Southern Pacific Co. v. Superior Court

On the third day of July, 1912, in the justice’s court of the sixth judicial township of the county of Kern, the San Joaquin Valley Commercial Association filed a complaint against the petitioner herein, the Southern Pacific Company, a common carrier of persons and freight within the state of California and in the county of Kern. The action was on a claim assigned to the plaintiff by one R. Pile and was for the demanded sum of $12.99. It was alleged that on February 5, 1912, plaintiff’s assignor caused to be shipped by defendant as such common carrier certain described packages of freight over the line of the defendant from the city of Oakland to the city of Bakersfield; that the defendant repre

A demurrer to the complaint having been overruled and defendant having answered denying all of the allegations of the complaint, the issues were tried in the justice’s court and judgment rendered in favor of the plaintiff for the amount of said demand. Thereafter an appeal to the superior court was duly taken upon all questions of law and of fact.

At the trial in the superior court the case was submitted upon evidence which principally consisted of a transcript (admitted by stipulation) of the evidence given at the trial in the justice’s court, together with certain other documents, which documents, or the facts therein shown, are hereinafter mentioned as far as required for this decision.

The rate charged on the shipment in question was sixty-eight cents per hundred pounds. It was shown that between October 1, 1911, and February 15, 1912, covering the date of this transaction, the defendant had on file with the railroad commission of the state of California a fourth-class rate of sixty-eight cents per hundred pounds from Oakland to Bakersfield, and a fourth-class rate of 37% cents from Oakland, California, to Los Angeles, California. The merchandise in question belonged to the fourth class. Bakersfield is an intermediate point on the main line of defendant’s railroad from Oakland to Los Angeles. It was admitted that the rate from Oakland to Los Angeles is a forced rate because of water competition from Oakland to Los Angeles.

Judgment was entered in the superior court against the defendant, which now by its application for a writ of review seeks to obtain an order declaring said judgment to be null and void, as in excess of the jurisdiction of the court. Although the amount involved is very small, we are informed that many hundreds of similar cases are pending, and this case has been presented elaborately, both by briefs and oral argument.

Some of the objections urged by petitioner seem to be in the nature of contentions that the plaintiff in the court below

By the constitution of 1879 it was provided that “no discrimination in charges or facilities for transportation shall be made by any railroad or other transportation company between places or persons, or in the facilities for the transportation of the same classes of freight or passengers within this state, or coming from or going to any other state. Persons and property transported over any railroad, or by any other transportation company or individual, shall be delivered at any station, landing, or port, at charges not exceeding the charges for the transportation of persons and property of the same class, in the same direction, to any more distant station, port, or landing. ...” (Const., art. XII, sec. 21.) It was further provided with reference to the railroad commission: “Said commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and publish the same from time to time, with such changes as they may make; ... In all controversies, civil and criminal, the rates of fares and freights established by said commission shall be deemed conclusively just and reasonable, and in any action against such corporation or company for damages sustained by charging excessive rates, the plaintiff, in addition to the actual damage, may in the discretion of the judge or jury, recover exemplary damages. . . . Nothing in this section shall prevent individuals from maintaining actions against any of such companies. ...” Penalties by fine against the companies and by fine or imprisonment against their officers, agents, or employees, were provided for in the same section last above quoted. (Const., art. XII, sec. 22.)

Operating under these terms of the constitution during the years from 1879 to 1911, transportation rates in California were made by orders of the railroad commission.- Referring

At a special election held in October, 1911, several changes were made in these sections of article XII of the constitution which relate to the railroad commission and to the rights and liabilities of transportation companies. A part of section 21, as amended, says: “No discrimination in charges or facilities for transportation shall be made by any railroad or other transportation company between places or persons, or in the facilities for the transportation of the same classes of freight or passengers within this state. It shall be unlawful for any railroad or other transportation company to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through rate than the aggregate of the intermediate rates. Provided, however, that upon application to the railroad commission provided for in this constitution such company may, in special cases, after investigation, be authorized by such commission to charge less for longer than for shorter distances for the transportation of persons or property and the railroad commission may from time to time prescribe the extent to which such company may be relieved from the prohibition to charge less for the longer than for the shorter haul. . . . Nothing herein contained shall be construed to prevent the railroad commission from ordering and compelling any rail

The Railroad Commission Act of February 10, 1911, above mentioned (commonly known as the Eshleman Act), is found in Statutes of 1911, page 13, et seq. It was amended as to sections 15 and 37 thereof by act approved April 6, 1911. (Stats. 1911, p. 701.) This act, as thus amended, is the act continued in force by the specific provision of the constitution as last above quoted. It remained in force until its place was taken by the present Public Utilities Act, which became effective March 23, 1912. (Stats. (Ex. Sess.) 1911, p. 18.)

