188 Ind. 87 | Ind. | 1919
— On December 14, 1906, the Railroad Commission of Indiana, after a hearing upon a petition of the present appellees, to which the present appellant was defendant, entered an order fixing rates for shipments of certain classes of freight over appellant’s division extending from Indianapolis west to the state line.
Appellant did not appeal from said order to our Appellate Court, as the statute creating the commission authorized, but declined to comply therewith, and continued to charge appellee and other shippers of said classes of freight over said division rates higher than those specified in said order.
Appellee prosecuted in the superior court of Marion county an action for a mandatory injunction against appellant to prevent appellant from charging other than the rates so fixed. Appellee’s complaint was held good, and appellant’s second and third paragraphs of answer held insufficient on demurrers; and.from the judgment rendered, after trial, against appellant, this appeal is prosecuted.
In support of its position that the complaint is insufficient, appellant asserts that appellees have' no right to maintain this action because it is an effort to enforce
The question we have is whether said rule applies to the situation here presented. If a new right was not created, all discussion of this proposition is ended.
Appellant asserts that the act of 1905, swpra, did not give the commission any right, power or authority to institute and prosecute any action at law, or suit in equity, or any other proceeding, for the purpose of enforcing obedience to its order; but that obedience to such orders should be secured through the assessment and collection of penalties provided in the act.
Appellant asserts that this amendment, supra, greatly increased and added to the powers, authority and the duties of the commission, especially giving it authority and power to enforce its orders by actions ■ at law and suits in equity' in its own name, in lieu of the provisions of the act.of 1905, supra, and that the authority and power so given the commission to enforce rate orders is exclusive of all other remedies.
This seems especially pertinent to the present situation,; these appellees procured an order or judgment of the commission', as the result of a hearing or trial, wherein this appellant was defendant, that the identical rates appellees seek to enforce for the identical. classes of freight tendered for shipment, over the identical division of appellant’s road here involved, are reasonable, and this order is still in force, unless it has expired by operation of law.
This suit in equity is justified by reason of the great number of transactions involving small amounts, and the fact that the commission may also, at law or in equity, enforce its orders, and that the duty of so doing is by statute imposed upon the commission, does not prevent one entitled to the benefit of an order from instituting an independent action.
We are satisfied no new right was created; an addition was created to the old remedies.
It is next insisted that the complaint is insufficient in that it seeks to enforce an order which had theretofore expired by operation of law.
Counsel argue that under the act of 1905, supra, an order fixing rates tied the commission’s hands, exhausted its powers, except as the order might be set aside on appeal, and if affirmed on appeal the order became perpetual, no matter what injustice resulted, and therefore there was a strong inducement to an amendment in 1907, supra, limiting the life of then existing orders as well as future orders, and that -there is good reason for construing the amendment of 1907, supra, as remedial and intended to be retroactive.
It is asserted by appellee that in so far as the facts so alleged are material, they are provable under the general denial, and that the sustaining of this demurrer was harmless, though it be held erroneous. It is asserted by appellant that this answer controverts no allegation of the complaint, in that the complaint simply alleges that the order was entered and is in force; whereas the answer relates to the time the answer was filed and to the future, and is, in effect, an allegation that said rates are then, and will be, confiscatory, though they may not have been confiscatory when the order was entered; and that conditions arising after the complaint was filed are not provable under the general denial.
The cause was tried, and appellant’s evidence tends to prove the substance of the answer, as above quoted, and no complaint is made of the exclusion of any offered evidence.
Whether, therefore, our ruling be based oh appellant’s construction of its answer or upon the evidence heard, we are satisfied that the defendant has not tendered or made a defense, and that the decision of the court is correct. We are led to this conclusion by the following considerations:
Appellees assert that, for all that thus appears, appel
Appellant asserts that the state has no power to thus segregate a certain class of traffic and require the railroad company to carry that traffic at unremunerative rates. Appellant cites: Northern Pacific R. Co. v. North Dakota (1914), 236 U. S. 585, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F 1148, Ann. Cas. 1916A 1; Norfolk, etc., R. Co. v. Conley (1914), 236 U. S. 605, 35 Sup. Ct. 437, 59 L. Ed. 745; Stone v. Farmers’ Loan,
There is little or no conflict in the decisions bearing upon these propositions, when principles involved are minded; but there is much confusion growing out of the application of such decisions to other cases. When the decisions cited by both appellant and appellee are read in view of the fundamental principles involved, and in view of the respective rights of the parties to each cause, such confusion almost altogether disappears.
If on such shipper’s complaint the rates are reduced, and thus the carrier’s total net returns caused to be nonremunerative, the carrier may then be entitled to complain and show the facts, and be entitled to an increase of the unfairly low rates.
