« ForrigeFortsett »
APPEAL from the District Court of the roads which make up the new and
the United States for the Eastern independent line. District of Virginia to review a decree dismissing the petition in a suit to enjoin the enforcement of an order of the Interstate Commerce Commission regulating the absorption of switching charges. Affirmed.
See same case below, 249 Fed. 368. The facts are stated in the opinion. Messrs. Claudian B. Northrop and Frank W. Gwathmey argued the cause and filed a brief for appellants:
Section 2 of the Interstate Commerce Act has no application whatever except where the haul is over the same line, the same distance, under the same circumstances of carriage.
Wight v. United States, 167 U. S. 512, 518, 42 L. ed. 258, 259, 17 Sup. Ct. Rep. 822; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 166, 167, 42 L. ed. 414, 423, 18 Sup. Ct. Rep. 45; 2 Ann. Rep. I. C. C. (1888) p. 89; Lancashire & Y. R. Co. v. Greenwood, L. R. 21 Q. B. 217, 55
L. T. N. S. 58.
The Wight Case is conclusive of the
case at bar.
Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822.
Each station is a point of departure or arrival; not entire city, district, or community.
Denaby Main Colliery Co. v. Manchester, S. & L. R. Co. L. R. 11 App. Cas. 97, 55 L. J. Q. B. N. S. 181, 54 L. T. N. S. 1, 50 J. P. 340, 6 Eng. Ry. & C. Traffic Cas. 133; Murray v. Glasgow & S. W. R. Co. 11 Sc. Sess. Cas. 4th series, 205; Lancashire & Y. R. Co. v. Greenwood, L. R. 21 Q. B. 215, 55 L. T. N. S. 58; Chicago Stock Yards Cases (Interstate Commerce Commission Chicago, B. & Q. R. Co. 186 U. S. 320, 46 L. ed. 1182, 22 Sup. Ct. Rep. 824; Commerce Commission Stickney, 215 U. S. 98, 54 L. ed. 30 Sup. Ct. Rep. 66).
Switching is a part of railroad transportation, and drayage is not and never
Illinois C. R. Co. v. De Fuentes, 236 U. S. 157, 59 L. ed. 517, P.U.R.1915A, 840, 35 Sup. Ct. Rep. 275; Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 633, 42 L. ed. 306, 17 Sup. Ct. Rep. 986.
When two or more railroads form a through route at a through rate, a new and independent line is constituted which is not the same line as either of
Chicago & N. W. R. Co. v. Osborne, 52 Fed. 912; Re Through Routes & Through Rates, 12 Inters. Com. Rep. 166; Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 56 L. ed. 556, 32 Sup. Ct. Rep. 316. This court has defined the phrase "like and contemporaneous service."
Party Rate Case (Interstate Com-
R. Co. v. Interstate Commerce Commis-
Mr. Blackburn Esterline, Special As-
The findings of the Commission are conclusive that the traffic on which the switching charges are absorbed or nonabsorbed is handled in the Richmond switching district under similar circumstances and conditions.
Atchison, T. & S. F. R. Co. v. United States, 231 U. S. 736, 58 L. ed. 460, 34 Sup. Ct. Rep. 316; Baltimore & O. R. Co. v. United States, 215 U. S. 481, 494, 54 L. ed. 292, 297, 30 Sup. Ct. Rep. 164; Cincinnati, H. & D. R. Co. v. Interstate Commerce Commission, 206 U. S. 142, 154, 51 L. ed. 995, 1001, 27 Sup. Ct. Rep. 648; Interstate Commerce Commission v. Chicago, R. I. & P. R. Co. 218 U. S. 88, 110, 54 L. ed. 946, 958, 30 Sup. Ct Rep. 651; Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 452, 470, 477, 54 L. ed. 280, 287, 290, 30 Sup. Ct. Rep. 155; Interstate Commerce Commission v. Louisville & N. R Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; Interstate Commerce Commission v. Union P. R. Co. 222 U. S. 541, 547, 56 L. ed. 308, 311, 32 Sup. Ct. Rep. 108; Illinois C. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, 454, 457, 466, 51 L. ed. 1128, 1133, 254 U. S.
