Lusk v. Atkinson
| Decision Date | 15 May 1916 |
| Parties | JAMES W. LUSK et al., Receivers of Railroad and Properties of St. Louis & San Francisco Railroad Company, Appellants, v. JOHN M. ATKINSON et al., Constituting Public Service Commission of Missouri |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
STATEMENT.
Appellants the receivers of the Frisco Railroad Company, sued out a writ of certiorari, or review, in the circuit court of the city of St. Louis, on the 5th day of February, 1914, to quash the proceeding of the Public Service Commission of the State of Missouri in re a complaint filed with it, on the tenth of September, 1913, on behalf of B. Johnson & Son, wholesale dealers in railroad ties, doing business in Richmond Indiana, against the receivers of the St. Louis & San Francisco Railroad Company, wherein it was charged that said carrier exacted a higher rate for the shipment of ties from points in southeast Missouri to a station known as Commerce on its line, than was permissible under section 3241 of the Revised Statutes of Missouri.
The defense interposed to this complaint was that the transportation of said ties was a part of the movement of interstate commerce, and hence the rate charged was in conformity to the regulation thereof by the Federal Interstate Commerce Commission. After hearing the evidence the Public Service Commission of Missouri entered an order, based on the findings and opinion of Commissioner William F. Woerner, on the fifth day of January, 1914, to the effect that the defendants in the complaint made to the Public Service Commission of Missouri should charge the complainants therein upon all shipments of railroad ties from the towns mentioned in the complaint in southeast Missouri, when billed to the town of Commerce, Missouri, at the rate fixed by section 3241 of the Revised Statutes of Missouri, prescribing the rate of freight charged for intrastate traffic, and directed its secretary to furnish the defendant receivers of the Frisco road with the certified copy of said order, and the opinion whereon it was based.
Upon a motion for a rehearing, made by the defendants in said complaint, the opinion of Commissioner Woerner was modified and refiled and the motion for rehearing overruled. All the proceedings and evidence had and taken before the Public Service Commission were certified to the circuit court in obedience to the present writ.
Upon a trial had there on the twenty-seventh day of February, 1914, and after consideration of the record so certified to it, the circuit court of the city of St. Louis, took the cause under advisement until its April term and then affirmed the order entered by the Public Service Commission. The plaintiffs in the certiorari filed a motion for a new trial on the ground that the order made by the circuit court was in violation of the Public Service Commission Act (Laws of 1913, p. 557 et seq.), and was in contravention of section 8, article 1, of the Constitution of the United States, empowering Congress "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes," and the 14th Amendment to the Constitution of the United States, and also of the Constitution of the State of Missouri.
Upon the overruling of their motion for a new trial, plaintiffs in the petition for certiorari, or review, duly appealed to this court.
Reversed and remanded (with directions).
W. F. Evans and Thomas Bond for appellants.
(1) Shipments of lumber on local bills of lading from one point in a State to another point in the same State, destined from the beginning for ultimate delivery in another State, are interstate commerce. Railroad v. Tram Co., 227 U.S. 111; Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498; Railroad Comm. v. Worthington, 225 U.S. 101. (2) Merchandise destined for delivery in another State acquires the character of interstate commerce as soon as actually started for its destination by delivery to the initial carrier. It is the nature of the traffic, and not its incidents, which determines whether it is intrastate or interstate. Railroad v. Tram Co., 227 U.S. 111; Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498; Railroad Comm. v. Worthington, 225 U.S. 101.
Edwin J. Bean and William G. Busby for respondents.
(1) The maximum rate chargeable by the carrier upon a shipment of railroad ties between points wholly within this State is fixed by Sec. 3241, R. S. 1909. (2) The Public Service Commission had the power and authority to order that the receivers charge the legal rate fixed by section 3241 upon shipments to be made of railroad ties from the points in question in this State to Commerce, Missouri. Sec. 46, p. 582, Laws 1913. (3) The Public Service Commission is an administrative body, and this court, in reviewing its order, will not usurp administrative functions by setting aside a lawful order because the court may consider that this administrative power has not been wisely exercised. Power to make the order and not the expediency of it is the question. Railroad v. Campbell, 230 U.S. 552; Interstate Commerce Comm. v. Ill. Cen. Ry., 215 U.S. 470; Interstate Commerce Comm. v. Railroad, 220 U.S. 251. The provision of section 111 of Public Service Commission Act, Laws 1913, p. 642, that suits brought to review orders and decisions of the commission shall be determined by the circuit court as suits in equity only, refers to the manner of trial; that is, without a jury. (4) The carriage by said receivers of the ties of B. Johnson & Son from Bloomfield and other points named in the complaint to Commerce was wholly intrastate and was not a movement in interstate commerce; hence the Public Service Commission had jurisdiction to order a compliance with the statute of this State naming a maximum charge for such intrastate carriage. Railroad v. Iowa, 233 U.S. 334; State v. Railroad, 152 Iowa 317; Milling Co. v. Railroad, 28 I. C. C. 699; Coe v. Errol, 116 U.S. 517; Bacon v. Illinois, 227 U.S. 504; Coal Co. v. South Amboy, 228 U.S. 665.
