R. Co. in execution of transit service in the carriage of car load lots of grain from points outside this state to the unloading place in Superior, Wisconsin; that defendant, as an interstate carrier, complied with all the regulations in respect to such business and was thereby entitled to charge and collect $3 for each of the cars switched by it, and that the Railroad Commission of Wisconsin had no jurisdiction in respect to the matter.

The trial court found: Defendant did the switching as alleged and charged and collected therefor $3 per car. The Wisconsin Railroad Commission, in a hearing under chapter 136, Laws of Wisconsin of 1909, ordered $735, as and for money paid for the switching in excess of reasonable compensation therefor, to be refunded. The compensation exacted by defendant and received was, in fact, exorbitant as so held.

The evidence upon which such findings were made was to this effect:--The Minneapolis, St. Paul & S. Ste. M. R. Co., the defendant and other railway companies have terminal yards in Superior and are engaged in interstate traffic. In the proper terminal yard of each line cars therefrom are placed as brought in from points outside the state and are, later, by it or some connecting company, placed at the appropriate unloading point in Duluth or Superior. Each car lot of grain from a Western point is necessarily so handled, there being no facilities for unloading the same in the yard. The customary way, and one followed in respect to each of the cars in question, is for the shipper of a car of grain at the point of origin of the freight, to consign the same to some person, firm or corporation doing a brokerage business on the Board of Trade at Duluth. The initial carrier transports the car to its terminal yard in Superior to await the final disposition thereof upon order of the shipper through his broker. The uniform understanding between shipper and carrier is that the car will be left in the latter's terminal yard subject to order from the former's agent, through a clearing office, characterized as a sampling bureau, for delivery to some elevator or mill, as desired by the buyer, for unloading. If the track of the initial carrier reaches the unloading point, the delivery thereat is, in general, made without charge. If it is not so reached, then the initial carrier engages the railway company having a connecting line which does so reach, and pays the switching charges thereto. The switching company does not know the buyer of the grain in the transaction. It takes its orders wholly from the initial carrier and demands and obtains its compensation therefrom, and such carrier handles the matter as an entirety, collecting the freight charge and the switching expense as well, of the party finally receiving the grain, though, ordinarily, separate bills are rendered and sometimes absorbing such expense where the freight originates at a competing point and such absorption is necessary to put the two carriers on an even plane.

Switching accounts between two companies are settled, either by offset of the smaller bill against the larger one and payment of the balance, or by each company auditing and paying the bill rendered by the other. In case of each of the cars in question, the destination expressed in the bill of lading was Superior, Wisconsin, but it was, by universal custom, understood to mean such unloading point there or Duluth as might be, in due course, designated; an expense bill covering the switching charges being an incident of the transit in case of the unloading point being off the initial carrier's line. The contract was, customarily, treated as binding the initial carrier to transport the car to such usual place of unloading at such destination, as might be, in due course, selected, and, as indicated, without extra charge, if on its road, otherwise to transfer the car to some connecting carrier to continue the transit to the desired unloading place. The terminal yard in question was on the route to the final destination in every case of a car of grain coming to Superior, Wisconsin, from a point outside this state by way of the Minneapolis, St. Paul & S. Ste. M. Ry. Co. whether the unloading point was reached by its system or, necessarily, by a connecting line.

Judgment was rendered in favor of the plaintiff.

Hanitch & Hartley, of Superior (C. W. Bunn and Emerson Hadley, both of St. Paul, Minn., of counsel), for appellant.

W. R. Foley, of Superior, for respondent.

MARSHALL, J.

[1][2] Was the service in question of interstate character? If so, it is conceded that the Wisconsin Railroad Commission had no jurisdiction to regulate the charges therefor and the judgment based thereon must be reversed.

[3][4][5][6][7][8] Respondent's claim is, that because the bill of lading, in each case, was for a transit to Superior, that the terminal yard of the Minneapolis, St. Paul & Sault Sainte Marie Ry. Co. was there, and as near the finally determined upon unloading point as could be reached by its line and there was no through bill of lading to such point, that the switching service was rendered as...