193 Wis. 538 | Wis. | 1927
The following opinion was filed May 3, 1927:
The proposed tariffs, after the caption, were in substantially the same form. That tendered by the Chicago & Northwestern Railway Company is as follows:
“Chicago & Northwestern Railway Company.
“Allowance for terminal switching at Wisconsin Rapids, Wis.
“On all carload revenue shipments, including trap cars containing 6,000 pounds or more of less carload revenue freight, destined to or coming from the plant of the Consolidated Water Power & Paper Company, the terminal switching service is performed by the Consolidated Water Power & Paper Company for the account of the Chicago & Northwestern Railway Company.
“The Consolidated Water Power & Paper Company will be paid for such service rendered by it for and in behalf of the Chicago & Northwestern Railway Company the actual cost of service performed as specified in monthly bills submitted to this company on all cars handled between points of interchange with this company and the first point at which cars are loaded or unloaded subject to a maximum payment of $1.50 per loaded car.
“The above-allowance includes the handling of empty cars*542 in the reverse direction or empty cars handled preparatory to loading.
“Cars will be subject to demurrage rules and charges as shown in Agent W. J. Kelly’s Demurrage Tariff No. 4 — B, supplements thereto and reissues thereof, from the time of actual or constructive placement on the interchange track with the Consolidated Water Power & Paper Company until return to the same or another interchange track.
“(Applies on Wisconsin intrastate traffic only.) “Issued June 16, 1922. Effective July 25, 1922.”
It is the contention of the plaintiffs that the carriers were obligated to bring cars and place them at the plant of the plaintiffs at the points where they were to be loaded or unloaded, as the case might be, and that such service was to be rendered by the earner as a part of the line haul; that the tariff is a proper and lawful one and that it was the duty of the Commission to file it.
The contention of the defendant stated in the language of counsel is, “It [the defendant] is without jurisdiction to file the proposed tariffs because there is no provision in the statutes by which it is granted authority to accept and file such tariffs.” The real basis of refusal is that in the opinion of the Commission the arrangement is in violation of sec. 195.39, Stats., and it is therefore the duty of the Commission not to file it.
No investigation was made as to the reasonableness of the charge. No contention is made here that if such a charge may be' properly allowed that it constitutes a discrimination as to other shippers. The sole question presented is whether or not the arrangement violates sec. 195.39.
There is a great deal of argument and many statements of fact in other situations in the brief of defendant’s counsel, but a study of .the record in this case discloses no conflict of testimony as to the facts of this case. It appears that it has always been the custom for the carriers to make a first placement of cars to be loaded or unloaded, and the cost of making such placements was borne by the railway com
The material part of sec. 195.39 is as follows:
“(2) It shall be unlawful for any railroad to demand, charge, collect or receive from any person, firm or corporation a less compensation for the transportation of property or for any service rendered or to be rendered by said railroad, in consideration of said person, firm or corporation furnishing any part of the facilities incident thereto; provided, nothing herein ,shall be construed as prohibiting any railroad from renting any facilities incident to transportation and paying a reasonable rental therefor.”
In disposing of the petition the defendant said:
“In conclusion we might point out that the supreme court of the state of Wisconsin has laid down the rule that this Commission must find specific authority for its acts ‘within the four corners of the statutes creating it.’ Monroe v. Railroad Comm. 170 Wis. 180, 174 N. W. 450. No such authority appears to exist in par. 2 of sec. 1797 — 22 for the acceptance by this Commission of tariffs permitting a carrier to pay the shipper for performing terminal switching service.
“The Commission therefore finds and determines that no authority exists for the acceptance by it of tariffs providing for allowances by railroads to industries for terminal switching, performed by said industries.” ,
In its recitals the Commission expressly disclaims that any investigation has been made to determine the reasonableness or unreasonableness of the order, which as already indicated leaves nothing for consideration here except the lawfulness of the arrangement embodied in the tariffs.
The defendant considered sub. (14) of sec. 7904 of the Interstate Commerce. Act (Barnes’ Federal Code, Supp. 1919-1924), supposed to cover a similar situation. It is as follows:
“If the owner of property transported under this act directly or indirectly renders any service connected with*544 such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for under this section.” U. S. Comp. Stat. § 8583; 36 U. S. Stats. at Large, ch. 309, p. 551.
