210 Wis. 644 | Wis. | 1933
The following opinion was filed January 10, 1933:
Upon the pleadings the only question which the plaintiffs did or could raise was whether or not the order of the Public Service Commission in receiving, filing, and approving the supplemental tariff was a valid order. Sec. 195.08, Stats., requires every railroad to print in plain type and file with the commission its schedules and to publish with and as a part of such schedules all "rules and regulations that in any manner affect the. rates charged for the transportation of passengers or property.
Sec. 195.11, Stats. 1931 (former number 195.39), provides that it shall be unlawful for any railroad to demand, charge, collect, or receive from any shipper a less compensation for the transportation of property or for any service rendered or to be rendered by said railroad in consideration of said shipper furnishing any part of the facilities incident thereto, but any railroad may rent any facilities incident to transportation and pay a reasonable rental therefor. It was held that under this section as it stood at the time the contracts were entered into between the plaintiffs and the carriers, the service performed by the shippers under their
By the canceling tariffs filed on the 29th day of May, 1931, the carriers withdrew the schedule making provision for the payment of this service or rental charge. It is now claimed that the action of the Railroad Commission in receiving, filing, and approving this canceling tariff is invalid— (1st) because the plaintiffs’ contracts with the defendant carriers are still in full force; (2d) that the canceling tariff supplement is unlawful; and (3d) that the commission deprives plaintiffs of their right to collect the allowances agreed upon between the plaintiffs and the carriers.
The contracts between the plaintiffs and the carriers are not subject to filing with the commission. The only thing that is required to be filed with the commission is a tariff setting forth the contract rate, and this in order that the commission may have notice that the shipper is rendering a part of the service which it would otherwise be forbidden to render. It is probably true that the amount to be charged by the shipper and paid by the carrier for terminal switching service cannot lawfully be paid by the carrier unless it files a so-called tariff disclosing the amount charged. What the carrier has in fact done is to cancel the arrangement which it had with the plaintiff shippers, and it now undertakes to render all of the service called for by its through bill of lading, including setting in, spotting, and taking out cars from the plant of the plaintiffs. It would seem that the duty of the Railroad Commission to receive, file, and approve the canceling tariff is plain. The arrangement made between the plaintiffs and the carriers was one which the Public Service Commission could not compel the carriers to enter into. It was a voluntary arrangement, one contrary to the law except for the rental provision of sec. 195.39, now 195.11.
The real basis of the plaintiffs’ complaint is that by filing the supplemental tariffs the carriers have disabled themselves
It appears that in 1931 sec. 195.11 was amended by ch. 60 of the Laws of 1931, which added the following at the end of sub. (2) :
“But no payment shall be made by a carrier to an industry for performing any part of the service incident to the origination or determination of carload line haul shipments which the carriers have assumed to perform under the provisions of the bill of lading.”
In the supplemental tariffs filed no reference was made by the carriers to the provisions of ch. 60 of the Laws of 1931. In their answer in this action the carriers allege that they take no position with reference to the constitutionality or unconstitutionality of ch. 60. By far the greater part of the argument made here in the briefs and upon oral argument relates to the .constitutionality of ch. 60. It is considered that the constitutionality or unconstitutionality of that chapter is in no way involved in this action. If we should examine the constitutionality of that statute, our judgment in this case would be the same whether we found it constitutional or unconstitutional. It would seem to require no argument to show that an otherwise valid tariff is not illegal because of the provision of a contract over which the commission has no jurisdiction and into which the carriers and the plaintiffs may enter at their pleasure. The filing of the tariff in the first instance and the cancellation of the tariff sub
We are not called upon to determine, and cannot determine because it is not within the issues, whether mh. 60 is constitutional or unconstitutional. The reception, filing, and approval of the canceling tariff merely left the through rate on carload line haul shipments in full force. The legality of that order cannot be doubted.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on March 7, 1933.
