Southern Pac. Co. v. California Adjustment Co.

• Decision Date: 06 November 1916
• Citation: 237 F. 954
• Parties: SOUTHERN PAC. CO. v. CALIFORNIA ADJUSTMENT CO. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

237 F. 954

SOUTHERN PAC. CO. v. CALIFORNIA ADJUSTMENT CO. ^[1]

United States Court of Appeals, Ninth Circuit.

November 6, 1916

The plaintiff in error seeks to reverse a judgment of the court below, rendered in favor of the defendant in error for the sum of $3,928.01. The parties will be herein named plaintiff and defendant, as in the court below. The complaint contains 120 counts; each being on a claim assigned to the plaintiff, and each alleging that the assignors of the plaintiff sent various shipments over the defendant's railroad line from San Francisco or Los Angeles to certain intermediate stations, for which they were charged a higher rate than the charge then made by the defendant for transportation in the same direction on the same amount and class of property from the point of shipment to Los Angeles or San Francisco. The amount for which judgment was demanded on each count was the difference between the greater charge for the short haul and the lesser charge for the long haul in the same direction. The counts in the complaint fall into two groups: First, the counts upon the charges collected prior to October 10, 1911, the date when article 12 of the California Constitution was amended and, second, counts upon the charges collected after that date.

Section 21, art. 12, as it existed prior to the amendment of October 10, 1911, was as follows: 'No discrimination in charges or facilities for transportation shall be made by any railroad or other transportation company between places or persons, or in the facilities for the transportation of the same classes of freight or passengers within this state, or coming from or going to any other state. Persons and property transported over any railroad, or by any other transportation company or individual, shall be delivered at any station landing, or port, at charges not exceeding the charges for the transportation of persons and property of the same class in the same direction, to any more distant station, port, or landing. Excursion and commutation tickets may be issued at special rates.'

As amended on October 10, 1911, section 21 reads as follows: 'No discrimination in charges or facilities for transportation shall be made by any railroad or other transportation company between places or persons, or in the facilities for the transportation of the same classes of freight or passengers within this state. It shall be unlawful for any railroad or other transportation company to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through rate than the aggregate of the intermediate rates; Provided, however, that upon application to the Railroad Commission provided for in this Constitution such company may, in special cases, after investigation, be authorized by such Commission to charge less for longer than for shorter distances for the transportation of persons or property, and the Railroad Commission may from time to time prescribe the extent to which such company may be relieved from the prohibition to charge less for the longer than for the shorter haul. * * * '

Section 22 contains the following: 'No provision of this Constitution shall be construed as a limitation upon the authority of the Legislature to confer upon the Railroad Commission additional powers of the same kind or different from those conferred herein which are not inconsistent with the powers conferred upon the Railroad Commission in this Constitution, and the authority of the Legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this Constitution. The provisions of this section shall not be construed to repeal in whole or in part any existing law not inconsistent herewith, and the 'Railroad Commission Act' of this state, approved February 10, 1911, shall be construed with reference to this constitutional provision and any other constitutional provision becoming operative concurrently herewith. And the said act shall have the same force and effect as if the same had been passed after the adoption f this provision of the Constitution and of all other provisions adopted concurrently herewith, except that the three commissioners referred to in said act shall be held and construed to be the five commissioners provided for herein.'

As to the first group of claims-- that is, those on charges collected prior to October 10, 1911-- it was claimed by the plaintiff, and held by the court below, that the Commission was powerless to fix, and the carrier was powerless to charge, rates in contravention of the prohibition of the Constitution, and that, if the Commission assumed to fix such rates, the act was void, and cast no obligation upon the carrier to obey its order, and afforded no protection for its act. As to the second class of claims, it was claimed by the plaintiff, and ruled by the court below, that when the amendment of October 10, 1911, took effect, all rates violative of the long and short haul clause in section 21, art. 12, as then amended, still remained illegal to the extent that the greater charge for the shorter distance exceeded the lesser charge for the greater distance, and that the defendant could not be relieved from the illegality unless it filed a petition for such relief, and an investigation was had by the California Commission, and the extent was prescribed to which it might be relieved from the prohibition against discrimination between long and short hauls, and that, pending such determination of the Commission, the rates existing on October 10, 1911, which were violative of the amended section 21, furnished ground of action for the collection of excessive rates in favor of any one who paid them.

Henley C. Booth, Frank B. Austin, and George D. Squires, all of San Francisco, Cal. (Wm. F. Herrin, of San Francisco, Cal., of counsel), for plaintiff in error.

Hoefler, Cook, Harwood & Morris and Alfred J. Harwood, all of San Francisco, Cal., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The defendant contends that the constitutional provision as it existed from 1879 until October 10, 1911, is invalid, because in terms it attempts to regulate interstate commerce, and the attempt so to regulate interstate commerce is so intermingled with the other provisions that it cannot be presumed that the section would have been adopted if the invalidity of the first portion thereof had been known, and that therefore the whole section falls. It is true that the first clause of section 21 expressly refers to freight and passengers within the state, or coming from or going to any other state, and as to such freight and passengers it prohibits discrimination in charges or facilities for transportation. Conceding that that clause of the section may be held invalid as applying to interstate commerce, its invalidity cannot be imputed to the second clause, or the long and short haul clause, for that portion of the section does not depend upon or refer to the first clause, and it contains no reference to interstate commerce. No ground is perceived for holding that provision unconstitutional. It was unnecessary to its validity that it should contain in express terms a limitation of its provisions to the borders of the state. It is sufficient if it may be so construed.

The decision in Wabash, etc., Ry. Co. v. Illinois, 118 U.S. 557, 7 Sup.Ct. 4, 30 L.Ed. 244, cited by defendant, does not, we think, sustain its contention. That was a case in which the Supreme Court held unconstitutional, as interfering with interstate commerce, a provision of the statute of Illinois not unlike the long and short haul provision of the Constitution of California. But the Supreme Court held the act unconstitutional for the express reason that the Supreme Court of Illinois, in construing it, had given it an interpretation which made it apply to commerce between the states, a construction which the Supreme Court of the United States declared itself bound to accept. But that court said:

'It might admit of question whether the statute of Illinois, now under consideration, was designed by its framers to affect any other class of transportation than that which begins and ends within the limits of the state.'

In the Employers' Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297, the court held an act addressed to all common carriers engaged in interstate commerce, imposing a liability on them in favor of any of their employes, whether the employes were engaged in interstate commerce or not, of necessity includes subjects wholly outside the power of Congress. The court held the whole act unconstitutional, and was moved thereto by two considerations: First, because the provisions of the statute were dependent and indivisible; and, second, because to give effect to the act only so far as it was addressed to interstate commerce would be to discriminate between the states and the territories and the District of Columbia. The court said:

'Where a statute contains provisions which are constitutional and others which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable, and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only

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