California Adjustment Co. v. Southern Pac. Co.

In this action, brought to recover from defendant, a common carrier, an accumulated sum of excess freight rates alleged to have been charged and collected by it from the assignors of plaintiff in violation of the so-called “long and short haul” clause of the Constitution of the state (article 12, § 21), the defendant has interposed 13 separate-and distinct special defenses, each of which has been met by a demurrer and a motion to strike as constituting no valid defense. I have given the voluminous briefs and arguments full consideration, but shall content myself by stating my conclusions in a brief and general way.

[1] 1. Logically, the sixth defense, as involving the jurisdiction of the court to entertain the action, should be first disposed of. Its allegations proceed upon the theory that the court has no jurisdiction of the subject-matter of the action because plaintiff has not applied to the Railroad Commission for a reparation order as provided in section 71 of the Public Utilities Act of December 23, 1911 (chapter 14, Stats. Cal. Spec. Sess. 1911).

But this section has reference, when properly construed, only to instances where the question whether the carrier has charged…