New York & Pennsylvania Co. v. New York Central R.R. Co.
| Citation | 126 A. 382,281 Pa. 257 |
| Decision Date | 08 July 1924 |
| Docket Number | 169 |
| Parties | New York & Pennsylvania Co. v. New York Central R.R. et al., Appellants |
| Court | Pennsylvania Supreme Court |
Argued March 17, 1924
Appeal, No. 169, Jan. T., 1924, by defendants, from order of C.P. Clinton Co., Jan. T., 1923, No. 5, making absolute rule for judgment for want of a sufficient affidavit of defense in case of New York & Pennsylvania Company v. New York Central Railroad Company and the Pennsylvania Railroad Company. Affirmed.
Assumpsit under article V, section 5, of the Public Service Company Act to recover award of reparation.
Rule for judgment for want of a sufficient affidavit of defense. Before BAIRD, P.J.
The opinion of the Supreme Court states the facts.
Rule absolute. Defendants appealed.
Error assigned was, inter alia, order, quoting record.
The judgment is affirmed.
Henry Wolfe Bikle, Parker McCollester, Seth T. McCormick, Jr., and Henry Hipple, for appellants. -- The failure of appellants to appeal to the courts from the decision of the Public Service Commission, in its complaint docket No. 3206, did not preclude them from availing themselves of the defense to the action brought by appellee to enforce the reparation order of the commission in its reparation docket No. 4738 of 1922 Newport & Shermans Val. R.R. v. P.S.C., 75 Pa.Super. 28; N.Y. & Penna. Co. v. N.Y. Cent. R.R., 267 Pa. 64; Greensburg Boro. v. P.S.C., 268 Pa. 177.
The issues raised by appellants' affidavits of defense were not expressly raised in complaint docket No. 3206 and were not among the issues which the commission undertook expressly to decide: N.Y. & Penna. Co. v. N.Y. Cent. R.R., 267 Pa. 64; Lehigh & New England R.R. v. P.S.C., 277 Pa. 493.
The issues which are raised by appellants' affidavits of defense could not properly have been before the commission in complaint docket No. 3206 and could not have been made the subject of an appeal from the commission's decision in that case: St. Clair Boro. v. Souilier, 234 Pa. 27; Quinn v. R.R., 219 Pa. 24.
By reason of section 208(a) of the Transportation Act of 1920, it is a complete defense to appellee's suit under article V, section 5, of the Public Service Company Law to enforce an order for reparation made by the Public Service Commission on shipments moving between March 1 and September 1, 1920, that the rates charged on these shipments were in force on February 29, 1920, that they had been held to be lawful and reasonable by the Interstate Commerce Commission as of that date, and that the approval of the Interstate Commerce Commission to a reduction in the rates or to the payment of reparation had not been secured: Railroad Commission of Wisconsin v. R.R., 257 U.S. 563; Texas v. R.R., 258 U.S. 204; Northern Pac. Ry. v. North Dakota, 250 U.S. 135.
The prohibition, by section 208(a) of the Transportation Act of 1920, of a reduction in rates during the guaranty period without the approval of the Interstate Commerce Commission is a limitation upon the power of the Public Service Commission to award reparation to the appellee on its shipments moving during the guaranty period and upon the power of the court to give judgment upon such an award.
T. R. White and B. F. Geary, for appellee. -- The only question raised by the affidavit of defense was decided by the Public Service Commission in the original proceeding, and by their failure to take an appeal therefrom appellants are now concluded: N.Y. & Penna. R.R. v. R.R., 267 Pa. 64.
The Transportation Act of 1920 does not provide that a reduction of purely intrastate rates, which do not affect interstate commerce, must be approved by the Interstate Commerce Commission: State of Texas v. R.R., 258 U.S. 204; Lehigh & New England R.R. v. P.S.C. , 277 Pa. 493.
A reparation order made by a state commission after September 1, 1920, is not subject to the approval of the Interstate Commerce Commission.
