Oregon-Wash. R. & N. Co. v. Cascade Contract Co.

197 P. 1085 | Or. | 1921

Lead Opinion

BURNETT, C. J.

1. In the original act to regulate commerce passed by the United States Congress February 4, 1887, it was said:

“And when any such common carrier shall have established and published its rates, fares, and charges, in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares and charges as may at the time be in force.”

This cardinal principle of congressional legislation regulating interstate commerce has been maintained in one form or another ever since the beginning of the general government’s activities on the subject. It was repeated in the amendment of March 2, 1889, likewise in the act of June 29, 1906, and is a vital element of that legislation to the present day. The result is that all patrons are bound by the rates in effect at the time a shipment is made. The doctrine is thus succinctly stated by Mr. Justice Hughes in Louisville & N. R. R. Co. v. Maxwell, 237 U. S. 94, 97 (59 L. Ed. 853, 35 Sup. Ct. Rep. 494, L. R. A. 1915E, 665):

“Under the interstate commerce act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide .by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination”: — citing numerous precedents from the Supreme Court of the United States.

This court has voiced the same doctrine in Baldwin Land Co. v. Columbia By. Co., 58 Or. 285 (114 Pac. 469), and Zoiler Hop Co. v. Southern Pacific Co., 72 Or. 262 (143 Pac. 931, 8 N. C. C. A. 64, note). A fair statement of the rule is found in the opinion written by Mr. Justice Harris in Black v. Southern Pacific Co., 88 Or. 533, 537 (171 Pac. 878):

“Neither the shipper nor the carrier is bound by the rate actually paid because the shipments are necessarily controlled and governed by whichever published rate is applicable to the shipment.”

The tariff admitted by the answer in the instant case to be in force at the time the shipment was made was introduced in evidence, from which we learn that between Quarry, Oregon, and South Aberdeen, Washington, the rate per hundred pounds was three and three-fourths cents on “rock, minimum weight marked capacity of car used.” As to the transportation charges, the dispute seems to be about the method by which the weight is to be determined. The plaintiff contends for the weight as governed not merely by the actual number of pounds but also by the minimum weight marked on the car used. The interpretation of the phrase, “rock, minimum weight marked capacity of car used,” is that the railway company may charge for the capacity of the car, marked thereon, and for any surplus weight actually loaded. For illustration, employing one of the cars in question, the minimum weight of load of the car was marked at 80,000 pounds. The amount transported on the car was 89,000 pounds and the charge was computed on the actual amount. Suppose, however, the actual weight of shipment on that car had been only 70,000 pounds; the railway company would be entitled to charge on 80,000 pounds, that being the minimum capacity of the car. In the stipulation of facts alluded to the parties agreed that there was actually transported the aggregate weight of 53,170.42 tons of rock and no more; and that the defendant paid to the plaintiff a total of $41,272.46. The amount of rock transported on the two cars in question was admitted. The amount of freight prescribed by the tariff was admitted, and the amount of payment on each car was likewise admitted. It is also conceded by the stipulation that the plaintiff charged and the defendant paid the $41,272.46 as calculated on the basis prescribed by the admitted tariff, and that if the calculation had been made upon the net weight of the shipment “without regard to minimum weight as prescribed by the marked capacity of the cars used,” the defendant would have been required to pay only $39,877.82, the difference between that sum and the one actually paid being $1,394.39. In short, the freight on the total shipment calculated by the tariff in force at the time the shipment moved was $41,272.46. It appears by the stipulation that—

Upon being applied to by the defendant for a rate on the shipments before they were made, the “plaintiff advised defendant that it would establish a rate for the transportation of rock between said points, of three and three-fourths cents per hundred pounds, said rate to apply upon government weights, subject to minimum weight of ten per cent less than marked capacity of car used, and that such government weights, subject to such minimum, would be used in arriving at freight charges.”

But the fact is, as disclosed by the evidence, that this amended rate was not filed until long after the shipments were made.

