Opinion
No. 27830
Decided April 3, 1940.
Public Utilities Commission — Railroads — Emergency charge added to switching charge — Inapplicable where no emergency charge assessed on line haul — Superimposing emergency charge permissive and not mandatory, when — Jurisdiction of commission of complaint against assessing charges — Sections 524, 525, 538 and 541, General Code.
APPEAL from the Public Utilities Commission.
The geographical situation and relation of the common carriers involved in this proceeding will be found in the statement of facts preceding the opinion in Baltimore Ohio Rd. Co. v. Public Utilities Commission, 130 Ohio St. 258, 198 N.E. 869, decided December 11, 1935, wherein this court affirmed the order of the commission establishing maximum switching rates.
On November 19, 1937, the Youngstown Suburban Railway Company filed a complaint with the Public Utilities Commission alleging that the Baltimore Ohio Railroad Company, the Lake Erie Eastern Railroad Company, the New York Central Railroad Company, the Pennsylvania Railroad Company, the Pittsburgh Lake Erie Railroad Company and the Erie Railroad Company, hereinafter referred to as the "trunk lines," threatened to collect from the complainant certain so-called emergency charges for the period from June 1, 1935, to and including December 31, 1936, in addition to the basic rates of the trunk lines for switching carload freight traffic, transported into Youngstown, Ohio, in line-haul service by the complainant, from points of origin on its own line and from those of its connection, The Pittsburgh, Lisbon Western Railroad, in Ohio intrastate commerce, for delivery to consignees located on the rails of the trunk lines in Youngstown; that the switching rates included emergency charges not authorized to be charged by the commission; that such rates and charges were in direct conflict with controlling and outstanding orders of the commission, were unjustly and unreasonably high and unlawful by the amount of such emergency switching charges, and were unjustly, unduly and unreasonably discriminatory, unduly prejudicial and unduly preferential, and that such rates were violative of Sections 504, 524, 525, 527, 566, 567, 569 and 614-68, General Code. Complainant asked that an order be made commanding the trunk lines to cease and desist from the alleged violations of law complained of; and that the commission fix and order, in substitution of the rates complained of, such rate or rates and rule or rules as the commission should determine not to have been in conflict with its controlling and outstanding orders, and which should be just and reasonable, not unjustly, unduly or unreasonably discriminatory, and not unduly prejudicial or preferential, for such switching service of the trunk lines throughout the period of time specified. Answers were filed denying all of the material allegations and charges, and after hearing the commission entered an order finding that the emergency charges assessed by the Baltimore Ohio Railroad Company, Lake Erie Eastern Railroad Company and Pennsylvania Railroad Company for the switching of the shipments involved were unlawful and should be cancelled. Emergency charges by the Lake Erie Eastern included those claimed due its affiliated lines, New York Central and Pittsburgh Lake Erie railroads.
At the opening of the hearing a motion to dismiss was made on behalf of the Lake Erie Eastern and Pennsylvania railroads which had instituted suits against the Youngstown Suburban railroad in the Court of Common Pleas of Mahoning county to collect their claims.
During the hearing before the commission it developed that the emergency charges assessed by the Erie railroad had been collected from the Youngstown Suburban railroad. Thereupon the complainant filed an amendment to its complaint alleging that such emergency charges collected by the Erie railroad resulted in and embraced overcharges in violation of Section 579, General Code. The commission found that the Youngstown Suburban Railway Company had a valid and existing claim against the Erie Railroad Company for overcharges and that the latter should apportion the claim on a proper basis with the Pennsylvania Railroad Company which had performed the intermediate switching service.
The trunk lines, other than the Erie Railroad Company, prosecuted appeal to this court.
Messrs. Wilson., Wyatt, Mr. Leo P. Day, Mr. John J. Fitzpatrick, Mr. Arthur Van Meter, Messrs. Harrington, Huxley Smith, Mr. Harry S. Manchester, Messrs. Reed, Smith, Shaw McClay and Mr. John C. Bane, Jr., for appellants.
Mr. Thomas J. Herbert, attorney general, Mr. Kenneth L. Sater and Mr. August G. Gutheim, for appellee.
The Interstate Commerce Commission on March 26, 1935, by Ex parte No. 115, 208 I.C.C., 4, denied the petition of substantially all class 1 railroad carriers to make certain increases of a general nature in interstate freight rates and charges, but authorized rail carriers to establish for a temporary period expiring June 30, 1936, a restricted list of emergency charges to be superimposed upon the then existing freight rates and charges. Paragraph "(e)" of that order read:
"An emergency charge of 10 per cent may be added to all switching, floatage, and lighterage charges except when in connection with line-haul shipments upon which there is no line-haul emergency charge. Absorption of such charges should be proportionately increased." (Italics ours.)
