A former opinion by this court was rendered in the above entitled cause on the 14th day of February, 1922, affirming order No. 1813 of the Corporation Commission and remanding the said cause to the Corporation Commission with instructions to proceed under section 1, chapter 10, Session Laws of 1913, to determine the amount of refund due, if any, for excess charges paid to the appellants herein, and to which opinion objections are filed in a petition for rehearing filed in this court alleging error in said decision in that it holds that the rates charged by appellants for the transportation of mine run and slack coal between September 1, 1920, and December 15, 1920 (the effective date of order No. 1813), were arbitrary rates fixed by the railroad company, and that therefore the Corporation Commission was authorized under section 1, chapter 10, Session Laws of 1913, to determine the amount of refund due on account of charges collected in excess of lawful rate, in force at the time of such charges.
It is contended by the appellants that the record does not disclose sufficient grounds upon which to base a holding of arbitrary charges by the appellants, and that the record fails to show discriminatory charges, and even if found discriminatory, that there is no evidence to sustain such a holding, that said charge was unreasonable.
It appears that the appellants' main contention was based upon two propositions: First, that section 23, article 9, of the Constitution provides as follows:
"That no order of the commission prescribing or altering such rates, charges, or classification, *Page 230 rules or regulations, shall be retroactive."
This provision of the Constitution, standing alone, would seem to prohibit the Legislature from giving authority to the Corporation Commission to order refunds, but section 35, article 9, of the Constitution provides as follows:
"That after the second Monday in January, 1909, the Legislature may, by law, from time to time, alter, amend, revise or repeal sections from 18 to 34, inclusive, of this article or any of them or any amendments thereof," etc.
Hence, there was no inhibition upon the Legislature to enact section 1, chapter 10, of the Laws of 1913. Said section is set out in the original opinion. Besides, section 18, article 9, of the Constitution gives to the Corporation Commission power to correct abuses and prevent unjust discriminations and extortions by transportation and transmission companies.
The latter part of section 8235, Rev. Laws 1910, declares the duties of such companies in rendering services to the public and such constitutional and statutory provisions are merely declaratory of the common law. These matters are discussed and considered in the original opinion.
The second proposition contended by the appellants is what they call an effort to distinguish between lawful rates in force at the time the charges were made, and what they call legal rates to be thereafter declared and as set out in said section 1, chapter 10, Session Laws of 1913, and using this distinction, which the appellants contend is a distinction without a difference, as authority for declaring a refund.
The original opinion found that the record showed a discriminatory charge. It is true that a discriminatory charge must be found as a fact based upon the proofs. The record shows that it was a discriminatory charge and such a charge is an illegal, unwarranted, and arbitrary charge, and was declared by the Corporation Commission in its order of December 15, 1920, and comes within the power of the commission granted by section 1, c. 10, Sess. Laws 1913, reading as follows:
"Or may thereafter be declared to be the legal rate which should have applied for service rendered."
It is just in such case that it is the purpose and intent of the Legislature in said act to give the Corporation Commission authority to determine the amount of refund that it should order to be repaid to the shipper.
The Petition for rehearing is denied.
PITCHFORD, V. C. J., McNEILL, MILLER, and KENNAMER, JJ., concur.