McNeely & Price Co. v. Philadelphia Piers, Inc.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: MAXEY, Justice.
• Citation: 196 A. 846
• Parties: McNEELY & PRICE CO. et al. v. PHILADELPHIA PIERS, Inc., et al.
• Decision Date: 24 January 1938

196 A. 846

McNEELY & PRICE CO. et al.
v.
PHILADELPHIA PIERS, Inc., et al.

Supreme Court of Pennsylvania.

Jan. 24, 1938.

196 A. 846

196 A. 847

Original Jurisdiction No. 270, January term, 1937.

Original bill in equity by the McNeely & Price Company against Philadelphia Piers, Inc., and others for a preliminary injunction against the imposition and collection of top wharfage charges by defendants, wherein the Pennsylvania Public Utility Commission was granted leave to intervene as a party plaintiff.

Bill dismissed.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

Edwin J. McDermott, of Philadelphia, for plaintiff. Herbert S. Levy, of Lancaster, and Edward Knuff, of Harrisburg, for Pennsylvania Public Utility Commission, intervening plaintiff. Wm. A. Schnader, of Philadelphia, for defendant Philadelphia Piers. J. F. Shrader, of Philadelphia, for defendant Baltimore & O. R. Co. H. Merle Mulloy, of Philadelphia, for defendant Reading Co. Windsor F. Cousins, of Philadelphia, for defendant Pennsylvania R. Co.

MAXEY, Justice.

This case is before us on original jurisdiction upon a special certiorari directed to the court below, removing the record to this court, and the matter is now before us for consideration after argument on the amended bill in equity and preliminary objections thereto filed by defendants. The case was argued jointly with the associated case of Philadelphia Piers, Inc., et al. v. McCaughn, 196 A. 861, on an appeal in the latter case from a decree granting a preliminary injunction. The facts in the two cases are closely interrelated, and we will refer to them here, inasmuch as the determination here reached eliminates the necessity for consideration in deciding the other case, of the questions of law there involved.

Defendants are respectively a wharfage company and three railroads. The railroads are common carriers engaged in the transportation of freight and passengers in interstate commerce, and likewise in the operation and maintenance of pier and wharf facilities on the Delaware river in the city of Philadelphia. The Reading Company and the Pennsylvania Railroad Company own and operate their own wharves. The Baltimore & Ohio leases its wharf from the city of Philadelphia, but operates it in exactly the same manner as the two other railroads. The fourth defendant, Philadelphia Piers, Inc., leases its wharf from the United States government, but operates it in a similar manner. Its wharf is served by certain lines of the defendant railway companies. Over all the wharves and piers of defendants pass import and export freight between oceangoing vessels on the one hand, which dock at the piers, and railroad cars and other forms of land transportation, which deliver or receive the merchandise at the wharves. The merchandise is consigned by water carrier to and from foreign countries, as well as in interstate commerce. Where freight is delivered to or transported from the piers by rail, compensation for use of the railroad defendants' wharves is included in the tariffs charged by the railroad companies. In the case of Philadelphia Piers, Inc., where a railroad serves the incoming or outgoing freight, this defendant receives compensation for the use of its pier from the railroad concerned, which is absorbed by that railroad in its carriage charges to the consignor. Where the freight is delivered to or received from other carriers or forms of land transportation, defendants, up to the inception of these proceedings, received no compensation for the use of their piers.

A short time prior to 1937, defendants gave notice that, beginning February 1, 1937, a top wharfage charge of 50 cents per ton would be levied on freight moving across their piers to or from ocean-going

196 A. 848

vessels shipped in foreign commerce, where such freight was not delivered to or transported from the piers by rail carrier. Top wharfage is a charge levied upon the owners of merchandise for the privilege of using the pier or wharf, in transferring the freight to and from vessels docking there, or of having their goods lie upon the dock in the course of loading and unloading operations.

This notice meant that where freight moved to or from the wharves by rail, no wharfage fee was charged; this being absorbed in the rail rates. But if rail transportation was not involved, defendants announced their intention after February 1, 1937, of charging 50 cents per ton for the use of their piers. Presumably this charge is reasonable; not being in excess of the value of the service furnished.

