Sargent v. Rutland R. Co.

• Decision Date: 09 January 1913
• Citation: 85 A. 654,86 Vt. 328
• Parties: SARGENT, ATTY. GEN. v. RUTLAND R. CO.
• Court: Vermont Supreme Court

85 A. 654

86 Vt. 328

SARGENT, ATTY. GEN.

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

Jan. 9, 1913.

Appeal from Order of Public Service Commission.

Petition by John G. Sargent, Attorney General, against the Rutland Railroad Company. From an order of the Public Service Commission of Vermont forbidding the railroad to make certain demurrage charges, it appeals. Injunction dissolved, order and decree vacated and set aside, and petition dismissed.

The allegations of fact in the petition, also in the answer, are admitted to be true, and these facts are made a part of the report of the Public Service Ccommission. It appears: That the petitionee is a public service corporation of the states of Vermont and New York, for the transportation of passengers and freight for hire therewithin. That it operates a railroad extending from Ogdensburg, N. Y., to Chatham, N. Y., via Alburgh, Burlington, Rutland, and Bennington, all in the state of Vermont, also a railroad within the latter state, extending from Rutland to Bellows Falls, and from Leicester Junction, same state, to Ft. Ticonderoga, in the state of New York, and from Alburgh, Vt, to Noyan Junction, Canada. That it connects with other railroads at nearly all these places, and at other places named in the petition, located in the state of New York and in Canada, and at all said points interchanges freight cars with such other railroads. That substantially all the freight cars in the United States and in Canada have for a long time been and now are interchanged, operated, and used under an agreement entered into by all the railroad companies operating therein; the agreement being commonly known as the "American Railway Association Gar Service Rules." That these rules (some parts of which are set forth at length in the answer) provide, among other things, that when a railroad company's cars are loaded upon its own line, destined to points beyond its line, they shall be carried through to the destination of the freight; that foreign cars, i. e., cars on roads to which they do not belong, must be promptly returned to their owners, and to this end such cars may be loaded for interstate or intrastate shipments in the direction of the owner, with certain preferences and upon conditions not material here to mention. The rules also provide that foreign cars shall be paid for at the rate of 30 cents per car per day for the months of March, April, May, June, and July of each year and 35 cents per day for the remaining seven months. The operation of all cars on the petitionee railroad is in accordance with these rules, and the petitionee is in this state both an intrastate and an interstate carrier of freight and passengers for hire.

December 18, 1909, the Interstate Commerce Commission issued the following: "Circular Letter No. 2, Series 1909. Interstate Commerce Commission. Proposed Uniform Demurrage Code. The National Association of Railway Commissioners has adopted the uniform demurrage code reported by its committee on car service and demurrage, and recommends that it be made generally applicable on both state and interstate traffic. The Interstate Commerce Commission, recognizing the great benefits to be derived from uniformity in car-service rules, is desirous of lending its influence to the movement The Commission therefore indorses the rules adopted by the national association, and recommends that they be made effective on interstate transportation throughout the country This action is, of course, subject to the right and duty of the Commission to inquire into the legality or reasonableness of any rule or rules which may be made the subject of complaint. Edward A. Moseley, Secretary. Washington, D. C, December 18, 1909. Demurrage Rules. Rule 1. Cars Subject to Rules. Cars held for or by consignors or consignees for loading, unloading, forwarding directions, or for any other purpose, are subject to these demurrage rules, except as follows. * * * Rule 2. Free Time Allowed, (a) Forty-eight hours (two days) free time will be allowed for loading or unloading on all commodities. (b) Twenty-four hours (one day) free time will be allowed: (This subdivision 'b' is not material to the questions involved in this case.) * * * Rule 7. Demurrage Charge. After the expiration of the free time allowed, a charge of $1 per car per day, or fraction of a day, will be made until car is released."

August 30, 1910, Rutland Railroad Company issued, published, and filed with the Interstate Commerce Commission as provided by law for issuing, publishing, and filing tariffs a tariff designated "I. C. C. A-28," to become effective October 1, 1910, containing the car demurrage rules set forth in said Commission's order of December 18, 1909, applicable to all cars moving on its road.

