Menominee River Boom Co. v. Augustus Spies Lumber & Cedar Co.

Tbe following opinion was filed October 24, 1911:

TimxiN, J.

Tbe respondent is averred and admitted to be a corporation formed by tbe consolidation, pursuant to sec. 1777, Stats. (1898), and Act No. 91 of tbe Laws of Michigan for 1887, of a Wisconsin corporation, called tbe Menominee Eiver Boom Company, and a Michigan corporation of tbe same name. It is authorized to engage in, and is engaged in, driving, bolding, sorting, and delivering logs and timber on tbe Menominee river, tbe channel of which, up to tbe Brule river, forms tbe boundary line between Wisconsin and Michigan. It has and exercises powers of driving logs under see. 1777 and powers of storing, sorting, and delivering under sec. 1777s. Tbe president of tbe appellant is a member of tbe board of directors of tbe respondent and participated in a meeting of tbe directors of respondent on March 14, 1908, at which meeting, with tbe consent of tbe president of appellant, it was resolved that a fixed rate per thousand feet be charged for driving logs, tbe rate to be made at tbe directors’ meeting when tbe “boomage and toll charges” are made. It was customary to bold annually a meeting of these directors for tbe purpose last mentioned. A meeting of these directors was accordingly held on June 11, 1908, at which the driving charges or rates were fixed and the following :

"Boomage charges. Eor boomage charges, including ordinary sacking, scaling, temporary nse of the Upper Storage (as available), dividing and delivering of logs into the log pockets in the Menominee river, the following rates per thousand feet according to the Doyle rule of measurements as scaled by this company will be charged, namely:

For delivery into log pockets of: Rate per M. Marinette & Menominee Paper Co. below dam 3. 38 cents.

N. Ludington Co. 40 “

Stephenson Manufacturing Co. 40 “

Hamilton & Merryman Co. 45 “

Merryman Manufacturing Co. 50 “

Sawyer Goodman Co. 54 “

Marinette Lumber Co. 54 “

At the Rafting Gap made up in ordinary sized rafts for immediate delivery at that point to the proper owner or authorized agent . 80 “

Ties, posts, and poles. Charges for tolls, driving, and boomage on ties, posts, poles, and pulpwood are the same as on logs and are figured on the following basis:

Ties . 20 to M.

Posts 7 to 16. 50 to M.

Poles 18 and 20 feet . 35 to M.

Poles 25 and 30 feet. 25 to M.

Poles 35 and 40 feet. 15 to M.

Poles 45 to 50 feet . 3 to M.

Poles 55 to 60 feet . 2 to M.

Pulpwood . 1 cord to M.

The foregoing rates will cover all ordinary expense of handling logs and other materials to the several points of delivery, provided the logs are properly and promptly cared for as fast as delivered into the log pockets, and are receipted for and towed away without unnecessary delay as soon as made into rafts at the Baiting Gap. On logs or other material divided above the third dam on Menominee river, special arrangements as to charges will be made, based on the service performed for such work, the same as heretofore in lieu of fixed charges per thousand feet.

Log poclcets. For extra labor on logs in storage separating marks of one sort, counting of different marks, or any unusual expense, an additional charge of twenty cents per hour per man will he made.

Watching rafts. The total monthly expense of watching rafts each month to he prorated on the hours employed watching each raft.

Use of towing booms. Eor use of towing booms ten cents per hour per set, to he charged for from the time put into-use, and when returned to Rafting Gap empty — with a further proper charge for loss of chain, rope, etc., or for damage done.”

The president of appellant at this meeting objected to the last item in the first schedule 'above; voted against it and left the meeting. A copy of this document was soon after sent to the appellant. The latter retained this copy until August 20, 1908, when it was returned to respondent signed and verified by appellant’s president and secretary. This paper contained a statement of logs, ties, posts, etc., banked by appellant and to be driven down the Menominee river which aggregated 15,564,399 feet board measure, and among other things the following:

“The said boom company is hereby requested and authorized to drive, boom, and handle all the logs herein referred to, together with any logs of previous years, concurrently with logs of other owners, upon terms and stipulations in circular letter of. said company, dated June 11, 1908, which forms part of this blank, and to deliver the same as we have already or may hereafter order, or in default of such order to care for the same as in the judgment of said company the interest of all log owners may require.

“I have read the foregoing statement and do not subscribe or make affidavit as a mere formality, but with a firm belief in the correctness of the statement made.”