Defendants filed with the Pennsylvania Public Service Commission tariffs proposing the charge in question. On January 26, 1937, a hearing was held before the Director of Wharves, Docks, and Ferries of the City of Philadelphia, pursuant to authority alleged to have been conferred by section 14 of the Act of June 8, 1907, P.L. 488, 53 P.S. § 4362. A further hearing was held on February 1, 1937, at the conclusion of which the Director rendered a decision against the railroad defendants denying the right to impose the announced wharfage charges. On March 9, 1937, the Public Service Commission, after previously suspending the tariffs, decided that it did not have jurisdiction over wharfage charges for the use of piers and wharves in Philadelphia, and discontinued the proceeding before it to sustain tariffs filed by defendants. Defendants then filed in the court below a bill for an injunction to restrain the Director of Wharves, Docks, and Ferries from interfering in any manner with their levying the charges in question. The prayer of the bill was granted, and a preliminary injunction against the Director was awarded; the ground of the lower court's decision being that neither the United States Maritime Commission nor the Director of Wharves, Docks, and Ferries of the City of Philadelphia has any rate-making jurisdiction to regulate or control the charges sought to be imposed by defendants, and that such jurisdiction resides solely in the Public Utility Commission of the commonwealth; and since the latter had not acted in the matter, such whafage charges 'were not. forbidden. From this decision the Director has appealed to this court, in the case of Philadelphia Piers, Inc., et al. v. McCaughn.

Immediately thereafter, plaintiff, in the case of original jurisdiction, McNeeley & Price Co., a shipper engaged in foreign commerce, filed in the court below a bill of complaint praying for an injunction against defendants restraining them from imposing the charges in question. The ground of the complaint is that the Pennsylvania Public Utility Commission, having succeeded to the authority and jurisdiction of the former Public Service Commission, on May 10, 1937, revoked the order of the Public Service Commission and directed that the proceeding in respect of the tariffs in question be listed for reargument on the question of its jurisdiction to regulate the rates thereof; and that pending such determination by the Public Utility Commission defendants have no right to collect the wharfage charges, not having filed tariffs with the Public Utility Commission, as required by law. This court on petition by defendants brought up the record in this matter from the lower court, and instituted it herein as an original proceeding. The plaintiff filed herein an amended bill of complaint, stating the same grounds, and to this defendants filed preliminary objections.

The grounds of these objections raise, not a question of the statutory law of the state, but a federal question. This question is whether, in view of the fact that defendants seek to impose the wharfage charges only upon goods moving in foreign commerce over their piers, the commonwealth of Pennsylvania or any municipality or administrative agency thereof has any jurisdiction to regulate the same or to interfere in any manner in the levying of such charges by defendants. Defendants' contention is that, foreign commerce alone being involved, regulation of wharfage" charges is solely within the power and jurisdiction of the federal government and its administrative agencies duly established to that end. It is said, first, that the subject of the regulation of wharfage charges, being national in scope and effect, comprises a sphere in which state law has no power to operate, irrespective of whether regulatory legislation has been enacted by Congress; and, secondly, it is maintained that even if the subject-matter is one in which state regulatory law may legitimately operate in the absence of controlling federal legislation, Congress has entered the field and undertaken to regulate the matters

196 A. 849

in question, and that this has been done either by the federal Interstate Commerce Act of 1887 and its amendments, 49 U.S. C.A. § 1 et seq., or by the Shipping Act of 1916, as amended, 46 U.S.C.A. § 801 et seq.

Defendants advance the contention that although formerly, in the absence of federal regulation, states or their municipal subdivisions were empowered to regulate charges in the nature of dockage or wharfage fees on vessels discharging or receiving cargo in their harbors or for the use of wharves operated therein, this was the case only at earlier periods when such matters were assumed to be of merely local concern. The contention is made that in more recent times the subject has become one of national importance, because of the complex network of transportation facilities now covering the entire country, each part having a necessary interrelation with every other part. It is argued that the Interstate Commerce Commission is now and for many years has been engaged in the process of determining and fixing rates for interstate carriage of freight between inland points and ports of delivery, and that since wharfage rates have an effect on the flow of interstate commerce, the fixing of them has ceased to be a matter merely of such local interest and...