ington Stock-Yards Co. v. Keith, 139 U. S. 128, 135, 35 L. ed. 73, 76, 11 Sup. Ct. Rep. 469; North Pennsylvania R. Co. v. Commercial Bank, 123 U. S. 727, 734, 31 L. ed. 287, 290, 8 Sup. Ct. Rep. 266; Interstate Commerce Commission v. Chicago, B. & Q. R. Co. 186 U. S. 320, 46 L. ed. 1182, 22 Sup. Ct. Rep. 824, 4 Elliott, Railroads, 2d ed. §§ 1521, 1522, and cases cited.
This court has several times construed § 2 of the Interstate Commerce Act.
1134, 1138, 27 Sup. Ct. Rep. 700; Los Angeles Switching Case (Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.) 234 U. S. 294, 58 L. ed. 1319, 34 Sup. Ct. Rep. 814; Louisville & N. R. Co. v. United States, 238 U. S. 1, 59 L. ed. 1177, 35 Sup. Ct. Rep. 696; O'Keefe v. United States, 240 U. S. 294, 60 L. ed. 651, 36 Sup. Ct. Rep. 313; Pennsylvania Co. v. United States, 236 U. S. 351, 59 L. ed. 616, P.U.R.1915B, 261, 35 Sup. Ct. Rep. 370; Pre-cooling Case (Atchison, T. & S. F. R. Co. v. United States) 232 U. S. 199, 58 L. ed. Interstate Commerce Commission v. 568, 34 Sup. Ct. Rep. 291; Procter & Baltimore & O. R. Co. 145 U. S. 263, G. Co. v. United States, 225 U. S. 282, 281, 36 L. ed. 699, 705, 4 Inters. Com. 56 L. ed. 1091, 32 Sup. Ct. Rep. 761; Rep. 92, 12 Sup. Ct. Rep. 844; Texas & Texas & P. R. Co. v. Interstate Com- P. R. Co. v. Interstate Commerce Commerce Commission, 162 U. S. 197, 233, mission, 162 U. S. 197, 218, 40 L. ed." 40 L. ed. 940, 952, 5 Inters. Com. Rep. 940, 947, 5 Inters. Com. Rep. 405, 16 405, 16 Sup. Ct. Rep. 666; United States Sup. Ct. Rep. 666; Wight v. United v. Louisville & N. R. Co. 235 U. S. 314, States, 167 U. S. 512, 42 L. ed. 258, 17 59 L. ed. 245, 35 Sup. Ct. Rep. 113; Sup. Ct. Rep. 822; Interstate Commerce United States v. Merchants & Mfrs. Commission v. Alabama Midland R. Co. Traffic Asso. 242 U. S. 178, 61 L. ed. 168 U. S. 144, 166, 167, 42 L. ed. 414, 233, 37 Sup. Ct. Rep. 24. 423, 18 Sup. Ct. Rep. 45; Interstate The phrase, "under substantially Commerce Commission v. Delaware, L. similar circumstances and conditions," as written in § 2, refers to matters of carriage, and does not include competition.
Delaware, L. & W. R. Co. v. Interstate Commerce Commission, 166 Fed. 499; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 166, 42 L. ed. 414, 423, 18 Sup. Ct. | Rep. 45; Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 253, 55 L. ed. 448, 457, 31 Sup. Ct. Rep. 392; Lehigh Valley R. Co. v. United States, 243 U. S. 444-446, 61 L. ed. 839-841, 37 Sup. Ct. Rep. 397; Pennsylvania R. Co. v. International Coal Min. Co. 97 C. C. A. 383, 173 Fed. 1; Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822.
