157 Mich. 266 | Mich. | 1908
Plaintiff brought suit against defendant receiver to recover what was claimed by him to be an overcharge for freight, demanded of plaintiff and paid by him to defendant for transporting certain car loads of freight between different points in this State upon the line of the Pere Marquette Railroad Company, of which defendant was receiver, contrary to the provisions of subdivision 7, section 6234, 2 Comp. Laws. Plaintiff recovered a judgment in the justice’s court, where the suit was brought. Defendant appealed to the circuit court for Berrien county, where the court instructed a verdict for plaintiff. Defendant brings the case to this court by writ of error.
It is agreed that the amount of the judgment recovered is the correct amount, provided plaintiff is entitled to a judgment in his favor. The statute relied upon by plaintiff for a recovery is a subdivision of an important section of the general railroad laws of the State. The section deals with the general powers of railroad corporations, and liabilities and restrictions to which they are subject. Such general powers are granted, and such liabilities and restrictions are imposed, under nine subdivisions of section 9 of article 2, entitled, “Corporate Powers and Duties of Directors,” of our general laws relative to the incorporation of railroad companies. Subdivision 7 of this section is the one before us for consideration. The part material to this case reads:
“ (6234) Sec. 9. Every such corporation shall possess the general powers and be subject to the liabilities and restrictions following; that is to say: * * * Seventh. To take, transport, carry, and convey persons and property on their said road, or through such tunnel, by the force and power of steam, animals, or any mechanical power, or by any combination of them, and to receive tolls and compensation therefor-: Provided, That in transporting freight by the car, loaded by the shipper, and unloaded by the consignee, no railroad company shall charge for transporting each of said cars more than eight dollars for any distance not exceeding ten miles, nor more than*268 fifty cents per mile for the second ten miles, nor more than twenty-five cents per mile for the third ten miles; and for distances exceeding thirty miles, in no case shall the charge between any two points on the said railroad exceed the minimum charge on the entire line. This provision shall not apply to the upper peninsula, nor to any company operating less than fifteen miles of railroad.”
It is contended by the appellant that this rate-making statute is unconstitutional, unreasonable, and uncertain. The attack is not directed against the power of the legislature to regulate freight charges within this State. Such power is admitted.
We are unable to find the alleged ambiguity and uncertainty claimed by defendant to be contained in this seventh subdivision in the words “freight by the car” and “ each of such cars” in the following sentence:
“ Provided, That in transporting freight by the car loaded by the shipper and unloaded by the consignee, no railroad company shall charge for transporting each of such cars more than eight dollars for any distance not exceeding ten miles.”
Defendant contends that this may fairly be construed to mean 4 4 the transportation of cars independent of their contents or loads,” affirming “that at the outset the statute in terms applies to the transportation of cars.’* As usual, where a premise assumed is incorrect, the correct conclusion cannot follow. The statute at the outset does not in terms apply to the transportation of cars, but in terms clear and unambiguous applies to “transporting freight by the car.” Counsel for defendant have overlooked the controlling word of the clause, and conse
Defendant urges that if this is the correct construction, the uncertainty still remains, by reason of the fact that a ear load of freight is not a fixed quantity. If there is anything certain in the testimony in the case, it is that the practical railroad men who were defendant’s witnesses established the maximum and minimum car load of freight of every class referred to. The legislature, in fixing these rates, necessarily took into consideration the common knowledge that freight for shipment differs in weight and bulk, that cars differ in capacity, and that the load in pounds which each car could carry with safety was fixed and certain. This statute treats of but one certain kind of rate fixing, for transporting freight by the car load, loaded by the shipper and unloaded by the consignee within the State and over the line of the receiving company only. What would constitute a car load would in each instance be determined by the article tendered for transportation, and the sáfe load in pounds of that article fixed by the size and strength of the car furnished. That cars differ in size, and therefore the car load would not be the same for all cars, is obvious, but is not for a court to attempt to equalize. Under the Constitution the legislature has been vested with authority to fix freight rates, and, having exercised that authority, there is no call, as far as this case is concerned, to question the legislative judgment.
“It cannot admit of doubt that corporations formed under an existing law will not be heard to question the rates fixed by the statute. They cannot avail themselves of the provisions of the law which give them the right to do business, and disregard those provisions which are onerous. This was the view taken by this court in Jackson & Suburban Traction Co. v. Commissioner of Railroads, 128 Mich. 164 (87 N. W. 133), and has the support of authority in other jurisdictions. See 4 Thompson on Corporations, § 5257, and cases cited.”
See, also, Grand Rapids, etc., R. Co. v. Osborn, 193 U. S. 17 (24 Sup. Ct. 310).
This disposes of all questions raised by the assignments of error necessary to be passed upon in the disposition of this case.
The judgment of the circuit court is affirmed.