State v. NORFOLK SOUTHERN RAILWAY COMPANY

106 S.E.2d 681 (1959)

249 N.C. 477

STATE of North Carolina ex rel. NORTH CAROLINA UTILITIES COMMISSION v. NORFOLK SOUTHERN RAILWAY COMPANY and Southern Railway Company.

No. 451.

Supreme Court of North Carolina.

January 28, 1959.

Simms & Simms and Joyner & Howison, Raleigh, for defendants Norfolk Southern Railway Co. and Southern Railway Co., appellants.

Armistead J. Maupin, Raleigh, for plaintiff, appellee.

HIGGINS, Justice.

The North Carolina Utilities Commission, in the exercise of its intrastate rate making power, approved as just and reasonable a schedule of rates based on mileage. In order to simplify the calculations and avoid fractions, distance brackets were set up in the schedules. The Commission approved a per-ton rate of $1.30 on sand and gravel for distances 80-100 miles; and $1.40 for distances 101-125 miles. Rates for other distances are not material to the questions here presented. Mileage is calculated over the shortest rail line between the point of origin and the point of delivery. G.S. § 62-137.

The approved rates were based on tariffs 629-C, NCUC 221, prepared and filed by the defendants through their agent, *684 the Southern Freight Tariff Bureau. The tariff as filed fixed 101 miles as the shortest rail distance between Lane, North Carolina, and Greensboro, North Carolina. On the basis of the mileage reported, the rate was fixed at $1.40 per ton. Subsequent to the shipments it was discovered the shortest rail line distance was actually 100 miles. The tariff schedule was corrected accordingly. The actual mileage permitted only a $1.30 per-ton rate. The petitioner paid $1.40 per ton beginning November 11, 1952. The excess over the $1.30 rate amounted to $7,218.60. However, only $2,953.47 was paid within two years of the date on which the petition was filed. Thus the petitioner paid $4,265.13 which he cannot recover because of the two years limitation.

The petitioner brought this proceeding under G.S. § 62-123 for the award of reparations of 10 cents per ton the defendants had collected as a result of their error in reporting the short line distance, thereby placing the shipments in the $1.40-rate bracket, (101-125 miles), whereas, the actual distance placed them in the $1.30 bracket, (80-100 miles).

The petitioner contends the pertinent inquiry involves no more than a simple mathematical calculation of the amount of the tariff paid in excess of that which the Commission had approved as just and reasonable for the actual distance; and that its remedy is by petition for reparations under the above section.

On the other hand, the respondents contend the inquiry involves the question whether $1.40 per ton collected was just and reasonable; and that the Commission committed error in refusing to hear evidence on that question.

We think the fixing of the rate of $1.30 per ton for distances 80-100 miles was the controlling factor and did not authorize the collection of a higher rate for any shipment within that distance bracket. The defendants should not be permitted to change the rate by the act of making a mistake in the distance reported in their tariff schedule. The dispute involves no more than the actual short line distance, Lane to Greensboro. The evidence offered by the respondents as to whether $1.40 per ton was a fair and reasonable rate on a 100-mile shipment was properly excluded. The Commission had already determined the just and reasonable rate to be $1.30. The rates approved by the Commission shall be deemed to be just and reasonable, and any different rate shall be deemed unjust and unreasonable. G.S. § 62-123; State ex rel. North Carolina Utilities Comm. v. Municipal Corporations, 243 N.C. 193, 90 S.E.2d 519; Corporation Commission v. Cannon Mfg. Co., 185 N.C. 17, 116 S.E. 178.

We do not agree with the defendants' contention that the petitioner has mistaken its remedy and should have proceeded in the superior court by civil action to recover overcharges and penalties as provided in G.S. §§ 60-110, 62-138, and 62-139. Tilley v. Southern R. R. Co., 172 N.C. 363, 90 S.E. 309. The sections cited provide penalties for overcharges to be recovered only upon a showing the charges were collected in excess of the published tariffs on file. Even though the mistake in the distance was the result of defendants' error, nevertheless the published tariffs on file showed a rate of $1.40 applicable to Lane to Greensboro shipments. The Commission is the proper forum in which to correct the error in distance in its schedules.

The defendants urgently contend the Commission is without power to enter a retroactive order awarding reparations for charges which were made in accordance with approved tariff schedules. The argument assumes the charges were made in accordance with the published tariffs. These tariffs authorize $1.30 per ton for mileage units 80-100 miles, and a mistake in mileage cannot be used to increase the rate. A rate of $1.40 for 100 miles is simply not within the authorized tariffs.

*685 The numerous cases cited by respondents with respect to retroactive overcharges are not in point on the facts here involved. The holdings are based on either lack of statutory authority to make a retroactive order (such as G.S. § 62-123), or to lack of jurisdiction of the courts to pass on rates until they had first been passed on by the administrative board.

The appellants have failed to show error of law in the hearing below. The judgment is

Affirmed.