# Amicus Curiae Brief — Davis v. Portland Seed Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1924
- **Citation:** 264 U.S. 403

## Text

OF THE

United States

Ocroper Tero, 1922

———————_—

THE SAN FRancisco ann Porreaxnpn Srean-
SHIP COMPANY (a corporation),

VS Plaiut iff tn Error

J

POETS ORD AL NE DO pe ee

eat
wr

-_—-~
y

» > wf OU by y . . :
A. J. PARRINGTON, Defendant in Error.

No. 573

——

i
James C. Davis, Agent, United States Rail 4
. . . ra
road Administration, Plaintiff in Error, ;
VS. it

A. J. PARRINGTON, |

Defendant in Error.

—— —

CrON WRITS OF ERROR TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCULT.

BRIEF OF AMICI CURIAE ON BEHALF OF
DEFENDANTS IN ERROR.

HENRY W. CLARK,
120 Broadwav. New York City,
ARTHUR C. SPENCER,
G E. COCHRAN.
JOHN F. REILLY,
Pittock Block. Portland, Oregon,
Attornens for Plaintiffs in Error.
JOHN F. FINERTY,
Assistant General Counsel, United States
tailroad Administration, Washington, D. C..
Attorney for Plaintiff in’ Error.
James C. Dar is,
JAMES G. WILSON,
Platt Building, Portland, Oregon,
Attorney for Defendant in Error.

MILES LORE P DELP STL AN I

FRANK R. WEHE.
ALFRED J. HARWOOD,
Kohl Building, San Francisco, California.

Amici Curiae.

Subject Index

Page
Reply to argument that Section 4 was not violated = 2

Reply to contention that the measure of damages
is not the difference between the rates........ 14

hb Fare, 5e wee

Table of Cases Cited

California Adjustment Company v. A. T. & oS. F.
et: i ape |. eee S Es
California Adjustment Co. v. S. PL Co., 226 Fed.
PPLE ccd Wa MORES RAR OES Ox CAA MRE RS ates
Central lron Works v. P. R. BR. 17 Pa. Ct. G52...
Chicago & Alton v. C. Vo d& W. Coal Co., 79 Til.
PEE WAALS CENCE RTOS SAFER A wo Ao ks

Great Western Ry. Co. v. Sutton, L. R. 4 H. L.
ee SER Lipa s cca ek nde bins ta kaart onan s

Heiserman v. Burlinglon, 1 No W. 908........

Hutchinson v. R. RR. Co., 57S. W. 25) Ky.)

Junod v. Chicago & N. W. Ry. Co., 47 Fed. 290.28,

Louisville & N. Ry. Co. v. Eubank, 184 UL 8
Louisville & N. Ry. Co. v. Walker, 110° Ky, 961

(63 S. W. 20) VOW eae th © ek 6k bk eee ere koe 6,
McGrew vu. Missouri P. R. Co., 230 Mo. 496......
Missouri P. R. Co. vu. McGrew Coal Co., 244 U.S.

REE CRG ORR RAAT MERE ERGO OCR T SALE ERD 26,
Mobile ». Steiner, 61 Al@, BTL... 6. ckcvccccesccs
Osborne v. C. & N. W. Ry. Co., 48 Fed. 49......

Parsons v. C. & N. W. Ry. Co., 167 U. 8. 447. .10, 12,

Penn. R. R. Co. ty International Coal Co... 230
Ee Cr Pay Fee Cay reer ye 19,
Penn. R. R. Co. v. International Coal Co., 173 Fed.
Rea CE vin xD Re eee A Be nla Listens we

Southern Pacific v. California Adjustment Com-

pany, Zot Wed. 960: (C. C. A.) .n35. cca ean 2, 12,

Twells v. Penn, R. R. Co., 2 Walker 450 (3 Am.
Law Reg. N. S. 728), (Penn. Supreme Court )

Union Pacific v. Goodridge, 149 U.S. 680......