The logs had been driven down the river to the place for separation and delivery and some deliveries made to the appellant prior to June 11, 1908. Deliveries continued up to and after August 20, 1908, the appellant receiving the same without protest and making partial payments thereon, so 'computed, however, as not to equal eighty cents per thousand feet board measure. The respondent, after having- completed the sorting and delivery, brought this action upon the contract above set forth to recover a balance of $6,217.01 still unpaid. The appellant answered, among other things, that the charges •of respondent were unreasonably high and above the maximum of fifty cents per thousand feet allowed by law, and also that the charges were not uniform but wrongfully discriminated against the appellant and in favor of mill owners to whom deliveries were made farther up stream, and that such mill owners controlled the stock and board of directors ■of respondent. Another line of defense was that the appellant did not sign the verified statement of August 20, 1908, •as a contract, but for the sole purpose of informing the respondent of the amount of timber it had to be driven down •stream, and that this instrument was without legal consideration and the charges specified in excess of the maximum allowed by law, and respondent was in possession of this part ■of the river, and appellant could not itself separate the logs and would suffer great injury and loss if respondent refused •or delayed to deliver promptly.

Sec. I777e, Stats. (1898), provides that:

“Any corporation formed under this chapter for the improvement of any stream and storing, sorting and delivering thereon saw logs, square and round timber or other timber thereon which shall have taken prior possession of such stream or portion of stream for that purpose shall have the exclusive power to improve such stream or portion thereof ... by •constructing all such booms of all kinds as may be necessary or suitable for the purposes aforesaid.” “Every such corporation shall have all the powers, grants and privileges, including the right to collect toll or boom charges, and have liens therefor, and be subject to all the conditions, limitations and restrictions conferred, imposed or provided by said section 1777 upon corporations for the improvement of streams and driving logs thereon, so far as the same may be applicable, excepting in the cases wherein special provisions relating thereto are herein made.”

Sec. 1777, Stats. (1898), there referred to, provides that the corporation, formed for driving logs, etc., “may charge and collect reasonable and uniform tolls npon all logs, lumber and timber driven or floated on the same.” The last mentioned section contains an additional provision as follows:

“And shall also, at the request of the owner of any logs and timber put into said stream, take charge of the same, and drive the same down and out of such stream, and charge and collect therefor of the owner or party controlling said logs and timber reasonable charges and expenses for such services/’

This section 1777e further declares that “the provisions of sections twelve, thirteen, fourteen, fifteen, sixteen, eighteen and twenty-four of chapter forty-five of the private and local laws of Wisconsin for the year 1871, entitled an act to incorporate the Wansan Boom Company, as the same are amended, shall apply to corporations formed hereunder.” Sec. 12 last mentioned provides that the boom company shall publish in a newspaper for three successive weeks prior to the first day of April in each year a notice to log owners containing certain specified information. Also that all log owners desiring to' have logs or timber retained or stored in such booms shall, on or before April first in each year, file with the secretary of the company a statement in writing and subscribed by such person, setting forth that he desires his logs or timber retained or stored in said booms, specifying as near as may be the number and quantity and the particular marks or brands thereon, and the company shall be under no obligation to receive, retain, or store any logs or timber the owners of which have not complied with the foregoing provisions. ' This expressly covers with reference to boom companies what is covered with reference to log-driving companies by the last quoted excerpt from sec. 1777. Sec. 13 above mentioned authorizes such companies to collect upon all logs and timber received, retained, or stored in their said booms such sum as may be determined upon and provided by the board, of directors, not exceeding the sum of fifty cents per thousand feet. A lien is. given to secure tbis charge. Sec. 15 provides tbat tbe stockholders of said company shall have no preference over any other persons in the storage of their logs and timber in said boom; also that the logs are to be scaled at the lower dividing boom by the scaler.

