Oregon-Washington R. & Nav. Co. v. McColloch

• Decision Date: 17 March 1936
• Citation: 55 P.2d 1133,153 Or. 32
• Parties: OREGON-WASHINGTON R. & NAV. CO. et al. v. McCOLLOCH, Public Utilities Com'r, et al.
• Court: Oregon Supreme Court

55 P.2d 1133

153 Or. 32

OREGON-WASHINGTON R. & NAV. CO. et al. v. McCOLLOCH, Public Utilities Com'r, et al.

Supreme Court of Oregon

March 17, 1936

In Banc.

Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.

Suit by the Oregon-Washington Railroad & Navigation Company and others against Frank C. McColloch, as Public Utilities Commissioner, and others. From a decree of dismissal plaintiffs appeal.

Reversed and remanded.

Roy F. Shields, of Portland (A. C. Spencer, of Portland, on the brief), for appellant Oregon-Washington R. &amp Nav. Co.

A. A Hampson and Paul P. Farrens, both of Portland, for appellant Southern Pac. Co.

Carey, Hart, Spencer & McCulloch and Fletcher Rockwood, all of Portland, for appellants Northern Pac. Ry. Co. and Great Northern Ry. Co.

Willis S. Moore, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondents Frank C. McColloch and I. H. Van Winkle.

William P. Ellis, of Salem, for other respondents.

BAILEY Justice.

This suit was instituted by the Oregon-Washington Railroad & Navigation Company, Southern Pacific Company, Northern Pacific Railway Company, and Great Northern Railway Company, as plaintiffs, against the public utilities commissioner and the Attorney General of the state of Oregon, and some fifty-five shippers, as defendants, to set aside two orders of the public utilities commissioner, to enjoin the defendant state officials from instituting proceedings to enforce said orders, and to enjoin the defendant shippers from instituting and prosecuting actions to recover the reparation awards contained in the second of such orders.

The first of these orders, designated as P. U. C. Oregon order No. 2093, was made on March 27, 1933, on an amended complaint filed with the Public Service Commission of Oregon, since replaced by the public utilities commissioner, wherein the defendants in this suit and several other shippers were named as defendants. The findings on which the order was based were to the effect that the rates and charges enforced and exacted by the carriers for shipments of grain from the interior of Oregon to Portland were "unjust, unreasonable and unlawful to the extent that they exceeded the maximum distance scales of rates prescribed in" orders No. 1040 and No. 1131; that the refusal of the carriers to grant certain shippers milling in transit privileges was contrary to the spirit and intent of orders No. 1040 and No. 1131, and "resulted in exaction of unjust, unreasonable and unlawful charges"; and that the refusal of the carriers to grant to shippers the right and benefit of diversion or reconsignment of shipments on rates fixed by orders No. 1040 and No. 1131 resulted in imposing upon the shippers "charges in excess of those found therein to be just and reasonable."

In his order No. 2093 the public utilities commissioner, hereinafter to be mentioned, for the sake of brevity, as the commissioner, directed the shippers named in the amended complaint upon which such order was based to file with the commissioner within a time fixed statements showing the details of shipments on which reparation was claimed by the shippers, in accordance with rule 25 of "Rules of Practice and Procedure" promulgated by the commissioner, and further ordered the carriers to "cease and desist from the violations" mentioned in the commissioner's findings.

The second of the orders, designated as P. U. C. Oregon order No. 2220, entered February 21, 1934, awarded reparation in excess of $211,000, with interest from the date of the payment of the freight charges, to some fifty-five shippers, all of whom are made defendants in this suit. The separate awards to individual shippers ranged from $2.56 to $74,458.44. Of the total amount of reparation, all except $1,597.96 was awarded against the Oregon-Washington Railroad & Navigation Company alone.

This case comes before us on appeal from a decree dismissing the suit after plaintiffs' refusal to plead further, upon the sustaining of defendants' demurrer to the complaint. The facts to be considered are therefore those alleged in the complaint and admitted by the demurrer.

