See also ss. RR 2.12
, Wis. adm. code.
If any director, officer, employee or agent of a railroad or water carrier, in the course of the discharge of his or her duties, willfully, wantonly or recklessly causes to be done or permits to be done any matter, act or thing in this chapter prohibited or declared to be unlawful, or willfully, wantonly or recklessly fails to do any act, matter or thing required to be done by this chapter, the railroad or water carrier shall be liable to the person injured thereby in treble the amount of damages sustained in consequence of the violation. No recovery as in this section provided shall affect a recovery by the state of the penalty prescribed for such violation.
The burden of proof in an action under sub. (1)
rests with the person injured to prove the case by clear and convincing evidence.
A treble damage claim is no longer a separate cause of action because gross negligence is to be compared like all other negligence. Kania v. Chicago & North Western Railway Co. 57 Wis. 2d 761
, 204 N.W.2d 681
General penalty upon railroads and water carriers.
If any railroad or water carrier shall violate any provision of this chapter, or shall do any act herein prohibited, or shall fail or refuse to perform any duty enjoined upon it, for which a penalty has not been provided, or shall fail, neglect or refuse to obey any lawful requirement or order made by the office, or any judgment or decree made by any court upon its application, for every such violation, failure or refusal in respect to any matter prescribed by this chapter such railroad or water carrier shall forfeit not less than $100 nor more than $10,000. The act, omission or failure of any officer, agent or other person employed by any railroad or water carrier, acting within the scope of his or her employment, shall be deemed to be the act, omission or failure of such railroad or water carrier.
Water carrier freight charges; collection, refund. 195.37(1)(1)
Complaints, investigations, hearings, findings, refund.
The office may investigate the complaint of any person aggrieved that the charge exacted by a water carrier for the transportation of property between points in this state, or for any service in connection with transportation of property, or that the charge exacted by a water carrier for the storage of such property, or that any charge exacted by a water carrier is erroneous, illegal, unusual or exorbitant and shall set the complaint for hearing as provided in s. 195.04 (2)
. If the office finds that the rate or charge exacted by a water carrier is erroneous, illegal, unusual or exorbitant, it shall find what would have been a reasonable rate or charge for such service. If the rate or charge so found is less than the charge exacted, the carrier shall refund the excess.
(2) Actions; findings as evidence, defenses.
In an action to recover the amount of such excess charge, the findings of the office shall be prima facie evidence of the truth of the facts found by it, and no carrier shall be permitted to avail itself of the defense that the shipment involved was in fact made on the published tariff rate in force at the time such shipment was made, but no carrier making a refund upon the order of the office or the judgment of a court shall be liable for any penalty or subject to any prosecution on account of making such refund.
(3) Limitation for filing claim.
All complaints provided for in sub. (1)
, except those for straight overcharges, shall be filed with the office within 2 years after delivery of the shipment of property at destination, subject to sub. (6)
(4) Straight overcharges, limitation of actions, exception. 195.37(4)(a)(a)
In this subsection, “straight overcharge" means a charge in excess of those applicable under the lawful tariffs on file with the office.
For recovery of a straight overcharge, neither this section nor s. 195.38
shall be considered exclusive remedies. Complaints for the recovery of a straight overcharge may be filed or actions begun within 3 years from the delivery of the shipment of property at destination, and not after, except that if a claim for the overcharge has been presented in writing to the carrier within the 3-year period, the period shall be extended to include 6 months from the time that notice in writing is given by the carrier to the claimant of disallowance of the claim or any part of the claim.
(5) Actions by carriers, limitation.
Actions by carriers for the recovery of charges for the transportation of property between points in Wisconsin, or for any service in connection therewith, or for the storage of such property, or for any car service or demurrage charge, or any part thereof, shall be begun within 3 years after the delivery of the shipment of property at destination with respect to which the charge is made and not after.
(6) Limitation action, extended by carrier.
If, on or before the expiration of the 2-year period of limitation under sub. (3)
or of the 3-year period of limitation under sub. (4)
, a carrier commences an action for the recovery of charges in respect to the same transportation service, or without bringing action collects charges in respect of that service, the periods of limitation under subs. (3)
shall be extended to include 90 days from the time that the carrier's action is commenced or the charges are collected by the carrier.
Water carrier freight bills; examination; refunds.
