Argument for Appellants.

200 U. S.

sonable preference and advantage, and was a violation of the third section of the act.

The initial carriers, believing the Commission had erred in its decision, refused to obey the order which it made, and thereupon the Commission, pursuant to the sixteenth section of the act, filed its bill in the Circuit Court for the purpose of enforcing its order.

The bill thus filed by the Commission was demurred to by the defendants, and the demurrer was overruled. 132 Fed. Rep. 829. The railroad companies then answered, and the case, after the taking of further evidence, came up for final hearing, when the order of the Commission was affirmed and directed to be enforced (132 Fed. Rep. 829), although the Circuit Court put the affirmance on the ground that the agreement as to routing showed that there was a violation of § 5 of the Commerce Act, in that such agreement amounted to a contract or combination for the pooling of freights. The court passed upon no other question raised in the case. A very full statement of facts is contained in the report in 132 Fed. Rep. supra.

A motion was made for a supersedeas pending the hearing of this appeal, which, for the reasons stated in the opinion of the Circuit Court, was denied. 137 Fed. Rep. 606.

Mr. Robert Dunlap, with whom Mr. Thomas J. Norton and Mr. Gardiner Lathrop were on the brief, for appellants, Southern California Railway Company, Atchison, Topeka & Santa Fc Railway Company, and Santa Fe Pacific Railroad Company. Mr. Maxwell Evarts, with whom Mr. Robert S. Lovett was on the brief, for appellant, Southern Pacific Company:

This is a special proceeding in which the jurisdiction of the Circuit Court is confined to determining the lawfulness of the order of the Commission, and if found to be lawful to enjoin obedience thereto, otherwise to dismiss the bill. Sec. 16, pp. 3165, 3166, 3 U. S. Comp. Stat. If the Commission have misconstrued or misapplied the provisions of this law their order is invalid. Int. Com. Com. v. L. V.R.R. Co., 74 Fed. Rep. 784;

Argument for Appellants.

D. G. H. & M. R. R. Co. v. Int. Com. Com., 74 Fed. Rep. 803; Int. Com. Com. v. D., L. & W. R. R. Co., 64 Fed. Rep. 723; East Tenn. &c. R. R. v. Int. Com. Com., 181 U. S. 1.

The facts found by the Commission were insufficient to warrant its conclusions and orders and it is therefore evident that the Commission erred in applying the law to the case before them. L. & N. R. R. v. Behlmer, 175 U. S. 674-676.

The evidence in the lower court showed that the conclusion of the Commission concerning the adoption of the routing provision in the joint tariff was erroneous and its order based upon such conclusion is therefore invalid. The report of the Commission shows that it misconstrued and misapplied sec. 6 in holding that carriers could not impose as a condition for the making of joint tariffs the right of the initial carrier in any event to route shipments under such joint rates.

The supposed right of the shippers to route is neither recognized nor protected by the Interstate Commerce Law and therefore the assertion of such right to route in the initial carrier contrary to the wishes of shippers is not "something done or omitted to be done in violation of the provisions" of that law or any other law cognizable by the Commission. Wannan v. Scottish Central R. Co., 1 Nev. & MacN. 237; Bennett v. Manchester, &c. Ry. Co., 6 C. B. (N. S.) 707.

The shipper is at liberty to ship under the joint tariffs and the rates therein prescribed, or not, as he may please,-it is always optional with him to do so. It is simply insisted that where he does make a through shipment under a joint rate, which is lower than the sum of the locals, he ship and accept such lower rate upon the condition on which it is made by the agreement of the carriers and thus offered him.

200 U. S.

If he does not like this condition he is not obliged to accept the same, but may ship at the sum of the locals, and the routes or lines are just as continuous for shipment or carriage in the one case as in the other.

The joint rate is the through rate where the initial carrier routes, and the sum of the locals is also a through rate where

Argument for Appellants.

200 U. S.

the shipper routes. A through rate may be the one thing or the other—a joint rate fixel by agreement of connecting carriers, or the sum of the locals. Opinion of Lord Esher, in Didcot &c. Ry. Co. v. Great Western &c. Ry. Co., 10 Ry. & Canal Traffic Cas. 5.

The power of the Commission in respect to such joint tariffs is very clearly defined in the statute. It has no power to prescribe what shall or shall not be contained in the joint agreements, nor what the provisions thereof shall be. Interstate Com. Com. v. Railway Company, 167 U. S. 504, 505.

There is a marked difference between this law which intentionally omitted giving the Commission power to make provisions concerning joint tariff rates, and the Minnesota statute which invested the Railroad Commission of that State with specific power over such tariffs, and which was considered by this court in Minneapolis &c. Ry. v. Minnesota, 186 U. S. 257.

With the exception of requiring joint agreements to be filed and published, the law leaves the carriers as free as they were at common law to determine the terms and conditions of such joint contracts. This view was taken by Mr. Justice Jackson in Kentucky Bridge Co. v. L. & N. Ry. Co., 37 Fed. Rep. 629.

