Missouri, K. & T. Ry. Co. v. Dewey Portland Cement Co.

• Citation: 242 P. 257,113 Okla. 142,1925 OK 534
• Decision Date: 23 June 1925
• Docket Number: 14494.
• Parties: MISSOURI, K. & T. RY. CO. et al. v. DEWEY PORTLAND CEMENT CO., et al.
• Court: Supreme Court of Oklahoma

242 P. 257

113 Okla. 142, 1925 OK 534

MISSOURI, K. & T. RY. CO. et al. v. DEWEY PORTLAND CEMENT CO., et al.

No. 14494.

Supreme Court of Oklahoma

June 23, 1925

Syllabus by the Court.

Section 208(a) of the Transportation Act (U. S. Comp. St. Ann. Supp 1923, § 10071 1/4d) gives the state authority to propose or initiate a reduced rate on intrastate shipments during the guaranty period, but all such changes before becoming effective are subject to review by the Interstate Commerce Commission, and, unless the same are approved by such commission, are invalid.

"Transportation Act, § 208(a) being U.S. Comp. St. Ann. Supp. 1923, § 10071 1/4d, providing that all rates in effect February 29, 1920 on lines of carriers subject to the Interstate Commerce Act shall continue in force and effect until changed by state or federal authority, respectively; prior to September 1, 1920 no such rate * * * shall be reduced, * * * unless such reduction is approved by the Interstate Commerce Commission-does not require prior conditional approval by the Interstate Commerce Commission to enable the Corporation Commission to entertain a complaint of an intrastate rate during the six months' guaranty period ending September 1, 1920, but the federal commission acts as a reviewing body on the determination by the state commission, and must approve it to make it effective."

The statute of limitation applicable to actions on penalties and fines does not apply to an application for reparation on account of discriminatory rates. The law permitting such application and reparation thereon is remedial only.

Record examined, and held, that the evidence supports the order and judgment of the Corporation Commission in its finding that the rate charged the plaintiff was discriminatory. Order and judgment of the Corporation Commission modified.

Appeal from Corporation Commission.

Proceedings by the Dewey Portland Cement Company and others against the Missouri, Kansas & Texas Railway Company and others for reparation on account of discriminatory rates. From a final order of the State Corporation Commission in favor of plaintiffs, defendants appeal. Order and judgment of Corporation Commission modified and affirmed.

Cottingham & McInnis, of Oklahoma City, John E. M. Taylor, of Muskogee, Stuart, Sharp & Cruce, of Oklahoma City, and M. D. Green and H. L. Smith, both of Muskogee, for plaintiffs in error.

Raymond W. Moore, of Kansas City, Mo., and A. Carey Hough and George A. Henshaw, both of Oklahoma City, for defendants in error.

LESTER J.

For convenience, the complainant before the Corporation Commission will be referred to as plaintiff and the respondent as defendant.