Within 3 years after the delivery of any shipment of property at destination by a water carrier, any person, firm or corporation may submit to the office, by mail or in person, any water carrier expense bill or receipt showing charges paid for transportation of such property by freight for the purpose of having the expense bill or receipt examined with respect to the correctness of weights, rates and charges indicated thereon. Upon receipt of any such expense bill or receipt, the office may make such examination as is necessary, and if it is found that any such weights, rates or charges are incorrect, the office shall order the water carrier in error to refund to the person, firm or corporation which submitted such expense bills or receipts, any over or excessive charges paid by such person, firm or corporation.
Common carriers of passengers or property by water; certificate required. 195.45(1)
No person shall operate as a common carrier of passengers or property by water except in accordance with the terms and conditions of a certificate of public convenience and necessity issued by the office. The office shall issue any certificate upon a finding that the service proposed to be performed is in the public interest and required by public convenience and necessity.
Application for the certificate shall be made on forms furnished by the office and shall contain such information as the office requires.
Every application for a certificate under this section shall be accompanied by a filing fee of $40.
The office may promulgate rules for the operation of this section.
History: 1981 c. 347
s. 80 (1)
; 1993 a. 16
See also ch. RR 4
, Wis. adm. code.
Information, papers and accounting. 195.50(1)
Any officer, agent or employee of any railroad or water carrier who fails to fill out and return any forms required by this chapter, or fails to answer any question therein, or knowingly gives a false answer to any such question, or evades the answer to any such question where the fact inquired of is within his or her knowledge, or who, upon proper demand, fails to exhibit to the office or department or any person authorized to examine the same, any book, paper, account, record or memoranda of such railroad or water carrier which is in the possession or under control of the officer, agent or employee, or who fails to properly use and keep the system of accounting prescribed by the office, or who refuses to do any act or thing in connection with such system of accounting when so directed by the office or its authorized representatives, shall forfeit not less than $100 nor more than $1,000 for each offense.
A forfeiture of not less than $500 nor more than $1,000 shall be recovered from the railroad or water carrier for each such offense when such officer, agent or employee acted in obedience to the direction, instruction or request of such railroad or water carrier or any general officer thereof.
Payment of office expenses by railroads and water carriers. 195.60(1)(1)
Whenever the office in a proceeding upon its own motion, on complaint, or upon an application to it deems it necessary in order to carry out the duties imposed upon it by law to investigate the books, accounts, practices and activities of, or make appraisals of the property of any railroad or water carrier or to render any engineering or accounting services to any railroad or water carrier, the railroad or water carrier shall pay the expenses attributable to such investigation, appraisal or service. The office shall ascertain such expenses, and shall render a bill therefor, by mail, to the railroad or water carrier, either at the conclusion of the investigation, appraisal or services, or during its progress. The bill shall constitute notice of assessment and demand of payment thereof. The railroad or water carrier shall, within 30 days after the mailing thereof, pay to the office the amount of the special expense for which it is billed. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (2) (g)
. The total amount, in any one calendar year, for which any railroad or water carrier becomes liable, by reason of costs incurred by the office within such calendar year, shall not exceed four-fifths of one percent of its gross operating revenues derived from intrastate operations in the last preceding calendar year. Where, under this subsection, costs are incurred within any calendar year, which are in excess of four-fifths of one percent of such gross operating revenues, the excess costs shall not be chargeable as part of the remainder under sub. (2)
but shall be paid out of the general appropriation to the office. Nothing in this subsection shall prevent the office from rendering bills in one calendar year for costs incurred within a previous year. For the purpose of calculating the costs of investigations, appraisals and other services under this subsection, 90 percent of the costs determined shall be costs of the office and 10 percent of the costs determined shall be costs of state government operations.
The office shall annually, within 90 days after the close of each fiscal year, ascertain the total of its expenditures during such year which are reasonably attributable to the performance of its duties relating to railroads and water carriers. For purposes of such calculation, 90 percent of the expenditures so determined shall be expenditures of the office and 10 percent of the expenditures so determined shall be expenditures for state government operations. The office shall deduct therefrom all amounts chargeable to railroads and water carriers under sub. (1)
and s. 201.10 (3)
. A sum equal to the remainder plus 10 percent of the remainder shall be assessed by the office to the several railroads and water carriers in proportion to their respective gross operating revenues during the last calendar year, derived from intrastate operations. Such assessment shall be paid within 30 days after the bill has been mailed to the several railroads and water carriers, which bill shall constitute notice of assessment and demand of payment thereof. The total amount which may be assessed to the railroads and water carriers under authority of this subsection shall not exceed 1.85 percent of the total gross operating revenues of such railroads and water carriers, during such calendar year, derived from intrastate operations. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (2) (g)
. The railroads and water carriers shall furnish such financial information as the office requires for purposes of this section.