The respondent, as heretofore mentioned, is also engaged in driving logs, but that power and that service are separate and distinct from its authority and its services as a corporation under sec. Hile,' and no question is made in this suit respecting the driving charges, and none of the driving charges are included in those covenants of the contract upon which this suit is brought. There is no substantial controversy in the evidence relating to the right of recovery, although there is a controversy relating to the proper amount to be recovered. Eor many years prior to 1890 the respondent charged to all log owners an uniform rate for storing, sorting, and delivering logs within the boomage ground. Since 1890 and for the season in question the charges of the respondent for “sorting and delivering,” as the statute expresses it, — “dividing,” as the respondent called it, — were fixed as follows: In a distance of something over a mile on a straight line from the point where the sorting and delivery commenced there were the delivery boom pockets of log owners having mills in the vicinity. Each was furnished or furnished himself with one or more pocket booms into which his logs were to be delivered by respondent. At each of these points of delivery there was an opening called a gap in the floating timber fences, called booms, and at each of these gaps a partial separation of the logs was made. At each of these gaps men were stationed who separated from the floating and mingled mass the logs of the owner at whose gap the logs in their course down the river had arrived, and turned them into the pocket boom of that owner, and also turned the remainder of the unseparated mass into the opening, which would permit them to float down river between parallel boomsticks running lengthwise or nearly lengthwise of the river until the next gap was reached, where there was a like partial separation by withdrawing from the •mass the logs of that owner and permitting the mingled remainder of the logs to pass down the river until the next gap was reached, where the operation was repeated. At the so-called railroad gap (being the third or fourth gap) the logs belonging to owners who required delivery on the Michigan Side of the river were separated from the logs to be delivered ■on the Wisconsin side, but not otherwise separated, and from this point the Michigan logs of the various owners on that side passed commingled down river to the first gap below the railroad gap, where a partial separation was made by subtracting from that mass the logs of that owner, and this operation was repeated until appellant’s logs were delivered wholly separated after the fifth or sixth of such partial separations. As the logs moved down the river from gap to gap •some work was necessary to prevent clogging and keep them •moving. The respondent kept account of the expense at each gap and prorated that on all the logs which reached that point, including those there delivered and those which passed down in the mingled mass; but logs once delivered at any upper gap were not charged with any further expense of the whole separation. The expenses of the lower gaps tended somewhat to •diminish, but the quantity of logs on which the expenses were prorated diminished in greater proportion, so that there was, including the pro rata charges of the upper gaps with which such logs were burdened, a rising scale of expense per thousand feet, substantially similar but not equal to that heretofore set forth in this opinion, as separation was made and logs delivered into the pockets farther down stream. In this manner and basing it on the expenses so ascertained and apportioned, the respondent made and fixed the variable schedule of charges mentioned, which, it will be observed, runs from thirty-eight cents per thousand feet at the first to forty «cents per thousand feet at the second place of delivery and eighty cents per thousand feet at the rafting gap, the place of delivery for appellant’s logs. This last includes a charge per thousand feet for rafting (that is, making up into rafts), the amount of which was not fixed or agreed upon separately, but which the respondent now claims to have been reasonably worth nineteen and one-half cents per thousand feet and the' appellant ten cents per thousand feet. In the first case the charge against the appellant for storing, sorting, and delivering would be sixty and one-half cents per thousand feet, in the second case seventy cents per thousand feet. The respondent also contends that there is included in this some indefinite amount for separating cedar poles, ties, etc., from saw logs, but the appellant contends that similar separations were made for other log owners without extra charge. Other items of expense and other fractions of the total charges above-mentioned, such as sacking, sealing, storage, general expense, and stray logs, were distributed pro rata at so much per thousand feet on all the logs received by the respondent, no matter-where delivered.

We do not think the statute contemplates or permits any such distribution of charges. The duty of the respondent is to sort and deliver in that part of the river of which it has exclusive possession for that purpose. If by reason of the configuration of the river this can best be done by the method of' making a partial separation at each gap and there delivering' the logs of one owner, this is merely for the convenience of the-respondent and to facilitate separation. The sorting and delivery, as it is called in the statute, or the dividing, as the respondent calls it, is one process, not several processes, even though it be carried on for convenience of the respondent at different points in the river as the logs float downward. The-mere fact that respondent avails itself of the current and that the pocket booms are situated at different points along the bank has no influence to separate this sorting and delivery into a dozen or a half dozen different items or processes. The-duty of tbe respondent is to sort out tbe logs of each owner and deliver them. If it can more easily or cheaply perform tbis duty by separating tbe logs of one owner from tbe mass at one point in tbe downward course, and separating tbe logs of another owner at another point down tbe river, it may no doubt adopt tbis method; but by adoption of tbis method, or because tbe method is tbe most feasible and practical one under tbe circumstances, tbe operation of sorting and delivering is not divided into as many distinct acts or operations as there are pocket booms on that part of tbe river within tbe possession of tbe respondent.

