State ex inf. Crow v. Atchison, Topeka & Santa Fe Railway Co.

BURGESS, J. This is a proceeding by quo warranto ex informations the Attorney-General, against the respondent, The Atchison, Topeka & Santa Fe Railway Company, a railroad corporation doing business in this State, to oust it from the exercise of certain rights, privileges and franchises alleged to be illegal A exercised by it. The information alleges that the respondent is a — 702 — corporation of the State of Kansas, operating lines oi railway extending through the Territory of Oklahoma and the States of Colorado, Kansas, Nebraska, Missouri, to Chicago, Illinois; and extending west and south from Kansas City to San Francisco, Los Angeles and San Diego, California, and the Rio Grande river; that it has no authority to do ¿ny business in Missouri except as a foreign railroad corporation, having complied with its laws and obtained a certificate to do business in the State; that Kansas City is a market city for grain and grain products, with large mills and elevator facilities, and being located on the lines of many railroads, it reaches the eastern, western, northern and southern markets; that it is important to the people of this State that Kansas City be maintained as a grain market; that there is in Kansas City a large number of firms or companies employing a large number of men, and having a large investment of capital in the business of dealing in, buying and selling, storing and handling of grain, many of them doing business as commission merchants, and all of whom have made their investments upon the faith of the course of business hereinafter stated; that Chicago and the cities and towns upon the Mississippi river are strong competitors of Kansas City for grain: that it has been customary to ship grain to Kansas City in car and train load lots, and place the same on what are called “hold tracks,” for inspection, barter and sale, and subsequent directions for delivery in the city of its destination; that on the faith of such universal custom and usage, large numbers of the citizens of this State and especially said persons at Kansas City have engaged in the grain, elevator, milling, feed and stock business and invested large sums of money therein; that the course of business has been, in shipping grain to Kansas City, for the shippers to draw drafts against the shipments with bills of lading attached, wijh the right to the consignee to inspect the shipments on the “hold tracks” before making pay — 703 — ment of such drafts; that about 57,000 ears of grain are brought into the Kansas City market and placed upon the ‘ ‘ hold tracks ’ ’ in the course of a year, of which about sixty-seven per cent is brought in by the Santa Fe, Missouri Pacific, Rock Island and Burlington railway companies; that up to July 28, 1902, the universal custom at Kansas City and all cities west of the Mississippi river had not only been to place the cars upon the ‘ ‘hold tracks,” but to take them from thence to the point of delivery in said city designated by the consignee, without additional charge for so much of the carriage as passed over the tracks of the initial-carrier or the tracks used by it; that switching charges over the tracks of connecting lines were made, averaging about three dollars per ear; that forty-eight hours free time for inspection, sale and delivery of cars, after arrival on “hold tracks” is allowed, a charge of one dollar per day per car being thereafter charged for demurrage; that the grain coming to Kansas City is largely sent to elevators for cleaning and grading and subsequent shipment out; that there are a number of lines of railway of which Kansas City is the western terminus, which are the competitors of respondent and the other through lines above mentioned for traffic destined from or through Kansas City to eastern and southern points, and such companies seek to carry a part of the grain ■ brought into Kansas City by respondent to points east, south and north of Kansas City; that respondent and other through lines use every effort and endeavor to carry all the grain brought through or to Kansas City by them from points on their lines to points east, north and south of Kansas City; that if they succeed, competition between the various railroads for the haul east, north and south of Kansas City will be destroyed, which competition is beneficial to the public; that the Burlington, Missouri Pacific, Santa Fe and Rock Island railway companies are the only' companies having lines extending from the west through Kansas City, extend — 704 — ing east thereof and reaching the Gnlf ports and the ports upon the Great Lakes; that said four companies have adopted the practice of having large elevators com structed on their lines in the heart of the grain-producing country, for the storage of grain, for the purpose of having such grain carried over their lines for the longest possible distance and to said Gnlf and Lake ports, and they seek to impose a reconsignment charge at Kansas City of a sufficient amount to deter producers of grain from shipping the same to the Kansas City market; that to protect themselves against those producers and dealers who will not ship over the lines of said four companies to markets east and south of Kansas City, said companies conspired and confederated to adopt some device or scheme in