State v. Rogers

• Decision Date: 09 June 1892
• Parties: STATE v. ROGERS.
• Court: Oregon Supreme Court

30 P. 74

22 Or. 348

STATE v. ROGERS.

Supreme Court of Oregon

June 9, 1892

Appeal from circuit court, Linn county; R.P. BOISE, Judge.

E.P Rogers was found guilty of receiving illegal charges for carrying freight, and appeals. Reversed.

Bronaugh McArthur, Fenton & Bronaugh, and H.H. Hewett for appellant.

Geo. E. Chamberlain, Atty.Gen., and G.G. Bingham, Dist Atty., for the State.

BEAN, J.

The defendant, who is the assistant general freight agent of the Southern Pacific Company, was in March, 1891, indicted by the grand jury of Linn county for a violation of section 4 of "An act to regulate the transportation of passengers and freight by railroad companies," commonly known as the "Hoult Law," approved February 20, 1885, which reads as follows: "Sec. 4. That it shall be unlawful for any person, engaged in the transportation of property as prescribed in the first section of this act, to charge or receive any greater compensation for a similar amount or kind of property for carrying, receiving, storing, forwarding, or handling the same for a shorter than a longer distance in the same direction." During the pendency of the prosecution and before the trial in the court below, the act of February 20, 1891, (2 Hill's Code, 2d Ed. p. 1967,) entitled "An act to increase the power and further define the duties of the board of railroad commissioners in respect to the management, operation, and control of railroads and the transportation of persons and property within the state of Oregon," went into effect; whereupon the defendant moved to quash the indictment, and for his discharge, upon the ground that the act of 1891 operated as a repeal by implication of the provision of the act of 1885, under which he was indicted. The motion was overruled, and the trial resulted in a verdict and judgment against the defendant, from which this appeal is taken.

The record contains numerous assignments of error, but the only question we shall consider is whether the provision of the act of 1885, upon which this prosecution is founded, was repealed by the act of 1891, for it is admitted by the attorney general that, if such is the case, the prosecution fails, as there is no saving clause in the latter act. It is not claimed that any of the provisions of the act of 1885 are expressly repealed by the act of 1891, but the contention is that the two acts are in such direct and irreconcilable conflict that both cannot stand, and the latter operates as a repeal of the former by implication. A brief review of the legislation of this state in the matter of regulating the transportation of passengers and freight by railroad companies is necessary to a proper understanding of the question now before us. The first legislation upon the subject was the act of 1885, which in terms provides that no railroad company shall "charge or receive from any person who is to be conveyed over any railroad or railroads in this state any sum exceeding four cents per mile for the distance to be traveled by such person;" and for carrying freight the rates, a schedule of which showing the rates from all stations to all stations is required to be posted on the first Monday in July and January of each year, and not increased during the succeeding six months, "shall not exceed the rates charged (by the carrier) on the first day of January, 1885," and shall be alike to all persons for "like and contemporaneous service." By this act it is made unlawful for any railroad company engaged in the transportation of property, "directly or indirectly, to allow any rebate, drawback, or other advantage in any form upon shipments made or services rendered" in carrying or handling domestic freight of similar grade; or "to enter into any combination or agreement *** with intent to prevent the carriage from being continuous from the place of shipment to the place of destination, whether carried on one or several railroads in this state;" or "to enter into any contract, agreement, or combination for pooling freight or to pool freights of different and competing roads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion of them;" or "to charge or receive any greater compensation for a similar amount or kind of property for carrying, receiving, storing, forwarding, or handling the same for a shorter than a longer distance in the same direction." For a violation of any of the provisions of the act the officers and agents of the company are made liable to indictment, and a civil remedy is given to the party damaged, in which he may recover treble damages. This act is, in effect, a maximum rate law. It was only designed, as its title clearly implies, to regulate the transportation of freight and passengers by railway companies, and, subject to its provisions, the power to fix freights and fares remained with the carrier. The carrier was at liberty to fix the charges for carrying both passengers and freight over its line at any rate it might deem advisable, subject only to the limitation that for passengers the fare should not exceed four cents per mile, and for freight the rate should not exceed that charged by the carrier on the 1st day of January, 1885, and not increased oftener than once every six months, and no discrimination should be made in favor of or against persons or places by rebate, drawback, combination, or pooling agreements or arrangements, or by charging more for a shorter than a longer haul in the same direction. Thus matters stood until the session of 1887, when "An act creating and establishing a board of railroad commissioners, and to define and regulate its powers and duties, and to fix the compensation of its members" was passed. Laws 1887, p. 30. This law provided for two commissioners to be appointed by the governor, who should have supervisory powers only over railways, and with no authority to in any manner regulate or fix freight rates or fares for carrying either freight or passengers. Board of Railroad Com'rs v. Oregon Ry. & Nav. Co., 17 Or. 65, 19 P. 702. In 1889 (Laws 1889, p. 22) the commission act was amended by increasing the number of commissioners to three, and providing that they should be chosen by the legislative assembly biennially, but no attempt was made to invest the commission with power or authority to fix freight rates or fares. The power to fix freight rates and fares still remained with the carrier, subject to the provisions of the act of 1885, and with no authority in the commission to even determine whether the rates so fixed were reasonable or unreasonable. Board of Railroad Com'rs v. Oregon Ry. & Nav. Co., supra.

In this condition of the law the act of February, 1891, (Laws 1891 p. 123,) was passed. By this act it is provided that within 90 days after it becomes a law it shall be the duty of every railroad company to furnish the board of railroad commissioners with a schedule of charges for the transportation of persons and property, and it is made the duty of the commission, and it is empowered, "to revise such schedule so furnished, and determine whether or not, and in what respect, if any, such charges are more than a reasonable and just compensation for the services to be rendered, and whether or not unjust discrimination is made in such tariff of charges against any person, locality, or corporation;" and when the schedule is corrected and approved by the commission, it shall append a certificate of approval thereto. In case any railroad company shall fail to furnish the schedule of charges as required, the commission is authorized and empowered to fix a tariff of charges for such railroad, notwithstanding such failure. But in revising or establishing any tariff the commission is required to take into consideration "the character and nature of the service to be performed, and the entire business of such railroad, together with its entire earnings from passenger and other traffic, and to so revise such tariffs as to allow a fair and just return on the value of such railroad, its appurtenances and equipments," and to "continue such tariff of charges from time to time, as justice to the public and each of said railroads may require, and to increase or reduce said rates according as experience or business operations may show to be just." In case a carrier refuses to comply with the tariff of charges as approved and fixed by the commission, the commission is authorized and empowered to commence a suit in the proper county for the purpose of requiring such carrier to comply with such tariff, leaving to the courts the question of the reasonableness of the rates prescribed by the commission. The commission is also authorized to hear and determine the complaint of any person aggrieved by any act of the carrier, and the findings of the commission thereon are made prima facie evidence in all subsequent judicial proceedings involving the same question. And if any carrier refuses or neglects to comply with the findings of the commission it is made its duty to commence proper proceedings in the name of the state to enforce such findings. It is also provided that, if any carrier, subject to the provisions of the act, "shall charge, demand, or receive any greater amount for the transportation of persons or property than the rates approved and fixed by the commission, and which rates may thereafter be adjudged to be reasonable by the proper circuit court, in the manner provided by section 2, *** and such excess of charges is not repaid to the party injured by such overcharge within 30 days after...