The emergency charges for application on interstate traffic were published by the trunk lines, but not by the Youngstown Suburban and Pittsburgh, Lisbon Western railroads, to become effective April 19, 1935, through the medium of a tariff of emergency charges, also designated as a master tariff.
On April 15, 1935, the trunk lines filed with the Public Utilities Commission a petition, which was docketed as No. 9108, praying that they be permitted to make effective the same increases in Ohio intrastate rates and charges as had been authorized by the Interstate Commerce Commission in Ex parte No. 115 as to interstate freight rates and charges.
On May 14, 1935, after hearing, the Public Utilities Commission entered an order granting to all common carriers by railroad, operating in Ohio and subject to the jurisdiction of the commission, authority to superimpose on their existing Ohio intrastate rates and charges, the emergency charges authorized by the Interstate Commerce Commission's report and order of March 26, 1935, in Ex parte No. 115, to the same extent and under the same terms and conditions as authorized upon interstate traffic, effective June 1, 1935, and expiring with June 30, 1936. The order of May 14, 1935, by the Public Utilities Commission in No. 9108 modified all outstanding unexpired or suspension orders to the extent necessary to permit application of the emergency charges authorized. That order specifically provided in the last paragraph that the resulting rates should "in all respects be subject to complaint or to investigation and to determination as to the lawfulness of schedules or rates, as provided by law." Tariffs were filed with the Public Utilities Commission by the trunk lines and various other carriers, effective June 1, 1935, but none was filed by Pittsburgh, Lisbon Western or Youngstown Suburban railroads.
In response to supplemental applications filed by the original petitioners, both the Interstate Commerce Commission and the Public Utilities Commission authorized the carriers to continue in effect, with certain modifications not here material, the then existing emergency charges for an additional period to terminate December 31, 1936. The carriers generally, with certain exceptions including the Pittsburgh, Lisbon Western and the Youngstown Suburban railroads, filed tariffs and tariff supplements extending the emergency charges.
Complainant contends that the maximum rates prescribed by the Public Utilities Commission, which were upheld by this court in Baltimore Ohio Rd. Co. v. Public Utilities Commission, supra, for the carload switching of coal ex-Youngstown Suburban, were the lawful rates and that any emergency charges superimposed thereon were and are unlawful.
The trunk lines challenge the jurisdiction of the Public Utilities Commission to entertain the complaint, and they attack the finding of the commission that the emergency increase of 10 per cent in switching rates or charges was not authorized where there was no line-haul emergency charge. The trunk lines maintain that the exception was intended merely to prevent the assessment of an emergency charge on a switching movement in connection with a commodity which the commission stated would not be subject to a line-haul emergency charge, and had no application to instances in which the commission authorized a line-haul emergency charge but in which the carriers had not availed themselves of the authority. The trunk lines also rely upon certain tariffs or special permissions which they claim were intended to clarify the master tariff.
This court is of the opinion that the Public Utilities Commission had jurisdiction of the complaint. Baltimore Ohio Rd. Co. v. Public Utilities Commission, supra; Sections 524, 525, 538 and 541, General Code. Continuing jurisdiction over the subject of emergency rates was specifically retained by the commission in the last paragraph of its order of May 14, 1935, in No. 9108. The trunk lines stress those portions of that order which conform to their views but disregard other portions which are equally pertinent.
The record does not show that either the Youngstown Suburban or Pittsburgh, Lisbon Western railroads published or established any emergency charges to be superimposed upon their basic rates and charges, during the period involved, for the transportation of carload shipments, in Ohio intrastate commerce from and to points on their lines, whether in line-haul or switching service. Neither carrier was under any obligation to publish or establish such emergency charges, since such charges on bituminous coal in carloads transported in line haul were permissive and not mandatory under the order of the Public Utilities Commission.
We are also of opinion that the Public Utilities Commission correctly concluded that above-quoted paragraph "(e)" is susceptible of only one interpretation, i. e., that, if no emergency charge was made for the line-haul, no emergency charge could be assessed for the reciprocal switching movement following the line-haul movement. That portion of the order was permissive, and the Youngstown Suburban railroad not having availed itself of the privilege of exacting emergency charges for line-haul movements was not subject to emergency charges for switching services.
The order of the Public Utilities Commission, being neither unlawful nor unreasonable, is affirmed.
Order affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.