To ascertain in what court or other body exercising judicial functions a right may be settled or a remedy enforced, it is necessary to consider the nature of the demand in question, together with the limits of jurisdiction of the several judicial tribunals. Counsel for respondents herein claims that plaintiff’s action was one for money had and received by the defendant which in equity and good conscience belongs to the plaintiff. He said: “It is upon an unreasonable amount of money obtained from us by means of an unlawful charge, not an excessive charge.” The plaintiff did not base its action upon allegation or proof that the rate of sixty-eight cents from Oakland to Bakersfield was in itself an unreasonable rate, or excessive in the sense of being more than a carrier might reasonably charge if it had the right to fix its own rates without direct governmental supervision. The claim thus made, that the amount charged was unreasonable by reason of being unlawful, is nothing more than a claim that the charge, whether in itself reasonable or not, was unlawful and therefore that it may be recovered back by the plaintiff. Moreover, it is not claimed that the collection of the sixty-eight-cent rate was unlawful as to all of the amount collected; but only that it was unlawful as to that portion thereof over and above 37% cents per hundred pounds. Assuming, then, for the purposes of our inquiry into the subject of jurisdiction, the undoubted fact that the plaintiff is entitled in some forum to an adjudication of its alleged right to recover the sum demanded, the question presented is whether the remedy can be enforced in a court of law without first obtaining from the railroad commission an order establishing the validity of the demand and the amount thereof.

Sec. 71. (a) “When complaint has been made to the commission concerning any rate, fare, toll, rental or charge for any product or commodity furnished or service performed by any public utility, and the commission has found, after investigation, that the public utility has charged an excessive or discriminatory amount for such product, commodity or service, the commission may order that the public utility make due reparation to the complainant therefor, with interest from the date of collection; provided, no discrimination will result from such reparation.”

See. 71." (b) “If the public utility does not comply with the order for the payment of reparation within the time specified in such order, suit may be instituted in any court of competent jurisdiction to recover the same. All complaints concerning excessive or discriminatory charges shall be filed with the commission within two years from the time the cause of action accrues, and the petition for the enforcement of the order shall be filed in the court within one year from the date of the order of the commission. The remedy in this section provided shall be cumulative and in addition to any other remedy or remedies in this act provided in case of failure of a public utility to obey an order or decision of the commission. ’'

Sec. 73. (a) “In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall -omit to do any act, matter or thing required to be done, either by the constitution, any law of this state or any order or decision of the commission, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was willful, the court may in addition to the actual damages award damages for the sake of example and by way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any corporation or person. ’ ’

See. 73. (b) “No recovery as in this section provided shall in any manner affect a recovery by the state of the pen-

allies in this act provided or the exercise by the commission of its power to punish for contempt. ’ ’

Sec. 74. (a) “This act shall not have the effect to release or waive any right of action by the state, the commission, or any person or corporation for any right, penalty or forfeiture which may have arisen or accrued or may hereafter arise or accrue under any law of this state. ’ ’

Sec. 83. (b) “No cause of action arising under the provisions of chapters 20 or 386 of the Laws of 1911 shall abate by reason of the passage of this act, whether a suit or action has been instituted thereon at the time of the taking effect of this act or not, but actions may be brought upon such causes in the same manner, under the same terms and conditions, and with the same effect as though said chapters had not been repealed. ’ ’

Sec. 83. (c) “All orders, decisions, rules or regulations heretofore made, issued or promulgated by the commission shall continue in force and have the same effect as though they had been lawfully made, issued or promulgated under the provisions of this act.”

See. 83. (d) “This act, in so far as it embraces the same subject-matter, shall be construed as a continuation of chapter 20 of the Laws of 1911, approved February 10, 1911, and chapter 386 of the Laws of 1911, approved April 6, 1911.” (The chapters referred to in this section constitute the so-called Eshleman Act.)

