State v. Chicago, Milwaukee & St. Paul Railway Co.

SirERWiw, O. J.

The controlling facts in this case are as follows: The Clark Coal & Coke Company and other companies doing a wholesale coal business in Davenport, Iowa, had for a number of years shipped coal from points in Illinois to themselves as 'consignees at Davenport, and, upon receipt of orders for said coal, they would pay the freight charges of the initial carrier in full, have the cars of coal placed on the interchange track, and thereafter tender a written billing for said coal to the defendant company to 'be shipped to various points in Iowa under the Iowa distance tariff. The defendant company finally refused to receive said coal under such billing, unless the same was unloaded and reloaded in its own equipment. Complaint was thereupon made to the Board of Eailroad i Commissioners of the state, and upon a hearing an order i was made requiring the defendant to accept said' coal for ;.f transportation in whatever equipment loaded, without requiring a reloading in its own equipment. The defendant [ railway company refused to comply with the order of the commissioners, - and this action was thereupon brought to compel compliance therewith. '¡The defendant answered the petition, and also filed a cross-petition asking that the said order of the Board of Eailroad Commissioners be set aside; the substance of the answer and the cross-petition1' being that the order was an attempt on the part of the ‘, board to regulate commerce between the several states, that ! it relates to shipments between the states and not to a ship- [' ment originating within the State of Iowa, and further j alleging that the Board of Eailroad Commissioners was f and is without authority to make said order, because it is ¡J contrary to the provisions of the Constitution of the United/ States. -

It was also alleged that the board was without author-1 *319 'ity to require the defendant to accept the cars mentioned and contemplated by said order, .because the statutes ofj, the state only require it to accept cars from the connecting carrier itself, and not from an individual or private person not operating a line of railway. It should first be deter] mined whether, under the facts presented, the shipment1 tendered to the defendant was an interstate shipment. That the shipment from Illinois to Davenport was such a shipment is unquestioned, but it does not necessarily follow that the shipment tendered to the defendant was merely a continuation of such interstate shipment. ■ There could be an ending of its • interstate character by a delivery to the consignee, and thereafter its trahsportation over the defendant’s road from Davenport to some other point within the state would be an intrastate shipment only, so that the primary question for determination is whether there was, in fact, a delivery by the initial carrier to the consignees in Davenport.

trastate commerCe* The agreed statement of facts shows that, the coal was originally consigned to the coal companies in Davenport; that it was held there until sales of the same were made, and that then the consignee paid the freight to the initial carrier, and had the _ . cars placed, on the interchange track ior the purpose of shipping the coal to the purchasers thereof on the line of the defendant’s road. The initial carrier had thus surrendered all control over the ears and the consignees had themselves assumed full possession and control of them. The responsibility of the carrier was ended by these acts of the consignees, and thereafter they assumed the risks incident to their possession. We are of the opinion that there was a delivery of the coal to' the consignees in Davenport, and that its transportation under another hilling governed by the Iowa distance tariff between two points in the state is not an interstate shipment, but is an intrastate one that is subject to the laws of the *320 state. The ease of Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403 (27 Sup. Ct. 360, 51 L. Ed. 540), is directly in point, and is decisive of the question. See, also, Merchants’ Transfer Co. v. Board of Review, 128 Iowa, 732, and cases cited therein. The appellant contends that the decision in Railroad Co. v. Texas is not controlling here, because there the carrier accepted the shipment, but it is clear that the carrier can not fix the character of a shipment by its act of accepting or rejecting it. The cases relied upon by the appellant to sustain its contention that the shipments in question were interstate are so unlike the instant case in their facts that they are not controlling.