This is an appeal from the Oklahoma Corporation Commission's final order of January 8, 1923, numbered 2149, in cause No. 4833, being the cause entitled "Dewey Portland Cement Company, Complainant, v. Atchison, Topeka & Santa Fé Railway Company, Kansas, Oklahoma & Gulf Railway Company, Missouri, Kansas & Texas Railway Company, and C. E. Schaff, Receiver thereof, and the St. Louis-San Francisco Railway Company, Defendants," in which cause the plaintiff filed complaint before the Corporation Commission on September 16, 1922, for reparation and refunds in the sum of $9,427.97, with interest thereon, representing alleged illegal freight charges collected from plaintiff by defendants on shipments of slack coal shipped over defendants' lines of railroad from coal mining points in Oklahoma to plaintiff's cement plant at Dewey, Okl., during the period from March 1, 1920, to September 1, 1920, which period was the guaranty period during which the United States government guaranteed to the railroads formerly under federal control a certain income, as provided by the Act of Congress of February 28, 1920, known as the Transportation Act (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq.). The plaintiff claims in its complaint that the freight charges per ton in controversy were materially greater than the legal charges prescribed by the Corporation Commission and affirmed by this court for similar movement of slack coal for a period subsequent to September 1, 1920, and materially higher than the rates on carload shipments of slack coal from mines in Pittsburg, Kan., group to cement mill points in Kansas, and to Dewey, Okl. for the same period of time. Plaintiff also claims that its competitors secure their coal supply from the Pittburg, Kan., group of mines under transportation conditions similar to those from Oklahoma mine points to Dewey, but plaintiff alleges that it is compelled to meet the competition of the Kansas cement mills with cement manufactured with Oklahoma coal, and that freight charges on said coal, as complained of by it, are unjust and unreasonable, in that the defendants maintained lower rates on slack coal carloads from Pittsburg, Kan., group of mines to Dewey and to Kansas cement mill points, than the rates charged plaintiff for slack coal from Oklahoma mine points, thereby, as plaintiff claims, giving its competitors in Kansas, including those in the Kansas gas belt, an undue preference and advantage over plaintiff, and it contends that the freight rates charged it are arbitrary, illegal, and unwarranted.

The defendants filed separate answers in which they denied that the rate charged the plaintiff was unfair and discriminatory, but that said rate was legal, fair, and just. Defendants also set forth in their answer the following statement:

"That they are and at all times in controversy herein were common carriers by railroad of passengers and freight for hire in interstate and intrastate commerce, with lines of railway running into and through the states of Missouri, Kansas, and Oklahoma, which, at the time in controversy herein, were being operated by said defendant receiver as an officer of the United States District Court for the Eastern District for the Eastern Judicial District of the state of Missouri, and defendants state that they are and at all times in controversy herein were subject to the acts of Congress regulating commerce, and that during the period of federal control of railroads their said lines of railroad were under federal control, and being operated by the United States government through the President and Director General of Railroads, during which time, as well as during the time in controversy herein, the rates, fares, charges, classifications, regulations, and practices in effect on said lines of road were those prescribed by the United States government through the President and Director General of Railroads, and duly filed with the Interstate Commerce Commission, and in full force and effect at all times during the period in controversy herein from March 1, 1920, to September 1, 1920, which period is known as the guaranty period, as provided by the Act of Congress of February 28, 1920, known as the 1920 Transportation Act. Said rates, fares, charges, classifications, regulations, and practices have been continued in full force and effect during said guaranty period by the provisions of section 208(a) of said Transportation Act, by the terms of which said section it was provided that such rates, fares, charges, classifications, regulations, and practices should not be reduced and should not be changed in such manner as to reduce them, unless such reduction is approved by the Interstate Commerce Commission, and defendants respectfully state and show to this honorable commission that the relief sought herein by the complainant would, if in effect, reduce such rates, fares, and charges, and that the Interstate Commerce Commission has never approved any such proposed change or reduction, and that this commission has no jurisdiction over the subject-matter of this action, and that any order which this commission might make purporting to grant the relief prayed for by the complainant herein would be in conflict with and in violation of said act of Congress, known as the Transportation Act, and the other acts of Congress regulating commerce, as well as in violation of the Constitution of the United States, and would, therefore, be wholly void, and the defendants state that the controversy involved herein is now pending before the Interstate Commerce Commission under Docket No. 13503."

A hearing was had before the Corporation Commission, and the issues were determined against the defendants, and the Corporation Commission adjudged that the plaintiff have and recover of and from the defendants the sum of $9,427.92 as reparation for rates charged the plaintiff. The defendants prosecute this appeal to reverse the action of the Corporation Commission.

There are eight assignments of error contained in the petition in error, and for the purpose of discussing said assignments we will group assignments numbered 1 and 3 together, 4, 5, 6, 7, and 8 together, and discuss No. 2 separately.

Assignments of error numbered 1 and 3 challenge the jurisdiction of the Corporation Commission in assuming jurisdiction and...