In tbe absence of a prohibitory statute a public-service corporation may make a discrimination in rates when such discrimination is founded upon a reasonable difference in conditions attending tbe several transactions, but otherwise it must treat all alike, especially where it enjoys a substantial monopoly. But to different persons dealing with it under substantially similar circumstances its charges must be uniform. Atchison, T. & S. F. R. Co. v. D. & N. O. R. Co. 110 U. S. 667, 4 Sup. Ct. 185; State ex rel. v. C., N. O. & T. P. R. Co. 47 Ohio St. 130, 23 N. E. 928, 7 L. R. A. 319; Doty v. Strong, 1 Pin. 313; Ayres v. C. & N. W. R. Co. 71 Wis. 372, 37 N. W. 432; Goodridge v. U. P. R. Co. 35 Fed. 35. There is here no reasonable difference in conditions. Bearing this common-law rule in mind, and considering that the words “tolls or boom charges” (not tolls and boom charges) are (except tbe restriction) tbe only provisions found in sec. 1777c relating to tbe charges or compensation of tbe boom company, it is fair to assume: (1) that tbis charge is for tbe “storing, sorting, and delivering” mentioned in that section; and (2) that tbis charge is governed by tbe requirement of uniformity, found in sec. 1777 with reference to tolls. “Or” is usually disjunctive; occasionally, to avoid absurdity, it is construed as a conjunctive and equivalent to “and,” but it also is used in tbe sense of “alias,” as in tbe phrase “a violin or fiddle.” Standard Diet. It is in the latter sense that it is nsed here. This is how it was understood by the respondent when, in the instrument of June 11th from which excerpts have been quoted, it fixed its boomage charges covering the whole charge for storing, sorting, and delivering, and when it mentioned in its resolution the directors’ meeting to be held in the future “when the boomage and toll charges are made.” Other and more general rules relating to grants of franchises and privileges corroborate this construction. Janesville B. Co. v. Stoughton, 1 Pin. 667; 19 Cyc. 1459. Tolls, by sec. 1777, are required to be uniform, and that requirement applies to the tolls or boom charges mentioned in sec.- I777e. That requirement cannot reasonably be limited to the word “tolls” in sec. 1777e, as it may in sec. 1777, because the latter section provides for certain services at the request' of the owner of logs, which services are to be compensated reasonably and may or may-not be included in the “tolls.” In sec. 1777e tolls or boom charges are the same thing. The above quoted paragraph from sec. 1777 relating to services performed upon request of the log owner is not a part of sec. 1777c, because by sec. 12, ch. 45, P. & L. Laws of 1871, expressly adopted in and made a part of sec. I777e, there are special provisions covering and regulating in a different manner this same subject, and by sec. I777e the provisions of sec. 1777 are to obtain and govern in the cases covered by sec. I777e only so far as applicable, and then only where no special provisions are otherwise made. But even if it were otherwise the charges must in any event be reasonable, and a charge or rate cannot be said to be reasonable which is unreasonably discriminatory.

As we construe the statute, it requires the respondent to make uniform charges for sorting and delivering, and under the plan adopted and above described the charges are not uniform. The fraction of the whole expense of sorting and delivering at each gap is distributed uniformly on the logs which arrive at that gap whether delivered there or not. But this does not meet the requirement of uniformity, because uniformity in the- statute applies to the whole charge for' sorting and delivering, and not to arbitrary fractions of that charge based on expenses at any point where the respondent finds it convenient .to establish a gap.

Now the statute further forbids a charge in excess of fifty cents per thousand feet. When the evidence was in it appeared without contradiction, therefore, that the contract upon which the suit was brought was based upon charges not uniform and upon an agreement to pay more than fifty cents per thousand feet; that is to say, a contract made in violation of two several statutory prohibitions. A contract made in violation of a statute or for performance of an act which is prohibited by statute is void and will not be enforced by the court. This is true whether there is a prohibition and a penalty or merely a prohibition. Presbyterian M. Fund, v. Thomas, 126 Wis. 281, 105 N. W. 801; Ætna Ins. Co. v. Harvey, 11 Wis. 394; Melchoir v. McCarty, 31 Wis. 252; Laun v. Pac. Mut. L. Ins. Co. 131 Wis. 555, 111 N. W. 660, 9 L. R. A. n. s. 1204. See, also, cases collected in note to Levinson v. Boas (150 Cal. 185, 88 Pac. 825) in 12 L. R. A. n. s. 575. A contract contrary to the terms of a statute is not enforceable in court. Jemison v. B. & A. R. Co. 125 Ala. 378, 28 South. 51; Raleigh & G. R. Co. v. Swanson, 102 Ga. 754, 28 S. E. 601, 39 L. R. A. 275. If any part of the consideration for a promise be illegal, or if there are several considerations for an unseverable promise one of which is illegal, the promise, whether written or oral, is wholly void, as it is impossible to say what part or which one of the considerations induced the promise. Trist v. Child, 21 Wall. 441; Meguire v. Corwine, 101 U. S. 108; Pacific G. Co. v. Mullen, 66 Ala. 582; Bishop v. Palmer, 146 Mass. 469, 16 N. E. 299. The contract is void if it is only in-part connected with the illegal transaction and the promise single or entire. Swartzer v. Gillett, 2 Pin. 238; United B. Church v. Vandusen, 37 Wis. 54; Fernekes v. Bergenthal, 69 Wis. 464, 34 N. W. 238. See, also, witb reference to a public-service company, New Orleans G. L. & B. Co. v. Paulding, 12 Rob. (La.) 378. Tbe appellant, being one. of tbe persons to be protected. by tbe limitation of charges made in tbis statute, may raise tbe objection. Laun v. Pac. Mut. L. Ins. Co. 131 Wis. 555, 111 N. W. 660. Objection to tbe illegality of tbis contract could not be waived by making or ratifying tbe contract, otherwise tbe statute would be ineffectual; besides, tbe respondent itself traces its right of action here through tbis illegal contract. Levinson v. Boas, supra, and cases in note.