the way of an unlawful delivery charge for delivery at said Kansas City from the “hold tracks” to the point in Kansas City, Missouri, designated by the consignee, which would enable them to haul out of Kansas City practically all the grain destined east, north and south thereof; that such scheme is oppressive to the public, a burden to the Kansas City market, interferes with shipments thereto, and places the consumers, merchants and people of that city and those there dealing in grain at a disadvantage in attempting to compete with the eastern, northern and southern markets; that the result of the combination and conspiracy is to divert grain from the Kansas City market, which legitimately would flow to the said market or pass through the same for sale and ultimate disposition; that said grain is concentrated at western points and shipped over said lines to points south, east, and north of Kansas City; that the device and scheme so adopted was this: that said four through lines would make an extra charge, called a “reconsignment charge” of two dollars per ear for delivering any car of grain in Kansas City, Missouri, at any connection with any other railroad, or at any warehouse or mill or elevator or private industry therein, in' ad — 705 — dition to the switching and demurrage charges herein-before mentioned, and in addition to the freight charge made for carrying such grain to the consignee at Kansas City; that notice thereof was given making said charge effective on the 28th day of July, 1902; that said charge is ultimately paid by the producer, places the Kansas City market at a disadvantage as compared with other concentrating points west of the Mississippi river, and is wholly unwarranted by law; that said reconsignment charge is absorbed or refunded if grain coming into Kansas. City over one of said four lines is taken out of said city east, north or south upon any of the other of said four lines, but not if it goes out over any other line; that the effect of said absorption or refunding of said charge is to create a monopoly in the buying, selling and dealing in grain in favor of those who can and will ship out of Kansas City over one of said four lines; that the scheme and plan aforesaid is a discrimination in Kansas City, Missouri, in charges and facilities between transportation companies and individuals contrary to the laws of the State of Missouri; that an exclusive right and privilege is thereby given to shippers out of Kansas City over said four lines, contrary to the Constitution and laws of Missouri; that said shippers have an unlawful advantage over persons, firms and corporations, who do not so ship, and who are engaged in similar business under similar circumstances and conditions at the same place; that the competition of other railroads for the transportation out of Kansas City of the sixty-seven per cent of the grain or grain products received thereat over said four lines is thereby prevented; that said reeonsignment charge constitutes a discrimination against the locality of Kansas City because no such charge is made upon grain or grain products transported to any other city in the State and afterwards transported therefrom; that under the laws of the State, it is the duty of every railroad — 706 — company to deliver grain at every point designated by the consignee on the line of sncb road, including crossings with other lines, without discrimination; that the result is that the respondent is illegally charging two dollars on each car of grain shipped to Kansas City, Missouri, for delivering the same in said city to the point on its lines designated by the consignee, under the false and fictitious pretense that it has the right to place the car upon the “.hold tracks,” notify the consignee of its arrival at such point, and then when he designates the place of delivery, to make such charge for such delivery by calling it a reconsignment charge, and then refund same only to the shipper or consignee who will ship from Kansas City, Missouri, over their lines or any one of the said four through lines a like amount of grain or grain products. The defendant filed answer and return to the information in which are raised both issues of law and of fact. The issues of law, upon which the cause is now submitted, are as follows: “'1. That plaintiff ought not to have or maintain its aforesaid action because it appears upon the face of said information that the object sought thereunder is the vindication of purely private rights, and the redress of private grievances, in which the public has no interest, and for'which there is full and adequate remedy both at law and in equity, available to each and all of the parties interested therein; and an original proceeding by information in the nature of quo warranto is not a proper remedy therefor, and this court has no jurisdiction over said matters in this proceeding. “2. That there is no usurpation or unlawful exercise of any franchise, right or privilege set out in said information, and no sufficient facts stated therein, to constitute a cause of action, or to entitle informant to the judgment prayed, or any relief whatever, in this proceeding. — 707 — “3. That there is no unlawful exercise of any rights, privileges or franchises shown in and by said information, which this court has authority or jurisdiction to inquire