2 same-board of mSonersT' regulations. In our view of this case, the serious question is whether the Board of Bailroad Commissioners had the power under the statute to make an order requiring the defendant accePt the shipment in question in the cars °f a private owner or in the cars of another carrier. The Board of Bailroad Commissioners seems to have based its order on the following provision of section 2116 of the Code Supplement: “Every railroad corporation shall . . . furnish ears to any and all persons who shall apply therefor . . . and shall also receive and transport in like manner the empty or loaded cars furnished by any connecting road.” But the defendant contends that this statute does not require the acceptance of cars from any person save and except a “connecting road,” and that the Clark Coal Company is not a connecting road within the meaning of the statute. A literal construction of this section would undoubtedly sustain the defendant’s position, but whether authority for the order be found in this section or not, if such authority is given by other'parts of the statute the order should be sustained. Code, section 2112, says that the Board of Bail-road Commissioners “shall have the general supervision of all railroads in the state operated by steam,” and section 2113 provides that, when in the judgment of the board any *321 change in the mode of operating the road or conducting its business “is reasonable and expedient in order to promote the . . . convenience and accommodation of the public, the board shall serve . . .' notice upon such corporation . '. ., of the changes which it finds to be proper.” The power of supervision given by section 2112 is broad, and in our judgment sufficient warrant alone for the order in question. To supervise is to superintend, to direct, to have charge over, with the power of direction. "Webster’s International Dictionary. The Secretary of the Interior, being charged by the United States statutes with the supervision of the office relating to the public lands, was held to have the power to review all the acts of the local officers, and to correct and direct a correction of any error committed by them. Van Tongeren v. Heffernan, 5 Dak. 180 (38 N. W., 52). An Act, giving a board of transportation general supervision of railroads, clothes the board with the necessary powers for such purpose. State v. Fremont, E. & M. V. R. Co., 22 Neb. 313 (35 N. W. 118). Of course, the power conferred by section 2112 might be limited in respect to any particular subject, but we find nothing in the statute which seems to impose a limitation on the matter under consideration. On the contrary, the tenor of the entire statute seems to be in harmony with the views above expressed. Section 2113 says that the board shall notify the railroad company of any change in the mode of operating its road or conducting its business that may be considered reasonable and expedient in order to promote the convenience and accommodation of the public. It certainly would be a great inconvenience to the public to be compelled to unload and reload in the defendant’s equipment every car of coal that the dealer might wish to send out over the defendant’s road simply because the coal was received by him in cars belonging to a private person or to another road.

In State v. Mason City & Ft. Dodge R. Co., 85 Iowa, *322 516, we held that the railroad commissioners had author-J ity, under the provisions of section 2113, to order a pri-j vate crossing for the benefit of the landowner. No just dis-j, tinetion can be made between that case and this one, and hence it is authority for our conclusion that the order in question was authorized by section 2113. The general intent of the statute is' further made manifest by Code Supp. 1907, section 2153, which provides that: “Every owner or consignor of freight to be transported by railway from any point within this state to any other point within this state shall have the right to require that the same shall be transported over two or more connecting lines of railway, to be transferred at the connecting point or points without change of car or cars, if in carload lots, . . . and it shall be the duty, upon request of any such owner or consignor of freight, ... to transport the freight without change of-car or cars, if the shipment be fin carload lot or lots.” The Legislature in the statute just quoted evidently recognized the long-continued custom of railroads of receiving the cars of other roads for the transportation of freight over their own roads without breaking bulk. It is a custom so general as to be within the knowledge of all men, and it has been practised so long that the courts will take judicial notice of it. Burlington, C. R. & N. Ry. Co. v. Dey, 82 Iowa, 312. Under the authority of section 2153, the owner or consignor of freight for shipment from one point to another within the state may require the carrier to transport it without change of cars. We can see no reason why the same requirement should not be held proper under the facts presented here, and we believe that the Legisla-( ture intended to and did clothe the board with the power to make such a requirement when deemed reasonable and ' expedient for the convenience and accommodation of the shipper. The fact that section 2116 refers only to cars of connecting roads is not very significant in view of the general powers conferred by sections 2112 and 2113. It prob *323 ably never occurred to tbe members of the Legislature that a railroad company would refuse to accept freight in carload lots unless loaded in its own cars. An examination of almost any freight traiu on any road in the United States would furnish a sufficient reason for a contrary conclusion.

We reach the conclusion that the judgment should be, and it is, affirmed.