LOS Mh MN PE REL ON AL IRL GLO AOL SORA AIRY NE BAPE A, T
4

:
OF THE
United States
OcToBER TERM, 1922
4
THe San Francisco AND Porrlanpd STEAM-
sHIPp COMPANY (a corporation),
Plaintiff in Error, |
Vs.
A. J. PARRINGTON,
Defendant in Error.
UPON WRIT OF ERROR TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCULT,
No. 573
Seg gs RE RR PETE a
James C. Davis, Agent, United States Rail-
road Administration,
Plaintiff in Evvor,
VS. r
A. J. PARRINGTON,
Defendant tu Error.
(PON WRITS OF ERROR TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT,
BRIEF OF AMICI CURIAE ON BEHALF OF 5
DEFENDANTS IN ERROR. f

This brief is filed pursuant to permission granted
by the Court. We shall discuss only two points
made in the brief of plaintiffs in error, viz., the
points made at pages 59 and 68 respectively. These
points are as follows:

If section 4 applies to shipments wholly by
water, was it violated?
The measure of damages is not the differenc

between the rates. No other evidence of dam-
age was offered so there can be no recovery.

REPLY TO ARGUMENT THAT SECTION 4 WAS NOT VIOLATED,
The contention here is that section 4 was not

violated because no shipments of sugar were in faet

made to North Portland, the more distant point.

After quoting the language of the Fourth Section
counsel say “ta carrier cannot ‘receive’ more for
the short haul than the long, without actually col-
lecting charges for both.”

Obviously the seetion means that carriers: shall
not charge or receive more for the less distance
than they charge or receive for the greater distance.

In Southern Pacific Company v. California Ad-
justment Company, 27 Fed. 960 (C. CL. A.) the
Cireuit Court of Appeals for the Ninth Cireuit, in
construing the long and short haul clause of the
Constitution of California, said:

“The effect of the constitutional provision
is to fix a measure of charge and that measure
is the charge which is actually made for the

longer haul. Any charge in exeess of that for
a shorter haul is by the amount of the excess
illegal, and each violation of. that provision
furnishes the measure of the shipper’s damage
therefor.”

The provision of the California Constitution is
identical with the provision of the Fourth Section.
In the case of California Adjustment Company v.
A. T. d S. F. Ry. Co., 179 Cal. 140, 153, this same
contention was made and overruled. The decision
was by the Supreme Court in bank and all of the
Justices concurred. The Court said:

“Nor do we think it material whether, when
the shipments to intermediate points com-
plained of as excessively charged for were
made, no contemporaneous shipment to the
more distant point was made. Under the con-
stitutional provision the legitimate maximum
charge for the shorter haul is the charge the
carrier makes for the longer one. and it is only
necessary to show in proof of an illegal dis-
crimination that the shipper paid a larger sum
for the short haul than the defendant would
have charged for the longer one. Actual ship-
ment for the longer distance is not required to
he shown. All that is required is a showing
that the defendant held out and published to
the shipping world that it would charge certain
‘ates for the transportation of a certain class
of merchandise from San Franciseo te Tuos
Angeles. This was shown, and. when shown,
for the purpose of determining whether dis-
crimination was practiced or not. the rates so
held out to be charged are deemed in law to
have been charged.”’

|

&

If the construction contended for by defendant
in error were correct, chaos would result. The
uniformity and certainty of rates which is one of
the cardinal objects of the Interstate Commerce
Act would be destroved. Before a shipper to Port-
land, for example, could ascertain what he should
pay for a shipment of sugar, he would have to
make an investigation to see whether the carrier
ever actually transported a similar shipment to
North Portland. And it may be asked: Would it
be sufficient to show that such a shipment moved
two vears before or one vear before or would the
shipper be required to show that it moved at. the
same time?) Or would it be sufficient to show that
such a shipment moved subsequently to the plain
tiff’s shipment ?

