State v. Public Service Commission of Kansas

• Citation: 135 Kan. 491,11 P.2d 999
• Decision Date: 04 June 1932
• Docket Number: 30380.
• Parties: STATE ex rel. BOYNTON, Atty. Gen., et al. v. THE PUBLIC SERVICE COMMISSION OF KANSAS et al. [*]
• Court: United States State Supreme Court of Kansas

11 P.2d 999

135 Kan. 491

STATE ex rel. BOYNTON, Atty. Gen., et al. v. THE PUBLIC SERVICE COMMISSION OF KANSAS et al. ^[*]

No. 30380.

Supreme Court of Kansas

June 4, 1932

Syllabus by the Court.

Statute providing for issuance of reparation certificates held not void as conferring judicial power on public service commission (Laws 1929, c. 223; Const. art. 3, § 1).

Provision for filing complaint for reparation certificate within three years after payment of unreasonable rate held valid as to shipper's contracts in futuro, but void in retroactive aspect as impairing obligation of contract (Laws 1929, c 223, § 3; Const. U.S. art. 1, § 10).

Statutory provision for issuance of reparation certificates for unreasonable charges exacted by carriers within six years previous held void as impairing obligation of contract (Laws 1929, c. 223, § 4; Const. U.S. art. 1, § 10).

Invalidity of provision authorizing issuance of reparation certificates covering past charges by carriers held not to invalidate entire act (Laws 1929, c. 223, §§ 4, 6).

Public service commission's rates established after hearing until altered or set aside, have potency of statutory rates (Laws 1929, c. 223).

Reparation certificates may be issued to shippers covering discriminatory rates approved without hearing and exacted since statute became effective (Laws 1929, c. 223).

1. Chapter 223 of the Session Laws of 1929, which provides for the issuing of reparation certificates to shippers for the exaction of unjust, unreasonable, discriminatory, or unduly preferential rates and charges by railroads and other common carriers, does not confer judicial power upon the public service commission.

2. In so far as section 3 of chapter 223 of the Session Laws of 1929 may affect shippers' contracts in futuro and the rights of the carriers thereunder, the section is free from constitutional infirmity, but in its retroactive aspects it is violative of that provision of the Federal Constitution which forbids the state to pass any law impairing the obligation of contracts.

3. Section 4 of chapter 223 of the Session Laws of 1929, which is expressly designed in text and terms to disturb vested rights and to deprive the carriers of their property without due process of law, is unconstitutional and void, but being readily severable from the remainder of the statute, its invalidity does not render void the entire act.

4. Where intrastate rates for the transportation of goods wares, or merchandise by common carriers have been established by express order of the public service commission after such a hearing as is provided by the public utilities act, such rates have the potency of statutory rates until they are altered or set aside by competent authority, and the rates thus prescribed and collected by the carriers are their property absolutely. The carriers cannot be required under authority of chapter 223 of the Session Laws of 1929 to repay the shippers any part thereafter which they have received for transporation services--following Arizona Grocery Co. v Atchison, T. & S. F. Ry. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. --.

5. Since the re-enactment of the reparation statute, chapter 223 of the Session Laws of 1929, reparation certificates may be issued in any proper case where unjust, unreasonable, discriminatory, or unduly preferential rates and charges have been exacted by the carriers since that statute took effect on March 20, 1929, where the only approval given such rates by the public service commission was the merely perfunctory one required to apprise the commission of their filing and to enable it to secure proper supervision of them.

Original proceedings in quo warranto by the State, on the relation of Roland Boynton, Attorney General, and others, against the Public Service Commission of the State of Kansas, and others, members thereof.

Judgment in accordance with opinion.

Wm. R. Smith, Alfred A. Scott, C. J. Putt, Luther Burns, John E. DuMars, and T. M. Lillard, all of Topeka, W. P. Waggener, of Atchison, W. W. Brown, of Parsons, and W. F. Lilleston, of Wichita, for plaintiffs.

Chas. W. Steiger and E. H. Hatcher, both of Topeka (Bernard L. Glover and Byron M. Gray, both of Kansas City, Mo., of counsel), for defendants.

DAWSON J.