September 27, 1910, the Interstate Commerce Commission issued an order suspending said tariff, as follows: "At a General Session of the Interstate Commerce Commission, held at its office in Washington, D. C, on the 27th day of September, A. D. 1910. Docket No. 3400, Sub. 8. In the matter of the investigation and suspension of certain demurrage schedules. It appearing from the records of the Interstate Commerce Commission that there has been filed with the Commission by the within-named carriers schedules designated as follows: (Here the schedules of eight railroad companies, including that of 'I. C. C. A. 28' of the petitionee, are named)—which schedules state new individual or joint rates, fares or charges, or new individual or joint classifications, or new individual or joint regulations or practices affecting such rates, fares or charges: It is ordered, that the Commission, upon its own initiative and upon complaint, without formal pleading and without answer by the interested carriers, do enter upon a hearing concerning the propriety of such rates, fares, charges, classifications, regulations or practices stated an said schedules, with a view to making such order in the premises as may after full hearing, seem just and proper, and that such hearing be held at such time (not later than October 18, 1910), and place as may be hereafter fixed by the Commission. The Commission being further of the opinion, that pending such hearing and decision of the Commission concerning the propriety of such rates, fares, charges, classifications, regulations or practices, the operation of such schedules should be postponed for the reason that from a consideration of the character and amount of such rates, fares, charges, classifications, regulations or practices, and the circumstances under which they have been made, it appears to the Commission there is sufficient ground for claiming that the rates, fares, charges, classifications, regulations or practices, established by said schedules are unjust and unreasonable, and therefore unlawful, and that the public interest requires that the operation of said schedules be deferred until sufficient time has been given for an investigation by this Commission. It is further ordered, that the operation of the aforesaid schedules be suspended, and that the use of the rates, fares or charges therein specified be deferred until November 1, 1910. It is further ordered, that the several carriers above named that have filed schedules, be and they are hereby made defendants to this proceeding, and that a copy of this order be forthwith served upon each of them. A true copy. Edw. A. Moseley, Secretary."

October 22, 1910, the Interstate Commerce Commission issued another order further suspending the operation of said schedules until the 1st day of December, 1910, pending its hearing and decision in the premises.

It was finally determined by that Commission that the demurrage rules indorsed by it in its order of December 18, 1909, and contained in the petitionee's tariff of August 30, 1910, would be reasonable as applied to New England territory, and thereupon the petitionee on July 31, 1911, issued, published, and filed as provided by law for issuing, publishing, and filing tariffs, a tariff putting said rules into effect September 1, 1911, which rules have hitherto remained in effect, and the petitionee is collecting, and intends to continue to collect, demurrage in accordance therewith. These same rules have been adopted by, and are in effect upon, all railroads in the United States.

On the facts admitted by the petition and answer, the Public Service Commission held that the prayer of me petition should be granted, and by its order and decree the petitionee was strictly forbidden and enjoined from charging, collecting, or receiving any demurrage charge on any car placed by the petitionee within this state for the unloading of freight shipped from a place within this state, over a route wholly therein, or for cars placed within this state for the loading of freight therein for shipment over routes wholly within this state, until four days, not including Sundays or holidays, after the petitionee shall have notified, verbally or by mail, the consignor that such car is held, or has been placed, to his use. From this report, order, and decree, the petitionee appealed.

By article 1, § 8, of the Constitution of the United States, "the Congress shall have power * * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," and "to make all laws which shall be necessary and proper for carrying" this power into execution. By the Interstate Commerce Act of 1887, c. 104, 24 Stat. 379, as amended June 18, 1901, April 13, 1903, and June 29, 1900 (see U. S. Comp. St. Supp. 1911, p. 1284), the provisions of that statute shall apply "to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, * * * from one state or territory of the United States or the District of Columbia, to any other state or territory of the United States or the District of Columbia, * * * or from any place in the United States...