Mississippi Railroad Commission v. Gulf, M. & N. R. Co.

• Decision Date: 05 June 1934
• Docket Number: 30676
• Parties: MISSISSIPPI RAILROAD COMMISSION et al. v. GULF, M. & N. R. CO. et al
• Court: Mississippi Supreme Court

155 So. 212

170 Miss. 724

MISSISSIPPI RAILROAD COMMISSION et al. v. GULF, M. & N. R. CO. et al

No. 30676

Supreme Court of Mississippi

June 5, 1934

Division A

CARRIERS.

Railroad Commission, failing to enter on its minutes order continuing proceeding to revise tariff charges after motions to adopt certain rates were lost for lack of seconds, finally discontinued cause, and could not revise charges at subsequent meeting without ten days' notice to railroads (Code 1930, sections 7023 et seq., 7029, 7031).

Hon. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by the Gulf, M. & N. Railroad Company and others against the Mississippi Railroad Commission and others. From a decree enjoining establishment of certain rates on sand and gravel defendants appeal. Modified, and affirmed as modified.

Affirmed as modified.

Greek L. Rice, Attorney-General (by E. R. Holmes, Jr., of Jackson), and Hilton & Hilton, of Jackson, for appellants.

It is undoubtedly true that the railroad Commission can speak only through its minutes. It is also true that when the railroad commission, acting upon authority delegated to it by the legislature, seeks to revise a schedule of rates, it acts in a legislative capacity. We further agree with appellee in that the July order being legislative, section 734 of the Code of 1930, has no application. It is undoubtedly true, that some of the orders of the railroad commission are judicial in nature and some of them are legislative, but this court has held as shown in the cases cited by appellee that when the commission acts in its rate making capacity, it is acting legislatively. If the July order had been judicial in nature, section 734 would govern here and the case would have been continued from the June to the July meeting of the commission as of course.

We contend that there is a clear showing on the minutes of the commission that the cause was not disposed of for, by virtue or section 7029 of the Code of 1930, if the cause were to be disposed of and not continued in accordance with section 7031, Code of 1930, the affirmative act of disposition would necessarily have to be shown on the commission's minutes. For to dispose of the cause is to grant affirmative relief either to one side or the other in such cause, whereas, to leave the cause undisposed of and to continue it for disposition at a future meeting is a negative act on the part of the commission.

The order of the railroad commission imports absolute verity, and in revising such order, this court will only review the reasonableness of the rate as revised by the commission.

Flowers, Brown & Hester, of Jackson, for appellees.

The commission attempted to decide the case but could not do so for the reason that a majority vote either way could not be had. Two motions were made both of which were lost for want of a second, after which no further motions were made with respect to the cause and the commission adjourned for the term. The case was not continued nor was it taken under advisement for further consideration. By reason of the equal division the petition was lost, in the absence of an order holding the cause open for further consideration. The case was heard and disposed of finally at the June meeting. The petitioners were asking affirmative relief and the fact that the commission in attempting to decide the case was evenly divided they lost. It was in effect a denial of the prayer of their petition.

Section 7029 and 7031, Code of 1930.

It will be noted that the commission is required to keep regular minutes of its proceedings and all of its orders, findings and acts shall be entered thereon. If, therefore, this case had been continued, or taken under advisement for further consideration this would have been an "act" of the commission requiring entry in its minutes. No such entry was made.

Chicago Railways Co. et al. v. Commerce Commission ex rel., 336 Ill. 51, 167 N.E. 840; Section 7029, Code of 1930.

The petitioners were asking for affirmative relief. We do not see why the same rule should not obtain in such a case as in cases before this court where there is an equal division of opinion.

Brewer v. Crum, 111 Miss. 871, 72 So. 700; G. M. & N. v. Dossett, 118 Miss. 327, 79 So. 179; Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7.

Even if this had been a proceeding in court where section 734 of the Code applies and this action by the commission had been treated as a mistrial, no order could have been entered at the next term without another trial or hearing.

Ex parte Dean, 77 So. 81; 34 C. J. 77, sec. 217.

The July order attempted to fix a rate schedule to be observed in the future and therefore it is well settled that it was a legislative and not a judicial act. This question was definitely decided in the case of Illinois Central Railroad Co. v. Mississippi Railroad Commission, 143 Miss. 805, 109 So. 868.

Telephone Company v. State ex rel., 135 Miss. 835, 100 So. 378.

May, Sanders, McLaurin & Byrd, of Jackson, amici curiae.

This court has held on numerous occasions that the Mississippi Railroad Commission, in fixing rates, acts in a legislative capacity and is performing legislative duties delegated to it by the legislature.

Illinois Central R. R. Co. v. Mississippi Railroad Commission et al., 143 Miss. 805, 109 So. 868.

Being legislative functions, the making of rates cannot be controlled by injunction. The commission has the power and authority to prescribe rates which it finds to be reasonable and any anticipated action on its part looking to the fixing of rates and involving the exercise of discretion, or of legislative powers, cannot be enjoined.

Argued orally by E. R. Holmes, Jr., and R. T. Hilton, for appellants, and by J. T. Brown, for appellees.

OPINION

McGowen, J.

This is an appeal from a final decree of the chancery court wherein the establishment of a rate on sand and gravel by the railroad commission on July 5, 1932, was permanently enjoined as to the prescribed rates on said articles moving over two or more lines of railroad; said rates being ten cents per ton higher than that moving over a single line of railroad, or what is known in this proceeding as "joint line arbitrary." The court held that this differential, or "joint line arbitrary," was unreasonable, unjustified, and unenforceable.

In 1931, the railroad commission proceeded to revise the tariff of charges on sand and gravel and like products, entered an order adopting a composite scale of rates to be effective in January, 1932, and in February, 1932, thirteen gravel corporations filed a petition alleging that the 1931 rate was arbitrary, unfair, and destructive of their business. The railroad companies of this state were notified that the commission would proceed to hear this petition, and on June 8, 1932, the following proceeding was had by the railroad commission:

"All railroads and parties in interest.

"In re; Rates on Sand, Gravel, etc., between points in

Mississippi.

"Agreeable to notice duly given all parties in interest oral argument was heard in this cause on June 8, 1932, and the following motions were made with reference to same.

"Commissioner White made motion that scale proposed by witness Ribe for a single line movement be adopted and a differential of four and one-fourth cents per ton be added to single line rates for joint line movement.

"Motion lost for lack of second.

"Commissioner Brown made motion that scale proposed by witness Ribe for single line movement be adopted and a differential of ten cents per ton be added to single line rates for joint line movement.

"Motion lost for lack of second.

"No further motions were made with reference to this cause."

No order was made by the railroad commission continuing the cause or evincing any...