
    Illinois Central Railroad Company v. Jackson Ready-Mix Concrete
    No. 42912
    March 2, 1964
    161 So. 2d 207
    
      Wise, Smith & Carter, Jackson; Howard D. Koonts, Chicago, 111., for the appellant.
    
      
      Overstreet, Kuykendall, Perry & Phillips, Cox, Dunn & Clark, Jackson, for appellee.
   McElroy, J.

This proceeding involves an appeal from an order of the Circuit Court of the First Judicial District of Hinds County, Mississippi, dismissing an appeal filed by appellant rail carriers from an order of the Mississippi Public Service Commission. The commission order complained of by appellants made findings of fact as to overpayments of freight charges which had been made to appellant rail carriers by shippers of lightweight aggregate (also known as clay cinders).

On January 18, 1961, Jackson Ready-Mix Concrete, pursuant to the provisions of sections 7871 and 7878, Mississippi Code of 1942, filed with the Mississippi Public Service Commission a petition seeking an order of the Commission requiring all Mississippi rail carriers to publish and apply on lightweight aggregate the same intrastate freight rates and charges which such carriers were then applying on sand and gravel, a competing commodity. Following notice and hearing, the commission, on March 7, 1961, entered its order requiring all Mississippi rail carriers to publish and apply on lightweight aggregate the same intrastate freight rates and charges which were then being applied on sand and gravel.

On April 4, 1961, the commission, on petition and bond filed by the rail carriers, granted supersedeas of its aforesaid order of March 7, 1961, pending appeal to the Circuit Court of Hinds County. An appeal was duly perfected and prosecuted, and on September 11, 1961, the Circuit Court of the First Judicial District of Hinds County affirmed the order of the commission. The circuit court refused to grant supersedeas of its order.

On October 20, 1961, an appeal having been duly perfected, this Court granted supersedeas of the order of the circuit court pending appeal. The rail carriers thus charged and collected on lightweight aggregate the higher rates and charges from the date of the commission order, March 7, 1961, until the proceeding was finally concluded.

On February 5, 1962, this Court affirmed the order of the circuit court, which had affirmed the order of the commission requiring the rail carriers to equalize the rates on lightweight aggregate with the rates on sand and gravel. Illinois Cent. RR. Co. v. Jackson Ready-Mix Concrete, 243 Miss. 72, 137 So. 2d 542. The facts are fairly well stated in this opinion.

After remand in accordance with the decision in Illinois Central Railroad Co. v. Jackson Ready-Mix Concrete, supra, the Mississippi Public Service Commission, after due notice and full hearing, made a finding of the amounts of the overcharges made by appellants. We hold the commission had authority to do this and its order is affirmed. The parties may proceed to institute proper proceeding to enforce collection of the excess charges.

Affirmed.

Kyle, P. J., and Gillespie, Brady and Patterson, JJ., concur.

ON SUGGESTION OF ERROR

Patterson, J.

The Court requested a response to the suggestion of error filed by appellants. We have carefully considered their arguments and the response thereto, and in our opinion all questions raised were correctly decided adversely to appellants. The suggestion of error is therefore overruled.

Suggestion of Error overruled.

Kyle, P. J., and Gillespie, McElroy and Brady, JJ., concur.  