This is an original action in quo warranto in which the plaintiffs challenge the authority of the public service commission to exercise certain powers conferred upon it by chapter 223 of the Session Laws of 1929.

As first instituted the six major railway companies doing business in Kansas appeared as plaintiffs, but when their authority to maintain the action was informally questioned from the bench, the Attorney General on his oral application was given leave to enter the state ex relatione as party plaintiff so that legal questions touching the validity of the statute could be decided in orderly fashion for the benefit of everybody concerned.

It will be necessary to set out the statute here:

"An Act relating to railroad companies and other common carriers and providing for the issuing of certificates by the public service commission covering unjust, unreasonable, discriminatory and/or unduly preferential rates and charges theretofore exacted.

"Be it enacted by the Legislature of the State of Kansas:

"Section 1. No railroad company or other common carrier shall charge, demand or receive from any person, company or corporation an unreasonable, unfair, unjust or unjustly discriminatory or unduly preferential rate or charge for the transportation of property,

or for hauling or storing of freight, or for use of its cars, or for any service afforded by it in the transaction of its business as a railroad company or common carrier; and upon complaint in writing made to the public service commission that an unfair, unjust, unreasonable or unjustly discriminatory or unduly preferential rate or charge has been exacted, such commission shall investigate said complaint, and if sustained, shall make a certificate under its seal setting forth what is, and what would have been, a reasonable and just rate or charge for the service rendered, which shall be prima facie evidence of the matter therein stated.

"Sec. 2. It shall be lawful for any railroad company or other common carrier to refund to any person, company or corporation any unreasonable, unfair, unjust or unjustly discriminatory or unduly preferential rate or charge which it has exacted, received or collected from any shipper, in accordance with the certificate referred to in section 1 hereof.

"Sec. 3. Complaints seeking certificates as described in section 1 hereof shall be filed with the public service commission not more than three years after the payment of the rates or charges complained of therein.

"Sec. 4. The provisions of this act shall extend to and include rates or charges exacted by any railroad or other common carrier within six years prior to the enactment hereof: Provided, Complaints seeking certificates as described in section 1 hereof are filed with the public service commission not more than two years after this act takes effect: And provided further, That complaints or other actions relating to the matters embraced in section 1 hereof which have been abated or dismissed, due solely to the omission of chapter 124, section 11, of the Laws of Kansas of 1883, from the Revised Statutes of Kansas of 1923, shall be reinstated upon appropriate motion therefor filed within one year from the time this act takes effect.

"Sec. 5. Any proceeding in court relating to the matters embraced in this act shall be brought not more than one year after the issuance of a certificate by the public service commission.

"Sec. 6. If any section, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this act. The legislature hereby declares that it passes the act, each section, sentence, clause and phrase thereof irrespective of the fact that any one or more of the same shall be declared unconstitutional.

"Sec. 7. All acts and parts of acts in conflict herewith are hereby repealed.

"Sec. 8. This act shall take effect and be in force from and after its approval and publication in the official state paper.

"Approved March 16, 1929.

"Published in official state paper March 20, 1929."

Laws 1929, c. 223, R.S.Supp. 1931, 66-154a et seq.

In plaintiffs' petition it is alleged that pursuant to this statute the defendant commission is exercising jurisdiction of complaints in which certificates of reparation are sought on freight rates charged on intrastate shipments on bills of lading issued after the act of 1929 took effect, upon which the rates exacted were those specified in tariffs filed with the public service commission in conformity with the provisions of R. S. 66--117 and which had become effective by authority and consent of the commission without formal hearing.

It is also alleged that the commission is exercising jurisdiction of complaints in which reparation certificates are sought on intrastate shipments on bills of lading issued after the act of 1929 took effect where the rates collected were those specified in tariffs which the commission, upon hearing and investigation under the provisions of R. S. 66--113, had found to be reasonable and had ordered to be put into effect.

Another questioned power of the commission is that of entertaining complaints for reparation certificates on any and all intrastate shipments during a period of six years prior to the enactment of the statute of 1929 where the freight charges were those exacted in accordance with the tariffs filed with the commission, some of which were made effective with its consent and authority but without a...