Yazoo & Mississippi Valley Railroad v. Keystone Lumber Co.

Whitfield, C. J., delivered the opinion of the court. The part of the rules of the railroad commission under review here is just this part of rule 10: “Likewise when cars are properly loaded, and shipping instructions given, the railroad agent must immediately issue bills of lading therefor; and if said car or cars are detained or held, and not carried forward within twenty-four hours thereafter, said railroad company shall be liable to said shipper for the payment of $1 per car for each day, or fraction of a day, that said car or cars are thus detained or held.” This part of this rule establishes what is well known now as the right to make reciprocal demur-rage charges. It is insisted by the appellant that the railroad commission had no power to make this rule. There is no question of interstate commerce even remotely involved in this case. The act authorizing this rule is ch. 82, p. 97, of the acts of 1898, which provides as follows: “That all laws, acts, and parts of acts giving authority to the railroad commission to supervise common carriers shall also apply to car service associations, or other associations governing or controlling cars or — 405 — rolling stock of railroads, at whatever place they do business in this state, and the same penalty fixed by law for disobeying the mandates or orders of the railroad commission shall apply to the car service associations as well as to other carriers.” The rules in question (a copy of which is attached to the record and which the reporter will set out in full), were adopted June 8, 1904, to be effective June 18, 1904, and the rule here assailed was' evidently adopted by the commission under the authority of the said statute of 1898, supra. It is also plain, from the language of the rules, that they were adopted with reference to car service associations operating in Mississippi, and not elsewhere, and were deemed necessary for the proper intrastate supervision of such car service associations. It is said that the railroad commission has no power to fix charges known as “reciprocal demurrage charges.” In § 4291 of the Annotated Code of Mississippi of 1892 it was provided that the commission “may fix all charges and shall supervise and regulate all persons, etc., who may own or operate express, telegraph, or telephone and sleeping car companies.” Six years afterwards the act of 1898, above referred to, was passed. Eight years after that sec. 4843 of the Mississippi Code of 1906 inserted after the words “sleeping ear companies,” brought forward from § 4291 of the Code of 1892, the following words: “Car service associations, or other associations governing or controlling cars or rolling stock of railroads, etc.” — incorporating, in other words, the provisions of the act of 1898, supra, in § 4843 of the Code of 1906 as to the supervision of car service associations. There can be no fair and rational construction of these statutes denying to the railroad commission the power to make rules as to reciprocar demurrage. There is no merit in the contention that the commission could only fix these charges after the car service asso ciation had first compiled the charges and handed them to the commission; in other words, that the commission could not originate the charges. Car service associations have never by — 406 — any law been required to submit any charges to the railroad commission on this subject. Even if such requirement had been made, however, it is far too narrow a construction of the beneficent powers intrusted in this matter to the railroad commission to hold that that commission is without power itself to originate the charges. We have heretofore said that no question of interference with interstate commerce is presented in any wise by this record. The ease of Atlantic Coast Line Ry. Co. v. Commonwealth, 46 S. E., 911, 102 Va., 599, may be usefully consulted in respect to this contention. The record, however, here presents no such question. It is certainly immaterial whether the commission in Virginia was a constitutionally created department of government, or, as in Mississippi, a legislatively created commission. The method of creation is one thing. The power given to it is another. We considered this subject of car service associations and their right to impose demurrage charges in Y. & M. V. R. R. Co. v. Searles, 85 Miss., 556, 37 South., 952, 68 L. R. A. 715. We said there: “The main end and purpose of their existence is to prove a benefit to the consignor, carrier, and consignee by expediting the transportation of freight, facilitating its delivery, and insuring prompter and more satisfactory service by and for all alike.” Let the words “for all alike” be especially noted. Again, at p. 556 of 85 Miss., p. 952 of 37 South. (68 L. R. A., 715)j we said: “They [the car service associations] are in no wise connected with the internal management, or financial affairs, or corporate policy, of any railroad, having not even power of fixing demurrage charges, which it is their duty to assess.” Again, on p. 543 of 85 Miss., p. 947 of 37 South. (68 L. R. A., 715), we said: “Acting under the power thus vested in it, the railroad commission adopted and promulgated certain rules in reference to demurrage charges, regulating the amount which could be imposed, and setting out, in detail, the circumstances under which they — 407 — might rightfully he levied, and then clothed the association with authority