Opinion
No. 42912.
March 2, 1964.
1. Public Service Commission — rates — finding amount of overcharge.
Public Service Commission could make finding of amount of railroads' overcharges, where Commission had ordered application of lower rate but carriers had charged and collected higher rates pending review, on supersedeas, until final affirmance.
Headnote as approved by McElroy, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Wise, Smith Carter, Jackson; Howard D. Koontz, Chicago, Ill., for the appellant.
I. The ultimate conclusion of the Circuit Court in its written ruling that the appeal to the Circuit Court was "not taken in due course of authorized legal proceedings" is contrary to the Mississippi Code. Sec. 7699, Code 1942.
II. The Circuit Court erroneously misconstrued the scope of its powers in disposing of appeals from orders of the Mississippi Public Service Commission. Sec. 7699, Code 1942.
III. Since the Commission has not been delegated authority to determine liability on supersedeas bonds, either by the Constitution or by the Legislature, it did not have jurisdiction of the subject matter and its orders are null and void. Cushing v. Doudistal, 129 S.W.2d 527; Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752; Eastman-Gardiner Naval Store Co. v. Gregory, 169 Miss. 782, 139 So. 626; Gulf S.I.R. Co. v. Railroad Comm., 94 Miss. 124, 49 So. 118; Illinois Central R. Co. v. Mississippi Public Service Comm., 315 F. Supp. 304; Illinois Central R. Co. v. Mississippi Railroad Comm., 143 Miss. 805, 109 So. 868; Lamas v. Renaldo, 151 Miss. 325, 118 So. 417; Planters Insurance Co. v. Cramer, 47 Miss. 200; Roberson v. Quave, 211 Miss. 398, 51 So.2d 777; South Mississippi Airways v. Chicago Southern Airlines, 200 Miss. 329, 26 So.2d 455; United Gas Pipeline Co. v. Mississippi Public Service Comm., 241 Miss. 762, 133 So.2d 521; Williams v. Shivers, 222 Miss. 626, 76 So.2d 838; Arts. 6, 7 Secs. 156, 186, Constitution 1890; Secs. 1972, 1973, 1990, 1991, 7700, Code 1942.
IV. Since appellee admits that the Mississippi Public Service Commission did not determine liability on the supersedeas bond, the court should have reversed and set aside the Commission's orders dated September 21 and September 26, 1962.
V. The obligation created by the $25,000 supersedeas bond has become void by the terms of the bond. Aetna Casualty Surety Co. v. State, 298 S.W. 501; Crane County v. Bates, 90 S.W.2d 243; Cusack v. McGrain, 23 N.E.2d 633; First National Bank Trust Co. of Sioux Falls v. Monserud, 249 N.W. 813; In Re Eccleston, 42 F.2d 278; 11 C.J.S., Bonds, Sec. 38.
VI. The August 28, 1962, hearing before the Mississippi Commission and the resulting Commission orders dated September 21 and September 26, 1962, in Mississippi Public Service Commission docket No. 12870 have denied the railroad appellants a fair hearing in violation of the due process clauses of the Mississippi and United States Constitutions. Griffin v. County of Cook, 369 Ill. 380; Martin v. Strubel, 367 Ill. 21; Shioutakon v. District of Columbia, 114 A.2d 896; Amendment XIV, United States Constitution; Art. 3 Sec. 14, Constitution 1890.
VII. The Commission's orders show on their faces that the purported findings made by the Mississippi Commission exceed the period of protection contemplated by the supersedeas bond.
VIII. The alleged overpayment of switching charges by Lyles Concrete Block Company was beyond the scope of the protection afforded by the supersedeas bond.
Overstreet, Kuykendall, Perry Phillips, Cox, Dunn Clark, Jackson, for appellee.
I. The Public Service Commission had jurisdiction of the parties and the subject matter, and acted pursuant to the judgment of the Supreme Court. E.L. Young Heading Co. v. Payne, 127 Miss. 48, 89 So. 782; Illinois Central R. Co. v. Jackson Ready-Mix Concrete, 243 Miss. 72, 137 So.2d 542; Illinois Central R. Co. v. Public Service Comm., 220 Miss. 439, 71 So.2d 176; Mississippi-Gulfport Compress Warehouse, Inc. v. Public Service Comm., 189 Miss. 166, 196 So. 793; Roberson v. Quave, 211 Miss. 398, 51 So.2d 777; Shackelford v. New York Underwriters Insurance Co., 189 Miss. 396, 198 So. 31; Secs. 1991, 7871, Code 1942.
