Lutcher & Moore Lumber Co. v. Beaumont, S. L. & W. Ry. Co.

• Citation: 33 S.W.2d 1077
• Decision Date: 14 October 1930
• Docket Number: No. 9468.,9468.
• Parties: LUTCHER & MOORE LUMBER CO. v. BEAUMONT, S. L. & W. RY. CO.<SMALL><SUP>*</SUP></SMALL> et al.
• Court: Court of Appeals of Texas

Page 1077

33 S.W.2d 1077

LUTCHER & MOORE LUMBER CO. v. BEAUMONT, S. L. & W. RY. CO.^* et al.

No. 9468.

Court of Civil Appeals of Texas. Galveston.

October 14, 1930.

Rehearing Denied November 13, 1930.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by the Lutcher & Moore Lumber Company against the Beaumont, Sour Lake & Western Railway Company and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Fulbright, Crooker & Freeman, Carl G. Stearns, and James J. Shaw, all of Houston, for appellant.

Andrews Streetman, Logue & Mobley, W. M. Streetman, and Robert H. Kelley, all of Houston, for appellees.

GRAVES, J.

This statement, interlined as to only two details about which there is no dispute, has been taken from appellant's brief, with the concession by the appellees that it is substantially correct:

"The plaintiff, Lutcher & Moore Lumber Company, sued the defendants, Beaumont, Sour Lake & Western Railway Company, and Orange & Northwestern Railway Company, to recover $1,744.77, alleged to have been charged by defendants in excess of the rates established by the Railroad Commission of Texas for the transportation of lumber in carloads over defendants' lines of railroad from Orange, Texas, to Houston, Texas, during the period from October 1, 1920, to April 28, 1922, its theory being that a rate of 10 cents per 100 pounds was both the rate fixed by the Texas Railroad Commission and the lawful, proper, and applicable one.

"The defendants answered, pleading: (a) General demurrer and (b) general denial; and specially answering, defendants, in substance, alleged that the rates charged by them were in effect not only by authority of the laws of the United States, but also as to the 14½ cent rate charged by an express order of the Railroad Commission of Texas.

"The case was tried to the court without a jury. Upon judgment being rendered in favor of defendants, plaintiff excepted and gave notice of appeal.

"By stipulation of the parties, the question for the determination of the trial court was reduced to the following:

"Whether the lawful rate applicable to the shipments involved in the case was 10¢ per 100 lbs., as claimed by plaintiff; or 14½¢ per 100 lbs. on all shipments which moved prior to March 5, 1921, and 15¢ per 100 lbs. on all shipments which moved subsequent thereto, as claimed by the defendants. If the basis claimed by the plaintiff was the correct one, judgment should have been rendered in favor of the plaintiff for $1,744.77, together with interest at 6% from the date each payment was made. If the basis claimed by the defendant was the correct one, then the court correctly entered judgment for the defendants.

"The questions, then, before this court are simply whether the trial court erred in holding that the lawful rate for the transportation of lumber in carloads over defendants' (appellees') lines from Orange to Houston during the period from October 1, 1920, to April 28, 1922, was 14½c on shipments which moved prior to March 5, 1921, and 15c per 100 lbs. on shipments which moved subsequent thereto; and whether the court erred in refusing to hold that the lawful rate for such transportation during the entire period from October 1, 1920, to April 28, 1922, was 10c per 100 lbs."