And if proof of a subsequent shipment was suf-
ficient, would a shipper be obliged to wait. until
such subsequent shipment was made before his
cause of action accrued? In such event the charges,
lawful when paid, would be rendered unlawful by a
subsequent act of the carrier,

Assume that one merehant in Portland shipped
his sugar from Oakland and that another shipped
it from San Francisco. Assume further that the
merchant who shipped from Oakland could show an
aetual shipment of snear from Oakland to North
Portland, whereas the merchant who shipped from
San Franeisco was unable to show such a shipment

to North Portland. The result would be that the

SAAR IRN INY MRE NMR RNR! DROP BRI EN et
ramen

neelehelieasate linac ee ee =e

merchant shipping from Oakland would receive the
benefit of the lower North Portland rate, whereas
the San Francisco shipper would not. If such were
the law all that a shipper would have to do in order
to obtain the benefit of the lower rate to the more
distant point would be to ship a hundred pounds of
the same commodity to that point or procure some
friend to make such a shipment. By such a subter-
fuge he would obtain the benefit of the lower rate
on all his shipments of sugar while his competitor
who shipped his sugar from another point, but who
did not resort to the subterfuge, would be eom-
peked to pay the higher rate.

We do not think that ie ha hs wat in error would
have made this contention if its counsel had given
thes matter any serious thought or attempted to
follow the argument to its logical conclusion.

As stated above, one of the cardinal objeets of our
railroad legislation is to insure the certainty of
rates. Under our law there can be no uncertainty
or obscurity in such a matter. A tariff specifving a
lower rate to a more distant point is to be read as
specifving that rate to all intermediate points where
the rate to the intermediate pomts specified in the
tariff exceeds the rate specified to the more distant
pont. In precisely the same way a tariff specify-
ing two intermediate rates which total less than the
lng haul rate will he eonstrued to make the sum
of the intermediate rates the rate to the long haul
pont. It is simply a matter of. tariff construetion.

In Louisville & N. Ry. Co. v. Walker, 110 Ky, 961
(63 S. W. 20), supra, the Supreme Court of Ken.
tucky said:

“Cave City and Glasgow Junetion are: sta.
tions on appellant’s read between Bowling
Green and Louisville, and at the time of these
shipments appellent charged 20 cents a Iiw-
dred pounds for transporting tobacco from
Bowline Green to Louisville. Glasgow is 10
miles from Glasgow Junetion, and is on a
braneh road running out from the main line at
Glasgow Junction. Appellant charged 6 cents
a hundred pounds for transporting tobacco
from Glasgow to Glasgow Junction, and
cents for transporting it from Glasgow June
tion to Louisville. Appellee filed this action
in February 4 1899, fo recover for the ereess
charged him for the short haul over and abhor
the amount charged for the longer haul from
Bowling Green, and recovered Judgment for
£905.32. It is insisted for appellant that th
action does not lie, and that there can be no
recovery, beeause it does not —. ar = appel
lee has been damaged. Tn [Tutehinson v. Rail-
road Co... 57 S. W. 25, we held that =f ‘ecties
could be maintained, and, upon a reconsider:
ation of the anestion, adhere to the ruling in
that ease. If a carne r eharaces a shi ppe r pore
than the law allows him to charqe, the ercess so
paid may be recovered by the shipper. Tf then
had been a statute fixing the charge from Cav
City to Louisville at 20 cents, and annellant had
charged 29 cents. the excess so paid above the
legal rate might he recovered, on the eround
that it had heen iWegally exacted. Seetion 218
of the constitution is in these words: ‘Tt shall
be unlawful for anv person or eorporation.
owning or operating a railroad in this state, or
anv eommon earrier, to charee or receive any
ereater compensation in the aggregate, for the

transportation of passengers, or of property of
like kind, under substantially similar cireum-
stances and conditions, for a shorter than for a
longer distance over the same line, in the same
direction, the shorter being included within the
longer distance; but this shall not be construed
as authorizing any common carrer, or person,
or corporation, owning or operating a railroad
in this state, to receive as great compensation
for a shorter as for a longer distance; pro-
vided, that upon application to the railroad
commission, such common carrier, or person,
or corporation, owning or operating a_rail-
road in this state, may in special cases, after
investigation by the commission, be authorized
to charge less for longer than for shorter
distances for the transportation of passengers,
or property; and the commission may, from
time to time, preseribe the extent to which such
common earrier, or person, or corporation,
owning or operating a railroad im this state,
may be relieved from the operation of this
section.” When the constitution was formed
there was great complaint that local shippers,
who had no other means of getting their goods
to market, were sometimes made to pay more
than their just share of the cost of transpor-
tation, and thatsawhile at competitive points,
where competition rendered it necessary, the
rates were reasonable, at intermediate points
along the line, where there was no competition,
extortion was practiced. The section quoted
was designed to protect these people who were,
so to speak, in the power of the carrier, having
no other way to get to market. Tt was not
designed for the protection of the long haul.
Experience had shown that, by reason of c¢om-
petition and other circumstances, the shippers
over the long haul were not so much in need
of protection. As one means of protecting the
local shipper, this section fired a marimum

RO!