Under the Interstate Commerce Act the identical arrangement proposed by the tariffs tendered as applicable to intrastate commerce is approved as applicable to interstate commerce. In other words, the plaintiffs seek to have the defendant approve the identical arrangement as to intrastate commerce that is now allowed under the Interstate Commerce Act. The Commission was of the opinion that the quoted provision of the Interstate Commerce Act is much broader than sub. (2).
Upon the original disposition of the case the defendant said:
“The carriers did not claim that the allowance was based on ‘renting any facilities incident to transportation,’ and it appears to be undisputed that the allowance of $1.50 per loaded car to the industries is to be on account of the rendering of services by the industries in connection with the transportation. It is obvious, therefore, from the plain wording of the Wisconsin statute, that no allowances for any such services can be lawfully made in connection with intrastate traffic.”
The tariff as proposed used the word “service” instead of “facilities,” but the nature of the arrangement was fully disclosed in the tariff as tendered and upon the hearing. There was a motion for a rehearing, upon which the claim was set up that the arrangement amounted to a rental of a facility within the meaning of the Wisconsin statutes. No
A determination of the question presented here depends upon the construction to be placed upon sub. (2) of sec. 195.39. If that subsection be given a narrow and restricted meaning with no reference to the nature of the subject matter to which it is to be applied; if it be interpreted without any regard for the history of the subject to which it relates, it must be admitted that it maybe construed as the Commission construed it. As has been often said, the statute is a remedial one designed to regulate the relations of carrier and shipper so as to prevent discrimination as between shippers and localities. The Commission seems to have given great weight to the use of the term “rental” in sub. (2) of sec. 195.39, and to have held that that implied something in the nature of a sum paid for the use of real estate, — at least it is so argued here. Such a limitation upon the meaning of the word would certainly lead to a strict, and it seems to us an unreasonable, construction of the statute. The words used in the Interstate Commerce Act are, “the charges and allowances . . . for the service so rendered and for the use of the instrumentality so furnished.” Sub. (2) speaks of a “facility” instead of “service and instrumentality,” and describes the sum paid as “rental” instead of “charges and allowances.” “Facility” is not as narrow a term as “instrumentality,” at least it is not ordinarily so used. If a contractor should say that he did not have the facilities for carrying on an operation, he might be understood to say that he could not procure labor (service) or did not have the necessary capital or was without the required equipment. “Equipment” and “instrumentality” are more nearly synonymous although often used in widely different senses.
Referring to the language of sub. (2) of sec. 195.39, it
We see no difficulty in holding that the switch engine with its crew and the equipment constitutes a facility within the meaning of the statute. It might also properly be said that the shipper performs a service and furnishes an instrumentality. Both forms of expression are very broad and inclusive and are to be understood and applied in the light of the subject matter to which they relate. The amount paid has the same legal nature whether it be called a
We are further impelled to the conclusion which we reach in this case because it is the policy of this court to construe the law of this state so that it will conform as nearly as possible to the federal law and federal practice when applied to the same subject matter.
It is quite apparent that sub. (2) is an attempt to provide in a very concise and inclusive form for the very matters provided by the section of the Interstate Commerce Act hereinbefore referred to. There may be cases within the Interstate Commerce Act not within sub. (2), but we have no doubt that in the instant case as applied to the facts disclosed by the evidence they are substantially identical in meaning.
Upon the meaning of the word “facility” the following references may be helpful: 25 Corp. Jur. p. 334, and cases cited; State v. Cave, 20 Mont. 468, 475, 52 Pac. 200; In re Badger Tel. Co 3 Wis. R. R. Comm. Rep. 98, at p. 104; Janesville v. Janesville W. Co. 7 Wis. R. R. Comm. Rep. 628, at p. 637; Electric Theater v. Lodi E. L. Plant, 7 Wis. R. R. Comm. Rep. 745.
Upon the general proposition that such an arrangement is proper and reasonable, see U. S. v. B. & O. R. Co. 231 U. S. 274, 34 Sup. Ct. 75.
Cases are cited to us such as General Electric Co. v. New York Cent. & H. R. R. Co. 219 N. Y. 227, 114 N. E. 115, where it appears that the arrangement had been found to be not within the terms of the act by the interstate commerce commission and the facility for which compensation was claimed in that case was held to be a plant facility and not one in aid of transportation. The facts being so fundamentally different from the facts disclosed by the evidence in this case, while the case may be interesting and helpful it is not controlling.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on October 11, 1927.