Union Pac. R.R. Co. v. Bean

• Decision Date: 02 December 1941
• Citation: 167 Or. 535,119 P.2d 575
• Parties: UNION PACIFIC RAILROAD CO. ET AL. <I>v.</I> BEAN ET AL.
• Court: Oregon Supreme Court

167 Or. 535

119 P.2d 575

UNION PACIFIC RAILROAD CO. ET AL.v.

BEAN ET AL.

Supreme Court of Oregon.

Argued September 9, 1941.

Affirmed December 2, 1941.

Constitutional law — Statutes — Construction

1. In construing a statute, courts must ascertain and declare what is, in terms or in substance, contained therein and cannot insert what has been omitted or omit what has been inserted, and when there are several provisions, such construction is, if possible, to be adopted as will give effect to all.

Carriers — Intrastate rates

2. Under statute providing that when railroad files a schedule establishing a new intrastate rate or increasing an existing intrastate rate, Public Utilities Commissioner, pending hearing to determine reasonableness of such rate, may order suspension thereof, the only rates which commissioner is authorized to suspend are new rates established or existing rates increased, since under maxim "expressio unius est exclusio alterius", the specific mention of increase of existing rates excludes a reduction of existing rates.

Carriers — Rates — Suspension

3. The Public Utilities Commissioner had no authority to suspend proposed reduced rates on petroleum products contained in schedule of rates filed by railroad carrier, pending investigation as to reasonableness of the rates, the proposed rates not being "new rates" within statute authorizing commissioner to suspend new or increased rates pending investigation.

Statutes — Administrative interpretation

4. The rule that courts will follow "practical construction" of statute by administrative officers charged with enforcement thereof does not apply where such a construction requires reading into the statute something not there or omitting something contained therein.

Statutes — Construction

5. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every section, clause, word or part of the act.

Statutes — Construction

6. A construction of a statute which will render certain provisions unnecessary will not be adopted by the court, and it should not be presumed that any provision is redundant or useless.

Carriers — Public Utilities Commissioner

7. Where Public Utilities Commissioner had no authority to suspend proposed reduced intrastate rates of railroad for carriage of petroleum products pending investigation as to propriety and reasonableness of reduced rates, commissioner's orders suspending such rates were void.

Action — Declaratory judgment

8. A court should not, by "declaratory judgment", ordinarily interfere with jurisdiction of an administrative commission, especially where statute is not ambiguous and jurisdiction of commission depends on jurisdictional facts.

Action — Declaratory judgment

9. An action for "declaratory judgment" lies to determine jurisdiction of administrative commission or to determine question of law before administrative channel has been invoked or exhausted.

Action — Public Utilities Commissioner

10. A suit to determine whether Public Utilities Commissioner had power to suspend proposed reduced intrastate freight rates on petroleum products in schedule filed by railroad carriers, pending investigation by commissioner to determine reasonableness of proposed rates presented proper case for a "declaratory judgment".

                  See 25 R.C.L. 981, 1004 (8 Perm. Supp., 5633, 5639)
                  1 C.J.S., Actions, § 18d
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Marion County.

L.G. LEWELLING, Judge.

Suit by Union Pacific Railroad Company and others against Ormond R. Bean, as Public Utilities Commissioner of Oregon, and another, in which the Pacific Inland Tariff Bureau and others intervened, for a declaratory judgment as to authority of defendant commissioner to order suspension of proposed reduced intrastate rates of railroad companies filed with commissioner, and for a decree vacating the commissioner's order suspending the proposed intrastate rates and enjoining defendants from enforcing such order. Decree for plaintiffs, and defendants and interveners appeal.

AFFIRMED.

William P. Ellis, of Salem (I.H. Van Winkle, Attorney General, Willis S. Moore, Assistant Attorney General, and John Carkin, of Salem, on the brief), for Ormond R. Bean et al.

William B. Adams, of Portland (J.M. Hickson and Johnston B. Campbell, both of Portland, on the brief), for Pacific Inland Tariff Bureau et al.

C.W. Robison, of Portland for International Brotherhood of Teamsters, etc., appellants.

Roy F. Shields and L.W. Hobbs, both of Portland, for Union Pacific Railroad Co.

Hart, Spencer, McCulloch & Rockwood, of Portland, for Spokane, Portland & Seattle Railway Co.

