Northern P. Ry. Co. v. Department of Public Works

• Decision Date: 29 October 1925
• Docket Number: 19407.
• Citation: 240 P. 362,136 Wash. 389
• Parties: NORTHERN PAC. RY. CO. v. DEPARTMENT OF PUBLIC WORKS et al.
• Court: Washington Supreme Court

240 P. 362

136 Wash. 389

NORTHERN PAC. RY. CO. v. DEPARTMENT OF PUBLIC WORKS et al.

No. 19407.

Supreme Court of Washington

October 29, 1925

Department 1.

Appeal from Superior Court, Thurston County; Wilson, Judge.

Complaint by the Roosevelt Transfer & Fuel Company before the Department of Public Works to secure reparation from the Northern Pacific Railway Company. From a judgment affirming an order of the Department of Public Works directing the Northern Pacific Railway Company to pay to the Department of Public Works a sum to be disbursed to the Roosevelt Transfer & Fuel Company as reparation for overcharges on shipments of wood, the Northern Pacific Railway Company appeals. Decisions of trial court and Department of Public Works reversed.

Geo. T Reid and L. B. da Ponte, both of Seattle, for appellant.

John H Dunbar and H. C. Brodie, both of Olympia, and Wm. Phelps Totten, of Seattle, for respondents.

HOLCOMB J.

This appeal is from a judgment affirming an order the department of public works, directing appellant to pay to the department of public works $242.29, to be disbursed to the Roosevelt Transfer & Fuel Company as reparation of overcharges on shipments of wood, which charges were found by the department of public works to be unjust, unreasonable and excessive. The matter was before the trial court on review proceedings from the order of reparation made by the department.

The proceedings were originated by a complaint by the Roosevelt Transfer & Fuel Company, which alleged, after certain formal matters:

'(3) That: (1) On March 17, 1922, under the second supplemental order in case 5150, the above named respondent was required to cease and desist on or before July 1, 1922 and thereafter to abstain from publishing, demanding, receiving or collecting any charges for the intrastate movement of fuel wood, pulp wood and wood bolts (not exceeding approximately 16"' in length) and for hogged fuel within the state of Washington, rates based upon the measurement of 128 cubic feet to the cord, when such commodities are loaded loosely on racked, flat, or gondola cars (racks to be supplied by the shipper); and (2) in this order the unit of measurement of 192 cubic feet to the cord was provided for fuel wood, pulp wood, and wood bolts (not exceeding approximately 16"' in length), and 200 cubic feet to the cord for hogged fuel; and (3) the Roosevelt Transfer & Fuel Company received shipments of fuel wood (not exceeding approximately 16"' in length) at Seattle from the Northern Pacific Railway Company during the period of July 8, 1921 to July 5, 1922, upon which charges were based on a unit measurement of 128 cubic feet to the cord, as specifically detailed in the statement attached hereto; (4) that prior to the original order of the department in case No. 5150, it was the practice of the carriers to apply different and more advantageous measurement than that applied after that order; and that the department in its original order in said case No. 5150 did not require any change in past practices.

'Wherefore petitioner and complainant prays that the aforesaid Northern Pacific Railway Company be required to answer the charges herein and that after due hearing and investigation an order be made commanding the respondent to make reparation on all shipments upon which the charges were based on a different unit of measurement than 192 cubic feet to the cord, such shipments being more specifically defined in the allegations above.'

The complaint was dated June 5, 1922. There was attached to it a schedule of shipments of 22 carloads of short fuel, with the rates paid and overcharges on the cars, to the complainant between September 13, 1921, and April 11, 1922.

The department made findings as follows:

'The petitioner is a corporation engaged in the purchase and sale of fuel wood with its office at Seattle, Washington. Between September 13, 1921, and April 11, 1922, the petitioner shipped 22 carloads of fuel from various points in Washington to Seattle upon which respondent assessed charges upon the basis of 128 cubic feet to the cord. Petitioner contends that charges should have been assessed upon the basis of 192 cubic feet to the cord, and that by reason thereof it had been overcharged in the sum of $242.29, as shown by the tabulation attached to its complaint. The fuel wood herein referred to was less than 16 inches in length and was thrown loosely into racks on the cars.

'This matter is the outgrowth of proceedings held jointly before this department and the Interstate Commerce Commission. On April 18, 1921, this department made and entered its findings of fact and order No. 5150, wherein it established a distance scale of rates for the intrastate transportation of fuel wood not exceeding 4 feet 6 inches in length, pulp wood, and wood bolts, within the state of Washington, taking as a basis a cord of 128 cubic feet. Thereafter, complaint having been made to the department that railroads were employing the distance scale of rates on the basis of 128 cubic feet to the cord, to hogged and to 16-inch wood thrown loosely into the car, this department and the Interstate Commerce Commission held further hearings, after which this department made and entered its second supplemental findings of fact and order No. 5150, wherein it ordered that charges for the transportation of fuel and wood not exceeding 16 inches in length when loaded loosely in racked cars shall be based upon 192 cubic feet to the cord. 'The shipments in question were moved between the effective dates of order No. 5150 and second supplemental order No. 5150. Paragraph 2 of findings of fact of our second supplemental order No. 5150 states that prior to the issuance of the original order the carriers had made charges for loosely piled 16 inch wood upon the basis of 192 to 200 cubic feet to the cord. Our first order in cause No. 5150 did not specifically require the discontinuance of such practice, and was not intended and should not have been so construed. The evidence herein and in cause No. 5150 incorporated herein by agreement demonstrates that a racked or piled cord (128 cubic feet) of 16-inch wood will occupy approximately 192 cubic feet when thrown loosely into a rack. The evidence further indicates that shippers could not in many instances load the minimum if charges on 16-inch wood piled loosely be based on a cord of 128 cubic feet. The evidence further indicates that the shipper of wood thrown loosely into the cars would be compelled to pay a rate much higher than the shipper of stacked wood if the unit of measurement for loosely piled wood be 128 cubic feet. We are of the opinion that the charges assessed by respondent on the basis of 128 cubic feet to the cord were injust, unreasonable, and excessive to the extent that the total sum exceeded the charges applicable on the basis of 192 cubic feet to the cord, and that petitioner is entitled

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