Tbis is not tbe case of suing to recover back excessive charges exacted by a carrier or public-service company by duress of goods or under tbe necessity of securing transportation thereof, such as Ill. G. Co. v. Chicago T. Co. 234 Ill. 535, 85 N. E. 200, 18 L. R. A. n. s. 124, and cases in note. In that class of cases there is some apparent conflict witb reference to what is and what is not a voluntary payment. (Cases in note last referred to.) In tbe case at bar tbe respondent sues to recover money due under a contract executed on its part but not fully executed on tbe part of tbe appellant, and tbis contract was made in violation of a prohibitory statute, and tbe objection to tbe recovery is made by one who joined in tbe contract but for whose benefit tbe statutory restrictions were established. Tbe contract is not severable in tbe sense that we can separate tbe valid from tbe invalid portions thereof. Tbe same consideration goes to tbe whole contract. Martin v. Fstate of Martin, 108 Wis. 284, 84 N. W. 839.

Cases are cited to show that tbe respondent is not a common carrier. Within tbe full legal meaning of these words it probably is not. Mann v. White River L. & B. Co. 46 Mich. 38, 8 N. W. 550; Chesley v. Miss. & R. R. B. Co. 39 Minn. 83, 38 N. W. 769. These cases bold that similar companies are not subject to tbe rule of absolute liability of a common carrier to deliver goods intrusted to it for carriage. But tbey concede tbat in other respects there is some analogy. It is sufficient for the instant case that the respondent is a public-service corporation and has exclusive control of the river at the place in question. We are not willing to hold that such corporation, having its charges limited by statute, may nevertheless make a valid contract for compensation in excess of the statutory rate by the simple expedient of adding to the public service some service not within the statutory regulation, and by consent of the party served putting such high value on this latter service that the public service may appear to be within the statutory limit when it is not. Here, however, the undisputed evidence shows that the public-service charges exceed the statutory limit after subtracting from the whole charge the highest amount claimed by respondent to be the reasonable value of the other services.

We are urged to fix the amount of respondent’s recovery in the event that it is found that respondent cannot recover the full amount recovered in the circuit court. But this we are unable to do because there has been no fiudiug fixiug the reasonable value ed: the additional items of service, consisting of making up the logs into rafts and separating the cedar, etc., from the saw logs, and the evidence is in irreconcilable conflict. Neither have we a showing of all the items which entered into general expense, nor satisfactory evidence going to show whether this separation of ced%r, etc., from saw logs was charged uj) to other log owners or was in their case covered by the general charge for “boomage.”

The judgment should be reversed, but the respondent may amend and recover for the storing, sorting, and delivery a reasonable and uniform charge not exceeding fifty cents per thousand feet, less payments made. This can be easily ascertained. The whole amount of feet, board measure, according to respondent’s scale, but estimating the ties, posts, etc., in a reasonable and customary way, divided into tbe whole reasonable charge not exceeding fifty cents per thousand feet, will give the rate per thousand feet, which may be multiplied by the whole number of feet of appellant’s timber arrived at in the same way. The reasonable value of the service of mating the logs, etc., up into rafts must be found separately, and also that of each of the other services claimed for and not included in storing, sorting, and delivering. This may or may not include separating cedar, etc., from saw logs according as the evidence may or may not establish that as to other log owners this was included in the charge for sorting. The respondent, notwithstanding its illegal contract,, may recover the reasonable value of its services because these services were not illegal and were undertaken and carried out. independently of this contract, which fixed the price at an illegal rate, after the work was undertaken and partially carried out.

By the Court. — Judgment reversed, and cause remanded for further proceedings in conformity with this decision.