Western Ry. of Alabama v. Montgomery County, 3 Div. 91.

• Decision Date: 08 March 1934
• Docket Number: 3 Div. 91.
• Parties: WESTERN RY. OF ALABAMA et al. v. MONTGOMERY COUNTY.
• Court: Alabama Supreme Court

153 So. 622

228 Ala. 426

WESTERN RY. OF ALABAMA et al. v. MONTGOMERY COUNTY.

3 Div. 91.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action on reparation order by Montgomery County against the Western Railway of Alabama and the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendants appeal.

Affirmed.

W. A Townes, of Wilmington, N. C., W. L. Lee, of Dothan, and Steiner, Crum & Weil, of Montgomery, for appellants.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

GARDNER Justice.

In December, 1931, the county of Montgomery filed its complaint with the Alabama Public Service Commission protesting an unjust and unreasonable rate on clay, gravel in carloads, from Cantelou's Spur, Ala., at which point it owns and operates a gravel pit, to points on defendant's lines in Montgomery county, seeking reasonable rates for the future, as well as reparations for past shipments.

It was insisted in that complaint that the Western Railway of Alabama and the Atlantic Coast Line Railroad Company were under common management or control, and that these roads should have applied to the above-noted shipments the single-line scale of rates.

The commission in July, 1932, entered an order in accordance with said complaint, and fixed the scale of rates on items sought, holding over the matter of reparations for further proof and consideration.

Amended petition was duly filed in August, 1932, and a further hearing had on the matter of reparations in September, 1932. Evidence was offered by the petitioner, but none on behalf of the defendants. The commission was of the opinion that defendants should have based their charges on the scale of single-line rates, and that petitioner was entitled to reparations for the excess paid within the statutory limitation. The order for reparations was entered in October, 1932. Defendants acquiesced in the order prescribing the rates for the future, but declined to pay the reparations, and this suit followed, in accord with the provisions of section 9722, Code 1923.

Upon the trial in the circuit court, plaintiff offered certified copies of the above-noted orders of the commission with the findings of fact accompanying the same, together with other orders and proceedings of the commission bearing upon the matter, to which the commission makes reference. Defendants offered no proof.

The orders of the commission constitute prima facie evidence of the facts therein stated (sections 9703, 9723, Code 1923), are presumably reasonable and valid, and based upon proper evidence. Railroad Commission v. A. G. S. R. Co., 185 Ala. 354, 64 So. 13, L. R. A. 1915D, 98; Alabama G. S. R. Co. v. Alabama Public Service Commission, 210 Ala. 151, 97 So. 226. Defendants must therefore rest their case upon the inherent fatal weakness of the commission's order, the basis of the present suit, as appearing upon the face of the proceedings offered in proof.

Defendants, in the first place, insist that reparations were awarded for rate charges which had been previously fixed and approved by the commission, and were therefore entirely lawful when collected, and that the statute should not be so construed as to give retroactive effect to the matter of reparations under such circumstances. We are cited to Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 52 S.Ct. 183, 186, 76 L.Ed. 348, where the holding was in effect that the Interstate Commerce Commission, in declaring a specific rate as reasonable and lawful, is in the exercise of a legislative function, and may not at a later time, upon the same or additional evidence, declare its own previous finding erroneous, and subject the carrier which conformed thereto to the payment of reparation measured by what the commission now holds it should have decided in the earlier proceedings, the court saying: "Where, as in this case, the Commission has made an order having a dual aspect, it may not in a subsequent proceeding, acting in its quasi judicial capacity, ignore its own pronouncement promulgated in its quasi legislative capacity and retroactively repeal its own enactment as to the reasonableness of the rate it has prescribed."

And from our own court, attention is directed to the case of T. R. Miller Mill Co. v. L. & N. R. Co., 207 Ala. 253, 92 So. 797, 800, where it is said: "Manifestly there can be but one lawful rate in force at any given time, and that rate by the very terms of the statutes quoted, is the rate which has been filed with and approved by the Commission, and published by the carrier. Behind that rate, so long as it remains unchanged, and so far as its application to specific shipments is concerned, neither shipper nor carrier can go, and courts cannot inquire."