It does not, however, always follow that because rates on one division are low, rates on other' divisions are un
The low rates may attract business which, except for the low rates, would go to some other competitive carrier. The low rates thus add an income which would otherwise be absent, though the investment for operation^ existed. The necessary cost of construction and operation of a particular division may be so excessive that rates remunerative on other divisions are not remunerative as compared with such excessive costs, but are, nevertheless, an advantage for competitive purposes. Railroad companies, in the absence of prohibitive regulation, at times voluntarily fix low rates for the purposes stated, recognizing that the ultimate result is beneficial to both carrier and customer. When such is the case the reason is found in considerations and facts beyond the mere comparison of the rates with the investment and cost of operation; in other words, found in consideration of increased business, of adequate service, and the welfare of both carrier and shipper.
As shown in Wood v. Vandalia R. Co. (1913), 231 U. S. 1, 34 Sup. Ct. 7, 58 L. Ed. 97, this appellant fixed on some of its divisions lower rates for corresponding distances than those fixed by appellant for the same character of business, on the division here concerned; the higher rates so fixed for this division being reduced by this order. Assuming that the cost of operation and the investment are approximately the same on each division, the difference in rates made by appellant on the different divisions cannot be justified except by rebutting' that assumption, or by a showing of other considerations. In other words, difference in necessary investment and facts other than income and investment
The same line of reasoning permits a carrier to charge more on one division than upon another; but it must allege and prove facts impeaching a commission’s order cutting down the higher rate.
The principle involved is, in our opinion, strongly upheld in the decision of the federal Supreme Court in Wood v. Vandalia R. Co., supra, wherein the commission’s order now in question was involved. In that case the present appellant sued to restrain the Indiana Railroad Commission from enforcing the order here complained of, and upon, substantially, the same allegation as to the insufficiency of the rates that are here made. Upon an appeal by the commission from an adverse decision of the circuit court of the United States, ■ the Supreme Court held that: “Each case, as pointed out in Smyth v. Ames, must depend upon its special facts; and the record in the present case is barren of the necessary proof.” And further: “For all that api pears, the Vandalia Company might enjoy, notwith
As opposed to the above view appellant cites Northern Pacific R. Co. v. North Dakota, supra, which is the latest decision of the United States Supreme Court on this point to which we have been referred, or which we have found. This decision was, as was the decision in the Wood case, supra, written by Justice Hughes, and therefore announces corresponding principles, in so far as the same are involved.
Let it first be observed that the facts in the Dakota case were fully tried. It thus appeared that, all things considered, the state’s legislative act fixing the rate was, as to two carriers of the three involved, arbitrary; that the state segregated a class of traffic — the hauling of lignite coal, which was the state’s most extensive natural resource — and by legislative act the state required the railroads to carry such coal, within the state, at rates which were as to two of the carriers less than the actual
An effort and design on the part of the state was shown to develop this industry to the exclusive advantage of others than the carriers. The carriers did not obligate themselves to so operate. As shown by the case cited, three roads protested and were required by the state Supreme Court to submit'to the rates. Two of them appealed, and the decision of the federal Supreme Court said that: “While the rate was found to be compensatory in the case of the Great Northern Railway Company (third road), this was distinctly shown to be dug to the peculiar conditions of the traffic.” Northern Pacific R. Co. v. North Dakota, supra.
As to two of the carriers, the presumption of reasonableness was by a full hearing rebutted; as to the other carrier the presumption was not rebutted. This clearly indicates that all facts and considerations having a bearing are to be heard.
The decision in the Dakota case further reads: “If in such a case there exists any practice, or what may be taken to be (broadly speaking) a standard of rates with respect to that traffic, in the light of which it is insisted that the rate should still be regarded as reasonable (or in the present case unreasonable) that should be made to appear.”
Appellees’ demurrer was sustained to appellant’s third paragraph of answer. This answer alleges that appellant filed with the Railroad Commission, in accord with the requirement of the act of 1907, a schedule of rates covering the same classes of freight and the same points of destination affected by the commission’s order.
Appellant asserts that, as the amendment required such schedule to be filed, and provided that the rates in such schedule named should be lawful rates, the order of the commission was superseded by the lawful rates named in the schedule.
The rates fixed in the schedule here filed are not lawful rates while the commission’s order remains in force.
Finding no reversible error in the record, the judgment of the superior court is affirmed.
Note. — Reported in 122 N. E. 225. Carriers: matters to be considered on issue of reasonable rates, Ann. Cas. 1916A 8; reasonableness of rates as affected by carrier’s right to receive fair return on investment, Ann. Cas. 1913B 774; rates and rate making, reasonableness, 10 C. J. 405, 413-415; what constitutes dictum, Ann. Cas. 1912C 1248, 11 Cyc 755.