The Birmingham age-herald., 1913-05-07

I E
new schedule of rates, covering sub
tantially all articles and which would
materially reduce those charged bV the
companies respectively, or should by "A
reduction of rates on limited number
Of articles. make its schedule of rates
as a whole pro9ueo tie same result
!he question will arise whether such
Rates, taking into consideration the
rights of the public as we'll as the
rights of carriers, are consistent with
the principles announced by this court
in the opinion heretofore delivered
Efficiency of Injunction
THE complainant contends that such
d ruling would destroy the efficiency
of the injunction, since the commission
could separately and at different times
restore the rates prescribed in each
act and so place the matter In the at
tftude 1t was before the final decree
Tie injunction being against the stat
utory rate system In its entirety, an
attempt to restore the system, or so
substantial part of it as to reduce
the intrastate business of complainant
I Glow the remuneratfve point would
violate the injunction. An attempt, how
ever, to restore a single rate or num-
ber of rates whose effect was less than
his would not violate the injunction.
Zach instance would depend upon the
erect OF the changed rates on the
volume of the complainants intra state
business. If the reduced passenger rate,
when put into effect alone, had the
former effect it would violate the in
junction; otherwise, it would not. The
efficacy of the decree to protect the
complainant against confiscation from
tie schedule in its entirety is complete.
1t was not intended to do more.
"Conceding, however. the right of the
cor r,t11f= -iof1 n still 1ifiornta tho
bleness of the statutory passenger rate,
the question arises whether. in view Of
the language of paragraph of the final
decree II can proceed to do so without
first securing modification of the in
junction. The right of the commission to
proceed depends upon what it was en-
joined by the final decree of the court
from doing, rather than upon what was
found by the court as expressed in the
final decree. If the mandate of the court
is broader than the findings require, the
mandatory language controls. and the
respondents are not at liberty to violate
the mandate of the court because the
relief may not conform to the findings
upon which it is based. The sixth para
graph of the final decree contains the
mandate of the court. 1t enjoins the re-
spondents from taking any tsep to compel
the complainant to observe or to enforce
any of the said several acts of the legis-
lature. One of the acts enjoined was the
act establishing a maximum passenger
rate of 21a cents per passenger mile. The
sole effect of this act was to establish
this maximum passenger rate. The or
der of the commission directs complain
ant to put In effect the identical rate pre-
scribed by the statute as the maximum.
If the order be construed as having been
made under the power of the commission
to enforce the statute, 1t is plainly a vio-
lation of an injunction, the effect of which
was to restrain the commission from
taking any step to enforce the statute
ConfiscatOry in Entirety
"The case is to be distinguished from
that of Smyth VS.. Ames III u S. 361,
in two respects. Q) In that case a COM
plete schedule of freight rates prescribed
by statute was enjoined as being con-
fiscatory in its entirety. The effect of the
language of the original injunction in that
case was construed to be such a sto pre-
vent the carrier or the board of trans
potration from changing any single rate
of the entire schedule The court upon
application modified the decree so as TO
permit the carrier or the board of trans
potration to change individual rates to an
extent not affecting so substantially the
carriers earnings on its entire business,
as to make them unremunerative. In this
to be looked to in this proceeding as con-
trolling, forbids the commission from
taking any steps to enforce statute pre-
scribng but one rate, a maximum 21a
cent passenger rate. For the commission
to do this specific thing. without first Sc
curing a modification of the courts man
date, would necessarily be a violation of
the injunction. (2) In the case cited the
board of transportation did not undertake
to put even a single reduced rate into
effect until it had first secured from the
court a modification of the language of
the decree justifying it in taking such
action. In this case though the act done
was more clearly inhibited by the decree
of the court, the commission undertook to
accomplish it without applying for leave
and without securing a modification of
the decree. The measure of the oblga-
ton of the commission to conform to the
Injunction is to be found in the language
of the mandate of the court though its
language may have been considered
broader than the findings of the court
expressed nj the decree and upon which
the relief granted was based, required
So that, even though the commission may
not be estopped by the final decree as
against the complainant to still litigate
the reasonableness of the 2ia cent pas
senger rate, it does not follow that it
could proceed to this end until it had
first secured a modification of the in
junction afte rthe method adopted by
the board of transportation In the case of
Smyth Ames
Nor is the order of the commission,
lif made with the purpose to enforce the
statute justified upon the idea that
changed conditions renewed its authori-
ty to act The final decree expressly re-
tained jurisdiction in the district court
of the matter of changes in the rates
| i IA. IL
was incumbent upon the commission to
obtain leave of the district court as
provided for in paragraph seven of the
decree before assuming jurisdiction TO
lact upon this ground Moreover, the
commission did not, in making the or
| der rely upon any changed conditions.
| Again, the statutory passenger rate
was enjoined because it operated as
la discrimination against complainant
as well as a deprivation of its property
an order of the commission having fixed
the rate for other carriers at 2h cents
1t is now stated that this order has been
revoked by the commission. but this
showing should have been made to the
court by the commission upon an ap-
plication to modify the injunction, be-
| fore ii attempted to enforce the pas
senger rate act.
THE conclusion reached is that If the
order of the commission is to be con-
| strued as having been made by it in an
lattempt to enforce the statute prescrib-
ling the maximum passenger rate, it was
| a violation of the Injunction.
Independent Power
| "S The question remain as to wheth-
er the action of the commission was an
attempted enforcement of the passen-
ger rate act or whether it was an order
made by it in pursuance of its indepen-
| dent rate making power. If the latter
! it was not violation of an injunc-