MEE SOLIDER LIA 2 iy

a Ne

Perkeos refine’?

limit, beyond which he should not be charged,
It was thus made unlawful for the carrier to
charge a greater compensation for the same
service for a shorter than for a longer distance
over the same line in the same direction, the
shorter being meluded within the longer dist-
ance. When the cg for the longer haul is
fired, to charge more for the shorter haul is
just as clearly illegal as it would be to charge
a greater sum than the law allowed where thi
law itself fired a sum certain as the limit of the
charge. The carrier is allowed by the coustitu-
tion to fir the rate for the longer haul, but when
he so fires it this rate is the limit, beyond whieh
he connot yo in charging for the same service
tn the shorter haul. And when appellant. ex-
acted of appellee more than it could legally
charge, his right to recover the excess so paid
is precisely similar te the right to reeover for
any other illegal exaction. He whose monev is
taken from him illegally is to that extent
damaged. It is not neeessarv for appellee to
show anything more than that he was compelled
to pay more than appellant had a right to
charge.”’

In Junod v. Chicago & N. W. Ry. Co., 47 Fed.
290, supra, Judge Shiras Heath: the jury as
follows:

“In the second count of the petition it is
substantially charged that between the 17th
of February, 1888, and the Ist of March, 1888,
inelusive, the defendant company had in force
a tariff rate for which it carried corn and oats
from Blair and other points in Nebraska, over
its line in Iowa, passing through Carroll, Towa,
to Chieago, Tll.. and thenee to New York, at
the rate of 3614 cents per 100 pounds; that the
plaintiffs, hetween the dates aforesaid, had at
Carroll, in the state of Towa, for shipment east,

64,250 pounds of grain; that the defendant
company demanded for shipping grain to New
York from Carroll, Lowa, the sum of 4614
cents, or 10 cents more per 100 pounds than it
was then charging for the like service to ship-
pers from Blair and other points in Nebraska:
that by reason of these facts the plaintiffs were
compelled to ship the grain aforesaid to Chi-
cago, TL, paving therefor at the rate of 19
cents per 100 pounds; and by reason of these
facts the plaintiffs are secking to recover the
damages alleged against the defendant eom-
pany. * * * Tf a party, under the law, is
entitled to have the same rate-—that is, if the
shipper at Carroll, Towa, was entitled to have
the same rate charged him for the forwarding
of his property from Carroll, Towa, to Chicago,
Ill., as the shipper at Nebraska, and he was
charged more,—the damage to him is the dif-
ference between the rates that he was thus
called upon to pay and the lesser rate charged
the Nebraska shipper. Tf the tariff rate from
Blair and other points in Nehraska was 11
cents, and the plaintiffs had to pay 19 cents;
if, under the law, as T have instructed vou, the
duty and obligation was on the railway com-
pany to give the benefit to the shippers at
Carroll, Towa, of the same rate—of an equal :
rate with that given to the shippers from Blair
and other points in Nebraska —vou see the
damage to the parties who have been compelled
to pay this higher rate is the difference be-
tween that and the lesser rate. If, for every :
100 pounds they were compelled to pay 8 cents
more, that is the damage per 100 pounds of
grain shipped that is eaused them.”

ee eee

The Court did not hold that it was ineumbent

upon the plaintiff to show that anv shipments had
moved from the Nebraska points, it being sufficient

| 10

that the defendant's tariff specified lower rates
from such points.

