195 Wis. 462 | Wis. | 1928
The respondent Tomahawk Kraft Paper Company instituted a proceeding before the Railroad Commission seeking to have the Commission fix joint rates on intrastate shipments of pulp wood moving over the lines of plaintiff and connecting lines, and for reparation of excessive charges made' subsequent to February 1, 1924. The petition was filed March 4, 1924. A hearing was had on the petition on May 5 and 6, 1924. On April 27, 1926, the Railroad Commission, by its order, established joint rates, which were lower than the rates theretofore prevailing, and also determined that the Tomahawk Kraft Paper Company was entitled to reparation on all shipments of pulp wood made subsequent to January 31, 1924. This action is
By sec. 195.54, Stats., upon complaint that any charge exacted by a carrier is “erroneous, illegal, unusual or exorbitant,” the Railroad Commission is empowered to determine what would have been a reasonable charge for the service complained of, and if the rate or charge so found shall be less than the charge exacted, the carrier shall have the right to refund to the person paying such charge the amount so found to be excessive. Prior to the filing of this petition there was no established joint rate for the movements in question over plaintiff’s lines. Upon such joint movements the rate charged was the sum of the local rates in force over the operating lines. These rates had been theretofore established by the Railroad Commission. It is claimed that because the rates charged were rates authorized by the Railroad Commission they were neither “erroneous, illegal, unusual or exorbitant,” and that sec. 195.54 does not provide for reparation where the rates charged were lawfully exacted. This exact question was before the court in Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 158 Wis. 102, 147 N. W. 366. The court held that the order was subject to judicial review, but the Justices participating were equally divided upon the question of whether the Railroad Commission was authorized to grant a refund of charges based on rates fixed by the Commission. The judgment of the circuit court holding that the ■ Railroad Commission had such power was therefore affirmed by a divided court. We shall not pause here to consider the force which should be accorded that decision under the doctrine of stare decisis. Seven legislatures have intervened since the decision was announced. The Railroad Commission has continued to exercise the power with the apparent acquies
But we are of the opinion that the statute should be accorded the construction which the Railroad Commission has placed upon it. The statute empowers the Railroad Commission to authorize reparation where the rate charged is “erroneous, illegal, unusual or exorbitant.” The rates charged in this case were legal in the sense that the railroad companies did not subject themselves to penalties in their collection. But it does not follow that they were lawful in the sense that they were reasonable. The statute declares that all rates shall be reasonable. A rate once fixed by the Railroad Commission may be charged by the railroad company until changed in a lawful manner. The rate so collected is lawful and the railroad company incurs no penalty thereby. But it does not follow that the rate, though lawful, continues to be reasonable in view of changing circumstances and conditions. The reasonable rate remains at all times the lawful rate when we have in mind the rate prescribed by the legislature as the rate which the railroad company may take and retain for its own use and benefit. Although the railroad company may be entitled to charge and collect a rate fixed by the Railroad Commission, it does not follow that it is entitled to keep and retain such charge between the time it has become unreasonable and the time when a new reasonable rate has been determined by the Railroad Commission. If the reparation statute were to receive the construction for which appellant contends, it would fall far short of accomplishing the purpose for which
But aside from these considerations, in the instant case the rate to which the Railroad Commission found the Tomahawk Kraft Paper Company entitled had never been fixed by the Commission. The Commission had never fixed a joint rate for the movements here in question. True, it had fixed local rates at which the railroad companies could be required to move shipments. But in railroad practice a joint rate is something different from the total of various local rates. A joint rate for these shipments had never been established either by agreement of the railroad companies involved or by order of the Railroad Commission. Even though reparations are not permissible where rates collected are sanctioned by orders of the Railroad Commission, it seems clear that prior to the order here under consideration the Railroad Commission had never sanctioned or established a rate for these movements.
It is further contended by appellant that the Railroad Commission had no power to authorize reparation of charges made between the date of the filing of the'petition with the Railroad Commission and the date of its order, and that its power was limited to granting reparation for charges made prior to the time of the filing of the petition; that in order to collect for charges subsequently made, it was necessary for the Paper Company to file another petition. It should be borne in mind that the order of the Railroad Commission granting reparation, so called, amounts to nothing more than
By the Court. — Judgment affirmed.