
    The Taylor-Williams Coal Company v. The Public Utilities Commission of Ohio.
    
      Public utilities commission — Railroad rates — Complaints and orders — Shippers affected — Order reducing rates — Affirmance by courts — Complaint by another shipper — Excess above suspended rate — Jurisdiction of commission — Remedy of shipper.
    
    1. The proceeding before the public utilities commission on a complaint filed with it, which alleges that rates charged by a railroad company are unreasonable or unjustly discriminatory, is a matter of public concern in which all shippers are interested. The orders made are general in their operation, not only in favor of the complainant in that proceeding, but of all persons interested.
    2. Where in an action brought pursuant to the statute in effect prior to the act of April 18, 1913 (103 O. L., 804), by a Tail-road company to set aside and vacate an order of the public ’ utilities commission, the order was suspended by the court and bond given -by the plaintiff company, and after such order of suspension the company collected the rate in effect prior to the order of the commission, the charge made, under such circumstances, does not furnish the basis of a complaint to the public utilities commission under Section 579, General Code. If the charge is unlawful the remedy of the shipper is by' action in a court of competent jurisdiction against the company on its liability to refund the excess charged above the amount finally determined that it was authorized to' collect.
    (No. 15446
    —Decided February 5, 1918.)
    Error to the Public Utilities Commission.
    Plaintiff in error in November, 1915, filed with the defendant in error its complaint against The Hocking Valley Railway Company, in which it alleged nonpayment of a claim for overcharge on certain shipments of coal in carloads between September 24; 1913, and July 17, 1915. The Railway Company collected for the shipments at the rate of sixty-five cents per ton instead of at the rate of sixty cents per ton, which was alleged to have been theretofore ordered by the Railroad Commission of Ohio. The complaint prayed for a finding by the Public Utilities Commission for the amount claimed and that said finding be certified to the common pleas court of Franklin county in accordance with the provisions of Sections 579 and 580, General Code. The complaint was dismissed by the Public Utilities Commission on September 28, 1916. A motion for a rehearing was denied, and the plaintiff in error filed his petition in error in this court.
    By the pleadings filed in the instant case it is shown that on January 15, 1910, The New York Coal Company filed with the Railroad Commission of Ohio a complaint against The Hocking Valley Railway Company charging that the rates on coal in carloads from Nelsonville to Toledo and intermediate points were unreasonable and discriminatory. Among the rates attacked was the then existing rate of sixty-five cents per ton from Nelsonville to Columbus. On June 27, 1911, the Railroad Commission issued an order directing the Railway Company to reduce certain of the rates complained of, among others the rate of sixty-five cents per ton from Nelsonville to Columbus, to sixty cent's per ton. On July 15, 1911, which was before the order became effective, the Railway Company commenced an action in the court of common pleas of Franklin county against the Public Service Commission, which was the successor of the Railroad Commission, for the purpose of vacating and setting aside the order of the Railroad Commission. The court of common pleas sustained the order of the Railroad Commission and dismissed the petition of the Railway Company. Thereupon the Railway Company appealed the case to the court of appeals of Franklin county. That court likewise sustained the order of the Railroad Commission and dismissed the petition of the Railway Company, whereupon the company prosecuted error to the supreme court. This court on July 2, 1915, affirmed the judgment of the court of appeals.
    In the several courts to which the action referred ' to was brought, bonds were filed in accordance with the statute, and orders were thereupon made by the several courts enjoining the execution and enforcement of the order of the Railroad Commission and suspending the operation thereof. The supreme court, having on July 2, 1915, affirmed the judgment of the court of appeals, the Railway Company on July 27, 1915, published a tariff setting forth the rates prescribed by the order of the Railroad Commission.
    On March 13, 1913, the Railway Company published and filed its tariff, designated R. C. O. No. 31, prescribing rates on coal from Nelsonville to Toledo and intermediate points, the rate from Nelsonville to Columbus being sixty-five cents. On February 11, 1915, the Railway Company published and filed another tariff on shipments, known as Ohio No. 33, therein prescribing the same rates between Nelsonville and intermediate points as were set out in tariff R. C. O. No. 31.
    In its answer, the Railway Company alleged that it duly posted the tariffs referred to and that the rates charged and collected were in accordance therewith.
    In its reply complainant admitted the allegations of- the answer with reference to the proceedings in the courts and the suspension of the operation of the order, and then said that by reason of the prosecution of said litigation the Railway Company was estopped from publishing and filing tariffs R. C. O. No. 31 and Ohio No. 33.
    
      Messrs. Morton, Irvine, Turner & Blanchard and Mr. O. P. Gothlin, for plaintiff in error.
    
      Messrs. Wilson & Rector, for defendant in error.
   Johnson, J.