into, or adjudicate concerning, in this proceeding. ’ ’ It is insisted by defendant that the information shows upon its .face that it is prosecuted solely for the vindication of private rights and the redress of private grievances, in which the public has no interest and therefore this proceeding can not be maintained. Upon the other hand, it is asserted that there is nothing in the information to justify such claim, but even if there was this court has no power to interfere with the determination of the Attorney-General upon an information of this character; that public as distinguished from private interests are involved. We concede that the Attorney-General, ex-officio, exercises his own discretion, and, without leave of court, has the right at any time to file in the Supreme Court an information in quo warranto wherein matters of public interest are involved, but that he can not maintain such a-proceeding solely for the vindication of private rights, or the redress of private grievances, in which the public has no interest, we think clear, and if these facts appear from the information, they may be taken advantage of by return or special plea to the order to show cause. The chief grounds of complaint are those affecting the rights of certain grain dealers in Kansas City, and certain railroad companies whose termini are at that city who deny the right of defendant to make a particular charge, called a “reconsignment charge,” on grain and grain products made by four through lines of railroad, for a service actually rendered, after delivering the grain upon certain tracks, known as “hold tracks,” which said service has been performed gratuitously prior .to July 28, 1902, and which said charge absorbed — 708 — or was refunded in the event of reshipxnent ont of said city over any of said four lines of road. We are nnable to see wherein the public has any interest in the “reconsignment charge,” which is paid solely by certain grain dealers and railroads whose western termini are at Kansas City for an additional service not covered by the freight into that city, and which they have the right to charge, provided it be nothing more than what is reasonable for the services rendered. In Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), section 1773, it is said: “It has been stated that quo warranto originated as a prerogative remedy, and has always retained the character as a judicial means for the assertion of sovereign right. It is, and always was a mandate issuing from, or at the instance of the sovereign against an individual or corporation, requiring him or it to show, quo warranto, by what warrant or authority an office or franchise is claimed or exercised. That feature adheres to it in all cases, even where the interest of the relator seems to outweigh any public interest in the question at issue, as where it is resorted to to test the title to an office between two claimants; for while the public may not have any interest in the question whether A. or B. shall perform*the duties and enjoy the emoluments of a public office, still it has an interest that; neither A. nor B. shall usurp a public office. And the same reasoning applies where title to an office in a private corporation is in dispute, since such controversy usually involves the further question of whether a corporate franchise has or has not been usurped. Hence quo warranto will not issue merely'for the determination of a private right where the whole community are not interested. Parties must be their own judges as to suits they will institute to have their private rights determined,.and these must be tried and adjudicated upon — 709 — their own merits, where no general public interests are affected. ’ ’ Later on, in section 1830 of the same volume, it is said: “The people of the State have no power to invoke the action of the courts of justice in this form for the redress of civil wrongs sustained by some citizens at the hands of others. When the people come into.court in the name and right of sovereignty, as plaintiffs in a civil action, they must come upon their own right for relief, to which they are themselves entitled. It is not sufficient for them to.show that wrong has been done to some one; the wrong must appear to be done to the public, in order to support an action by the people for redress. This principle has been applied and illustrated in numerous cases, both in England and the United States. Thus, where a turnpike company, in making the road through private lands, had failed to compensate the owners according to the direction of the act, it was held that the company was merely a trespasser-, and that the fact that the public was in no way interested in such controversy was a sufficient reason for not granting an information in the nature of quo warranto. In such case it is plain that entering and injuring lands of private parties is neither an abuse nor an assumption of corporate power, but a simple violation of private right. A provision of the company’s charter, requiring it to do certain things before entering on lands, is inserted, not for public but for private security. By entering without complying, the company was simply guilty of a tort, as its trespassing agents would have been if no charter had been granted.” In Beach on Private Corporations, vol. 1, sec. 58, it is said: “Something