Plaintiff's contention, as to this argument, is that the Miller Case, supra, was prior to the present statute, and reliance is also had upon Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 147, 77 L.Ed. 360, 85 A. L. R. 254, reviewing the decision of the Supreme Court of Montana in Sunburst Oil & Refining Co. v. Great Northern R. Co., 91 Mont. 216, 7 P.2d 927.

This latter case, however, merely recognized the general rule that the Supreme Court of the United States must accept the construction given to the state statute by the highest court of the state, and so long as the statute, as thus construed, offers no offense to the Federal Constitution, that court is without authority to interfere. The opinion deals with the Arizona Grocery Co. Case, supra, pointing out the matter of differentiation, and, in effect, reapproves the same. The court was careful to withhold approval of the construction given the statute by the Montana court, saying: "The inquiry is irrelevant whether we would construe the statute in the same way if the duty of construction were ours and not another's."

It is apparent therefore that the argument for such a construction of the statute presents a question of serious import, and should be left for determination only when necessarily presented for a decision. But, as we interpret the record, such statutory construction is not here presented, and the question is therefore left to one side and undetermined.

We say the question is not presented for the reason we do not construe the record as disclosing that the rate charged plaintiff was one fixed and approved by the commission, but one selected by the carriers in the exercise of their own judgment and discretion, and the case more nearly falls within the class considered in Eagle Cotton Oil Co. v. Southern R. Co. (C. C. A.) 51 F. (2d) 443, where reparation was awarded upon the theory the rate enforced was a carrier-made rate as distinguished from one fixed by law.

The record discloses that in August, 1923, the commission, on the complaint of the board of revenue of Montgomery county against these two defendant railroads, found the existing rate on gravel for Cantelou's Spur to local stations on the Atlantic Coast Line in Montgomery county to be unreasonable, fixed a reasonable rate, and awarded reparation, Board of Revenue of Montgomery County v. Western Ry. of Alabama, 34 A. P. S. C. 77; and in 1925, a petition for modification of this order was denied, 36 A. P. S. C. 102. Subsequently, and in August, 1927, the commission had before it the entire Alabama rate structure on gravel and related commodities, and prescribed a certain scale of rates applicable throughout the state, but expressly excluded therefrom the rate involved in shipments of gravel from Cantelou's Spur to local stations on the Atlantic Coast Line in Montgomery county, and as fixed by the order found in 34 A. P. S. C. 77, supra. It was held, however, that such rates may be restricted if the carrier so desired to apply only on clay gravel in carload lots consigned by and to Montgomery county. The carrier did accordingly so restrict these rates as thus authorized, but they were made to expire by limitation on and after December 31, 1930. The order here referred to is found in Alabama Public Service Commission v. Louisville & Nashville R. Co., 38 A. P. S. C. 223. Therefore, it appears that on and after January 1, 1931, the rates applicable to these particular shipments fell under the general order of August, 1927, as reported in 38 A. P. S. C. 223. In that order what is known as the single-line scale of rates was considerably lower than the joint-line rates, and reference is made to the case before the Interstate Commerce Commission of January 21, 1927, known as Rates on Chert, Clay, Sand, and Gravel within State of Georgia, and Related cases, 122 I. C. C. 133, 176 (in which defendant Atlantic Coast Line actively participated), and wherein it was stated that: "In determining whether hauls are single-line or joint-line, carriers under common control or management shall be regarded as one line."

The commission in the general order of August, 1927 (38 A. P. S. C. p. 230), expressly recognized and applied the same principle and prescribed an entirely separate and lower rate for single-line shipments, and this present order discloses clearly the difference in the single-line and joint-line scale of rates.

The question recurs, therefore, as to the duty resting upon these...