There ought to be a clear authority found in the statute for clepriving the carrier of this important right before the authority is exercised, for when questions of that nature have to be solved, a great variety of complex considerations will present themselves, some of which can neither be foreseen nor stated. Little Rock &c. R. R. Co. v. St. Louis &c. Ry. Co., 63 Fed. Rep. 780; Interstate Com. Com. v. B. & 0. R. R. Co., 43 Fed. Rep. 37 (Mr. Justice Jackson), approved in Cincinnati dic. Ry. Co. v. Interstate Com. Com., 162 l'. S. 197. See also Int. Com. Com. v. Alabama Midland Ry. Co., .74 Fed. -Rep. 723; Int. Com. Com. v. Western & A. R. Co., 93 Fed. Rep. 91; Int. Com. Com. v. Western & A. R. Co., 88 Fed. Rep. 196; Nicholson v. Great I'estern Ry. Co., 7 C. B. (N. S.) 755.

At common law the appellants could route through freight

[ocr errors]

200 Ú. S.

Argument for Appellants.

beyond their own terminals and they have not been deprived of such right by the Interstate Commerce Act.

The principle is that a carrier when it agrees to transport freight beyond its own lines does so not as a common carrier, but under an independent contract governed by the same rules that any contract is controlled by. Under the common law, therefore, it is clearly open to a carrier, which has contracted to carry beyond its own lines, to select the agency through which to perform the contract made by it with the shipper. Atchison, Topeka & Santa Fe R. R. Co. v. Denver & New Orleans R. R. Co., 110 U. S. 667; Louisville &c. R. R. Co. v. West Coast Stores Co., 198 U. S. 483; Snow v. I. B. & W. R. Co., 109 Indiana, 422, 425; C. I. & L. R. Co. v. Woodward, 72 N. E. Rep. 558 (Supreme Court of Indiana, 1904); White v. Ashton, 51 N. Y. 280, 284; Hinckley v. N. Y. C. & H. R. Co., 56 N. Y. 429; Indiana R. R. v. Remy, 13 Indiana, 518; Patten v. U. P. R. R., 29 Fed. Rep. 591; Post v. Southern Ry. Co., 103 Tennessee, 220; Lowe v. Seaboard Air Line Ry. Co. (S. C.), 41 S. E. Rep. 297.

Neither the Commission nor the court could make a different agreement or contract for these carriers than the one made by such carriers and the attempt of the Commission to keep in force the joint rate and strike out the condition or consideration therefor would be equivalent to making a new agreement for the parties which they did not desire to make. Little Rock &c. R. R. v. St. Louis &c. R. R., 63 Fed. Rep. 779, 780; Southern Pacific Co. v. C. F. & I. Co., 101 Fed. Rep. 779, 786; Little Rock &c. R. R. v. St. Louis &c. R. R., 41 Fed. Rep. 559; Pullman Car Co. v. Mo. Pac. Ry., 115 U. S. 587; A., T. & S. F. Ry. v. D. & N. O. R. R., 110 U. S. 682, 683; Express Cases, 117 U. S. 1, 29.

Any interference with the supposed right of a shipper to divert his shipment while in transit would not be in violation of the Interstate Commerce Law. Diversion of this traffic, as practiced by the shippers is merely a privilege or concession granted by the carriers, but to which the shipper is not enVOL CC-35

Argument for Appellants.

200 U. S.

[ocr errors]

titled as a matter of right. Ellis v. Willard, 9 N. Y. 529; Violett v. Stettinius, 5 Cranch. (C. C.) 559; S. C., 28 Fed. Cas. No. 16,953; Braithwaite v. Power, 48 N. W. Rep. 354; Hutchinson on Carriers, 2d ed., § 444a.

Section 5 of the Interstate Commerce Act does not prohibit a mere division of traffic between connecting lines, even if competitive. It only concerns agreements for a division of receipts or earnings which are to be combined or pooled and afterwards distributed upon an agreed proportion or ratio. Sec. 5 Interstate Commerce Law; United States v. TransMissouri Freight Association, 58 Fed. Rep. 65.

To justify a finding of undue preference either as between shippers or traffic it must be shown that they come in competition with each other so that injury results to the one by reason of the preference given the other. Int. Com. Com. v. B. & 0. R. R., 43 Fed. Rep. 37; United States v. C. & N. W. Ry., 127 Fed. Rep. 785; Hozier v. Caledonian Ry., 1 Nev. & MacN. 27; Int. Com. Com. v. B. & 0. R. R., 145 U. S. 282, 283, 284; Nicholson v. Great Western Ry., 1 Nev. & MacN. 150; Lees et al. v. Lancashire &c. R. R., 1 Nev. & MacN. 352, 366; Nicholson et al. v. Great Western Ry., 1 Nev. & MacN. 121; 1 Railway and Canal Traffic, Boyle & Waghorn, 158, 159; Phipps et al. v. London & N. W. R. R., Law. Rep., Q. B. Div., 1893, vol. 2, p. 236.

The order of the Commission is too broad to be supported upon the ground that an undue preference might be made by the carrier or upon the ground that the routing provision was adopted to effectuate a division of traffic between connecting carriers. The order is not responsive to or confined to any findings in the case upon the points stated in the report of the Commission and is therefore unlawful. D. G. H. & M. R. R. v. Int. Com. Com., 74 Fed. Rep. 803, 840, 841; East Tenn. R. R. v. Int. Com. Com., 181 U. S. 1, 23, 26. It is unlawful because legislative in its nature. It is not confined in favor of the complainants nor to the case before the Commission but it is intended generally to control the conduct

[ocr errors]
« ForrigeFortsett »