Vandalia Railroad Company v. Schnull
| Decision Date | 21 February 1919 |
| Docket Number | 23,204 |
| Citation | 122 N.E. 225,188 Ind. 87 |
| Parties | Vandalia Railroad Company v. Schnull et al |
| Court | Indiana Supreme Court |
From Marion Superior Court; Linn D. Hay, Judge.
Action by Gustav A. Schnull and others against the Vandalia Railroad Company. From a judgment for plaintiffs, the defendant appeals.
Affirmed.
D. P Williams and Pickens, Moores, Davidson & Pickens, for appellant.
Smith Remster, Hornbrook & Smith, for appellees.
On December 14, 1906, the Railroad Commission of Indiana, after a hearing upon a petition of the present appellees, to which the present appellant was defendant, entered an order fixing rates for shipments of certain classes of freight over appellant's division extending from Indianapolis west to the state line.
Appellant did not appeal from said order to our Appellate Court, as the statute creating the commission authorized, but declined to comply therewith, and continued to charge appellee and other shippers of said classes of freight over said division rates higher than those specified in said order.
Appellee prosecuted in the superior court of Marion county an action for a mandatory injunction against appellant to prevent appellant from charging other than the rates so fixed. Appellee's complaint was held good, and appellant's second and third paragraphs of answer held insufficient on demurrers; and from the judgment rendered, after trial, against appellant, this appeal is prosecuted.
In support of its position that the complaint is insufficient, appellant asserts that appellees have no right to maintain this action because it is an effort to enforce an order of the Railroad Commission, whereas the act creating such commission (Acts 1905 p. 83) and the amendatory act name a remedy for the enforcement of such orders (§ 5550 Burns 1914); and that an act creating a new right and a remedy therefor excludes all other remedies.
The rule is well established that when a right is thus created which did not exist at common law, and for that new right a remedy is by the act prescribed, the whole matter of right and remedy is within the act, and no part of either otherwise exists.
The question we have is whether said rule applies to the situation here presented. If a new right was not created, all discussion of this proposition is ended.
Appellant asserts that the act of 1905, supra, did not give the commission any right, power or authority to institute and prosecute any action at law, or suit in equity, or any other proceeding, for the purpose of enforcing obedience to its order; but that obedience to such orders should be secured through the assessment and collection of penalties provided in the act.
Appellant asserts that this amendment, supra, greatly increased and added to the powers, authority and the duties of the commission, especially giving it authority and power to enforce its orders by actions at law and suits in equity in its own name, in lieu of the provisions of the act of 1905, supra, and that the authority and power so given the commission to enforce rate orders is exclusive of all other remedies.
At common law appellees were entitled to both reasonable service and reasonable rates. Appellees had all remedies, at common law and in equity, to enforce their said rights.
The statutes under consideration do not create a new right to such service, but something more in the nature of a new remedy for an old right. The general assembly deemed it best to exercise its undoubted power of regulation and determine in a general and broad way the question as to what rates are reasonable, and for this purpose the legislature created the commission.
As the creation and empowering of the commission related to a matter of remedy for existing things which needed a remedy, the rule applies that new remedies are cumulative and never exclusive, unless the act creating the same so declares expressly or by clear implication. Lang v. Scott (1825), 1 Blackf. 405, 12 Am. Dec. 257; Chicago, etc., R. Co. v. Hall (1893), 135 Ind. 91, 34 N.E. 704, 23 L. R. A. 231.
That the commission is empowered to enforce its orders, imports neither expressly nor by implication that the parties may not use an order fixing rates as an element of evidence in an effort to enforce an old right.
We find in the act nothing expressly excluding other remedies, nor do we find any provision so positive as to imply a negative of other remedies. Chicago, etc., R. Co. v. Hall, supra; Dollar Savings Bank v. United States (1873), 19 Wall. 227, 22 L.Ed. 80; Fletcher v. State Capital Bank (1858), 37 N.H. 369.
This seems especially pertinent to the present situation; these appellees procured an order or judgment of the commission, as the result of a hearing or trial, wherein this appellant was defendant, that the identical rates appellees seek to enforce for the identical classes of freight tendered for shipment, over the identical division of appellant's road here involved, are reasonable, and this order is still in force, unless it has expired by operation of law.
This order bound appellant in favor of appellees, particularly, and also in favor of all other like shippers, and is evidence, if not conclusive evidence, against appellant of the matters thus established, available in any action by appellees to enforce appellees' old right.
We further find in the act itself (Acts 1905 p. 83, supra) evidence that it was not the intention of the legislature that the remedy created should be exclusive--for instance § 5, page 88: "In all actions between private parties and railroad companies * * * brought under this law, the rates, charges, orders, rules, regulations and classifications approved or made by said commission before the institution of such action shall be held, deemed and accepted to be reasonable, fair and just." See also §§ 16, 18.
This suit in equity is justified by reason of the great number of transactions involving small amounts, and the fact that the commission may also, at law or in equity, enforce its orders, and that the duty of so doing is by statute imposed upon the commission, does not prevent one entitled to the benefit of an order from instituting an independent action.
We are satisfied no new right was created; an addition was created to the old remedies.
It is next insisted that the complaint is insufficient in that it seeks to enforce an order which had theretofore expired by operation of law.
In State, ex rel. v. Vandalia R. Co. (1914), 183 Ind. 49, 108 N.E. 97, this court determined that the act of 1907, supra, which prescribes that "all orders of the commission, * * * shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the commission" was not retroactive, and therefore did not limit the life of the order here in question, which was entered in December, 1906.
Appellant claims that the portion above referred to, of said opinion, is obiter. The opinion rests upon two distinct grounds, either of which is sufficient to support the conclusion. In such case if one such element be ignored in one case as obiter, the other element may as justly be ignored as obiter when cited in another case involving such element, and the result would be an opinion all obiter and all ignored except the final order and mandate. That neither element can be ignored is the rule.
Counsel argue that under the act of 1905, supra, an order fixing rates tied the commission's hands, exhausted its powers, except as the order might be set aside on appeal, and if affirmed on appeal the order became perpetual, no matter what injustice resulted, and therefore there was a strong inducement to an amendment in 1907, supra, limiting the life of then existing orders as well as future orders, and that there is good reason for construing the amendment of 1907, supra, as remedial and intended to be retroactive.
This argument overlooks the fact that all such orders are an exercise of the state's public welfare power; and that the state never separates itself from the exercise of this power unless by a clear expression of an intention to do so. We find no such expression; therefore the state might, if the facts justified, have made a new order; the commission might likewise have made a new order. The spirit and life of the state's said power is that circumstances change the public welfare needs, and the spirit of the commission's powers, unless limited by the act, is that it may consider such changed conditions and make orders fitting present needs. We are content to adhere to the decision holding that said act was not retroactive.
By the demurrer to the second paragraph of answer is presented the question whether it is enough for the defendant railroad company to allege and prove that the rates fixed in said order were at the time of the filing of the answer, and at the time of trial, confiscatory in that they "will not yield to defendant revenue sufficient to reimburse defendant for its actual cost and outlay in handling and carrying the classes of property specified in said order and provide a fair return to defendant on the value of defendant's property used and employed in handling and carrying the classes of freight described in said order."
It is asserted by appellee that in so far as the facts so alleged are material, they are provable under the general denial, and that the sustaining of this demurrer was harmless, though it be held erroneous. It is asserted by appellant that this answer controverts no allegation of the complaint, in that the complaint simply alleges that the order was entered and is in force; whereas the answer relates to the time the answer was filed and to...
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