T. R. Miller Mill Co. v. Louisville N. R. Co. , 207 Ala. 253 ( 1921 )

1. We are of the opinion that the instruction given the jury, to the effect that the understanding of the general public and of the lumber trade would properly determine the application of the terms "lumber" and "timber" to forest products when offered for shipment under a freight tariff which discriminates between them as to rates, was too narrow, in that it excluded from consideration the probative force of the practical construction of these terms as evidenced by the practice of the carrier and the assent of shippers for a period of 15 years. We think the jury should have been allowed to consider that practice, which was proven without objection, in determining the meaning of the words "timber" and "lumber" for the purpose of tariff classification.

2. On the other and more important branch of the case, the decisive question very clearly is whether or not defendant's G. F. O. No. 2229 was effective as a published and lawful tariff during the period of the shipments referred to.

Section 5525 of the Code provides that —

"No change shall be made by any common carrier in the rates, fares and charges * * * which have been filed, and published by it, or which are in force at the time, until the proposed changes have been submitted to and approved by an order of the Railroad Commission."

The evidence shows without dispute that the tariff in question was filed with the Railroad Commission and approved by that body, and that it was published by the carrier, and became effective in practical and exclusive operation for about a year. It is true that the evidence does not directly disclose the making of any precise and formal order of approval. But it must be presumed, in the absence of evidence to the contrary, that the Commission made such an order in the premises as the law and their own orderly practice required them to make.

We do not understand that appellant denies that this tariff was filed, approved, and published as the law requires. On the contrary, we infer from the record, as well as from the argument, that appellant's real contention is that this tariff was not within the letter or spirit of the order of the Commission pursuant to which it was filed, and that, though originally approved by the Commission, their subsequent finding that it was "not in accordance with the letter or spirit of the order of the Commission," coupled with the Commission's order of June 7-9, 1915, annulling defendant's rule 1 to this tariff (which applied it to commodity rates), and directing the substitution of a rule which excluded pre-existing commodity rates from its operation, and kept them in force thereafter, effected a complete nullification of the tariff in question, and rendered it unlawful and void ab initio.

A further contention of appellant is that the commission's approval of a tariff or of a particular rate being only prima facie evidence of its reasonableness, if the shipper can show that any rate that he has paid was in fact unreasonable, he can recover the excess in an action at law. And a corollary to that contention, also insisted upon, is that any rate thus shown to have been unreasonable is also ab initio unlawful within the meaning and operation of sections 5553 and 5554 of the Code, which penalize the carrier's failure on demand to return to the shipper the excess charges collected from him, "in case of any overcharge on published or lawful rates."

Section 5651 of the Code undertakes to define unlawful rates, viz.:

"All rates, charges, classifications, rules, and regulations adopted or acted upon by any transportation company inconsistent with those prescribed by the commission acting within the scope of its authority, or inconsistent with those prescribed by any statute, shall be unlawful and void."

In pari passu, section 5527 declares that —

"No railroad or common carrier shall charge, demand, collect, or receive a greater or less compensation for the transportation of passengers or property, or for any service in connection therewith, than is specified in such printed schedules and schedules of joint rates, as may at the time be in force, except as provided by law, or the railroad commission, and the rates, fares, and charges named thereinshall be the lawful rates when approved by the railroadcommission." (Italics supplied.)

Manifestly there can be but one lawful rate in force at any given time, and that rate by the very terms of the statutes quoted, is the rate which has been filed with and approved by the Commission, and published by the carrier. Behind that rate, so long as it remains unchanged, and so far as its application to specific shipments is concerned, neither shipper nor carrier can go, and courts cannot inquire. Adams v. C. of G. Ry. Co.,198 Ala. 433, 73 So. 650.

It seems to us that this proposition is self-evident and fundamental, and that it is the foundation of our regulatory system, without which it would fail in its primary purposes, which are to stabilize rates and charges, and to insure equality to shippers in their application. If the rule were otherwise —

"different persons would have different opinions as to what is a fair and reasonable rate; courts and juries, too, would differ, and at one time or place a defendant might be convicted and fined in a large amount for the same act, which, in another place, or at another time, would be held to be no breach of the law. * * * There would be no certainty of being able to comply with the law." Chicago, etc., R. Co. v. People, 77 Ill. 443,446.

The principle and policy of rate regulation, and the binding force of the rates which have been filed with and approved by the Commission, are well stated and discussed in Adams v. C. of G. Ry. Co., supra, and in the case of In re Independent Sewer Pipe Co. (D.C.) 248 Fed. 550. See, also, L. N. R. R. Co. v. McMullen, 5 Ala. App. 667, 59 So. 683, quoting from the opinion in Poor v. C., B. Q. R. Co, 12 Interst. Com. Com'n R. 418.

In Emerson v. Central of Ga. Ry. Co., 196 Ala. 280, 72 So. 120, L.R.A. 1916F, 120, this court held:

That "it is the duty of the common carrier to inform the consignee of the correct amount due according to the classification and rates on file * * * with * * * the RailroadCommission of the state"; and that "the publishedclassification and rates on file with the Railroad Commission were properly introduced in evidence as showing the classification and rate for the shipment in question." (Italics supplied.)

See, also, Adams v. C. of G. Ry. Co., 198 Ala. 433, 437,73 So. 650.

What we have already said is necessarily a denial of appellant's claim for the penalties provided for by sections 5553, 5554, of the Code, "in case of any overcharge on published or lawful rates." It is entirely clear that "published rates" in that statute means rates which have been filed, approved, and published as provided by law, and that "lawful rates" means all other rates which have been specifically established by legislative enactment, and which therefore could not be established by filing, approval, and publication. The two phrases refer to different classes of rates — different as to the mode of their establishment — and do not connote all rates under a double alternative.

On the evidence in the record our conclusions are: (1) That the rate of 31 cents charged and collected by defendant on plaintiff's shipments of doors, sashes, and blinds was the rate which had been filed, approved, and published; (2) that it was the lawful rate, whether reasonable or not, and was the only rate which defendant could charge without violating the statutes and penal laws of the state; and (3) that plaintiff is not entitled to recover as for any excess charges on such shipments, nor as for any penalties accruing under sections 5553 and 5554 of the Code.

It results that the trial court properly granted defendant's motion for a new trial, and the judgment so ordering must be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.

On Rehearing.