Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co.

• Citation: 172 Miss. 630,158 So. 775
• Decision Date: 14 January 1935
• Docket Number: 31376
• Parties: Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co.
• Court: United States State Supreme Court of Mississippi

158 So. 775

172 Miss. 630

Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co.

No. 31376

Supreme Court of Mississippi

January 14, 1935

(Division B.)

1 CARRIERS.

Respecting notice of proceedings before Railroad Commission to fix rates, same strictness is not required as in judicial proceedings.

2 CARRIERS.

Statute governing service of notice of Railroad Commission's proceedings held merely directory; notice being sufficient if served so as to be received by railroad's officer having charge of matter before commission, or officer whose duty it would tie to transmit notice to proper officer (Code 1930 sections 7032, 7033).

3 CARRIERS.

In shipper's action for overcharges, Railroad Commission's notice, mailed to person maintaining office in adjoining state and acting as assistant freight agent at defendant railroad and two other railroads, one of which had leased defendant, railroad, held sufficient, and hence defendant was bound by rate order made at meeting which such agent attended as part of his duties.

4. CONSTITUTIONAL LAW.

Legislative charter authorizing railroad's directors to fix rates field "contract" as to rate-making power, binding on Legislature and public (Laws 1882, chapter 542, sections 4, 15, 19).

5 CARRIERS.

Grants of power in derogation of sovereignty, such as rate-making power conferred on railroad's directors by legislative charter, should be strictly construed against railroads and favorably to public.

6. OFFICERS.

Powers must be strictly pursued and will not be extended beyond their terms, and, where power is given in nature of trust, it cannot be delegated.

7. CARRIERS.

Rate-making power conferred on railroad's directors by legislative charter held nondelegable, and hence rates promulgated by freight agent without Railroad Commission's approval were ineffective and rates fixed by commission governed, entitling shipper to recover overcharges (Laws 1882, chapter 542, sections 4, 15, 19; Code 1930, section 7095).

8. CARRIERS.

Railroad Commission held empowered to see that rates fixed by railroad's directors pursuant to power conferred by legislative charter do not exceed those fixed in statute (Laws 1882, chapter 542, section 19).

9. CARRIERS.

Order making Railroad Commission's approval prerequisite to increase in intrastate railroad rates held within commission's authority (Code 1930, section 7056; Const. 1890, section 186).

10. PUBLIC SERVICE COMMISSIONS.

Though Railroad Commission has only powers conferred by statute, such powers should be liberally interpreted.

11. CARRIERS.

Where freight agent promulgated rates without Railroad Commission's approval, attempted ratification thereof by railroad's directors, authorized by legislative charter to fix rates, subsequent to shipper's action for overcharges, held inoperative retroactively (Laws 1882, chapter 542, section 19).

12. CARRIERS.

Railroad Commission's approval of railroad's rates could be evidenced only by entry on commission's minutes.

13. CARRIERS.

Rates fixed by railroad's directors under rate-making power conferred by legislative charter should be filed with Railroad Commission and be within statutory classification and limits, and commission's approval should be requested and, if necessary, coerced by mandamus or certiorari (Laws 1882, chapter 542, section 19).

14. LIMITATION OF ACTIONS.

In shipper's action for freight charges exceeding those authorized by Railroad Commission, and for one hundred per cent, penalty, one-year limitation statute barred penalty (Code 1930, section 2301).

15. LIMITATION OF ACTIONS.

In shipper's action for freight charges exceeding those authorized by Railroad Commission, three-year rather than, six-year statute applied (Code 1930, sections 2292, 2299).

ON SUGGESTION OF ERROR. (Division B. February 25, 1935.) [159 So. 838. No. 31376.]