Ralph E. Bailey for B. Johnson & Son, original complainants.
(1) The Interstate Commerce Act does not apply to the carriage or handling of property, by rail or otherwise, when such carriage or handling is performed wholly within the State. Interstate Commerce Comm. v. Belaire Railroad Co., 77 F. 942; Ex parte Koehler, 30 F. 867; Fruit Exchange v. Railroad, 2 I. C. C. 142; Gallogy & Firestone v. Railroad, 11 I. C. C. 1; Act of Congress to Regulate Commerce, sec. 1. (2) In the absence of fraud or intention of avoiding freight charges, and in the absence of prearranged continuous transportation and continuous possession and control of the property shipped, by the connecting carriers, the mere knowledge or intent that the property shipped, or a portion thereof, will ultimately reach a foreign destination is not sufficient within itself to constitute interstate commerce, or to change the character of a local shipment into an interstate shipment. Cook on the Commercial Clause of the Federal Constitution, sec. 26, p. 52; Railroad v. Taylor, 103 Tex. 367; Tie & Lbr. Co. v. Railroad, 1 I. C. C. 30, 1 I. C. C. 607; Railroad v. State, 97 Tex. 274, 204 U.S. 403; Coe v. Erroll, 116 U.S. 517; Match Co. v. Ontonagon, 188 U.S. 82; Interstate Commerce Comm. v. Railroad, 77 F. 942; Railroad v. Whitehead, 6 Tex.App. 595; U. S. v. Railroad, 81 F. 783; Railroad v. Interstate Com. Comm., 162 U.S. 184; Railroad v. Osborn, 52 F. 912; Interstate Com. Comm. v. Railroad, 167 U.S. 633; Railroad v. Miami S. S. Co., 86 F. 407; Bacon v. Illinois, 227 U.S. 504; Coal Co. v. South Amboy, 228 U.S. 665.
BOND, J. Faris and Revelle, JJ., concur; Blair, J., concurs in separate opinion; Walker, J., concurs in paragraph one and dissents as to result; Woodson, C. J., dissents in separate opinion in which Graves and Walker, JJ., concur.
In Banc.
BOND J. (After stating the facts as above). --
I. It is insisted in support of the orders of the Public Service Commission: First, that the only judicial review to which they are open is jurisdiction of the board or its "power to make the order," and that nothing beyond this is presented by the writ of certiorari or review under the terms of the statute (Laws 1913, p. 641, sec. 111); second, that the transportation in question was wholly one of intrastate dealing.
Taking these contentions in order: we are not impressed with the soundness of the first. The Public Service Commission was created eo nomine by the Legislature of 1913. [Laws 1913, p. 556, secs. 1 to 40 inclusive.] The design of the act was to create an administrative agency of the lawmaking power. The board of commissioners thus established were not intended to be vested with the essential functions and powers of a court of law and equity, for under the express provisions of the Constitution of Missouri, the Legislature could establish courts only in the classes of cases, and in the manner and to the extent provided by that instrument, and the board does not fall under the head of any of the courts described in the Constitution. [Constitution of Missouri, art. 6, secs. 1, 28, 31; State ex rel. v. Nast, 209 Mo. 708, 108 S.W. 563; State ex rel. v. Fort, 210 Mo. 512, 109 S.W. 737; State ex rel. Haughey v. Ryan, 182 Mo. l. c. 349, 81 S.W. 435; State ex rel. v. Woodson, 161 Mo. l. c. 444, 61 S.W. 252.]
Since the Legislature has no power to create a court not falling within the classes specified in the Constitution, nor in any other manner than therein empowered so to do, it follows that the Public Service Commission is only a representative agency established by the Legislature, whose powers and duties are specifically set forth, none of which include the prerogatives of ...
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