Mississippi Railroad Commission v. Gulf & S.I.R. Co.

• Decision Date: 22 April 1901
• Citation: 78 Miss. 750,29 So. 789
• Parties: MISSISSIPPI RAILROAD COMMISSION v. GULF & SHIP ISLAND RAILROAD COMPANY
• Court: Mississippi Supreme Court

29 So. 789

78 Miss. 750

MISSISSIPPI RAILROAD COMMISSION v. GULF & SHIP ISLAND RAILROAD COMPANY

Supreme Court of Mississippi

April 22, 1901

FROM the chancery court, first district, of Hinds county. HON HENRY C. CONN, Chancellor.

The Mississippi Railroad Commission, appellant, was the complainant in the court below; the railroad company appellee, was defendant there. From a decree of the court below, dissolving the preliminary injunction, which had been obtained by the Commission, the complainant appealed to the supreme court. The opinion states the case. Section 19 of defendant's charter is as follows:

"SEC 19. Be it further enacted, That said company shall have and possess the power of fixing, from time to time, by its board of directors, the rates at which it will do express or telegraph business, and also the rates at which said company will transport persons or property over its railroads and branches; Provided, Said last mentioned rates shall not exceed four cents per mile for each passenger, nor exceed the following rates on freights: Sixty-five cents per hundred pounds for transporting first or second-class freights one hundred miles or less; forty-five cents per hundred pounds for transporting third or fourth class freight one hundred miles or less; thirty-two cents per hundred pounds for transporting fifth or sixth-class freights one hundred miles or less (reference being had herein to the classification of freights now recognized and observed on the existing line between New Orleans and Jackson, Mississippi), but in no case shall the railroad company be limited to a less charge than twenty-five cents for the transportation of any passenger or parcel, or package or article, however short the distance. The rates so established from time to time by the said board of directors for transporting persons or property as a railroad company, not exceeding the maximum rates for said railroad business as above set out, may be charged and collected by said company."

Judgment affirmed.

Monroe McClurg, attorney-general, for appellant.

That the tariff of the Gulf & Ship Island Railroad Company of September 3, 1900, is antagonistic to that promulgated by the Commission on September 19, 1890, is not at all controverted. That point must be at once settled in favor of the Commission.

It is respectfully submitted on the part of the Commission that just as surely as the Gulf & Ship Island Railroad tariff of September 3, 1900, is in direct conflict with that of the Commission of September 19, 1890, just so surely and certainly is it not supported by nor within any reasonable construction of section 19 of the Gulf & Ship Island Railroad Company charter.

It is expressly and affirmatively alleged that the rates fixed by the Gulf & Ship Island Railroad Company on September 3, 1900, and in effect at the date of the Commission's order, both in local and joint rate freights, is a violation of the Commission's order and also a violation of the law. In other words, instead of complying with the Commission's order, it keeps effectual its own tariff rates, which is antagonistic to that order and to all other law on the subject, including the terms of its own charter.

The court will take judicial knowledge of the fact that in 1882 cottonseed were not shipped in carload lots from Jackson, Mississippi, to New Orleans, or vice versa, nor to and from intermediate points. That was before the day of oil mills. Nor was cottonseed ever within any of the six figured classes named in the charter. That classification is obsolete, and, in fact, there is serious doubt whether it has been used on any railroad since the date of this charter--never on the Gulf & Ship Island.

The veritable truth is, that classification is as dead as mummies that have slept undisturbed for centuries. And more, never at any time did section 19 have legal life and effect, because of its vagueness and uncertainty. The reference doomed and damned it.

To enjoy the special privileges granted by charter, the grant must be clear, specific and unequivocal, and the corporation must act clearly within the prescribed limits. Every presumption will be indulged against it. The court will neither presume nor assume that cottonseed came within the classification of 1882, referred to in section 19. That is the controlling fact in defense of this particular case, and must be set up in the answer and proven.

