Hopper v. Chi., M. & St. P. Ry. Co.

• Decision Date: 06 October 1894
• Citation: 60 N.W. 487,91 Iowa 639
• Parties: HOPPER ET AL. v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

91 Iowa 639

60 N.W. 487

HOPPER ET AL.

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Oct. 6, 1894.

Appeal from district court, Woodbury county; George W. Wakefield, Judge.

Action to recover for overcharges upon freight. Verdict and judgment for plaintiffs. Defendant appeals. Affirmed.J. W. Cary, G. P. Cary, and Taylor, Shull & Farnsworth, for appellant.

Strong & Owen, for appellees.

KINNE, J.

1. As finally amended, the petition charged that between July 10, 1888, and January 29, 1889, plaintiffs shipped over defendant's road 57 cars of lime from Maquoketa, Iowa, to Sioux City, Iowa, and that they had been compelled to pay as freight therefor the sum of $830.82 in excess of the legal rate as fixed by the railway commissioners of this state; that the rate charged was unreasonable, unjust, and extortionate, and that the rate fixed by said commissioners was just and reasonable; that a demand in writing was made upon defendant to refund the damages sustained by plaintiffs by reason of said illegal charges. Said demand was made more than 15 days prior to the commencement of this action. The amended and substituted answer is in three counts. The first count admits the corporate capacity of the defendant; that it is engaged in operating a railway; that, between the times stated in the petition, plaintiffs shipped over defendant's line of road the lime stated, for which they paid the sum claimed. Denies that any legal rate was fixed by the railway commissioners, and says that the rate fixed by them was not just or reasonable. Denies that plaintiffs were overcharged for transporting said lime. Denies all other allegations not before admitted or denied. In a second count it is averred that said railway commissioners attempted to make a schedule of rates for the shipment of lime, but alleges that said schedule was never published as required by law, so as to become obligatory upon defendant; that on June 28, 1888, application was made to the United States circuit judge of the eighth judicial circuit for an injunction restraining said commissioners from putting in force or publishing said schedule, and an injunction issued in accordance with said application, which remained in force until long after the times mentioned in the petition, and said schedule was never published or in force. In a third count it is alleged that on November 3, 1888, said board of railway commissioners, pretending to act under the act of the 22d general assembly, approved April 5, 1888, attempted to change the classification of rates of freight in Iowa so as to reduce the compensation for transporting lime in car-load lots, and made an order that such change should take effect December 3, 1888, and were about to proceed to publish the same, as required by the act to make it obligatory, and that on November 26th defendant filed an amendment to its bill, asking that said commissioners be restrained from publishing and putting in force said change of rates, and said circuit judge made an order restraining said commissioners from putting said rates in force until a hearing, and that on February 2, 1889, on said hearing, the restraining order was set aside; that said schedule and classification of rates were never published, nor in force or effect, during the times stated in the petition. Plaintiff demurred to the second and third divisions of the amended and substituted answer. To the second division, because the facts stated did not constitute a defense: (1) Because the act authorizing the fixing of a schedule of reasonable maximum rates did not contemplate or require said schedule to be published in order that it should take effect. (2) That the answer shows that the commissioners, acting under the direction of the law, made a schedule of reasonable maximum freight rates to be charged by the lines of transportation in the state of Iowa; that the law provides that the schedule, when made, shall in any event go into effect within 60 days after the taking effect of the statute, and the schedule took effect at the expiration of the 60 days, independent of any publication, and regardless of said injunction. (3) That the publication of the schedule is a formal matter, and intended for the benefit of the railway companies and defendant, and is not essential to its validity and operation; that said answer shows that publication was prevented by the wrongful act of defendant, and through no fault or neglect of the commissioners, and defendant is estopped from disputing the validity or operation of said schedule. To the third division, because: (1) The act of the legislature authorizing the commissioners to change and revise schedules does not contemplate or require that notice of said change shall be published in order for it to take effect and become binding upon defendant. (2) That said answer shows that the publication of said revised schedule was prevented by the wrongful act of defendant, and it is estopped from disputing its validity and operation. The court sustained the demurrer to the second count, and overruled it as to the third count, of the answer. Thereafter defendant, in a fourth count, averred that the railway commissioners never made a schedule of rates, or fixed a rate for the transportation of lime in car-load lots, as stated in the petition, and denied that it had overcharged plaintiffs.

2. Error is assigned upon the action of the court in sustaining plaintiffs' demurrer to the second count of defendant's answer. When this opinion was prepared there was nothing in the record showing that any exception to the ruling had been taken. On September 3, 1894, a second amendment to the abstract is filed, wherein it appears that as a matter of fact the exception was properly taken. This amendment is filed a long time after the case had been fully argued and submitted, and if the decision of the question raised by the sustaining of the demurrer could work any prejudice to appellees, we should in view of the tardy presentation of this record be inclined to disregard the point made. For reasons stated in the fifth division of this opinion we must hold that the demurrer was properly sustained.

3. It is said that as the district court overruled plaintiffs' demurrer to the third count of defendant's answer, and as no reply was filed to said count, the facts therein pleaded must be taken as admitted. It is also claimed that the allegations of said count were sustained by the testimony. As to the latter claim, we do not find that the record of the federal court was in evidence. The only reference in the record to this change of classification and adoption of new rates is in the testimony of Commissioner Smith, who said: “There was a very material change made in the classification. The Illinois classification, originally adopted, was supplanted by the western classification. This change was made prior to 23d of February, 1889.” It does not appear from the evidence that the change was made before plaintiffs' shipments ceased, which was on January 29, 1889. All that is shown is that the change was made prior to February 23, 1889. The pleading charges that the commissioners attempted to make this change on November 3, 1888, and to go into effect December 3, 1888, and that the commissioners were enjoined until February 2, 1889, from publishing the schedule or putting the rates into effect. If, then, it be conceded that by failing to reply to this count its allegations are admitted, it simply amounts to an elimination of the attempted changed schedule and classification from the case. Not being an original rate, we presume the court held that, to give it force and effect, it must be published as required by law. It was not published, and hence was not in force. The attempted change in the schedule and rates was, it appears, not consummated during the time the plaintiffs' shipments were being made. Conceding the full force of every allegation in this count, and that they are admitted by reason of the failure to reply thereto, what is the situation? Manifestly the attempt to change the former classification and schedule, by reason of the failure to publish the same, was not fully consummated at any time during the continuance of plaintiffs' shipments, and hence the former schedule and classification remained in force. It is urged with great force and ability that the commissioners adopted the western classification, and changed the rates, and that that had the effect of doing away with their former action in making the classification and schedule. We have said that the evidence fails to show that such change, if any, was made prior to or while the plaintiffs' shipments were being made. The pleading, on its face, shows that the change was attempted, but not consummated, during the period in controversy in this suit. We hold that there could be no change in the rates and classification which would be effective until the publication thereof as required by law, and until the law was complied with in that respect the former rates and...