2. In other words, the plaintiff seems to have neglected to file the amended rate, and the defendant, without waiting for its promulgation, shipped the rock and hence became liable for the freight as computed under the schedule of tariff in force at the time the shipment moved. The defendant was bound to know the existing tariff. It was charged with knowledge that the plaintiff could not charge less or more than, or any rate different from that prescribed in the current schedule. It is fair to say that in seeking to protect its promise, but, as it appears, when it was too late, the record shows that the plaintiff applied to the Interstate Commerce Commission for leave to refund to the defendant the difference of $1,394.39, but was refused by the commission on the ground that this would constitute a preference not allowed- by the Interstate Commerce Law or the tariff in force at the time. This is clearly within the policy of the law, for any other shipper of stone would have a right to rely upon the published tariff in force at the time and ought not to be subject to the preference that would arise out of refunding to the defendant a portion of the freight which it paid under the existing tariff, although it relied upon the promise of the plaintiff to promulgate a lower rate. In other words, the defendant paid the rate in force at the time, and must be bound thereby. The record does not show any legal ground for a counterclaim on behalf of the defendant in that matter.

As to the demurrage, the stipulation, after reciting the Pacific Northwest Demurrage Bureau tariff and the defendant’s admitted agreement entered into in pursuance thereof, goes on to say:

“There accrued on said basis three hundred twenty-two demurrage debits and one hundred and four de-' murrage credits, leaving a balance of two hundred eighteen demurrage debits, and eight days’ excess demurrage, which, according to the terms of aforesaid agreement, produced for said month of June, 1915, a total demurrage charge against defendant of two hundred twenty-six ($226) dollars, no part of which has been paid to plaintiff, although demand has often been made against defendant therefor. Plaintiff, on its part, has performed all of the conditions of said contract, and there is due and owing from defendant to plaintiff the said sum of two hundred twenty-six ($226) dollars.”

This stipulation concludes the defendant on the count for demurrage.

3. The Circuit Court also ruled that defendant’s charges for lumber furnished for sideboards did not constitute a proper counterclaim, because it was not specified in the schedule of rates which the plaintiff had filed. In this the Circuit Court was correct and is well supported by authorities on the ground that it would open the door to an evasion of the statutes against preferences or variations from the published rates. It would be easy to evade the statute by making an exorbitant charge for such services rendered by the shipper as a counterclaim against the tariff rates for freight, and it would be difficult of detection; hence the strict rule announced by the authorities to the effect that such arrangements cannot be countenanced. For instance, in Chicago & C. Ry. Co. v. United States, 219 U. S. 486 (55 L. Ed. 305, 31 Sup. Ct. Rep. 272, see, also, Rose’s U. S. Notes), the Munsey’s Magazine Publishing Company contracted to pay the transportation for its employees by advertising for the railway company in its magazines. The court there, after discoursing on the necessity for observing the principle of equality in the enforcement of tbe interstate commerce law, said:

“Those ends cannot be met otherwise than by requiring transportation to be paid for in money which has a certain value known to all and not in commodities or services or otherwise than in money.”

In the case of Louisville & N. R. R. Co. v. Mottley, 219 U. S. 467 (55 L. Ed. 297, 31 Sup. Ct. Rep. 265, 34 L. R. A. (N. S.) 671), Mottley had received injuries in a collision on the railway company’s line, and in settlement thereof, made before the passage of the Interstate Commerce Law indeed, the company had agreed to furnish Mottley and his wife annual free transportation for themselves over its lines. The court held that the Interstate Commerce Law put the stamp of disapproval upon that contract, although lawful when made, on the ground that such an agreement was inimical to the policy of the Interstate Commerce Law, in that it afforded Mottley a privilege which was not granted to other travelers over the lines of the railway company. The principle is, not that the company may not provide for allowing a shipper certain charges for fitting its cars, hut fthat the arrangements must he specified in the tariff under which the shipment moves, so that the same privilege of repairing cars or equipping them hy the shipper is allowed to all shippers on the same terms. No such provision appears in the tariff in force at the time the shipment moved, hence the charge cannot be allowed in this instance.