Copies of the two orders of the commissioner, Nos. 2093 and 2220, and the amended complaint on which such orders were based, were, as exhibits, attached to and made a part of the complaint in this suit. The facts as stated in the complaint are as follows: On February 28, 1929, "the defendant shippers filed with the public service commission of Oregon a complaint against the plaintiffs herein to recover certain alleged overcharges not stated or identified in any manner in said complaint." A year later these same shippers filed with the Public Service Commission an amended complaint, to which the plaintiffs herein filed their respective answers denying each and every allegation in said amended complaint, except averments as to the corporate character of the plaintiffs and defendants therein named.

The claims asserted by the shippers against the carriers comprise four general classes. The first of these classes, approximating 99.2 per cent. of the total demand, includes "claims based on interstate and foreign shipments originating at interior points in Oregon and moving by rail to Portland and thence by water or rail to destinations in other states or in foreign countries." As to such shipments the carriers applied and collected the rates fixed by the Interstate Commerce Commission, which were prescribed in the carriers' published tariffs on file with that commission. As to this freight the shippers contend that the rates prescribed by the Public Service Commission of Oregon for intrastate movements, generally lower than the interstate rates, should have been applied and collected.

Class 2 of the claims, comprising approximately .005 per cent. of the total shipments, is "based on intrastate movements as to which the shippers claimed 'milling in transit' privileges." Regarding these claims, the shippers' contention is that P.S.C. order No. 1131, entered August 29, 1924, required the carriers to permit shipments of grain to be stopped at intermediate points for milling and then to be moved from such intermediate points to ultimate destination on the same rate from point of origin to ultimate destination as though said shipments had not been stopped, unloaded, and reloaded from said intermediate points, but had moved continuously from originating point to final destination. On these shipments the carriers charged and collected the local rate from the point of origin to the intermediate point, plus the local rate from the latter point to the ultimate destination.

Class 3, approximating .0014 per cent. of the total amount, included demands arising out of shippers' claims to diversion and reconsignment privileges without extra charge. In regard to those movements of freight, the shippers' contention is that order No. 1131 required the carriers to grant to the shippers the same rate as though the shipments had been billed originally "straight through to the final destination." The rates charged and collected by the carriers were those prescribed in their tariffs for such movements to and from the reconsignment or diversion point.

Class 4 consists of miscellaneous claims, comprising less than 1 per cent. of the whole, arising out of alleged overcharges on a few minor and incidental movements, based on the contention that the carriers have charged and collected rates in excess of those prescribed by the defendant commissioner or his predecessors.

The amended complaint filed with the commission alleged that the rates which had been charged and collected by the carriers were "unreasonable, unjustly discriminatory and unjustly prejudicial." No evidence was introduced to prove those allegations. All that the complainants attempted to show in the proceedings before the commission was that the rates actually charged by the carriers were in excess of those prescribed theretofore by the commission.

The shippers at no time requested the commissioner to determine "upon and fix any rate, charge, practice or regulation not then and theretofore in effect, or to grant any relief except only to award to defendant shippers specific sums of money to be computed by deducting from the total charges collected by the carriers the amounts which defendant shippers claimed should have been collected under the carriers' tariff then and theretofore on file and in effect."

Testimony was taken before an examiner appointed by the commissioner at various times between April 1, 1931, and August 1, 1932, with respect to some of the items of the defendants' claims. But such testimony was, at the direction of the commissioner, confined to less than 1 per cent. of the total of said items, "although the carriers requested leave to offer evidence as to each and all of said items, which request was denied and refused" by said commissioner. Based upon such testimony, the commissioner made and entered order No. 2093, hereinbefore referred to, and, in pursuance of said order, under rule 25 above mentioned, the carriers filed with the commissioner a prepared statement showing as to each shipment the origin and destination as indicated by the railroad bill of lading, also car number and initial, weight of shipment, date of shipment, rate charged and collected, rate claimed to be applicable, the amount claimed to be the correct charge, and the alleged overcharge. These statements did not show who paid the freight, the final destination of shipments moving through Portland and beyond, nor any facts characterizing such shipments as intrastate, interstate, or foreign, "save only that it did show the destination shown on the original bill of lading." The statements so filed by the...