The opinion of the court was delivered by: DICKINSON
Leave was given to file a brief which has been submitted. As affecting the cause of action, there are no facts in controversy. The bill is for an accounting which may involve a long inquiry. Whether the plaintiff has a right to it, and thus a right of action, can be determined on this motion. The present motion has been made to raise this question.
The subject concerns the carriage of citrous fruits from Florida to distant states. The haul is made over what became a continuous line of railroad. This is made up of the lines of a number of railroad companies, including the plaintiff and defendant. A convenience so great as to be a practical necessity brought it about that the delivering carrier received payment for the woule haul. The defendant held this strategic position and has received the moneys due all the carriers. The Interstate Commerce Commission had fixed a joint through rate of charge. This under the agreement of the carriers was apportioned among them. In July, 1928, the commission, on application or its own initiative, changed the rate both as to the sum charged and the unit of carriage on which based. The new rate became effective November 9, 1928. This disrupted the agreement of division among the carriers. The commission did not at that time apportion the joint through rate among the carriers. The defendant thereafter divided the joint through rates it collected and paid to the other carriers what it thought to be fair and just. The other carriers, or at least the plaintiff, were dissatisfied, and negotiations looking to a new agreement of division were begun and continued for two years or more without result. Application was then made to the commission for an order apportioning the joint through rate among the several carriers. Such order was made effective November 22, 1930. Since then the defendant has shared the joint rate in accordance with this division. No retroactive reparation award for the division of the moneys which had been collected by the defendant during the period from November 9, 1928, to November 22, 1930 was asked for. It is to get an accounting for these moneys that the present bill has been filed. It will be noted that none of the carriers concerned have been made parties to the bill other than the plaintiff and defendant.
A number of grounds in support of the motive to dismiss have been advanced. These we will discuss under separate paragraphs. The one first discussed presents the real question asked to be determined. This to some extent overlaps several of the others.
1. The question is whether the bill discloses a cause of action and a right of action, if these are not the same. Any difficulty encountered in seeking an answer to this question is due to the confusion of mind resulting from the confounding of two wholly different things. The judgment formed may be predicated upon what we know as principles of law or of equity which are antecedent to any statutory recognition of them, or it may be based upon a right conferred by statute which would not otherwise exist. The right of a person injured by the negligence of another to recover damages, and the right of surviving kindred to recover the damages sustained by them through his death, are illustrations of the distinction made.
Before the regulatory acts, constituting the tribunals known as "Public Utilities Commissions," the relations between shippers and carriers were wholly contractual. This meant in practical effect that carriage charges were determined by the carriers. The primary purpose of these acts was to relieve the shipper from the payment of extortionate rates.
Without something more appearing than the payment of an unduly high rate, no shipper could recover through an action at law or in equity any part of an agreed payment, no matter how high it might be thought to be. Under the operation of those acts, however, a fair rate can be found, and the shipper from whom more has been exacted is given the right to recover back the excess. The theory of recovery is assimilated to legal principles, in that in theory the commission makes the contract and the shipper recovers under the contract thus made. It is true that the Interstate Commerce Act (49 USCA § 1 et seq.) not only gives this cause of action and right of action to the shipper, but gives him likewise the option to apply to the commission or to the courts for redress. It is settled, however, beyond the need of the citation of supporting authorities, that the shipper does not have this right without the preliminary finding of the commission.
It follows that if the instant case involved a finding of whether the rates, with which the cause concerns itself, are undue and unfair, we must hold with the experienced and capable counsel for the defendant, that the commission has the exclusive power to determine it. Not only does the legal principle invoked call for this, but there are many and obvious practical reasons which support the rulings.Many of the latter which call for the commission to fix the lawful rate of charge apply with equal force to the division of joint through rates among the carriers. Accordingly the power to apportion such rates was added to the power given to the commission to fix them. It must be admitted that as the fixing of rates calls for the exercise of a trained and expert judgment, so likewise does the division of joint rates. It does not follow, however, that the like rule of the exclusive jurisdiction of the the commission applies to both. The Interstate Commerce Act (49 USCA § 1 et seq.) creates new rights not before existing, but it does not take away any legal rights before possessed. The fixing of just and fair rates is in no way involved. Such fixing is wholly incidental. At what the lawful rate is fixed does not affect the right of the plaintiff. Its right is to its share of what the defendant has received to the use of itself and the other carriers. Had the Interstate Commerce Law not been passed, if the defendant had collected for all the carriers a sum of money for a joint haul, each carrier concerned would have had the right to its fair share of the common fund. This would have been its legal and equitable right, a right which the Interstate Commerce Act neither confers nor takes away.The right is not even affected except to the extent that the commission having determined what a fair division is, all parties are bound thereby. The finding is, however, not necessarily retroactive.
We concede the soundness of the proposition for which counsel for defendant have cited abundant authority, that a finding that a rate is fair during one period is not a finding that a like rate is fair during another period. The proposition would apply to a finding of a fair division. If, therefore, the right of a carrier to its fair share of a joint rate is one conferred by the Interstate Act, it follows that no one of the carriers could recover a share of the joint rate without a previous finding that the share claimed was its fair share. The right, however, is not conferred by the statute, but exists without it and, as we have said, has not been taken away by it.
As we have also in effect said that if, before the act, the defendant had received what it has received for a joint haul, it could not retain for itself the whole sum received nor by the same token could it decide how much it would retain. Any of the carriers concerned, if it sued at law, would base its claim on the legal principle embraced in a count for moneys had and received by the defendant to the use of the plaintiff, and if it brought a proceeding in equity would base it upon the equitable principle that one who receives moneys for another is a trustee bound to account in equity. The rights thus asserted would be rights not conferred by the commission statute, but pre-existent and remaining after it.
We remind ourselves of what has already been said that a just division calls for the like expert judgment as does a fair rate. The courts may thus give a deference to the finding of the commission which they would withhold to their own. There are not, however, the same reasons for deferring to a division judgment as to a fair rate judgment. The latter affects all and should be uniform. The judgment of a division of this fund affects only the parties and no one else.