It should be kept in mind that section 21 of article XII of the constitution, both before and after the amendment of October 10, 1911, contains a prohibition against discrimination in charges, between places, and that the so-called long- and-short-haul clause, following the general provision against discrimination, is a particular application of the rule as first stated in general terms. The Eshleman Act contains various provisions which outline a plan different from that theretofore in force for the establishment of rates. It also gives a definition more detailed than that of the constitution as to what constitutes discrimination. Section 22 of the Eshleman Act, among other things, declares that it shall be discrimination to collect or receive a greater, less or different rate, charge, or compensation than the rate, charge or compensation established as in this act provided. Violations of these rules are declared to be misdemeanors, for which penalties are pro

Respondents’ position in the argument is that the case under review is not one of reparation for an excessive charge, wherein it would be necessary for a plaintiff to make its application in the first place to the railroad commission; but that

The provisions of the constitution as amended and the statutes to which we have referred have attempted to cover the entire subject, including both causes of action which have been long established in the law and the new mode of relief described as reparation. The provisions of the Eshleman Act which continue in force the rights of action in all courts of competent jurisdiction for wrong or damage suffered by a shipper at the hands of a common carrier, must be interpreted in the light of those additional and new provisions which are-intended to furnish persons doing business with transportation companies, and to the public as represented by the railroad commission, a direct means of enforcing the rule against discrimination between places and persons. As to claims arising from violations of this rule, these provisions clearly intend that there shall be a uniform compliance with all rates established or sanctioned by the state. To the end that such uniformity may be secured, the right of action to recover amounts charged which are discriminatory or which are in excess of a reasonable charge, has been conditioned upon approval by the railroad commission of any such demand before judgment can be taken thereon in the ordinary courts of law. It is for this reason that section 21 of article XII of the constitution has been amended to say that “nothing herein contained shall be construed to prevent the railroad commission from ordering and compelling any railroad or other transportation company to make reparation to any shipper on account of the rates charged to said shipper being excessive or discriminatory, provided no discrimination will result from such reparation.” It w-as for the same reason that section 28 of the Eshleman Act was written in the terms which we have quoted, providing for orders to be made by the railroad commission requiring satisfaction for damage

It is manifest, from a reading of the sections hereinabove quoted, that notwithstanding the requirement compelling the presentation to the railroad commission of applications for relief on account of excessive or discriminatory charges, yet that there remains to the courts of law a residuum of their original jurisdiction to enforce recovery of moneys due for freights or fares illegally exacted. The questions here presented require a determination of the lines of this disputed jurisdiction. No twilight zone of uncertainty should be permitted here.

Questions of similar import arising under the Interstate Commerce Act have been decided in the courts of the United States. For instance, it is provided in section 22 of that act [U. S. Comp. Stats. 1913, sec. 8595, 3 Fed. Stats. Ann. p. 851] : that: “nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.’’ In Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 , [9 Ann. Cas. 1075, 51 L. Ed. 553 , 27 Sup. Ct. Rep. 350 ], the supreme court of the United States, referring to the foregoing sentence in said section 22, said: ‘ ‘ This clause, however, cannot in reason be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative, when other appropriate common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the act.’’ That case was one where the court had under review the decision of a state court in a

This same opinion was expressed again by that court in Robinson v. Baltimore & Ohio R. Co., 222 U. S. 506 , [ 56 L. Ed. 288 , 32 Sup. Ct. Rep. 114 ], There also the charge made by the carrier was one prescribed in a schedule published and filed conformably to the act to regulate interstate commerce; and it was claimed that certain sums should be recovered because the charge thus made in excess of a certain other charge was discriminatory. Referring to a distinction attempted to be drawn between the case then before the court and the earlier case of Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 , [9 Ann. Cas. 1075, 51 L. Ed.