to collect in all proper. cases. It should be observed that these rules fixing penalties for undue detention of cars were not devised for the benefit of the railroad companies alone, but were framed by the state railroad commission, a tribunal charged by law with the duty of supervising common carriers for the benefit of the public at large.” These quotations ought certainly to make it plain that the right of car service associations to assess reasonable demurrage rates, subject to the supervision of the railroad commission, was not maintained by this court for the benefit of the railroad companies, or the car service associations, of the state, but for the benefit of the public alone. Much is said in the brief of learned counsel for appellant about a supposed distinction between reciprocal demurrage charges, which are characterized as fines and penalties, and demurrage charges which are said to be rightfully imposed by the car service associations under the common-law doctrine of a warehouseman’s right to a lien for warehouse charges; and it is earnestly insisted that, without any action of the railroad commission approving demurrage charges, they would he maintained because of this common-law doctrine, and that thus the right of the car service associations to impose demurrage charges exists independently of any statute of the state, or of any action of the railroad commission, but that the right of the railroad commission to fix reciprocal demurrage charges cannot be supported on any common-law doctrine, that there is no lien for them, etc. It will be noted that, on p. 543 of 85 Miss., p. 947 of 37 South. (68 L. R. A., 715), in the Searles case, this court characterized the charges for demurrage as “penalties for undue detention of cars,” and says they were “devised” — that is, by law — not for the benefit of railroad companies, but for the “benefit of the public at large.” It is very ingenious, doubtless, to find other and collateral support for car service charges for demurrage in the common-law doctrine — 408 — as to the right of warehousemen to a lien on the goods in the warehouse for storage, likening rather fancifully, as it seems to us, the ever-moving railroad car to the stationary warehouse. However sound this may be, in the absence of any statute, when the legislature has acted and dealt with this whole subject-matter of demurrage and reciprocal demurrage, authorizing the railroad commission to fix charges for demurrage and charges for reciprocal demurrage, both exclusively in the interest of the public at large, and neither with the slightest purpose of benefiting either the shipper or the consignee in any particular case, it is far too narrow a view to take of such wholesome and beneficent legislation to base support of its action exclusively upon any common-law theory. If there had been no common-law warehouse lien theory, the commission would, undoubtedly, under the legislative authority, have had the right to impose demurrage charges; and, if so,-undoubtedly it had the converse, and necessarily correlated, power of imposing reciprocal demurrage charges. The purpose of all these charges is to benefit the public at large. On the one hand, the railroad commission, in imposing demurrage charges, had in view the purpose of requiring cars to be unloaded by consignees with all reasonable dispatch and delivered back to the railroad companies that they might go again into the traffic business to haul other freight of other consignees; and, on the other hand, the object of the railroad commission in imposing reciprocal demurrage charges was to compel the railroad companies, conversely, with the same end in view, to move cars, when loaded, with all reasonable dispatch to consignees, in order that they might, when unloaded, be promptly returned to the carrying of the traffic of the country. The purpose was to keep in constant, rapid movement all the cars railroad com panies have, the country over, in service everywhere, on their own lines and interchangeably 6n other lines, so that the traffic of the country should proceed expeditiously, and the things — 409 — transported by freight cars all over the land be promptly everywhere delivered. . In twenty states reciprocal demurrage measures are pending or have been enacted. Nearly all the organizations in the country representing' large shippers have asked for reciprocal demurrage. It would correct many of the most serious defects from which the country is now suffering. The law of reciprocal demurrage is founded in the soundest common sense and the highest spirit of equity. If such laws are rigorously enforced, we will hear no longer of the freight congestion that has been so prevalent throughout the past winter, of thousands of empty cars standing unused in railroad yards in one section of the country, and coal famines in the other for the want of cars. Eeasonable reciprocal demurrage rates, fairly enacted and justly and impartially enforced, will result in a quickened traffic the country over, in a just recognition on the part of the railway corporations of the land of what they owe in prompt freight schedules and an abundant supply of cars to the public at large, and in an equally just recognition on the part of the public of their duty promptly to unload traffic borne to them in cars, and send such empties back to aid in further traffic. We think the action of the court below was correct in every particular, and the judgment is affirmed.