Mr. Charles W. Needham argued the cause, and, with Mr. P. J. Farrell, filed a brief for the Interstate Commerce Commission:
The switching of cars performed by and for the line carrier in the receipt and delivery of freight is service essential to, and embraced within, the undertaking to transport the property.
Los Angeles Switching Case (Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.) 234 U. S. 294, 310, 58 L. ed. 1319, 1327, 34 Sup. Ct. Rep. 814; Illinois C. R. Co. v. De Fuentes, 236 U. S. 157, 59 L. ed. 517, P.U.R.1915A, 840, 35 Sup. Ct. Rep. 275; Hutchinson, Carr. 3d ed. § 711; Cov
& W. R. Co. 220 U. S. 235, 252, 253, 55 L. ed. 448, 457, 31 Sup. Ct. Rep. 392; Lehigh Valley R. Co. v. United States, 243 U. S. 444-446, 61 L. ed. 839-841, 37 Sup. Ct. Rep. 397; Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 633, 644, 42 L. ed. 306, 310, 17 Sup. Ct. Rep. 986; St. Louis Southwestern R. Co. v. United States, 245 U. S. 136, 139, 62 L. ed. 199, 206, 38 Sup. Ct. Rep. 49.
Findings of fact by the Commission are conclusive.
Procter & G. Co. v. United States, 225 U. S. 282, 297, 298, 56 L. ed. 1091, 1096, 1097, 32 Sup. Ct. Rep. 761; United States v. Louisville & N. R. Co. 235 U. S. 314, 320, 59 L. ed. 245, 250, 35 Sup. Ct. Rep. 113.
 Mr. Justice Day delivered the opinion of the court:
In this case a petition was filed in the district court of the United States for the eastern district of Virginia to enjoin an order of the Interstate Commerce Commission concerning the absorption of switching charges on the lines of the Seaboard Air Line Railway Company, the Seaboard Air Line Railway, Southern Railway Company, and Atlantic Coast Line Railway Company within the switching limits of these roads as established at Richmond, Virginia.
The Commission's order was made upon a petition of the Richmond Cham
The district court denied the application for an injunction, and ordered that the petition be dismissed. 249 Fed. 368.
The contention of the appellants is that the carriage is not a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.
Section 2 of the Act to Regulate Commerce provides:
ber of Commerce, averring that the prac-| per or receiver of such carload freight at tice of the railroads was discriminatory Richmond, Virginia, for a like and conand unlawful, and violative of § 2 of temporaneous service under substantialthe Act to Regulate Commerce. From ly similar circumstances and conditions." the facts found by the Commission it 44 Inters. Com. Rep. 455. appears that the appellant railroad companies bring freight from the South to Richmond, Virginia, where the same is delivered to industries in the switching limits of that city. If the freight is received at a point served by any two or more of the carriers, the switching charge is absorbed if the freight be delivered on the line of either. But if the delivery is to an industry served only by a noncompetitive carrier, the switching charge is not absorbed. The Commission illustrated the point by an example: "Oxford, North Carolina, is a point reached both by the Southern and the Seaboard, but not by the Chesapeake & Ohio. Norlina, North Carolina, is a local point on the Seaboard. Assume that industries A, B, and C [referring to a diagram] on the Seaboard, the Southern, and the Chesapeake & Ohio, respectively, are similarly located with regard to the interchange tracks of the three carriers at Richmond. On traffic from Oxford to industry B on the Southern, the Seaboard will absorb the Southern's switching charges. But on traffic from Oxford to industry C, on the Chesapeake & Ohio, the Seaboard refuses to absorb the Chesapeake & Ohio's switching  charges. On traffic from and to Norlina, a local point, however, the Seaboard refuses to absorb all switching charges whatsoever to any off-line industry."