In this court, through a number of presentments, appellant in substance contends that the undisputed evidence shows, not only that the rates charged and collected from it by the appellees in the transactions here involved (that is, 14½ cents per 100 pounds on all shipments that moved prior to March 5, 1921, and 15 cents per 100 pounds on all that moved subsequent thereto) were in excess of the rates in fact established by the authority of the state of Texas for the transportation of such property over the appellees' lines in intrastate commerce, but also that such lower state rates were never set aside, annulled, or otherwise rendered ineffective, by any order, rule, or law, made or enacted either by the state or the federal government; that prior to December 28 of 1917, the Railroad Commission of Texas by its special authority No. 37 established a special commodity rate of 6 cents per 100 pounds for the transportation of lumber in carloads over appellees' lines between Orange and Galveston, and adopted its order No. 5198 whereby appellees were required to observe "all commodity rates currently in effect between Galveston, Texas, and Orange, Texas," as "maxima on shipments of the same commodity transported between Houston, Texas, and Orange, Texas"; that on December 28, 1917, pursuant to the Federal Possession and Control Act (39 Stat. 645 [10 USCA § 1361]), the President of the United States through the Director General of Railroads assumed control of the appellees' lines, along with all other railways within the continental United States, and on the next day, conformably to the proclamation so doing, issued General Order No. 1, which, among other things, provided: "7. Existing schedules or rates * * * are to be observed," thus adopting and continuing in effect the 6-cent rate from Orange to Houston, so previously fixed by the Railroad Commission of Texas; that on May 25 of 1918 the Director General, by his General Order No. 28, directed a general increase in all intra and inter-state rates, effective June 25 of that year, thereby increasing the lumber rates 25 per cent., and raising this 6-cent rate thereon from Orange to Houston to 7½ cents, which thereafter, up until December 31 of 1919, remained the maximum rate to be charged on carload lots of lumber between those two points; that on December 31, 1919, the Director General published a tariff, "Texas Lines Tariff No. 36, A. C. Fonda's I. C. C. No. 73," containing rates on lumber and setting forth a general mileage scale thereof for its transportation between points on the appellees' lines, which, for the "over 55 miles" distance from Orange to Houston, named a rate of 11 cents per 100 pounds, this being the same as the rate named in the general mileage scale of rates prescribed by the Texas Railroad Commission as increased 25 per cent. by the Director General's order No. 28; that, while this tariff No. 36 published a special commodity rate of 7½ cents per 100 pounds on lumber in carloads from Orange to Galveston, and while the provision making this rate the maximum from Orange to Houston was not at any time specifically or expressly repealed or revoked by any order or action of the Interstate Commerce Commission, or the Director General of Railroads, although published in other tariffs of the Railroad Administration, including the general tariffs, it was omitted from this No. 36, or any other tariff specifically purporting to apply on lumber, wherefore the Texas Railroad Commission's order requiring the Orange to Galveston rate on lumber to be applied as the maximum from Orange to Houston was never repealed or revoked through any act of the Director General, but remained in full force and effect throughout federal control; that, if the contrary be assumed, however (that is, that this Texas Commissions' maximum-rate provision was repealed by implication, or put into a state of "innocuous desuetude," as a result of the Director General's tariff No. 36 on December 31 of 1919, leaving his general mileage-scale rate of 11 cents per 100 pounds the only one then extant on lumber between the two points involved, nevertheless it still uncontrovertedly appears that the 11-cent rate), if it became effective on December 19, 1919, continued so until the end of federal control on March 1, of 1920, whereupon, ex proprio vigore, the Texas Commission's original order prescribing the Orange-Galveston rate to be observed as the maximum one from Orange to Houston revived and again bound the appellees to the same extent it did before federal control, since it "was not repealed or amended by the Railroad Commission of Texas, or by any other authority of the State of Texas, from the date thereof until after all the shipments here involved had moved," wherefore such rate became as of that date, the rule of decision, Civil Statutes of 1914; Missouri-Kansas & T. Ry. v. R. R. Commission (Tex. Civ. App.) 3 S.W.(2d) 489; Producers', etc., v. Ry. (Tex. Com. App.) 13 S.W.(2d) 679; West Texas Compress Co. v. Ry. (Tex. Com. App.) 15 S.W.(2d) 558.

After then further urging that neither section 208(a) of the Transportation Act of 1920 (41 Stat. 464), nor any other act or order of the federal government, should be given the effect of superseding this maximum-rate order of the State Railroad Commission, citing in that connection Lancaster v. Smith (Tex. Com. App.) 262 S. W. 74, and Missouri Pac. Ry. v. Boone, 270 U. S. 466, 46 S. Ct. 341, 70 L. Ed. 688, appellant's brief thus concludes its argument for reversal of the judgment:

"We submit, under the foregoing authorities, that upon the termination of Federal control, the Railroad Commission's regulation or order requiring the defendants to observe the Orange to Galveston rate as maximum from Orange to Houston, which regulation or order was theretofore `in force and still unaffected by any action of the authority which made' it, became revived and assumed full force and effect and was binding on the defendants by the `mere cessation of the suspension which had been effected through Federal control'. In other words, that on the termination of Federal control the said order of the Railroad Commission of Texas was revived and thereby the 10c per 100 lb. rate again became applicable on shipments of lumber moving between Orange and Houston.

"The only question left is what rate was in effect on lumber in carloads from Orange to Galveston during the time these shipments moved. On August 21, 1920, when the Railroad Commission of Texas promulgated its circular No. 5326 and thereby authorized all railroads in Texas to increase `all existing rates' 33 1/3 %, the existing rate on lumber, in carloads from Orange to...