II. The order of the Commission is supported by substantial evidence, is a valid order, and should be affirmed by this court. Cobb Brothers Construction Co. v. Gulf, M. O.R. Co., 213 Miss. 706, 57 So.2d 570; Mississippi Public Service Comm. v. Illinois Central R. Co., 235 Miss. 46, 108 So.2d 543; West Brothers, Inc. v. Illinois Central R. Co., 222 Miss. 335, 75 So.2d 723.
III. The appellant, having participated in the hearing in the Public Service Commission without objecting to the mandate not being filed in the Commission's files, waived all objections. Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200, 28 So. 956, 180 U.S. 1, 21 S.Ct. 240; Foster v. Jordan, 54 Miss. 509; 3 Am. Jur., Appeal and Error, Sec. 1229 p. 726.
IV. The Supreme Court in remanding this matter to the Commission recognized the rule that in cases involving complicated and excessive rate charges, the Commission should determine the amount of overcharges prior to submission of the case to a court of law. Central Bridge Construction Co. v. Chicago N.W.R. Co. (Neb.), 262 N.W. 852; Chicago M. St. Paul R. Co. v. Railroad Comm. (Wis.), 215 N.W. 442; E.L. Young Heading Co. v. Payne, supra; Soken-Galamba Corp. v. Missouri P.R. Co. (Mo.), 40 S.W.2d 525; State Ex Rel. Tacoma Eastern R. Co. v. Public Service Comm. (Wash.), 192 P. 1079; Waukesha Gas Electric Co. v. Waukesha Motor Co. (Wis.), 184 N.W. 702.
V. The order of the Commission was entered pursuant to due notice after a full and impartial hearing, and there was no denial of due process.
This proceeding involves an appeal from an order of the Circuit Court of the First Judicial District of Hinds County, Mississippi, dismissing an appeal filed by appellant rail carriers from an order of the Mississippi Public Service Commission. The commission order complained of by appellants made findings of fact as to overpayments of freight charges which had been made to appellant rail carriers by shippers of lightweight aggregate (also known as clay cinders).
On January 18, 1961, Jackson Ready-Mix Concrete, pursuant to the provisions of sections 7871 and 7878, Mississippi Code of 1942, filed with the Mississippi Public Service Commission a petition seeking an order of the Commission requiring all Mississippi rail carriers to publish and apply on lightweight aggregate the same intrastate freight rates and charges which such carriers were then applying on sand and gravel, a competing commodity. Following notice and hearing, the commission, on March 7, 1961, entered its order requiring all Mississippi rail carriers to publish and apply on lightweight aggregate the same intrastate freight rates and charges which were then being applied on sand and gravel.
On April 4, 1961, the commission, on petition and bond filed by the rail carriers, granted supersedeas of its aforesaid order of March 7, 1961, pending appeal to the Circuit Court of Hinds County. An appeal was duly perfected and prosecuted, and on September 11, 1961, the Circuit Court of the First Judicial District of Hinds County affirmed the order of the commission. The circuit court refused to grant supersedeas of its order.
On October 20, 1961, an appeal having been duly perfected, this Court granted supersedeas of the order of the circuit court pending appeal. The rail carriers thus charged and collected on lightweight aggregate the higher rates and charges from the date of the commission order, March 7, 1961, until the proceeding was finally concluded.
On February 5, 1962, this Court affirmed the order of the circuit court, which had affirmed the order of the commission requiring the rail carriers to equalize the rates on lightweight aggregate with the rates on sand and gravel. Illinois Cent. RR. Co. v. Jackson Ready-Mix Concrete, 243 Miss. 72, 137 So.2d 542. The facts are fairly well stated in this opinion.
After remand in accordance with the decision in Illinois Central Railroad Co. v. Jackson Ready-Mix Concrete, supra, the Mississippi Public Service Commission, after due notice and full hearing, made a finding of the amounts of the overcharges made by appellants. (Hn 1) We hold the commission had authority to do this and its order is affirmed. The parties may proceed to institute proper proceeding to enforce collection of the excess charges.
Affirmed.
Kyle, P.J., and Gillespie, Brady and Patterson, JJ., concur.
ON SUGGESTION OF ERROR
The Court requested a response to the suggestion of error filed by appellants. We have carefully considered their arguments and the response thereto, and in our opinion all questions raised were correctly decided adversely to appellants. The suggestion of error is therefore overruled.
Suggestion of Error overruled.
Kyle, P.J., and Gillespie, McElroy and Brady, JJ., concur.