"That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered,  in the transportation of passengers or property, subject to the provisions of this act, than it charges demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful." February 4, 1887, 24 Stat. at L. 379, chap. 104, Comp. Stat. § 8564, 4 Fed. Stat. Anno. 2d ed. p. 371. Upon this controversy the Commission, in its report, said:
The order complained of directed the "Complainant insists that when the three carriers to cease and desist, on or line-haul carrier reaches the common before August 1, 1917, and thereafter to point and competes for the traffic abstain, from absorbing switching to or from Richmond proper, the abcharges on certain interstate carload sorption of the switching charges freight at Richmond, Virginia, while re- should not be confined to that traffic fusing to absorb such charges on like for which the switching line comcarload shipments for a like and con- petes for the entire haul. That is, if temporaneous service under substantial- the absorbs the switchly similar circumstances and conditions, ing charges for the shipper on the termisuch practices having been found in a nal tracks of the Southern, it should supplemental report to be unjustly dis- also absorb the switching charges for the criminatory and unlawful within § 2 of shipper on the terminal tracks of the the Act to Regulate Commerce; and "to Chesapeake & Ohio. Unless this is done, establish, on or before August 1, 1917, complainant contends that the two shippers are not upon an equality, since the Seaboard pays for a delivery service to shippers on the terminal tracks of the Southern, and declines to pay for a similar delivery service to shippers on the terminal tracks of the Chesapeake & Ohio. .
and thereafter to maintain and apply uniform regulations and practices for the absorption of charges for the switching of interstate carload freight at Richmond, Virginia, and to collect no higher rates or charges from shippers and receivers of such carload freight at Richmond, Virginia, than they contemporaneously collect from any other ship
"Section 2 is primarily directed against discrimination between shippers
located in the same community. It is
814, and cases cited; Pennsylvania R.
The Commission did not hold that switching charges must be always the same. But did hold that they must be alike where the service was rendered under substantially similar circumstances and conditions. The Commission's report says:
"We do not consider that the carriers must absorb the switching charges indiscriminately to all industries within the switching limits of Richmond if they choose to absorb the switching charges to any one industry off their rails.  The illegality herein found to exist is the receiving of a greater compensation circumfor one service than for a like service under substantially similar To take
We are of opinion that the Commis- stances and conditions. sion was Suppose industry correct in regarding the concrete example, and referring again service in question as a like and con- to the diagram: temporary service rendered under sub- C were 5 miles distant from the inter stantially similar circumstances and change tracks of the Seaboard, while conditions, and amply sustained as mat- industry B were only 2 miles distant. ter of law in Wight v. United States, 167 Suppose U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822, and Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 42 L. ed. 414, 18 Sup. Ct. Rep. 45. The principle established in these cases is that the statute aims to establish equality of rights among shippers for carriage under substantially similar circumstances and conditions, and that the exigencies of competition do not justify discrimination against shippers for substantially like services.
the Chesapeake & Ohio's If the switching charge amounted to $5, while that of the Southern was $2. Seaboard absorbed the Southern's $2 switching charge on traffic to industry B, we do not consider that it must absorb the entire $5 switching charge of the Chesapeake & Ohio on traffic to industry C, but only to the extent to which the service is similar. In other words, it would probably be necessary for the Seaboard to absorb $2 of the $5 charge of the Chesapeake & Ohio."
The practice condemned by the ComMoreover, the determination of questions of fact is by law imposed upon mission, as its report and order show, the Commission, a body created by stat- was that of absorbing switching charges ute for the consideration of this and like only when the line-haul carrier competes matters. The findings of fact by the with the switching line; and refusing to Commission upon such questions can be absorb such charges when the switching disturbed by judicial decree only in cases line does not compete with the line-haul where their action is arbitrary, or tran-carrier; this, the Commission held, was scends the legitimate bounds of their discrimination within the meaning of § authority. Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. 2 of the Act to Regulate Commerce. We S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; find no occasion to disturb this ruling as Pre-cooling Case (Atchison, T. & S. F. arbitrary in character or beyond the auR. Co. v. United States) 232 U. S. 199, thority of the Commission. 58 L. ed. 568, 34 Sup. Ct. Rep. 291; Los Angeles Switching Case (Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.) 234 U. S. 294, 311, 312, 58 L. ed. 1319, 1327, 1328, 34 Sup. Ct. Rep.