more than non-user, accidental negligence, excess of corporate power, ... is requisite to constitute a cause of forfeiture. There must be some willful or improper act or neglect, such as to work — 710 — or threaten a substantial injury to the public, or actual inability to perform some corporate obligation, or an entire non-user of its powers and privileges for such a time as to create a presumption of surrender. The transgression must not be merely formal or incidental, but material and serious, and such as'to harm or menace the public welfare. For the State does not concern itself with the quarrels of private litigants. It furnishes for them sufficient courts and remedies, but intervenes as a party only where some public interest requires its action. Corporations may and often do exceed their authority where only private rights are affected. When these are adjusted all mischief ends and all harm is averted. ’ ’ In State ex rel. v. Meek, 129 Mo. 436, the court says : ‘ ‘ The primary and fundamental question in a proceeding by quo warranto is whether the defendant is legally entitled to hold the office, and not as to the rights of any person who may claim it.” In Ramsey v. Carhart, 27 Ark. 12, the syllabus is as follows: ‘‘The writ of quo warranto will only issue in the name of the State in cases wh,ere the whole community are interested, and will not be granted at the instance of an individual for the determination of a private right. ”' The court says: “The only question is, whether a quo warranto will issue on the relation of a private person? It was held, in State v. Ashley, 1 Ark. 279; Caldwell v. Bell and Graham, 6 Ark. 227, and State v. Williams, that the writ of quo warranto would only issue on the relation of the Attorney-General, in the name of the State, in cases where the whole community are interested, and would not be granted at the instance of an individual for the determination of a private right. . . . Quo .warranto was invented, originally, not to determine which of two persons was entitled to an office, but to require the incumbent to show by what authority he was — 711 — exercising or attempting to exercise the duties of an office, created by sovereign authority. The issue was between the State and the person in office ; and not between two persons who claimed the right to exercise its duties. In short, quo warranto is the right of the State, and only issues at the instance of the State. It was hot, nor is it now designed or used as a remedy, at law, by which individuals may contest the right to an office. The Legislature has provided a separate remedy for the determination of such a question, and the parties must seek the remedies provided for them, instead of one provided for the State. ’ ’ In Cupit v. Bank, 20 Utah 293, the court says: “It is well setttled by abundant authority that the writ will not issue and can not be invoked for the purpose of determining merely a private right, in which the public is not interested. ’ ’ To the same effect are People ex rel. v. Cooper, 139 Ill. 461; People ex rel. v. Bridge Co., 13 Colo. 11; State ex rel. v. Railroad, 50 Ohio St. 239; Territory v. Virginia Road Co., 2 Mont. 104; People ex rel. v. Railroad, 8 Colo. App. 301; Attorney-General v. Railroad, 96 Mich. 65; Attorney-General v. Salem, 103 Mass. 138; People v. Drainage Commissioners, 31 Ill. App. 219;. Reagan v. Loan & Trust Co., 154 U. S. 362. Quo warranto is not a remedy to determine disputes between private persons and a corporation, but is to determine by what right a corporation exercises wrongfully or illegally a certain franchise, or to oust it from the right to be a corporation for an abuse or non-user of franchises granted. In a word, it will only lie against a corporation for some violation of its charter. But it is claimed by the Attorney-General that sections 1113, 1114 and 1115, Revised Statutes 1899, require delivery by the initial carrier of freight upon any track it owns, leases, or uses, or can use, and that the enforcement of that statute necessarily deprives the railroad companies of this right to assess and collect the recon — 712 — signment charges described in the information. We are unable to concur in the view that because the statute imposes additional duties upon initial carriers to those incurred by contract, express or implied, therefore it in anyway deprives the railroad companies of the right to assess and collect a reasonable compensation for such extra work. There is nothing in the express terms of the statute requiring a free delivery to elevators, or elsewhere, after being placed on the “hold tracks,” nor can such duty be implied from the language used. Nor do we believe the Legislature so intended; otherwise, it would have so indicated. • Our conclusion is that mere private rights are invoked in this proceeding, and that quo warranto will not lie. Nor will quo warranto lie for the violation of an alleged custom of gratuitously performing the services for which the reconsignment charge is now made. No legal right can be predicated upon such a custom. Usages and customs may be useful in the interpretation of a contract which was made with respect thereto, but can not be held to create them. [27 Am. and Eng. Ency. of Law, 712; Ulmer v. Favorworth, 80 Me. 500.] “Usage can not make a contract where there is none.” [National Bank