1. CARRIERS. In legislative railroad charter conferring on directors power to fix rates, section which validated acts of executive committee approved by quorum of directors had reference to general management and operation of railroad in its individual corporate action, and did not authorize board of directors to delegate to executive committee power to fix rates. 2. CARRIERS. Under legislative charter conferring on railroad's directors power to fix rates, rate schedule must be approved by majority, but not by all of directors. 3. CARRIERS. Rates fixed by railroad's directors under power conferred by legislative charter should be certified to Railroad Commission, which will determine whether rates come within grant of charter and within classification referred to therein, and, if so, commission should approve rates, making note of their filing and its approval on minutes. 4. CARRIERS. Railroad Commission approving rates fixed by railroad's directors under power conferred by legislative charter need not enter rates on commission's minutes at large at that time, but should refer to rates in some sufficient manner as by number and date or other description that would point public to rates and where they could be seen. 5. CARRIERS. Railroad Commission has power to say whether rates adopted by railroad's directors under power conferred by legislative charter conform to power and classification provided therein, and if rates do conform, they should be approved. 6. CARRIERS. If Railroad Commission should not be of opinion that rates fixed by railroad's directors under power conferred by legislative charter conform to charter provisions, railroad should either compel by mandamus, or, if a disputed issue, review matter by certiorari, and rates, if correct, would be effective from date they were filed with commission. 7. CARRIERS. Directors' judgment that rates fixed by them under power conferred by legislative charter conform to charter provisions is not necessarily conclusive, and if rates are unauthorized, Railroad Commission has right to refuse to accept them, and to contest matter in courts, and directors likewise have right to resort to courts to determine question. 8. CARRIERS. Where railroad's directors do not adopt rates under power conferred by legislative charter, railroad may submit to Railroad Commission schedule of rates for approval, and, if approved, rates will become effective as if adopted by directors. 9. CARRIERS. State authorities are not compelled to adopt railroad rates where they are not adopted by railroad's directors under power conferred by legislative charter, and, in such case, Railroad Commission would have power to see that proper rates only are made. 10. CARRIERS. Railroad's directors, acting within their charter powers, have right to fix rates within limits of authority of their grant.

ON MOTION TO CORRECT JUDGMENT. (Division B. March 25. 1935.) [160 So. 564. No. 31378.]

1. CARRIERS. Statute providing for recovery of twice amount of damages sustained by carrier's overcharge or discrimination held to exclude interest from date of overcharge until date of judgment (Code 1930, section 7092). 2. ACTION. Statutory remedy is exclusive where remedy is granted and no other remedies are saved. 3. CARRIERS. Where action against carrier for damages on account of overcharges was brought after expiration of limitation provided for penalty of double damages, penalty could not be recovered (Code 1930, section 7092). 4. CARRIERS. In action against carrier for freight, overcharge where penalty could not be recovered, interest should be calculated from date of judgment in trial court, and not from date of judgment in Supreme Court (Code 1930, section 7092).

HON. W. H. POTTER, Chancellor.

Action by the Laurel Oil & Fertilizer Company against the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed and rendered in part.

On suggestion of error. Suggestion of error overruled, and opinion amended.

On motion to correct judgment. Motion sustained.

May, Sanders, McLaurin & Byrd, of Jackson, and Burch, Minor & McKay, of Memphis, Tennessee, for appellant.

The Gulf & Ship Island Railroad Company was not a party to the proceedings in which said order was entered and no legal process was ever served on it.

Alexander v. Livingston, 89 So. 520; Section 7033, Code of 1930; Section 4834, Code of 1906: Langstaff v. Town of Durant, 122 Miss. 471, 491; Belt et al. v. Adams, 124 Miss. 194, 202; Miss. Railroad Commission et al. v. G. M. & N. R. R. Co., 155 So. 212; Burns v. Burns, 133 Miss. 485, 97 So. 814.

The Mississippi Railroad Commission had no right, power or authority to prescribe rates for the Gulf & Ship Island Railroad Company. The Gulf & Ship Island Railroad Company has continuously operated under a charter granted to it by the Legislature of the state of Mississippi, being chapter DXLII of the Laws of 1882.

G. & S. I. R. R. Co. v. Adams, State Revenue Agent, 90 Miss. 559; Miss. Railroad Commission v. G. & S. I. R. R. Co., 78 Miss. 750; Stone v. Y. & M. V. R. R. Co., 62 Miss. 607.

The commission being a creature of statute has only the powers granted to it by statute, as construed and denned by the court and the commission cannot enlarge its own powers and jurisdiction, and it must be able to point to some statute giving it the power to act.

G. & S. I. R. R. Co. v. Miss. Railroad Commission. 94 Miss. 124.

The proceedings in which the order of December 3, 1925, was entered were not instituted against the Gulf & Ship Island Railroad Company, and the order makes no finding of facts whatever with reference to the Gulf & Ship Island Railroad Company and its rates, and the facts and circumstances revealed by the record show that it was not intended by any person that said order should apply to the Gulf & Ship Island Railroad Company and its rates.

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