
    DEMURRAGE AND CAR. SERVICE CHARGES.
    Circuit Court of Franklin County.
    The Railroad Commission of Ohio v. The Ann Arbor Railroad Company et al. 
    
    Decided, October 12, 1909.
    
      State Railroad Commission — Powers of, with Reference to Gar Service and Demurrage Charges — State Commerce and Interstate Commerce — Application of the State Act to Transportation and'Terminal Facilities — Commerce Clause of the Federal Constitution — Discrimination.
    
    The power to regulate car service and demurrage charges as to cars employed in interstate commerce is not conferred upon .the state railroad commission by the act of April 2, 1906 (98 O. L., 342) ' creating and prescribing the duties of the State Railroad Commission of Ohio.
    
      U. G. Denman, Attorney-General, Freeman T. Eagleson, O. E. Harrison and John R. Horst, for plaintiff in error.
    
      Wilson, Wilson & West, C. O. Hunter, Edward Colston, Theodore W. Reath, F. A. Durbin and Squire, Sanders & Dempsey, contra.
    Allread, J.; Dustin, J., and Sullivan, J., concur.
    Heard on error.
    
      
       Affirming Ann Arbor Railroad Co. et al v. Railroad Commission of Ohio, 8 N. P.—N. S., 233.
    
   The action in the court below was brought by a number of railroad companies located in this state and engaged in state and interstate transportation, against the railroad commission of the state, to enjoin it from enforcing certain rules and regulations affecting car service and demurrage.

The case was submitted to the court below upon demurrer to the second cause of action. The first cause of action, which challenged the reasonableness of the rules, was withdrawn or at least not involved here and no question is made so far as the second cause of action is concerned as to the reasonableness of the rules, but only as to the power of the state commission to promulgate and enforce them.

The court of common pleas held the rules valid except as affecting cars employed in interstate commerce. And a permanent injunction was only allowed to prevent their enforcement to that extent.

The railroad commission prosecute error to this court to reverse so much of the judgment as enjoins the enforcement of its rules to the extent above stated.

The principal argument of counsel is directed to the effect of the “commerce clause” of the national Constitution, delegating to Congress the power to regulate commerce among the states. In this connection it may be remarked that this clause has been the subject of repeated adjudications by the Supreme Court of the United States. But, notwithstanding all that has been expressed, the line of demarcation between federal and state jurisdiction is not clearly established, and the power to regulate terminal facilities and car service lies within the area of doubt and dispute. But aside from the constitutional question is one raised by counsel in the case as to the construction of the state railroad commission act. It is apparent that the state railroad commission has only such powers as the act creating it confers. It can not prescribe rules or assume powers not conferred by the act. We may, therefore, properly inquire what power is conferred or assumed to be conferred by the state act in relation to ear service rules and charges as affecting interstate shipments.

In the construction of the act it may be assumed that the state Legislature sought to avoid any constitutional infirmity in the provisions of the act and intended to keep safely within the limits of state jurisdiction.

The act itself carries this legislative construction in Section 2a:

“That the provisions of this act shall apply to the transportation of passengers and property between points within this state, and to the receiving, switching, delivery, storing and handling of such property, and to all charges connected therewith, including icing charges and mileage charges.”

It is contended by the Attorney-General that the limitation of the application of the act to state commerce refers only, to the transportation and not to local or terminal facilities. But it will be observed that the limitation of the scope of the act to property involved in state commerce applies not only to transportation of property but to the terminal service of such property as well. The character of the property to be moved is made the test in both classes of service. If the property moves in state commerce, the act applies both as to actual transportation and as- to receiving, switching, delivering, storing, handling, and all charges connected therewith. But the act does not assume to apply as to either transportation or terminal facilities, if the property which is the subject of shipment moves in interstate commerce.

It is also contended by the Attorney-General that Section 3 of the act, relating to discrimination in rates, is general in terms and .applies to all railroads, regardless of the nature and character of the property transported. ' We are of the opinion, however, that the legislative construction in Section 2a underlies the whole act and is the limitation of its scope. The subject-matter of Section 3 is the charge for transportation of passengers and property as well as the terminal facilities. Now, the terms- employed in Section 3 have been construed and applied in Section 2a to intrastate shipments, and it necessarily follows that the use of these terms in Section 3 or any other section in the act, unless a contrary intention appears, must follow the definition and applicating of the preceding section. This is confirmed by the language employed in Section 24, prescribing the penalties.

It is not necessary to express an opinion as to whether the requirements of Section 4, 10a, and 12 of the act fall within the legislative construction prescribed in Section 2a relating to transportation and terminal facilities.

The act under consideration in Section 21 gives the state commission power to investigate freight rates on interstate traffic, and if found to be unjust or discriminatory, to request the railroads affected to revise the tariffs, and in case of failure, to petition the Interstate Commerce Commission for relief. This is the only section in the act which refers expressly to interstate commerce; and in view of the legislative construction in Section 2a of the act, and the doubt and conflict that exists as to the limit of state jurisdiction, we may fairly assume that the power conferred in Section 21 is the only authority intended to be conferred upon the state railroad commission as to interstate commerce or the facilities and instrumentalities employed therein; and that all other grants of power contained in the act are to be confined to state coriimerce.

The Attorney-General argues that cars may often be ordered or furnished without definite knowledge or intention as to consignee or place of destination, and that an important field for regulation might thus be left open and free from control by either state or federal commission. This question, however, is not before us in the present record. The injunction allowed by the court below restrains the commission only as to ear service so far as it affects interstate shipments. Until interstate commerce is in some way impressed upon the instrumentality sought to be controlled or regulated, the injunction does not apply. The only question here is as to whether the state railroad oommissioji can enforce its rules as to cars which have been impressed as instrumentalities of interstate commerce.

It, therefore, follows that in the opinion of this court, the state railroad commission had no power under the act creating it to enforce car service or demurrage rules as to ears employed 'in interstate commerce.

In this view, it is not necessary to discuss or express an opinion as to the constitutionality of an act conferring such' power upon a state railroad commission.

The injunction in the court below was, therefore, properly awarded, restraining the commission from the enforcement of its rules as to car service and demurrage so far as affecting interstate commerce; and the judgment is, therefore, affirmed.-  