Marinette, T. & W. R. Co. v. R.R. Comm'n of Wis.

• Citation: 218 N.W. 724,195 Wis. 462
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 03 April 1928
• Parties: MARINETTE, T. & W. R. CO. v. RAILROAD COMMISSION OF WISCONSIN ET AL.

195 Wis. 462

218 N.W. 724

MARINETTE, T. & W. R. CO.

v.RAILROAD COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

April 3, 1928.

Appeal from a Judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge. Affirmed.

Plaintiff, Marinette, Tomahawk & Western Railroad Company, brought an action in the circuit court for Dane county to review an order of the Railroad Commission fixing rates and ordering reparations. From a judgment, affirming the order of the Railroad Commission, the plaintiff brings this appeal.R. T. Reinholdt, of Tomahawk, for appellant.

John W. Reynolds, Atty. Gen., Suel O. Arnold, Asst. Atty. Gen., and Walter Drew, of Milwaukee, for respondents.

OWEN, J.

The respondent Tomahawk Kraft Paper Company instituted a proceeding before the Railroad Commission seeking to have the commission fix joint rates on intrastate shipments of pulpwood moving over the lines of plaintiff and connecting lines, and for reparation of excessive charges made subsequent to February 1, 1924. The petition was filed March 4, 1924. A hearing was had on the petition on May 5 and 6, 1924. On April 27, 1926, the Railroad Commission, by its order, established joint rates, which were lower than the rates theretofore prevailing, and also determined that the Tomahawk Kraft Paper Company was entitled to reparation on all shipments of pulpwood made subsequent to January 31, 1924. This action is brought to set aside that part of the order requiring reparation. The connecting lines involved in the order do not join, nor have they in any other manner challenged the order.

[1] By section 195.54, Stats., upon complaint that any charge exacted by a carrier is “erroneous, illegal, unusual or exorbitant,” the Railroad Commission is empowered to determine what would have been a reasonable charge for the service complained of, and if the rate or charge so found shall be less than the charge exacted, the carrier shall have the right to refund to the person paying such charge the amount so found to be excessive. Prior to the filing of this petition there was no established joint rate for the movements in question over plaintiff's lines. Upon such joint movements the rate charged was the sum of the local rates in force over the operating lines. These rates had been theretofore established by the Railroad Commission. It is claimed that because the rates charged were rates authorized by the Railroad Commission, they were neither “erroneous, illegal, unusual or exorbitant,” and that section 195.54 does not provide for reparation where the rates charged were lawfully exacted. This exact question was before the court in Minneapolis, St. Paul & Sault Ste. Marie R. Co. v. Railroad Commission, 158 Wis. 102, 147 N. W. 366. The court held that the order was subject to judicial review, but the justices participating were equally divided upon the question of whether the Railroad Commission was authorized to grant a refund of charges based on rates fixed by the commission. The judgment of the circuit court holding that the Railroad Commission had such power was therefore affirmed by a divided court. We shall not pause here to consider the force which should be accorded that decision under the doctrine of stare decisis. Seven Legislatures have intervened since the decision was announced. The Railroad Commission has continued to exercise the power with the apparent acquiescence of the railway companies of the state. If we were presently disposed to consider the proper construction of the statute doubtful, this practical construction of the statute long followed by the Railroad Commission, with the apparent acquiescence of the Legislature as well as those affected thereby, would be entitled to great weight. State ex rel. Owen v. Donald, 160 Wis. 21, 151 N. W. 331;State v. Johnson, 186 Wis. 59, 202 N. W. 319.

[2] But we are of the opinion that the statute should be accorded the construction which the Railroad Commission has placed upon it. The statute empowers the Railroad Commission to authorize reparation where the rate charged is “erroneous, illegal, unusual or exorbitant.” The rates charged in this case were legal in the sense that the railroad companies did not subject themselves to penalties in their collection. But it does not follow that they were lawful in the sense that they were reasonable. The statute declares that all rates shall be reasonable. A rate once fixed by the Railroad Commission may be charged by the railroad company until changed in a lawful manner. The rate so collected is lawful and the railroad company incurs no penalty thereby. But it does not follow that the rate, though lawful, continues to be reasonable in view of changing circumstances and conditions. The reasonable rate remains at all times the lawful rate when we have in mind the rate...