If any railroad or water carrier against which a bill has been rendered under sub. (1)
within 30 days after the rendering of such bill neglects or refuses to pay the same or fails to file objections to the bill with the office, the office shall transmit to the secretary of administration a certified copy of the bill, together with notice of neglect or refusal to pay the bill, and on the same day the office shall mail to the railroad or water carrier against which the bill has been rendered a copy of the notice which it has transmitted to the secretary of administration. Within 10 days after the receipt of such notice and certified copy of such bill, the secretary of administration shall levy the amount stated on such bill to be due, with interest, by distress and sale of any goods and chattels, including stocks, securities, bank accounts, evidences of debt, and accounts receivable belonging to such delinquent railroad or water carrier. Such levy by distress and sale shall be governed by the provisions of s. 74.10
, 1985 stats., except that it shall be made by the secretary of administration and that said goods and chattels anywhere within the state may be levied upon.
Within 30 days after the date of the mailing of any bill as provided by subs. (1)
, the railroad or water carrier against which such bill has been rendered may file with the office objections setting out in detail the grounds upon which the objector regards the bill to be excessive, erroneous, unlawful or invalid. The office, after notice to the objector, shall hold a hearing upon such objections, not less than 5 nor more than 10 days after such notice. If after such hearing the office finds any part of the bill to be excessive, erroneous, unlawful or invalid it shall record its findings upon its minutes and transmit to the objector an amended bill, in accordance with such findings. The amended bill shall have in all ways the same force and effect under this section as an original bill rendered under subs. (1)
If after the hearing the office finds the entire bill unlawful or invalid, it shall notify the objector of such determination, in which case the original bill shall be deemed void.
If after the hearing the office finds that the bill as rendered is neither excessive, erroneous, unlawful or invalid, either in whole or in part, it shall record such findings upon its minutes, and transmit to the objector notice of such finding.
If any bill against which objections have been filed is not paid within 10 days after notice of a finding that such objections have been overruled and disallowed by the office has been mailed to the objector, the office shall give notice of such delinquency to the secretary of administration and to the objector, in the manner provided in sub. (3)
. The secretary of administration shall then proceed to collect the amount of the bill as provided in sub. (3)
. If an amended bill is not paid within 10 days after a copy thereof is mailed to the objector by registered mail, the office shall notify the secretary of administration and the objector as in the case of delinquency in the payment of an original bill. The secretary of administration shall then proceed to collect the amount of the bill as provided in the case of an original bill.
No suit or proceeding shall be maintained in any court for the purpose of restraining or in any way delaying the collection or payment of any bill rendered under subs. (1)
. Every railroad or water carrier against which a bill is rendered shall pay the amount thereof, and after such payment may in the manner herein provided, at any time within 2 years from the date the payment was made, sue the state in an action at law to recover the amount paid with legal interest thereon from the date of payment, upon the ground that the assessment was excessive, erroneous, unlawful, or invalid in whole or in part. If it is finally determined in such action that any part of the bill for which payment was made was excessive, erroneous, unlawful, or invalid, the secretary of administration shall make a refund to the claimant as directed by the court, which shall be charged to the appropriations to the office.
No action for recovery of any amount paid under this section shall be maintained in any court unless objections have been filed with the office as provided in this section. In any action for recovery of any payments made under this section the claimant shall be entitled to raise every relevant issue of law, but the office's findings of fact made pursuant to this section shall be prima facie evidence of the facts therein stated.
The following shall be deemed to be findings of fact of the office, within the meaning of this section:
Determinations of fact expressed in bills rendered under this section; and
Determinations of fact set out in those minutes of the office which record the action of the office in passing upon said bills, and in passing upon objections thereto.
The procedure by this section providing for determining the lawfulness of bills and the recovery back of payments made pursuant to such bills shall be exclusive of all other remedies and procedures.
See also ss. RR 2.01
, and 2.04
, Wis. adm. code.