The language of § 4286, code of 1892, even without the liberal construction to which it is entitled, is broad enough to give an equity court "jurisdiction to grant aid and relief in such cases"--that is, in cases of enforcing compliance "with the law and lawful orders, decisions and determinations" of the commission, by carrying into effect the powers given the commission to impose fines as well as enforcing the ordinary powers of the court. When the charter is pleaded and brought properly before the court and the complainant given an opportunity, which it is entitled to have, of replying to it, it is believed that it can be established that cottonseed does not come within the classification fixed in section 19 of the charter. All of the books hold that a charter granted by a special act of the legislature is not a general law, but private and special legislation; that it was so treated by the legislature of 1882 will be seen by reference to the separate index and the separate publication of the acts of private and special legislation from the general laws. Reference to its title and date of passage will do, but they must be pleaded. Code of 1892, § 709; Stephen on Pleading, sec. 347.

Counsel rely on the case of Georgia, etc., Ry. Co. v. Baird, 76 Miss. 521, where the question was purely one of evidence on the trial. Keeping constantly in view the clear distinction between the established rules of pleading and the rules of evidence, it will not be difficult to thoroughly understand the proper application of the decision in that case to the one at bar. Even if the court should judicially know that the appellee's charter was granted in 1882, as a matter of evidence it will not judicially know that the company is now, nineteen years later, operating under said charter or fixing its charges for the transportation of cottonseed in accordance with section 19 thereof. The bill alleges the route of the present appellee's road. There is nothing in the charter of 1882 to identify this route with the one named in said charter. Baird's case, 76 Miss. 521; Wade on Notice (2d ed.), 1886; 99 Penn. St., 284; 57 Ala. 26.

It is confidently contended on the part of the Commission that the clause in the latter part of sections 5 and 14 of the defendant's charter, "and to adopt such rules and by-laws for the government of said company as they (not the board of directors, but the company) may deem necessary, not inconsistent with the laws of this state or of the United States," is a reservation by the legislature of power to change, alter or amend the charter. Not the power to deprive the corporation entirely, except in the manner directed by the constitution, but to limit the power of the company in its government to the will of future legislation. The court will notice that in the beginning of section 4, the "immediate control and direction of the affairs of said company are vested in the board of directors," and their election and manner of holding business meetings prescribed. Section 5 deals first with the company, and specifies its general powers, with the above mentioned reservation of power in the legislature to require "all rules and by-laws for the government of the company" to conform to the law. Just the reverse is true of the Yazoo & Mississippi Valley charter. The limitation in that is not upon the company, but the board of directors (sec. 4). The distinction is plain and positive, as it is in many other points of comparison of the two charters in favor of the Yazoo & Mississippi Valley charter. Section 6 of the latter is broader than section 19 of the appellee's in favoring the railroad, in that it gives the railroad a chance to agree with uninformed shippers of lumber, salt, coal, iron, machinery, etc., and an opportunity to charge them unreasonable and even extravagant rates in spite of the commission.

It is respectfully submitted and earnestly contended on the part of the Commission that the point here invoked and expressly relied upon was not raised in Stone v. Yazoo, etc., R. R. Co., 62 Miss. 607. Strangely enough, nevertheless true, it was never contended in that controversy, and certainly not decided, that the limitation upon the power of the board of directors in adopting by-laws, that those by-laws should be "not inconsistent with the laws of this state." It is probable that the learned counsel considered that the by-laws for the government of the board of directors did not have the effect of rules for the government of the company in its affairs with the public. The distinction between "by-laws" and "rules" is clear, but, in view of what is hereinafter said, it is believed that had the point been presented, the court would have held that the rates fixed in section 6 of the Yazoo & Mississippi Valley charter were subject to some supervision and to change by the legislature. In fact, it appears that the precise point was overlooked entirely, as the authorities hereinafter cited will indicate.

Section 19 of the appellee's charter is not within itself sufficiently clear and indisputable as to be free from legislative change, and most certainly not when viewed in the light of the whole charter. Railroad Co. v. Smith 70 Ga. 694; 126 U.S. 180; 32 Law Ed., 380; 97 U.S. 659; Dow v. Beidelman, 49 Ark. 325; 5 S.W. 297; Ragan v Aiken, 9 Lea, 617; 42 Am. Rep., 684; Spring Valley v. San...