v. Burkliardt, 100 U. S. 692; Tilley v. County of Cook, 103 U. S. 155.] It must be obvious to anyone that the charges in question are made with reference to interstate commerce, for as long as the loaded car remains in the custody of the initial carrier, and until it is finally delivered to the consignee or forwarded to its final destination upon his order, after being placed upon the “hold tracks,” any further movement of the car would be a part of the interstate transportation, charges for which service are fully covered by the interstate commerce law. Section 1 of that law provides that the provisions thereof shall apply to any common carrier engaged in the transportation of passengers or property wholly — 713 — by railroad, or partly by railroad and partly by water, when both are nsed under a common control, management or arrangement, for a continuous carriage or ship-3nent from one State or Territory of the United States . . . to any other State or Territory. It also contains the following provision: “All charges made for any service rendered or to be re33dered in the transportation of passengers or property, as aforesaid, or in connection therewith, or for the receiving, delivering, storage or handling of such property, shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful.” Section 2 prohibits unjust discrimination as between shippers in the making of charges for any service rendered in the transportation of a like kind of traffic under substantially similar circumstances and conditions. Section 3 prohibits the making or giving of any ■undue or unreasonable preference' or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic. Section 6 provides for the establishment, printing and posting of schedules of rates in force at the time upon its route, which schedules shall plainly state the places upon its railroad between which property and passengers will be carried, and “also state separately the terminal charges and any rulings or regulations which in anywise change, affect or determine any part of the aggregate of such aforesaid rates, fares and charges. ’ ’ It will thus be seen that any and all services incidental or necessary to the transportation and final delivery of the shipment, is a part of the interstate transportation, and that charges therefor are regulated by the Interstate Commerce Act. Section 8 provides that for any violation of the act the common carrier “shall be liable to the person or — 714 — persons injured' thereby, for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney’s fee, to be fixed by the court.” Section 9 provides “that any person or persons claiming to be damaged by any common carrier, subject to the provisions of this act, may either make complaint to the commission, as hereinafter provided, or bring suit in his or their own behalf, for the recovery of the damages for which Such common carrier maybe liable, under the provisions of this act, in any district court or circuit court of the United States of competent jurisdiction, but such person, or persons shall not have the right to pursue both of said remedies, and must, in each case elect which one of the two methods of procedure herein provided for he or they will adopt. ’ ’ Other sections of the act furnish remedy by way of injunction in the circuit court of the United States, to the commission or any company or person interested in its order or requirement, against the continuance of violations of the act by a common carrier. Further relief by way of injunction in the circuit court of the United States against violations of the act is afforded by virtue of section 3 of a recent act of Con- ' gress, approved February 19, 1903, entitled, “An Act to further regulate commerce with foreign nations and among the States. ’ ’ That the validity of all charges for services rendered in connection with interstate transportation is vested exclusively in the Interstate Commerce Com,mission and the courts of the United States, is well settled. In the case of Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, the State of Kentucky passed an act providing that it should be unlawful for the bridge company to charge, collect, demand or receive for passage over the bridge spanning the Ohio river, any toll, fare or compensation greater or in excess of certain rates prescribed by the act, which were — 715 — ranch less than the directors had fixed. The court held that the .traffic across the river was interstate commerce ; that the bridge was an instrument of such commerce ; that the statute was an attempted regulation of such commerce which the State had no constitutional power to make, and that Congress alone possessed the requisite power to enact a uniform scale of charges in such a case, the authority of the State being limited to fixing tolls on such channels of commerce as were exclusively within its territory. So in Interstate Commerce Commission v. Railroad, 167 U. S. 633, it was said: “It must be conceded that a state railroad corporation, when it engages as a common carrier in interstate commerce by making an arrangement for a continuous carriage, or shipment of goods and merchandise, is subjected, so far as such traffic is concerned, to the regulations and provisions of the act of Congress. . . . So, likewise, it is settled that when a State statute and a Federal statute'operate upon