The original order of the Railroad Commission, on the New York Coal Company complaint, was made June 27, 1911-, effective July 27, 1911. Action was thereupon brought 'in the common pleas of Franklin county to vacate and set aside the order of the commission. On decision by the common pleas court the proceeding was appealed to the court of appeals, and on the decision there it was brought on error to the supreme court, where the order of the commission was affirmed on July 2, 1915. That action was brought under favor of the provisions of General Code Section 543, and subsequent sections touching the subject.

After that action was begun the procedure prqvided for at that time by the General Code was changed by the act to create the Public Utilities Commission of Ohio (103 Ohio Laws, 804), in which act it is provided (in Section 33) that the procedure to reverse, vacate or modify a final order of the commission shall be by petition in error to this court.

Under the provisions of the General Code in force at that time the Railway Company was entitled to bring the action in the court of common pleas against the Railroad Commission to vacate and set aside its order reducing the rate from Nelsonville to Columbus from sixty-five cents to sixty cents. Pursuant to the statute, the court suspended the operation of the order of the commission pending the litigation, and this order was successively renewed in the several courts to which the case was taken until its final disposition, and bonds were given by the plaintiff in the action in accordance with the orders of the courts. Therefore, after the commencement of that action and the making of the order of suspension and the giving of the bond, the order of the Railroad Commission sought to be set aside was suspended until this court finally affirmed it in the proceedings in error here. Until that time the railroad continued to charge and collect the rate in effect immediately prior to the entering of the commission’s order.

On March 13, 1913, which was more than one year after the order of the Railroad Commission would have become effective, if the case to set it aside had not been brought and the order suspended on bonds being given, the Railway Company published a new Tariff R. C. O. No. 31, prescribing rates on coal from Nelsonville to Toledo, and, on February 11, 1915, the Railway Company filed another tariff on such shipments, known as Ohio No. 33, prescribing practically the same rates. It claims that it had the right to do this by reason of Section 541, General Code, as it existed July 27, 1911, which then provided that all rates, fares, charges, classifications and joint rates fixed by the commission shall be in force and be prima facie lawful for one year “from the day they take effect,” or until changed or modified by the commission, or by an order of a competent court in an action under the provisions of the chapter.'

The original proceeding before the Railroad Commission was one in which all shippers were interested. The inquiry was a general one. The order made by the commission reducing the rate from sixty-five cents to sixty cents from Nelson-ville to Columbus was a general order, and operated not only in favor of the complainant in that proceeding, but of every shipper. Otherwise the original complainant would secure an advantage over other shippers not permitted by the statute. Every “user” affected is entitled by action to secure the benefit of the order made. A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S., 662.

The Taylor-Williams Coal Company, plaintiff in error, asserts that by favor of Section 579, General Code, it is entitled to sustain the complaint now before us. That'section provides that claims for overcharges upon a shipment, if not paid in sixty days, may be submitted to the commission by formal complaint. It provides for notice to the railroad company, for answer, reply, affidavits, hearing and finding. It also provides that the findings shall be certified to the clerk of the court of common pleas of the county where the complainant resides or where any of the company’s offices are maintained. Section 580, General Code, provides for the docketing of the cause, and trial, if the company desires. It is contended that the complaint in the case before us rests on a claim for overcharge under Section' 579. The term “overcharge” is not defined in the statute, but prior to the passage of Section 579, General Code, it had come to have an accepted meaning when used in connection with the subject-matter of that section. The authorities cited in the briefs of counsel sufficiently show that the term means a charge collected above the lawful tariff rate — a charge of more than is permitted by law.

When the Railway Company secured from the court an order suspending the order of the Railroad Commission, and gave the several bonds in accordance therewith, such suspension entitled the company to charge the prior published rate until the disposition of the cause. The charge made under such circumstances is not an overcharge within the meaning of Section 579, General Code. In this connection it must be noted that where a complaint is properly brought under that section for an overcharge, the finding of the commission ' in favor of the complainant is not- a judgment, but merely provides the prima facie evidence in favor of the claim which the statute allows the railway company to contest in the court to which the finding is certified.

In this case, when the Railway Company elected to charge the rate in effect immediately prior to the order of the Railroad Commission, it incurred a liability to refund to each user the amount collected by it from him in excess of the amount which it was authorized to collect; and the bond was given for the purpose of securing that payment. The remedy of each shipper is by action in a court of competent jurisdiction to recover that amount. The question whether a shipper would be entitled to recover only the amount of excess paid by him between the date of the order of the Railroad Commission and March 13, 1913, at which time the Railway Company published a new tariff, or would be entitled to recover the amount of excess paid by him for the entire period between the date of the order of the commission and the final adjudication of the case in this court, would of course be determined in the action referred to.

The only question presented here is whether the complaint filed with the Public Utilities Commission presented a proper claim for overcharge to be ascertained and fixed by the order of that commission.

For reasons above set forth the order of the Public Utilities Commission dismissing the complaint will be affirmed.

Order affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.  