In contrast with the two cases cited above, yet in entire harmony with them as to the law, is Pennsylvania Railroad Co. v. International Coal Mining Co., 230 U. S. 184 , [Ann. Cas. 1915A, 315, 57 L. Ed. 1446 , 33 Sup. Ct. Rep. 893 ], where the jurisdiction of the case in the circuit court of the United States was sustained without any proceedings had before the interstate commerce commission. The cause of action was founded upon an allowance of rebates by the carrier to shippers other than the plaintiff where the plaintiff at the same time had paid the lawful tariff charges for like services and had received no rebate on account ‘Of those shipments made by it. It was argued by the plaintiff in error that the ease presented a rate-making question which must be submitted to the commission, and so was beyond the jurisdiction of the court. But the supreme court said: “Under the statute there are many acts of the carrier which are lawful or unlawful according as they are reasonable or unreasonable, just or unjust. The determination of such issues involves a comparison of rate with service, and calls for an exercise of the discretion of the administrative and rate-regulating body. For the reasonableness of rates, and the permissible discrimination based upon difference in conditions, are not matters of lam. So far as the determination depends upon facts, no jurisdiction, to pass upon the administrative questions involved has been conferred upon the courts. That power has been vested in a single body, so as to secure uniformity and to prevent the varying and sometimes conflicting results that would flow from the different views of the same facts that might be taken by different tribunals. None of these considerations, however, operates to defeat the courts’ jurisdiction in the present

That the interpretation vhich has been placed upon the Interstate Commerce Act by the highest court of the land' should be followed by this court when like questions arise out of state laws, results not because of any compelling authority, since for the most part these are questions for local determination. But it is evident that the system of regulation of freights and fares provided in the constitution and statutes of California to which we have referred, has been modeled upon the federal act for the regulation of commerce between the states. This being so, it will be assumed that the people of California in enacting the same or similar terms of their written law intended to express the same meaning as that established as the true meaning of the law from which these laws of the state have been derived. In the ease at bar, we have a situation analogous to that in Pennsylvania R. Co. v. International C. M. Co., 230 U. S. 184 , [Ann. Cas. 1915A, 315, 57 L. Ed. 1446 , 33 Sup. Ct. Rep. 893 ], The cause of action of the San Joaquin Valley Commercial Association, plaintiff in the court below, was based upon a charge which the plaintiff claims was illegal “under any pretense or for any cause.” If the alleged illegality had been included in a charge made in following an unreasonable or discriminatory schedule of tariffs, the case would be primarily within the exclusive jurisdiction of the railroad commission, because that body could regulate and change the tariff itself and could award suitable reparation to be made for any wrong that had been done. But the plaintiff’s claim in this action was that the constitution of the state of California prohibited the defendant from collecting a higher freight charge on transportation of goods from Oakland to Bakersfield than the established rate for a like kind of goods shipped from Oakland to Los Angeles. The jurisdiction of the superior court of Kern County was not dependent upon the soundness or unsoundness of plaintiff’s contention as to the true meaning of the constitution. Its

The judgment of the superior court is affirmed.

James J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 24, 1915, and the following opinion then rendered thereon:

Application for hearing in this court after decision hy the district court of appeal of the second appellate district.

The application for a hearing in this court must he denied. Under principles of law well settled in this state, it cannot be held that either the justice’s court in Kern County or the superior court of that county exceeded its “jurisdiction" in entertaining and determining the claim of plaintiff in the action of the San Joaquin Valley Commercial Association against the Southern Pacific Company. There is nothing in either the constitution or any of the statutes of this state to warrant the conclusion that the courts may not entertain an action for the recovery of moneys paid for freight when the same were collected in violation of law. The subject-matter of such an action is within the jurisdiction of the courts. Whether the complaint filed in such an action sufficiently states a cause of action or whether the court in any way errs in the determination of other questions, arising in such an action, are matters that in no way go to the jurisdiction of the court. It would seem to be immaterial in this proceeding, whether or not it is essential to the cause of action in the courts that prior proceedings should have been had before the railroad commission. If such prior proceedings are essential, the failure of the plaintiff to show such action simply goes to the making of a sufficient cause of action, a matter not reviewable in certiorari.

Our denial of the application for a hearing in this court is not to be taken as an approval of the views of the district court of appeal as to the necessity of such action in any case. We say this much, not with the purpose of expressing any disagreement with those views, because we have not deemed it advisable to consider the same on this application, and prefer to leave that matter to be decided in some case where it is directly involved, rather than to grant a hearing in this court of a case correctly decided by a district court of appeal, for the mere purpose of considering matters not properly cognizable in such a proceeding as this.

Shaw, J., Sloss, J., Lorigan, J., and Lawlor, J., concurred.