Illinois Cent. R. Co. v. Paducah Brewery Co.

• Decision Date: 10 February 1914
• Citation: 157 Ky. 357,163 S.W. 239
• Parties: ILLINOIS CENT. R. CO. v. PADUCAH BREWERY CO.
• Court: Kentucky Court of Appeals

163 S.W. 239

157 Ky. 357

ILLINOIS CENT. R. CO. v. PADUCAH BREWERY CO.

Court of Appeals of Kentucky.

February 10, 1914

Appeal from Circuit Court, McCracken County.

Action by the Paducah Brewery Company against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Trabue Doolan & Cox, Henry L. Stone, and Edward S. Jouett, all of Louisville, Blewett Lee and R. V. Fletcher, both of Chicago and Wheeler & Hughes, of Paducah, for appellant.

W. F Bradshaw, Jr., of Paducah, Hines & Norman, of Louisville, for appellee.

HANNAH J.

The Paducah Commercial Club, on June 6, 1911, filed with the Kentucky Railroad Commission, a complaint alleging that on May 1, 1911, the Illinois Central Railroad Company had raised its freight rate on steam coal, between points in the Western Kentucky coal district and the city of Paducah, from 60 cents to 80 cents per ton; that the increased rate was unreasonable; that any freight rate on said grade of coal between said points in excess of 60 cents per ton was unreasonable, unjust, and extortionate, and praying that the Railroad Commission order the restoration of the 60 cent rate formerly in effect. On December 6, 1911, upon the pleadings and evidence offered by the parties, the Commission entered an order fixing 60 cents per ton, the former rate, as the reasonable rate which said railroad company might thereafter charge and collect for said service. On March 18, 1912 appellee, the Paducah Brewery Company, filed in said proceeding before the Railroad Commission its intervening petition, seeking restitution from the railroad company of the amount of the freight charges paid by it on steam coal from points in the Western Kentucky coal district to Paducah, at the excessive rate, between May 1, 1911, when the rate was raised, and January 6, 1912, when the order of the Commission reducing the rate went into effect, alleging that it had paid during said period $439.05 more than the said freight charges would have been at the rate of 60 cents per ton. Thereafter, on May 7, 1912, by an amended petition; it increased the amount so claimed to $481.16. The railroad company and the Paducah Brewery Company then entered into a stipulation that the evidence introduced before the Railroad Commission upon the hearing of the original complaint of the Paducah Commercial Club should be considered as heard by the Commission in this proceeding; and, upon final hearing thereof, the Commission entered an order awarding the Paducah Brewery Company reparation in the sum claimed, $481.16, with interest from January 6, 1912. The railroad company having failed and declined to satisfy this award, the chairman of the Commission transmitted to the clerk of the McCracken circuit court the record in said proceeding, pursuant to the provisions of section 829, Kentucky Statutes, and the said clerk thereupon issued process against the railroad company, commanding it to appear and show cause, if any it had or could, why a judgment should not be entered against it upon the said award of the Commission. The defendant company appeared, and by agreement of the parties the action was submitted to the court for trial without the intervention of a jury. No evidence was offered by either party in the circuit court, except such as was produced before the Commission and filed as part of the record. Upon consideration of the record, the court adjudged that the plaintiff, Paducah Brewery Company, recover of the defendant, the Illinois Central Railroad Company, the sum of $481.16, with interest from January 6, 1912, in accordance with the award and order of the Railroad Commission. Defendant's motion for a new trial having been overruled, it is here upon appeal.

1. It is first contended by appellant that the Railroad Commission is nowhere empowered by statutory provision to make or to order an award by way of reparation; that is, to order restitution of any sum collected and charged by a carrier in the enforcement of a rate, thereafter found by the Commission to have been unreasonable. And, as the judgment of the circuit court, which on this appeal, is sought to be reversed, is founded upon such an award, this inquiry lies at the threshold of the review.

Appellee contends that such authority is conferred upon the Commission by section 829, Kentucky Statutes. This section is as follows: "The Commission shall hear and determine complaints under section 816, 817, and 818. Such complaints shall be made in writing, and they shall give the company complained of not less than ten days' notice of the time and place of the hearing of the same. They shall hear and reduce to writing all evidence adduced by the parties, and render such award as may be proper. If the award of the Commission be not satisfied within ten days after the same is rendered, the chairman shall file a copy of said award and the evidence heard, in the office of the clerk of the circuit court of the county, which, under the Code of Practice, would have jurisdiction of said controversy, and the clerk of said court shall enter the same on the docket for trial; and summons shall be issued, as in other cases, against the party against whom the award shall have been rendered, requiring said party to appear in the court, within the time allowed in ordinary cases, and show cause why said award shall not be satisfied. If such party fails to appear, judgment shall be rendered by default, and the same proceedings had thereon as in other ordinary cases. If a trial is demanded the case shall be tried, in all respects, as other ordinary cases in which the same amount is involved, except that no evidence shall be introduced by either party except that heard by the Commission, except such as the court shall be satisfied, by sworn testimony, could not have been produced before the Commission by the exercise of reasonable diligence; the judgment and proceedings thereon shall be the same as in other ordinary cases." This section authorizes the Commission to hear and determine complaints under sections 816, 817, and 818, Kentucky Statutes. Section 816 provides that if any railroad corporation shall charge, collect, or receive more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this state, or for the use of any railroad car upon its track, or upon any track it has control of or the right to use in this state, it shall be guilty of extortion. Section 817 defines unjust discrimination in rates; and section 818 makes it unlawful for a carrier to give a preference or advantage to any particular person or locality.

The complaint filed by the Paducah Brewery Company was based upon section 816; that the railroad company had charged and collected from it more than a just and reasonable rate, and was therefore within the jurisdiction of the Commission under section 829. But appellant contends that section 816 was held void, as a penal statute, in L. & N. R. R. Co. v. Commonwealth, 99 Ky. 132, 35 S.W. 129, 18 Ky. Law Rep. 42, 33 L.R.A. 209, 59 Am.St.Rep. 457, and that, therefore, the Commission's authority under section 829, to hear and determine complaints under section 816 is at an end. But, as was said in the case cited, "the statute may be invoked as merely declaratory of the common law" in actions by shippers against carriers for recovering back the excess of charges over reasonable rates.

Nor does the decision of this court holding that section unenforceable as a penal statute affect the powers of the Commission to be exercised under section 829. The language in that section, "The Commission shall hear and determine complaints under sections 816, 817, and 818," means that the Commission shall hear and determine complaints in regard to (section 816) the charging and collection of more than a just and reasonable rate, and complaints in regard to (section 817) unjust discrimination in rates; and complaints in regard to (section 818) discriminatory practices, preferences, etc. In other words, the designation of these sections in section 829 is merely descriptive of the subjects of the jurisdiction of the Commission thereunder.

But it is argued by appellant that extortion in section 816 is defined as the charging, collecting, or receiving of more than a just and reasonable rate of toll or compensation while in section 820a (the McChord Act) extortion is defined as the charging, collecting, or receiving of a greater or higher rate of toll or compensation than that made or fixed by the Railroad Commission; that it was held in McChord v. L. & N. R. R. Co., 183 U.S. 483, 22 S.Ct. 165, 46 L.Ed. 289, that section 820a is an amendment to section 816, and in that respect conflicts therewith, and that the definition of extortion stated in the latter act must prevail, and that the Commission may no longer hear and determine complaints as to extortion as defined in section 816. But the acts constituting extortion--the charging, collecting, or receiving of more than a just and reasonable rate--as stated in section 816, is also extortion, as used in section 820a. The latter section provides that "should...