198 Mich. 469 | Mich. | 1917

Ostrander, J.

(after stating the facts). The Michigan railroad commission determined that certain rates (charges) theretofore published and exacted from shippers by defendant were unreasonable and ought not to be exacted, and that certain other rates (charges) were and would be reasonable and proper to be exacted and should thereafter be exacted. The action of the commission furnished for the. benefit of any and every shipper evidence that the old rates were illegal, the new rates reasonable and lawful. Although liable to be set aside by the courts, the result of what the commission did was a legislative rate, immediately in effect. Michigan Cent. R. Co. v. Wayne Circuit Judge, 156 Mich. 459 (120 N. W. 1073); Michigan Railroad Commission v. Railroad Co., 159 Mich. 580 (124 N. W. 564); Detroit, etc., R. Co. v. Railroad Commission, 171 Mich. 335 (137 N. W. 329); Michigan Railroad Commission v. Railway Co., 178 Mich. 230 (144 N. W. 696). See Detroit, etc., R. Co. v. Railroad Commission, 240 U. S. 564 (36 Sup. Ct. 424).

This point, a vital one, may be restated. The rates fixed by the commission were not effective when, and if, an attacK upon them failed, but were effective at once and pending any attack upon them.

Attacks made by defendant upon the action of the commission failed. The commission has not itself modified its determination. It is admitted that defend*491ant has refused to conform to the orders of the commission, and has exacted from plaintiffs rates (charges) higher than those fixed by the commission. It has therefore money which in equity and good conscience belongs to the plaintiffs, which it ought to restore to them. Putting aside the question of the effect of the injunction and the question whether the statute has provided a method for recovering such exactions, no reason appears for denying to plaintiffs, or any other affected shipper, the right to recover from defendant all of the money so illegally taken from them, in an action of assumpsit in which it is wholly immaterial whether they declare upon the statute and the action of the commission or upon the common courts. As was said by Carland, J., in Love v. North American Co., 229 Fed. 103 (143 C. C. A. 379):

“The railroad company got this money into its treasury by superseding rates that were fixed by authority of the State. When those rates were sustained, the carrier was bound to restore its excessive exactions. This was a duty not only to the shippers; it was a public duty owing to the State, whose orders had been superseded.”

The action of the commission, in any event, furnishes the necessáry evidence of the unlawful character of the exaction.

It is clear, I think, that plaintiffs have no statute remedy, and that the statute does not seek to interfere with or amend the remedy at common law. Plaintiffs base their actions precisely upon the action of the commission. Everything essential to a recovery, so far as the character of the exaction is concerned, has been determined by the commission, whose determination they rely upon. If it were otherwise, if the charges exacted by the defendant had been duly fixed according to the act and approved by the commission, and they were attacked, a different question *492would be presented. In such a case, the commission, and not the courts, should be first applied to. In the first place, the commission is the ratemaker; in the second place, it would be wholly incongruous from an administrative standpoint to have successive juries, or different courts and judges, passing upon the reasonableness of a rate already fixed by the commission. To this effect are the decisions in Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075); Robinson v. Railroad, Co., 222 U. S. 506 (32 Sup. Ct. 114); Gimbel Bros. v. Barrett, 215 Fed. 1004. These cases are authority, also, for the rulings of the trial court refusing to receive and consider offered evidence, and denying defendant the right to try out in these cases the question of the reasonableness of the exactions it made.

Defendant does, indeed, say that the charges made by it were once approved, and were published as its rates, and, until suspended, were lawful rates; this as a part of an argument which asserts that only the voluntary action of the carrier or the writ of mandamus can put into operation rates fixed by the commission. It makes little difference whether we do or do not say that the new rates were in effect, or whether we say they were in effect, but not in operation. The old rates were condemned as unreasonable, and the new ones approved as reasonable by the commission, action which is now, and was when these suits were begun, conclusive upon defendant.

Instead of publishing and collecting the rates fixed by the commission, defendant sought and obtained an injunction restraining the commission from putting into operation its said orders. The statute plainly recognizes the authority of a court of equity to so suspend the operation of the orders of the commission. *493The case of the defendant is not, however, that of one prevented from doing something, pleading the prevention in excuse, or bar, of the consequences of its enforced nonaction. On the contrary, it is pleading its own action, pleading the injunction it sought for and secured upon representations held to be unfounded, as an excuse for retaining an exaction at all times prima facie unlawful, and, finally, in its own suit, conclusively determined to be unlawful. The temporary injunction permitted defendant, notwithstanding the orders of the commission, to continue to take what its published tariffs called for, but it is not apparent, and is not pointed out, how it legalized the exaction. See Pacific Gas & Electric Co. v. San Francisco, 211 Fed. 202; Spring Valley Water Co. v. San Francisco, 165 Fed. 667; In re Arkansas Railroad Rates, 168 Fed. 720; Bellamy v. Railway Co., 220 Fed. 876 (136 C. C. A. 442); State, ex rel. Barker, v. Railroad Co., 265 Mo. 646 (178 S. W. 129, L. R. A. 1916C, 309).

