Hewitt Logging Co. v. Northern P. Ry. Co.

• Decision Date: 13 August 1917
• Docket Number: 13321.
• Citation: 97 Wash. 597,166 P. 1153
• Parties: HEWITT LOGGING CO. v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

166 P. 1153

97 Wash. 597

HEWITT LOGGING CO. v. NORTHERN PAC. RY. CO.

No. 13321.

Supreme Court of Washington

August 13, 1917

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by the Hewitt Logging Company against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Geo. T Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for appellant.

Gordon & Easterday and J. E. Belcher, all of Tacoma, for respondent.

Higgins & Hughes and Hyman Zettler, all of Seattle, amici curiae.

CHADWICK J.

This is an action to recover for an overcharge collected by appellant from respondent's assignor, for freight upon sawlogs hauled from Satsop, Wash., to Hoquiam, a greater distance on the same line and in the same direction. The freight was hauled under the published tariffs of the road. After a demurrer had been filed, the complaint, which alleged no more than the overcharge, was amended, appellant consenting thereto, by adding the following:

'All of which shipments were covered by appropriate bills of lading issued by defendant, which bills of lading were alike in form and one of which is hereto attached, marked 'Exhibit C,' and made a part hereof.'

The demurrer, being renewed upon the grounds (1) that the complaint did not state a cause of action, and (2) that the action was not commenced within the time prescribed by law was overruled upon both grounds. Judgment of want of an answer was entered against appellant.

Appellant relies on section 8626-91, Rem. Code 1915, which provides that where complaints are made to the Public Service Commission concerning overcharges, they shall be made within 2 years:

'All complaints concerning overcharges shall be filed with the Commission within two, years from the time the cause of action accrues, and the petition for the enforcement of the order shall be filed in the court within one year from the date of the order of the commission,'

--and upon section 165, Rem. Code 1915:

'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.'

It is admitted that the cause of action arose more than 2 years and less than 6 years, before the commencement of the action; the position of the appellant being that the Public Service Commission Law affords an exclusive remedy, or, if not, the action is barred under the general statute of limitations. Section 165, Rem. Code 1915.

We find that the remedy afforded by the statute, while not in the strict sense of the term exclusive, is to the extent that it requires a submission of all controverted questions arising out of freight rates and freight charges mandatory, and that one aggrieved by an overcharge must first submit his petition to the Public Service Commission within 2 years after his cause of action has accrued as a condition precedent to the right to maintain an action, which is in form a common-law action, modified only in so far as the statute touches the measure of recovery and the time within which the action may be brought. The pertinent sections of the act of 1911, which is known as the 'Public Service Commission Law' (Laws 1911, c. 117), are as follows:

'Sec. 22. No common carrier, subject to the provisions of this act, shall charge or receive any greater compensation in the aggregate for the transportation of persons or of a like kind of property for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance. * * *'

'Sec. 80. Complaint may be made by the commission of its own motion or by any person or corporation, * * * by petition or complaint in writing, setting forth any act or thing done or omitted to be done by any public service corporation in violation, or claimed to be in violation, of any provision of law or of any order or rule of the commission: * * *

'Upon the filing of a complaint, the Commission shall cause a copy thereof to be served upon the person or corporation complained of, which shall be accompanied by a notice fixing the time when and place where a hearing will be had upon such complaint. The time fixed for such hearing shall not be less than ten days after the date of the service of such notice and complaint, excepting as herein provided.'

Section 81 provides for a hearing and----

'at the conclusion of such hearing the Commission shall make and render findings concerning the subject-matter and facts inquired into and enter its order based thereon. * * * A full and complete record of all proceedings had before the Commission, or any member thereof, on any formal hearing had, and all testimony shall be taken down by a stenographer appointed by the Commission, and the parties shall be entitled to be heard in person or by attorney. In case of an action to review any order of the Commission, a transcript of such testimony, together with all exhibits introduced, and of the record with proceedings in the cause, shall constitute the record of the Commission.' 'Sec. 91. When complaint has been made to the Commission concerning the reasonableness of any rate, fare, toll, rental or charge for any service performed by any public service company, and the same has been investigated by the Commission, and the Commission shall determine that the public service company has charged as excessive or exorbitant amount for such service, the Commission may order that the public service company pay to the complainant the amount of the overcharge so found, with interest from the date of collection.

'If the public service company does not comply with the order for the payment of the overcharge within the time limited in such order, suit may be instituted in any court of competent jurisdiction to recover the same, and in such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated. If the complainant shall prevail in such action, he shall be allowed a reasonable attorney's fee, to be fixed and collected as part of the costs of the suit. All complaints concerning overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and the petition for the enforcement of the order shall be filed in the court within one year from the date of the order of the Commission'

--and sections 104 and 111, to which we shall hereafter refer.

The right to recover for discriminations in freight rates had not always been acknowledged by the courts. To save any controversy over the question of the right of a shipper who had suffered an extortion in the way of an unequal charge, or who had paid a greater charge for a short haul than had been charged another for a long haul, the people put in the Constitution a declaration prohibiting the practice.

'* * * Persons and property transported over any railroad * * * shall be delivered at any station * * * at charges not exceeding the charges for the transportation of persons and property of the same class, in the same direction, to any more distant station. * * *' Const. Washington, art. 12,§ 15.

Respondent insists that this section reaffirms the common law. Its argument logically assumes that it is beyond the power of the Legislature to take from a shipper any of the remedies incident to the common law, and that it can assert its right to recover in an action upon the bill of lading, which is a contract bringing the limitation for such actions within section 157, which provides for a limitation of 6 years on----

'2. An action upon a contract in writing, or liability express or implied arising out of a written agreement.'

But we think that such conclusion does not follow.

To avoid unjust discrimination, unlawful rebates, and favoritism theretofore prevailing, the several states, as well as the Congress of the United States, have adopted regulatory statutes. In State ex rel. Oregon R., etc., Co. v. R. R. Com., 52 Wash. 17, 100 P. 179, the then commission law was attacked because it had provided a procedure then unknown to the law and procedure prevailing in the courts and quasi judicial tribunals of the country. In passing upon the objection it was said:

'It is true that the forms of law and procedure under which this Commission is acting are not in all respects like the forms and procedure governing other courts; and in the language of many of the cases cited by the counsel for appellant, and repeated by the appellants themselves in their arguments, in some respects 'it is not a proceeding under the forms and with the machinery provided by the wisdom of successive ages.' But it occurs to us that it makes no difference whether it is a proceeding under the forms and with the machinery provided by the wisdom of successive ages, or whether it is under the powers and proceedings provided by this age. Law is a progressive science, and must necessarily regard the changing conditions of society and of the business of the country, and the Legislature and courts of to-day ought certainly to be as well qualified to provide machinery for the guidance of a commission as was the lawmaking power 200 years ago. The essential idea does not take cognizance of the antiquity of the powers and machinery under

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