65 L. ed.
We find no merit in the contention that the order of the Commission was too vague and uncertain to be enforced. Affirmed.
IN ERROR to the Supreme Court of the
 H. TURNER and S. Morton Turner, State of Georgia to review a decree
Executors of the Estate of J. O. Morton,
which, upon a second appeal, affirmed a
J. P. WADE, Sheriff of Brooks County, dismissing a suit to enjoin the enforce
(See S. C. Reporter's ed. 64-70.) Taxes -assessment - increasing valu
ment of a tax. Reversed and remanded
See same case below on first appeal,
The facts are stated in the opinion.
Mr. Arthur G. Powell argued the cause on both original and rearguments, Marion Smith, and Max F. Goldstein, and, with Messrs. John D. Little, filed a brief for plaintiffs in error:
1. The board of assessors, when in creasing the valuation of property turned for taxation, is not required, by Ga. Laws 1913, p. 123, §§ 6 and 7, to give any notice to the taxpayer, nor is opportunity given him to be heard as of right before the assessment is finally made against him, but provision is made for notice of the assessment to the taxpayer after it is made, and, in the event of his dissatisfaction, an arbitration is to afford a hearing, this hearing being all that the statute contemplates that the taxpayer [For other cases, see Taxes, III. b. in Digesting effective in the determination of the
Sup. Ct. 1908.]
law tax matters
2. Due process of law is not afforded a taxpayer where the county board of assessors, conformably to the state tax law, increased the valuation of his property as re
turned for taxation without notice or hearing, other than notice given after the assessment was made and a hearing in the arbitration provided for in case of the taxpayer's dissatisfaction, and such arbitration failed because the arbitrators could not agree within the ten-day period fixed by law, and hence no majority award could be made, though all believed the assessment was too high.
[For other cases, see Constitutional Law, 725744, in Digest Sup. Ct. 1908.]
Argued November 14, 1919. Restored to docket for reargument January 5, 1920. Reargued October 11, 1920. Decided November 8, 1920.
Note.-As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865.
On notice and hearing required, generally, to constitute due process of law -see notes to Kuntz v. Sumption, 2 L.R.A. 657; Chauvin v. Valiton, 3 L.R.A. 194; and Ulman v. Baltimore, 11 L.R.A. 225.
On constitutional restriction on power of taxation-see note to Birmingham v. Klein, 8 L.R.A. 369.
Where a statute provides for the
question, there is a violation of the due
Davidson v. New Orleans, 96 U. S. 97,
Mere notice and opportunity for hearing, without more, will not satisfy the requirements of due process of law, if the hearing itself is subject to such limitations as to amount to a deprivation of this right. Regard must be had to substance, and not merely to form.
Fayerweather v. Ritch, 195 U. S. 276, 297, 299, 49 L. ed. 193, 209, 210, 25 Sup. Ct. Rep. 58; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581.
Mr. Graham Wright argued the cause on reargument, and, with Mr. R. A. Denny, Attorney General of Georgia, filed a brief for defendant in error:
We have, in this case, the three essential elements to make due process, as repeatedly held by this court; to wit, notice by the statute to all taxpayers of the time and place of the meeting of the assessors, and a board of assessors competent and able to hear their complaint.
State R. Tax Cases, 92 U. S. 575, 23 L. ed. 669; Kentucky R. Tax Cases, 115 U. S. 321, 29 L. ed. 414, 6 Sup. Ct. Rep. 57; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421-425, 38 L. ed. 1031-1036, 14 Sup. Ct. Rep. 1114; BiMetallic Invest. Co. v. State Bd. 239 U. S. 441, 60 L. ed. 372, 36 Sup. Ct. Rep. 141; Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Glidden v. Harrington, 189 U. S.
254 U. S.