
    224
    ERIE R. R. v. STEWART FURNACE CO.
    Ohio Court of Appeals, Cuyahoga County.
    No. 4172-2.
    February 5, 1923
    This opinion has not been published except in Abstract.
    RAILROAD TARIFFS — (1) Effect of specific tariff • on duties of a railroad — (2) Interpretation of Sec. 29, Art. V., Pennsylvania Law — (3) Mode of redress by shippers discriminated against by.
    Error to Cuyahoga Court of Common Pleas
    Attorneys, Cooke, McGowan, Foote, Bushnell & Lang, for Erie; Squire, Sanders & Dempsey, for Pennsylvania; Dustin, McKeehan, Merrick, Arter & Stewart, for Furnace Co.
   WASHBURN, J.

Epitomized Opinion

Prior to April 1, 1916, under tariffs approved by the U. S. Interstate Commission having jurisdiction over interstate shipments, and a similar commission in Pennsylvania, controlling intra state shipments, the railroad served certain shippers situated in the same rate district, by delivering cars to the plants of the shippers for the regular line hapl charge, and also performing the service of “spotting” for the shippers. Certain shippers furnished their own power and performed the service of “spotting” themselves, and the railroad paid these shippers for their services. Subsequently the U. S. Commission decided that the railroad could no longer perform these services or pay for the service performed by the shipper, and still later the commission decided that the railway could perform services of this sort, but left in force the tariff providing that it could not pay for the services rendered by the shipper. The shippers properly obtained relief as to interstate shipments from the U. S. Commission, but brought suit in the common pleas court to obtain relief as to intra state shipments, rather than by applying to the Pennsylvania State Commission. Art. V. of Pennsylvania law provides that the method of relief in cases of this sort shall be by application to the Pennsylvania Commission, but Sec. 29 of Art. V. provides that the law shall not abridge or impair the obligations of the railroad under common law or statutory law except as otherwise provided. The Furnace Co. claims that the services above mentioned were common law duties of the railroad, and that suit in a common pleas court was a proper method of relief. Held by Court of Appeals in reversing judgment for the shipper:

1. Where a law provides that existing rights and remedies are to be preserved, except as otherwise provided in the law, and also provides for a specific tariff, the latter provision supersedes the common law, and becomes the contract of the parties.

2. The proper method of relief by shippers discriminated against as to intra state shipments of a railroad, not as a result of the discriminatory enforcement of the tariff provisions but as the result of the discriminatory nature of the tariffs themselves, is by application to the state commission as provided by law.  