Cochran & Eberhard, of La Grande, for Union Railroad of Oregon.

BAILEY, J.

This suit was instituted by Union Pacific Railroad Company, Spokane, Portland & Seattle Railway Company and Union Railroad of Oregon, all corporations, against the defendants, Ormond R. Bean as public utilities commissioner of Oregon and I.H. Van Winkle as attorney general of Oregon, for a declaratory judgment as to the authority of the commissioner under § 113-116, O.C.L.A. (chapter 59, Laws 1913), to order the suspension of proposed reduced intrastate rates contained in a schedule filed by the railroad companies with the commissioner pending an investigation and determination of the reasonableness of such rates, and the applicability of chapter 320, Oregon Laws 1939 (§§ 112-4,111 to 112-4,122, inclusive, O.C.L.A.), providing the procedure before the commissioner, to the suspension of proposed rates; and for a decree setting aside and vacating orders of the commissioner suspending proposed reduced intrastate rates and enjoining and restraining the defendants from enforcing or attempting to enforce such orders.

Pacific Inland Tariff Bureau and others were granted permission to, and did, intervene and file answers limited to the issues of fact raised by the defendants in their answer. From a decree in favor of the plaintiffs and against the defendants the latter and the interveners have appealed.

The material facts of the case are not in dispute. They are substantially the following: Spokane, Portland & Seattle Railway Company operates lines of railroad extending from Linnton and Willbridge in Multnomah county to Portland, where the same connect with lines of Union Pacific Railroad Company, and by means of such connection freight and freight cars are interchanged by and between the two railroad companies. Union Pacific Railroad Company operates a main-line railroad extending from Portland easterly along the south bank of the Columbia river to Umatilla and thence southeasterly to Huntington, Oregon, and certain branch lines connecting with and extending from its main line to points within the state of Oregon. Union Railroad of Oregon operates a line of railroad extending from the station of Union Junction on the main line of the Union Pacific railroad to the town of Union, Oregon, and by means of that connection freight and freight cars are interchanged between these two railroad companies.

At the time of the institution of this suit and for some years prior thereto the plaintiffs, hereinafter to be referred to as the carriers, were engaged in transporting petroleum (and "petroleum" as herein used also includes petroleum products) in tank car lots from Linnton, Willbridge and Portland to stations on the main and branch lines of the Union Pacific and the line of Union Railroad of Oregon. The freight rates and charges for such transportation were prescribed and published in a certain tariff and supplements thereto issued by the carriers through their tariff publishing agent, W.J. Bohon, and duly filed in the office of the commissioner of public utilities, which tariff was known and designated as "North Pacific Coast Freight Bureau Local, Joint and Proportional Freight Tariff No. 14-N, P.U.C. Oregon No. 467". This tariff, together with supplements in effect November 15, 1939, will hereinafter be referred to as the original tariff.

Most of the petroleum used at or in the vicinity of stations along the lines of the carriers in Oregon has been, for many years, shipped in private tank steamers from California points to Linnton, Willbridge and Portland and there stored pending intrastate movement. At the present time and for some years past the business of transporting petroleum from the bulk storage plants at Linnton, Willbridge and Portland to points along the lines of the carriers "was and is highly competitive. During all said times, plaintiffs have been and are engaged in such business in competition with non-rail transportation agencies, some of which are subject to regulation by the commissioner as to rates and charges, while others are not subject to any public or governmental regulation whatsoever with respect to rates or charges."

In March, 1939, the carriers filed with the commissioner their supplement No. 5 to the original tariff. The effective date stated in the supplement was April 10, 1939. The supplement proposed to reduce the then existing intrastate railroad rates on petroleum below those listed in the original tariff. On April 8, 1939, the commissioner by order No. 6506 in cause F-1909 instituted an investigation of the reduced rates named in supplement No. 5 and ordered that such rates be suspended pending investigation.

The hearing in cause F-1909 was conducted by the commissioner in conjunction with the hearing by the Interstate Commerce Commission in its cause I & S No. 4614, involving interstate rates on petroleum, and the hearing by the department of public service of the state of Washington in regard to intrastate rates on petroleum in that state.

The Interstate Commerce Commission on September 25, 1939, rendered its decision concerning interstate rates on petroleum. During the hearing before the Interstate Commerce Commission the suspension of...