The finding by the Public Service Commission that the rate in suit was unlawful was not a reduction of that rate within the meaning of the Transportation Act of 1920: Lehigh & New England R.R. v. P.S.C., 277 Pa. 493.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
The New York Central Railroad Company was engaged in the transportation of coal from the Munson and Hawk Run Mining Districts to Bald Eagle Junction, from which place it was moved by the Pennsylvania Railroad Company to Lock Haven, all of the points named being within the State of Pennsylvania. In 1916, certain tariffs were filed by the former with the Public Service Commission, and in July, 1917, after protest, an order was made requiring the first named railroad to reduce the charge for transportation to forty-five cents. The Public Service Act gives the right to a complete judicial review on independent judgment where a company is aggrieved by any order of the commission, through an appeal to the Superior Court, and thence by special allowance to this court, and, where no appeal is taken from the decision rendered, the action of the commission is conclusive in a subsequent proceeding for reparation covering the excessive charge demanded and paid: N.Y. & Pa. Co. v. N.Y.C.R.R. Co., 267 Pa. 64. Subsequent to federal control, in obedience to the statutory direction, this court approved the commission's order, subject, of course, to the limitations imposed by the Public Service Act, -- not material here to be discussed. We accepted, as bound to do, the rate fixed by the commission, and ratified by the Superior Court, as a reasonable one for the service rendered: N.Y. & Pa. Co. v. N.Y.C.R.R. Co., supra. Later, in December of 1917, the commission ordered a new rate of eighty cents, between the points already referred to, to be divided between the New York Central and Pennsylvania railroads.
On December 28, 1917, by proclamation of the President, duly authorized by act of Congress, and made necessary by the war emergency, control of all railroads was placed in the hands of the director general. In pursuance of the authority granted to him, a through rate of one dollar was named on June 25, 1918. On July 11, 1919, the charge was advanced, by virtue of general order No. 28, to $1.10, and this remained in effect during the further term of federal administration, which ended February 29, 1920.
The order, so authorized permitting the increase on the basis of the tariff filed by the railroads in 1916, but it had been found, in July, 1917, by the Public Service Commission, to be unreasonable. The rate-base thus adopted was therefore unlawful, and one not determined on a reasonable charge fixed for the intrastate service, as it was required to be, but on an illegal, disapproved tariff filed with the Public Service Commission, and which had been subsequently directed to be lowered. As adopted, it made allowable a charge of $1.10 per gross ton instead of one dollar.
Under the Federal Act of March 21, 1918, the director general exercised full power in the management of the roads engaged in both interstate and intrastate commerce, with the right, subject to approval by the Interstate Commerce Commission, to fix the rates which should be charged (Northern Pacific Ry. Co. v. North Dakota, 250 U.S. 135), and, as this directly or indirectly affected the former class of service, he was given the same privilege for the period from March 1, 1920, when governmental control ceased, to the following September, covering six months, known as the guarantee period.
The provisions of the Transportation Act became effective after February 29, 1920. An effort was made to protect the owners of railroads for the period of six months, and it was provided therein: "All rates, fares and charges, and all classifications, regulations and practices in any way changing, affecting, or determining any part, or the aggregate of rates, fares, or charges, or the value of the service rendered, which, on February 29, 1920, are in effect on the lines of carriers subject to the Interstate Commerce Act, shall continue in force and effect until thereafter changed by state or federal authority, respectively, or pursuant to authority of law; but, prior to September 1, 1920, no such rate, fare or charge shall be reduced and no such classification, regulation or practice shall be changed in such manner as to reduce any such rate, fare or charge, unless such reduction or change is approved by the commission."
At the time this legislation became in force there was outstanding the rate fixed by the federal authorities, and approved by the Interstate Commerce Commission, of $1.10 for the haulage of coal between the points in question, and, on August 26, 1920, by general order, a flat increase of forty per cent of the sums then collectible was allowed: Ex Parte 74, 58 I.C.C. 220, 260. This resulted in giving the appellants the right to charge $1.54, if the sum allowable by governmental permission prior to March 1, 1920, was to control, but otherwise, if the reasonable sum determined by the Public Service Commission of the State was used as a structural base, in which case the rate should have been one dollar, beginning March 1st, and rising to $1.40 on August 26th.
It may be noted that, on complaint to the Interstate Commerce Commission, a rate of $1.10 was held to be fair in a proceeding in which the present litigants were also parties and that this decision was rendered subsequent to March 1st, but it will also be observed that the question of reasonableness was not the only issue presented, the commission saying that the manner in which the rate was arrived at is only one element in determining what was a proper sum to be charged. This ruling was made on June 18, 1920, but it is insisted that after...
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New York Cent Co v. New York Pennsylvania Co
...on the order in favor of the defendant in error was affirmed by the Supreme Court of Pennsylvania. New York & Pennsylvania Co. v. New York Cent. R. Co., 126 A. 382, 281 Pa. 257. The charges in question were for shipments between March 1, 1920, and September 1, 1920, the six months following......