the same subject-matter and prescribe different rules concerning it, and the Federal statute is one within the competence of Congress to enact, the State statute must give way.” [Rhodes v. Iowa, 170 U. S. 412; Gatton v. Railroad, 95 Iowa 112; Fielder v. Railroad, 42 S. W. 362; affirmed, 92 Tex. 176; Copp v. Railroad, 43 La. Ann. 511.] It follows from what has been said that no common carrier doing an interstate business derives its right to charge tolls or fares for interstate transportation, or for services therefor or in connection therewith, from the State, but from the Federal Government, hence the State has no power or authority to forfeit such right or franchise or to oust any such common carrier from the exercise of any such right. But even if the matter under consideration is not interstate (which we do not concede) and the State alone possesses the requisite power to regulate the charge in question, will quo warranto lie to control the — 716 — defendant company in making, charging and collecting rates for transportation and for charges for services rendered in connection therewith? The Legislature has made ample provisions for the regulation of transportation charges by railroads and prohibiting discriminations. [Arts. 2 and 4, ch. 12, R. S. 1899.] Unjust and unreasonable rates and charges, discrimination under advantages and preference, and, in fact, the entire subject-matter of transportation wholly within this State, are fully covered, remedies provided and penalties imposed. By the article last named a state railroad commission, seme of the power and duties of which are provided for by said article 2, is also given the right to appeal to the courts of this State for assistance in the enforcement of its orders. By these statutes if any private individual sustains damages by reason of any fault of a railroad, common carrier, he is afforded ample redress by resort to the State courts or by complaint to the Railroad Commission. These statutes having been enacted in pursuance of the Constitution, the remedies therein pointed out for redress for damages sustained is exclusive, and it is therefore not within the jurisdiction of this court to entertain quo warranto against defendant on account of any such matter. In State ex rel. v. Francis, 88 Mo. 557, it is said: “When the General Assembly, in obedience to the constitutional mandate, designates-, by general law, the court, or courts, or judge, by whom election contests shall be tried, and regulates the manner of trial, and all incidents thereto, from that moment the jurisdiction, of courts, or judges, not thus designated, ceases, if they possessed it before, and the courts to- which the jurisdiction is confided must exercise it as prescribed by law.” [State ex rel. Attorney-General v. Mason, 77 Mo. 189 ; State ex rel. v. Vail, 53 Mo. 97; Commonwealth ex rel. v. Garrigues, 28 Pa. St. 9; Commonwealth ex rel. v. Henszey, 81½ Pa. St. 101; Baker v. — 717 — Railroad, 36 Mo. 544; Soulard v. City, 36 Mo. 546; Railroad v. Railroad, 149 Mo. 245; Young v. Railroad, 33 Mo. App. 509; State ex rel. v. Marlow, 15 Ohio St. 114.] In Winsor Coal Co. v. Railroad, 52 Fed. 716, it is said: “The right of action existing at common law in favor of the shipper for extortionate charges was superseded by the remedies provided by the statute. . . . Throughout the entire act it is clear that it was the legislative mind to impose upon the chosen ágents of the State — the railroad commissioners — the duty of supervising and regulating the rates- charged by such carriers, and to ascertain and declare, from, time to time, as the changing conditions of trade and commerce might suggest, what, as between shipper and carrier, is a reasonable and just rate of compensation. In the absence of any affirmative action by the commissioners, the Legislature declares a maximum rate, and the carrier is to make and keep public a schedule within this maximum. The railroad commissioners may revise it, if deemed right and just to do so; and the rates thus fixed are to be observed by the carrier until changed conformably to the statute. The statute expressly declares it to be unlawful for the carrier to exact a greater or less rate than that so scheduled. In the absence of any affirmative action by the commissioners, the intendment of law arising from the legal presumption that public officers perform their duties should be that no complaint had arisen of unjust charges, or that the commissioners, who are presumed to be in possession of the schedule adopted by the carrier, deemed the maximum fixed by the carrier and the Legislature to be reasonable and just. ... A right of action in favor of the shipper, it may be conceded, existed at common law for extortionate charges, but the statute has superseded the common-law remedy.” Our conclusion is that even if the reconsignmeni — 718 — charge he not interstate hut within the control and under the jurisdiction of this State, quo warranto will not lie to control the defendant in making, charging and collecting rates for transportation and charges for services rendered in connection therewith. Nor do we think the information shows such a state of facts as would, from any standpoint of view, authorize the issuance of the writ of ouster. The plea to the information will be sustained and writ quashed. It is so ordered. All concur.