Opinion
01016 Record No. 6197.
April 25, 1966
Present, All the Justices.
(1) Declaratory Judgments — Rendered Where Actual Controversy Exists.
(2) Railroads — Charges For Short and Long Hauls — Section 160 of Constitution Not Violated.
(3) Railroads — Rates — Change of Bill of Lading After Shipment Not Permitted.
1. By motion for declaratory judgment Lynchburg Traffic Bureau petitioned the State Corporation to determine the legal rate on bulk ground limestone from Buchanan to Norfolk via the N W. Since the petition in no way indicated what was the Bureau's interest in the matter it was subject to dismissal had the Commission been so disposed, for declaratory judgments may be rendered only where there exists an actual controversy.
2. On shipments of limestone for acid soil treatment from Buchanan to Norfolk the Railway under its published tariffs charged a rate of $2.68 (later $2.78) a ton in cars with minimum weight of 60,000 pounds and with no restriction as to value. During the same period there was a published rate of $2.50 per ton from Buchanan to Providence, beyond Norfolk, on ground limestone loaded in closed cars with a minimum weight of 80,000 pounds having actual value not exceeding $8 per ton, so certified on bill of lading. The Bureau contended these facts showed a violation of section 160 of the Constitution, providing that no greater charge should be made for a shorter haul than for a longer haul. But this provision applies only when the same class of property is hauled, hence was inapplicable in the instant case.
3. There was no merit to the Bureau's contention that the commodity shipped was actually of less value than $8 per ton and that the shipper should be allowed, after shipment, to correct the bills of lading and show itself entitled to the lower rate.
Appeal from an order of the State Corporation Commission.
Affirmed.
The opinion states the case.
W. G. Burnette, for the appellant.
Carl B. Sterzing, Jr. (Robert B. Claytor, on brief), for the appellee.
Lynchburg Traffic Bureau filed with the State Corporation Commission a petition praying that the Commission "declare the legal rate on 'bulk ground limestone' moving in carloads from Buchanan, Virginia to Norfolk, Virginia via N W Railway." The petition does not further identify the petitioner or indicate what its interest is in the question, or in what way or on what ground it has a right to institute or maintain the petition, which it labels "Motion for Declaratory Judgment."
The statute, Code Sec. 8-578, provides that courts of record may give declaratory judgments in cases of "actual controversy," when there is "actual antagonistic assertion and denial of right." The test of the applicability of the statute is the determination of the existence of an actual controversy. Chick v. MacBain, 157 Va. 60, 66, 160 S.E. 214, 216; City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775. Moreover, it is well settled that "in order to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation; either in his own right or in a representative capacity." 67 C.J.S., Parties, Sec. 6 at p. 899.
The proceeding was subject to dismissal on the grounds stated. However, possibly because on two prior occasions, referred to in the Commission's opinion, appellant's claim had been informally denied, the Commission heard the matter on its merits, dismissed the proceeding and it is here on an appeal of right. Va. Const., Sec. 156(d).
The printed record contains only the petition for declaratory judgment, letters of counsel for the parties to each other, a letter from appellant's counsel to the Commission, the orders entered by the Commission and the opinion of the Commission. The opinion states that by agreement of counsel the matter "was decided on the pleadings and written statements filed with the Commission without appearance of counsel in the case."
It is provided by Sec. 160 of the Constitution, and also by Sec. 56-97 of the Code, that no transportation company shall charge greater compensation in the aggregate for transporting the same class of passengers or property over a shorter than over a longer distance along the same line and in the same direction, the shorter being included in the longer distance. But these sections "shall not be construed as authoring any such company to charge or receive as great compensation for a shorter as for a longer distance." The State Corporation Commission is empowered to make exceptions to these requirements under stated conditions not here involved.
The appellant contends that the appellee violated these provisions by charging a higher rate on shipments of ground limestone from Buchanan, Virginia, to Norfolk, Virginia, than from Buchanan, Virginia, through Norfolk to Providence, Virginia, a longer distance.
It may be gathered from the record that the shipments in question were made over a period from October 12, 1960, to January 7, 1963. Prior to April 1, 1962, the rate charged for these shipments from Buchanan to Norfolk was $2.68 per net ton, and after that date $2.78 per net ton. These rates were applicable under the published tariffs on ground limestone for acid soil treatment in carloads with minimum weight of 60,000 pounds, without restriction as to value and with no tariff requirement that any value be certified on the bill of lading. This rate was no higher to Norfolk than to Providence.
During the same period there was in effect under the published tariffs a rate of $2.50-$2.60 per net ton from Buchanan to Norfolk, and also to Providence, on ground limestone when loaded in closed cars, with a minimum weight of 80,000 pounds having actual value not exceeding $8 per net ton at point of origin, and so certified on the bill of lading.
The shipments in question were described on the bills of lading as ground limestone for acid soil treatment and carried no certificate as to value. They did not, therefore, qualify for the $2.50-$2.60 rate, but the $2.68-$2.78 rate was the applicable rate, was properly applied to the shipments in question and no violation of the Constitution or statute was involved.
What the Constitution and statute forbid is the charging of greater compensation for transporting the same class of property over the shorter than over the longer distance. In determining whether a violation of this restriction has occurred, the rates on like property must be compared. Cf. Allowance on oil Pipe at Texas Destinations, 310 I.C.C. 709, 723.
According to the bills of lading the shipments here in question were of a type or class of property to which the tariffs required the application of the higher rate, and were of a different class of property from that to which the lower rate was applicable. The shipper is bound by the description of the property furnished by it to the carrier. Cf. Calcium Carbonate Co. v. Missouri Pacific R. R., 323 I.C.C. 688, 692.
The appellant states in one of its letters that the commodity shipped was actually of less value than $8 per ton and argues that the shipper should be allowed now to correct the bills of lading and show itself entitled to the lower rate. In its opinion the Commission made this clear and sufficient response:
"The sole question is whether or not the Commission should, after shipments have been moved, determine that a rate based on the value of the goods shipped should be applied because the goods may have been of less value but not so stated on the bill of lading. To reach such a conclusion would disrupt and disturb rates which are based on value of the commodities shipped. There would be no need to certify on the bill of lading that the value of the shipment was such to secure the lower rate. To authorize this rate now would discriminate against all shippers who may have shipped to many points the same commodity without certifying the value on the bill of lading and contrary to the requirements of Sec. 56-97 of the Code, which does not permit any undue or unreasonable preference or advantage to shippers and unjust discrimination against any shippers. Sections 56-105 and 56-106 of the Code prohibit the false billing of shipments in order to secure less than regular rates. It is unlawful under Sec. 56-102 of the Code of Virginia for any railroad company to receive a lesser charge than specified in the tariffs.
"As stated, had the shipments in question moved under the requirements of the lesser rate, they would have been subject to the provisions of Sec. 56-97 of the Code and the lesser rate applied. This is not the case. The shipments moved under an entirely different set of circumstances and without any determination of the value stated on the bill of lading at the time of movement.
"The Commission cannot now require the defendant to apply a rate on a commodity which, at the time of movement, did not meet the requirement that the value and description which determine the rate appear on the bill of lading. Accordingly, the matter was dismissed."
The action of the Commission is "prima facie just, reasonable and correct," Va. Const., Sec. 156(f). The record clearly establishes the correctness of the Commission's decision without the support of the presumption. Its judgment is
Affirmed.