It will be perceived that the order of the commission fixes freight rates to apply when manufactured product is reshipped via defendant’s line, and, when not so reshipped, the defendant is permitted to collect 50 cents per thousand feet additional, to be refunded, however, if shipper later ships out the manufactured product or some of it. Ambiguous the order in some respects is, but not, I think, in respect to the rate. The order made a rate of $1 a thousand for logs in car loads moving 10 miles or less, and varying rates as the distance was increased. To them defendant was permitted to add 50 cents a thousand, no matter what the length of haul, if the product was not shipped out by its line. Defendant could take nothing from these rates. What it did was to enforce its old tariff of $3 and $3.25 per thousand feet, which tariff contained the provision for a refund of 50 cents per thousand when an “equal amount of manufactured prod*494uct” was shipped out over its line. Defendant says that:

“The rebates offered by the railroad company and the provision to the same effect in the order of the railroad commission”

—are a plain violation of the act. If a rebate was intended, or was provided for, a discrimination in favor of particular shippers, no difference of opinion would exist. This provision was not questioned in the bill filed by the defendant. In my opinion, there is no rebate, no discrimination, provided for in the order. A uniform rate is established, and with it a milling in transit rate, not necessarily unlawful and not shown here to be unlawful. Watkins on Shippers and Carriers (2d Ed.), § 169; In re Transportation of Wool, Hides, and Pelts, 23 I. C. C. R. 151; Transit Case, 24 I. C. C. R. 340; Laurel Cotton Mills v. Railroad Co., 84 Miss. 349 (37 South. 134, 66 L. R. A. 453). The statute, section 11 (2 Comp. Laws 1915, § 8119), reads:

“Nothing in this, act shall be construed to prevent concentration, commodity, transit and other special contract rates, but all such rates shall be open to all shippers for a like kind of traffic under similar circumstances and conditions.” * * *

Defendant says, however, that to entitle any of the plaintiffs to the flat mileage rate fixed by the commission, they must have proved, not only that the manufactured product reshipped equaled the product of the logs shipped in by rail, but also that it was actually made from the logs shipped in by rail. This contention is not debated in the briefs for defendant. A reasonable interpretation of the language sustains the conclusion that tonnage generally, and not the tonnage of particular logs, was intended. In operation, the tariff, so interpreted, will not necessarily conflict with the law if the product shipped out is identical *495with the product of logs which were actually shipped in, logs which moved into the transit point under the transit rate. We are required here to go no further than this. The subject generally has, however, had the attention of the interstate commerce commission, which, first adopting a governing rule, later abolished the same as inadequate, and thereafter treated each case as it arose. In the Matter of the Investigation into the Substitution of Tonnage at Transit Points, 26 I. C. C. R. 204. See Sondheimer Co. v. Railroad Co., 20 I. C. C. R. 606; Watkins on Shippers and Carriers (2d Ed.), § 169. The conclusion of the trial court is not out of harmony with the views of the interstate commerce commission upon this point. I have not overlooked the North Carolina cases (Hilton Lumber Co. v. Railroad Co., 136 N. C. 479 [48 S. E. 813] ; Hilton Lumber Co. v. Railroad Co., 141 N. C. 171 [53 S. E. 823, 6 L. R. A. (N. S.) 225]), cited by defendant, nor the claim of defendant that this court, in Michigan Railroad Commission v. Railway Co., 185 Mich. 649, 653 (152 N. W. 193), held directly, or by implication, that the 50 cents differential here in question is not recoverable by plaintiffs as an excessive charge. I find nothing in these decisions to sustain any contention made here by defendant.

With the computations, upon which the verdicts and judgments are based, we have nothing to do, since counsel have agreed that, if the method followed is the correct one, the results of the computations are correct. The defendant’s exceptions must, be overruled.

What remains is the question of the right of the plaintiffs to have their damages, or any of them, doubled by the court. I shall not consider' whether the statute provision for double damages is a provision for a penalty or for compensation. I am of opinion that it should not be applied in the cases at bar. The *496carrier, the defendant, has neither done, nor permitted to be done, anything prohibited by the act, or by it declared to be unlawful, beyond this, that while questioning it has refused to put a tariff into operation, conduct approved by the court of chancery when it suspended by its process the operation of the orders of the commission. I have held that defendant may not profit by its said conduct, or by .the said action of the court. And, on the other hand, what damages have been suffered by plaintiffs? Clearly, they are no other or different in kind than those suffered by any other shipper from whom the illegal charges were exacted. They have lost the use of money, of which defendant has had the use. Return of the sums exacted and interest is compensation. For this, the judgments, respectively, provide.

The judgments are affirmed. Neither party will recover costs of the appeal as against the others.

Stone, Moore, Steere, and Brooke, JJ., concurred. Kuhn, C. J., and Bird and Fellows, JJ., did not sit.