State ex rel. Attorney General v. Louisville & Nashville R. R.

ANDERSON, C. J. (1, 2) The rate that respondent canceled and the one it seeks to put in is what is termed a special or industrial rate, and is therefore a preferential rate, as distin [205] guished from the regular rate on the articles or commodities involved. A regular rate cannot be a special or preferential rate, and a special or preferential rate cannot be a regular rate; the terms are incongruous. Act Feb. 9, 1907, p. 80, fixed the maximum rate on intrastate freight as being the rate in force on January 1, 1907. This act was amended or modified by a subsequent act (page 711) so as to give the Railroad Commission the authority to change the rate, but the maximum rate as fixed by the first act would, of course, prevail until it was changed by the Railroad Commission, under the authority of the subsequent act. These acts, however, deal with regular rates, do not recognize, mention, or attempt to provide, authorize, or regulate special or preferential rates, and the Legislature, being cognizant of this fact, made special provision for special or preferential rates by incorporating section 141/2 in Act Nov. 23, 1907, S. S. p. 40. Said section reads as follows, to wit: “Sec. 141/2- The Railroad Commission shall have the power and is hereby authorized upon its own motion, or upon the written application of any common carrier or railroad corporation, and under any rule which it may prescribe, to permit from time to time such common carrier or railroad corporation to establish any special rate or rates for the transportation of specific commodities in car loads from specified points, or within specified zones, or distances in the plants or points of destination where are located the points of any person, firm or corporation who is now or may hereafter be engaged in any industrial enterprise in this state for the purpose of encouraging the establishment or aiding in the development or continued and successful operations of such industrial enterprise: Provided that any special rate or rates so established for any particular industrial enterprise shall apply and be given all persons, firms and corporations engaged in the same enterprise within said zone or distance: And provided, further, that such special rates shall first be approved by the commission and be published as it may direct, and that a full, true and correct statement in writing of süch special rate or rates, in each instance, be first filed with said commission, together with a sworn copy of any special contract made with the shipper with respect to such special rate, before the same shall go into effect. And the said commission may at any time revoke such permission and any special rate or rates established thereunder. Any rate or rates so established, after compliance with [206] the provisions hereinabove prescribed, shall be the lawful rates for the service performed, and shall not be construed to be an unjust or unlawful discrimination. When circumstances require a reduction in any rate or rates on less than statutory notice in order to permit an emergency to be met, the Railroad Commission, or, if the commission be not in session, the secretary of the commission, may, upon the written application of the carriers, and for good reasons shown, authorize such carriers to make such rate or rates effective on less than the statutory notice, provided a copy of the publicatio'n containing such rate or rates be filed with the commission, and provided, further, that when such authority is granted by the secretary the rate or rates so authorized shall be temporary and shall continue effective only until the next regular meeting of the commission, which may approve, revoke or modify the same.” (3, 4) We are disposed to adopt the contention of respondent as to the construction of said section, the same being the interprétation of the chancery court and of the Railroad Commission; that is, the said statute in question does not authorize the commission of its own motion to establish special rates, but simply permits the said commission to approve such rates by the carrier under certain conditions, and the commission has no greater authority to require the continuance of the rate than it had to put it into effect. v^It would therefore seem that the carrier can withdraw said special rate at will, but cannot put the new rate into effect except upon the approval of the commission and after otherwise complying with the statute in question./) While the commission has no right to voluntarily put special rates into effect, or to prevent the carrier from withdrawing same after being in operation, it has the authority to revoke or discontinue said special rates with or without the action or consent of the carrier, and no special rate can be put into effect until it is first approved by the commission. We therefore hold, as did the .chancery court, that the respondent had the right, under the law, Ito cancel or withdraw the then existing special rate without the ^consent and approval of the commission, and could not be legally ¡P restrained by injunction from doing so. But the respondent had k no right to change the special rate, that is, cancel the old one and P establish a new one, without first applying to the commission ' and getting its approval of the said new special rate as a condition precedent to making it effectual. /The statute contemplates [207] a formal, affirmative approval by the commission, as a body, at some lawful meeting, and that some memorial be made of same upon the records or minutes of the commissionA The Railroad Commission (now Public Service Commission) is an important arm of the government, and the law contemplates that its acts and orders should be characterized by a certain degree of dignity and formality, and they should be disclosed by and preserved upon the records of the department. Not only is this contemplated by the law creating the commission and defining its general duties and powers, but the very statute in question (section 14%) contemplates the affirmative approval of the commission as a condition precedent to putting’into effect the rate in question, as it expressly excepts emergency special rates when the commission is not in session, by applying to the secretary, but provides that the same shall be temporary only and until the next regular meeting, which .may revoke, approve, or modify same; thus showing that when it came to nonemergency special rates the Legislature contemplated an affirmative approval of same at some formal meeting of the commission, as a condition precedent to the establishment of same, and which the respondent had not procured and could not well get before the date fixed for the going into effect of the special rate in question. This was the legislative contemplation, as expressed in section 14% of the statute, and regardless of the previous methods of dealing with similar questions by the commission. (5) It may be true that, if the respondent sees fit to cancel the old special rate before the Public Service Commission formally approves the new special rates, it can only operate under the regular rates, which are higher than the special rate proposed, and that the commission will necessarily approve said special rate. But with this we are not concerned, and it is not for this respondent to decide what is or will be best for the sovereign, but to obey its laws so long as the same may exist. (The special rate proposed is discriminatory and unlawful,land can only be made legal by first complying with the statute, and so long as the respondent was threatening to put in an unlawful rate the public was affected generally, as distinguished from a few individuals or corporations, and the Attorney General had the authority, in the name of the state, to enjoin this unlawful rate. We think that the chancery court properly modified the injunction so as to authorize this respondent to cancel the existing rate, [208] but erred in reinstating same in this respect pending the appeal. We also hold that the chancery court properly retained the injunction, in so far as it restrains this respondent from putting into effect the new proposed special rate until it first got the approval of the Public Service Commission as required by the statute (section 14% of the act). The decree of the chancery court is affirmed upon the direct appeal, and is affirmed upon the cross-appeal, except in so far as it reinstated the injunction restraining the respondent from canceling the old special rate, and in this particular reversed, and a decree is here rendered modifying the injunction so as to allow the respondent to cancel said old special rate. Affirmed on direct appeal. Affirmed in part on cross-appeal, and reversed and rendered in part. Mayfield, Somerville, and Thomas, JJ., concur.