CHICAGO R. I. & P. R. CO. v. STATE

CHICAGO R. I. & P. R. CO. v. STATE
1919 OK 308
186 P. 234
77 Okla. 63
Case Number: 10041
Decided: 10/28/1919
Supreme Court of Oklahoma

CHICAGO, R. I. & P. R. CO.
v.
STATE et al.

Syllabus

¶0 Carriers--Demurrage--Oil Tank Cars.
Record examined and held: (1) That in the circumstances of this case privately owned oil tank cars are not subject to demurrage under rule 1, item A, of order No. 167, of the Corporation Commission, until they are so placed by the carrier that they can be loaded or unloaded at the racks erected for that purpose upon and along the industrial side-track of the shipper. (2) That the complaint filed herein, there being no dispute as to the facts, was sufficient to confer jurisdiction upon the Corporation Commission to render the relief granted by the order appealed from.

Before the Corporation Commission of the State of Oklahoma. Appeal of the Chicago, Rock Island & Pacific Railway Company from an order of the Corporation Commission. Modified and affirmed.

C. O. Blake, R. J. Roberts, and John E. DuMars, for plaintiff in error.
Parmenter & Parmenter, for defendants in error.

KANE, J.

¶1 This is an appeal from an order of the Corporation Commission wherein it was ordered and adjudged "that the defendant, the Chicago, Rock Island & Pacific Railway Company, is in violation of Commission Order No. 167, and said company is fined for such violation in the sum of seventy-five dollars ($ 75) and costs; provided, that in the event that said defendant company shall refund to said complainant, within thirty days from date hereof such part of said $ 66 collected for demurrage as may have been collected on cars not set for loading or unloading, this fine shall stand remitted."

¶2 There is no material conflict in the evidence taken before the Commission. The controversy between the railway company and the refining company arose substantially as follows:

The refining company under contract with the railway company erected at its place of business, an industrial side-track about five hundred feet in length, part of which is equipped with racks suitable for loading and unloading oil tank cars, and is also the owner of several private tank cars. On the 24th day of January, 1918, the railway company presented to the refining company certain statements purporting to be bills for freight charges due it, aggregating the sum of $ 1,418,18, which the refining company paid in full. Later upon learning that the total amount of freight charges due was $ 1,352.38, and that the additional amount of $ 66.00 making up the sum of $ 1,418.18 was charged for demurrage on certain of the privately owned tank cars, which, although they had been placed by the railway company on the industrial siding or switch track for several days, had not been so placed at the loading racks that they could be loaded or unloaded, the refining company made demand upon the railway company for the return of the amount collected for demurrage, which was refused, whereupon this proceeding was commenced with the result hereinbefore indicated.

¶3 Rule 1, item A, of order No. 167, which the Commission found was violated by this action of the railroad company, reads as follows:

"A--Cars held for or by consignors or consignees for loading, unloading, forwarding directions, or for any other purpose, are subject to these demurrage rules, except as follows; * * * "

"F.-- * * * Private cars are not subject to demurrage regulations except when they are placed by the carrier for loading or unloading."

¶4 Counsel for the railroad company contends that merely placing the cars upon the industrial track constituted compliance with the spirit of the rule and that the cars became--subject to demurrage for delay notwithstanding they were not so placed that they could be loaded or unloaded at the loading rack of the refining company. On the other hand counsel for the refining company contends that cars are not "placed by the carrier for loading or unloading," within the meaning of the rule making them subject to demurrage, until they are so placed that they can be loaded or unloaded from the company''''s loading and unloading racks provided for that purpose.

¶5 It being conceded that the care were privately owned, we are ramble to perceive very much room for any reasonable controversy on this question. "Placed by the carrier for loading or unloading" undoubtedly means that the cars must be so placed by the carrier that they can be loaded or unloaded by the refining company from its loading and unloading racks erected for this purpose.

¶6 Relating to the theory upon which the case was tried below, the commission in its opinion makes the following statement:

"The complaint in this case is properly verified, and can be construed as an information charging violation of an order of the commission or as a complaint against a prevailing practice and prayer for relief therefrom. The order must deal with the case either as a contempt proceeding or as an investigation of an alleged abuse. It can impose a fine for violation of a commission order or it can establish a rule for the future in accordance with the merits of the situation shown to exist. It cannot do both. The facts offer no new question for consideration, and the wrong complained of has been dealt with already. For the purpose of this order, therefore, the complaint will be considered as an information alleging violation of Commission''''s Order No. 167."

¶7 There is some contention on the part of counsel for the railroad company to the effect that the Corporation Commission acquired no jurisdiction to assess a fine against the appellant, for the reason that the proceeding was in the nature of a civil action brought by the refining company for the recovery of charges which it claimed were excessive. We think the complaint was sufficient to confer jurisdiction upon the Corporation Commission to grant the relief afforded by the order appealed from. A part of the prayer of the complaint was that the carrier he "ordered not to collect demurrage from the complainant on privately owned cars placed upon the switch track hereinbefore described for the purpose of being held for storage, repairs, or as empties, and that no demurrage shall be collected, except when and where the cars are actually placed for loading or unloading, and that all and general relief may be granted complainant."

¶8 As we have said before, there was no dispute as to the facts. The railway company contended, somewhat unreasonably, we think, that cars were placed for loading and unloading within the meaning of the rule by merely placing them on the industrial sidetrack, whether they could be loaded or unloaded at the refining company''''s loading and unloading racks or not. It may be that this contention was made in good faith, and the Corporation Commission undoubtedly assumed that it was, as it gave the railway company an opportunity to either pay the fine assessed against it or refund to said complainant within thirty days from date of the order such part of said $ 66.00 collected for demurrage as may have been claimed for cars not set for loading or unloading. In view of this we will assume that this appeal was taken in good faith and give the railroad company an opportunity of exercising this alternative within thirty days after the affirmance of the order appealed from.