For these reasons the judgment of the Circuit Court must be affirmed.

Affirmed. Rehearing Denied.

McBride, Johns and Harris, JJ., concur.

Denied October 11, 1921.

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Rehearing

On Petition for Rehearing.

(200 Pac. 1034.)

Rehearing Denied.-

For the petition, Messrs. Teal, Minor S Winfree.

Contra, Mr. A. C. Spencer, Mr. Blaine Halloch, and Mr. W. A. Bobbins.

BURNETT, C. J.

The defendant complains, in substance, in its petition for rehearing, that it was denied the privilege of showing how many cars of those which carried all its shipments of rock from Quarry, Oregon, to Grays Harbor, Washington, were loaded under their marked capacity. The stipulation of facts upon which this cause was tried in the court below states that its intention was “to dispose of all the issues raised by the pleadings respecting all matters except those covered by plaintiff’s third further and separate cause of action, defendant’s answer and plaintiff’s reply thereto.” As stated in the defendant’s brief, the question of the third further and separate cause of action was submitted to a jury, and the evidence being conflicting, it “may be said to be out of the case.” The stipulation discloses that the only tariff actually filed with the Interstate-Commerce Commission and under which the - shipments moved, “provided for the transportation of rock in car loads from Quarry, Oregon, to Aberdeen, Washington, a rate of 3% cents per hundred pounds, minimum weight marked capacity of car used.” It is further stipulated in the sixth paragraph that, “upon said shipments, except as hereinafter alleged, plaintiff charged the defendant and defendant paid to plaintiff certain sums of money calculated upon the basis prescribed by said tariff O.-W. R. & N. 2-A, I. C. C. 107, and said charges so collected by plaintiff from defendant aggregated an amount of forty-one thousand, two hundred seventy-two and 46/100 ($41,272.46) dollars.”

4. It is true that it is also stipulated that the rock shipped weighed according to government figures ascertained as aforesaid, 53,170.42 tons, and that on the basis of that weight figured at 3% cents per hundred pounds without regard to minimum weight as disclosed by marked capacity of cars used, the' freight charge would have amounted to $1,394.39 less than that actually paid to the plaintiff. Reduced to its lowest terms, the tariff required computation on minimum weight marked capacity of cars used. It is stipulated that the money paid was calculated on the basis prescribed by the tariff. Lawfully, it could not he calculated on any other basis, because of the well-known rule that the carrier is not allowed to collect less or more than the rate prescribed by the tariff filed with the Interstate Commerce Commission. The government officials in charge of the jetty work weighed the rock without reference to the minimum weights marked as capacity of the cars employed. The effort of the defendant was to ignore the stipulation, leave out the element of minimum weight marked capacity of the car, and calculate on the actual weight. Stipulating that the freight had been computed according to the tariff with the element of minimum weight marked capacity included, the defendant sought to open the question again and recast the figures the parties had agreed to in the stipulation. On this point, the defendant stipulated itself out of court. The calculation could be made upon hut one basis. We cannot allow the defendant to ignore its stipulation that the charge was computed on that basis.

Whatever was the actual net avoirdupois weight of the shipments, the element of minimum weight marked capacity, appearing as it does in the tariff filed with the interstate commerce commission, would control this. For example, if the minimum marked capacity of a car was 80,000 pounds and it was loaded with hut 70,000 pounds, the calculation would be on the basis of 80,000 pounds; while if the car was loaded with 100,000 pounds, the computation of freight would be on the latter figure. Having stipulated that the calculation was made on the basis required by tbe tariff, tbe defendant cannot open that question and undertake to show a different computation.

The petition for a rehearing must be denied.

Rehearing Denied.