# Denver Union Stock Yard Co. v. United States > District Court, D. Colorado · April 4, 1932 · 57 F.2d 735 URL: https://www.frixlaw.com/law-library/cases/9654010 ## Case - **Full name:** DENVER UNION STOCK YARD CO. v. UNITED STATES Et Al. - **Court:** District Court, D. Colorado - **Decided:** April 4, 1932 - **Citations:** 57 F.2d 735; 1932 U.S. Dist. LEXIS 1147 - **Precedential status:** Published - **Opinion:** Concurrence by Symes - **Judges:** McDermott, Kennedy, Symes - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9654010 ## Opinion text SYMES, District Judge. I concur in the result. On two questions discussed I regret I am not in accord with the opinion. First. I am of the opinion that the Secretary was right in excluding from the rate base 6.861 acres of land owned by the stockyards company, together with the rails, ties, switches, etc., constructed thereon, and in holding that this property is not “stockyards facilities.” This property is situated within the stockyards, and petitioner leases it to the railroads under a joint agreement whereby they pay for the use of the property, the cost of maintenance, repair and renewal of the tracks, and an additional sum to cover taxes and assessments. All transportation _ services and equipment are furnished and operated by the'railroads as part of their business in delivering live stock from point of origin to the stockyards. In' addition, the railroads pay petitioner for the unloading of each ear, and absorb these charges. The Secretary based his ruling on the ground that the hauling of live stock up to and away from the loading platforms is a transportation service for which the carrier is paid by the shipper. The petitioner’s position is that it is a stockyards service necessary to the proper conduct of the stockyards business. Petitioner is engaged in a business; the limits and character of which are specifically defined by the Act of August 15, 1921, c. ,64, § 301 (7 TJSCA § 201), commonly known -as the Packers and Stockyards Act: “ ‘Stockyard services’ means services or facilities furnished at a stockyard in connection with the receiving, buying or selling on a commission basis or otherwise, marketing, feeding, watering, holding, delivery, shipment, weighing, or handling in commerce, of livestock.” Section 302 of the same act (7 USCA § 202) defines a stockyard as a place consisting of pens or other enclosures and appurtenances in which live cattle, etc., are held or kept for sale or shipment in commerce. The word “shipment” has been defined as the loading and delivery of goods by the shipper to the carrier for transportation, and is completed when the shipper has parted with control over the goods to be shipped. National Importing & Trading Co. v. Bear & Co., 324 Ill. 346 , 155 N. E. 343 . It seems clear that there is nothing in this statute authorizing the petitioner to engage in the business of transporting cattle by rail *755 as part of its stockyard business. The fact that the transportation is for a short distance only does not alter the principle. In Dimmitt-Caudle-Smith Live Stock Co. v. Railroad, 47 I. C. C. 287, at page 318, it is held that the transportation of live stock does not terminate until after the stock has been unloaded by the carrier into suitable pens, and that this duty requires the railroad to provide such facilities and means of reaching them, or else to hire those owned by others; that this is the duty of the railroads is recognized by petitioner in charging the railroads both for the use of its property, as well as unloading the cattle at its docks. See, also, United States v. Union Stock Yard, 226 U. S. at page 304, 33 S. Ct. 83 , 57 L. Ed. 226 . The mere fact that there is a stoppage of the ears en route to the stockyards at a transfer track or other point is merely incidental, and does not break the continuity of the transportation from the point of origin to final destination. Nor does it make any difference that the stockyards company does not hold itself out as willing to carry live stock for the public. United States v. Union Stock Yard Co., supra. See, also, section 15, subdivision 5 of the Interstate Commerce Act (49 USCA). It seems to be the law, therefore, that the use of the track over which live stock moves to and from the point of loading and unloading is for transportation; so it follows that the value of such property should not be included in the rate base as property devoted to stockyards purposes. Furthermore, it is theoretically, at least, included in the rate base of the railroad companies. It must be assumed that the charges the shippers pay the railroad company for transportation cover both the rental paid by the railroad for the use of this property, and the charge the stockyards company collects for unloading the cattle. If, notwithstanding this, the same property is included in the stockyards rate base, there is no escape from the conclusion that the shipper pays twice for the same service. It is beside the point to argue that the stockyards need railroad facilities. While true, yet it is not peculiar to the stockyards business any more than it is to all other Industries that are dependent on adequate transportation facilities, and, furthermore, we have recognized this proximity to the railway as a factor in valuing petitioner’s real property. It is argued it is a great advantage to the stockyards to own its own tracks. This may well be, but we are not a legislative body. The case must be decided upon the powers and limitations found in the act, and the court has no right to thus increase the valuation and impose an additional charge to be paid by the producer, merely because in our opinion it is an advantage to the latter. It is CongTess, and not the courts, to whom the parties must resort for correction of hardships, or unwise limitations imposed by the statute. Second. The Secretary has held, in effect, that the petitioner should charge and collect a charge from yard traders on all sales made by them. I agree with his conclusion. It is undisputed that they received services from petitioner, used its property and facilities offered, and are engaged in business at the stockyard for a profit. The statute provides, section 310 (USCA tit. 7, § 211), that: “Whenever after full hearing * * * the Secretary is of the opinion that any rate, charge, regulation, or practice of a stockyard owner '* * * for or in connection with the furnishing of stockyard services, is * * * unreasonable, or discriminatory,” he “may * * * order that such owner or operator (1) shall cease and desist from such violation * * * or collect any rate or charge * * * 0th-er than the rate or charge so prescribed.” Clearly this is a matter of discretion, and, as there is some evidence in support of his position, the court should not substituí e its judgment for his. Tagg Bros. & Moorhead et al. v. U. S., 280 U. S. 420 , 50 S. Ct. 220 , 74 L. Ed. 524 . The arguments made against his finding are that the services of the yard trader are a benefit to the producer, and therefore the latter should pay for it. We, however, are concerned with the law only, and arguments of expediency are wholly immaterial to a decision of the questions here presented. No discussion is necessary as to the amount of this charge, in view of the final result the court has arrived at. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9654010. Public record. Not legal advice.