We might quote from other decisions to the same
effect, but we deem it unnecessary. In no decision
of any court, so far as we have been able to dis-
cover, involving a violation of a long and_ short
haul prohibition, was it even intimated that it was
necessary for the plaintiff to show an actual move-
ment of the same kind of freight for the longer
distance at a lower charge. [It bas always been held
sufficient for the plaintiff to show that the railroad
maintained the lower rate for the longer distance.

This is the simple ease of an overcharge; the
statute fixes the charge to the more distant pot as
the maximum charge to the less distant point. And
if a carrier charges more than such maximun
charge the shipper is overcharged to the extent
of the excess.

Counsel cite Parsons ve. Co dé NW. Ry. Co. Wi
U.S. 447, in support of their contention,

Instead of supporting the position of plaintiffs
in error that case is authority to the effect that the
assignors of defendants in error are entitled to
recover the difference between the higher charges
paid by them for the shorter distance and the lower
rate charged by the carrier for the longer haul.

The Parsons case was an action to recover dam-
ages for a violation of the long and_ short haul
clause of the 4th Section of the Interstate Com-

11

meree Act before the amendment to that section
on June 18, 1910. The trial Court sustained a
demurrer to the complaint on the ground that the
complaint did not show a violation of the long and
short haul clause of the act, and this judgment was
affirmed by the Cireuit Court of Appeals. The
judgement of the Circuit Court of Appeals was af-
firmed by this Court upon the ground that the eom-
plaint stated no violation of the long and short haul
cause of the act. This Court said, however, that tf
there had been a violation of the long and short
haul clause the platutiff would have been entitled
to recover the differcnee between the rate which he
had paid and the lesser rate for the greater distance.
This Court said:

“Tf he had shipped to New York and been
charged Jocal rates he might have recovered
any excess thereon over through rates. He did
not ship to New York and vet sec ks to recover
the extra sum he might have been charged if
he had shipped.”

The plaintiff in the Parsous case shipped corn
from Towa points to Chieago. The complaint did
not show that the rates from Nebraska points to
Chieavo were lower than the rates paid by plain-
tiff; nor did it show that the rate charged plaintiff
from Towa points te Chicago was greater than the
through rate charged from Nebraska points to New
York and other places on the Atlantie seaboard.
This Court said:

“There is nothing, therefore, to show that
the loeal rate charged plaintiff from the Towa

en ud

ees

i2

place of shipment to Chicago was greater than
the through rate charged from Nebraska to the
four places on the seaboard, or greater than
that charged for like shipments from his place
of shipment to the same four places.”’

The decision of this Court in the Parsons case
shows that the Court deemed the measure of dam-
ages under the Interstate Commerce Act, in case of
a violation of the long and short haul clause, te be
the excess over the charge that would have been
colleeted had there been no vielation of the act,

Tn every case where the question has come before
the higher Courts has been held that for @ viola-
tion of the loug and short haul clause the shipper
to the less distant point is entitled to recover the
difference between the vate paid by him and the

lower rate charged to the more distant point,

It was so held in each of the following cases
where the matter was direetly involved:

Parsons ve C. & NL OW. Ry. Co. 167 UV. S,
147, Supra;

Southern Paeifie Co. v. California Adi. €o.,
237 Fed. 954 (°C. C. AL);

California Adjustment Co. ve ALT. aS. FP.
Ry. Co. V9 Cal. 140;

Louisville & N. Ry. Conv. Walker, 63 8S. W.
20 (110 Ky. 961);

Hutchinson v. RL R. Co., 57 S. W. 25 (Ky.);

Twells v. Penn, RoR. Co., 2 Walker 450 (3
Am. Law Reg. N.S. 728) (Penn. Supreme
Court).

LE OTN NDE ETL ANN? AN SI RN SIUC te a Sobol A, RS BL nae OLD rae Tete >

> MS Ot ay

It was so held in each of the following cases de-
eided ly the lower Courts:

Junod vo Cod NOW. Ry. Co., AT Fed. 290;

Osborne vo Coa NOW, Ry. Co., 48 Fed. 49;

California Adjustment Co. ve S. P. Co., 226
Fed. 349,

The long and short haul provision of the Consti-
tution of California as adopted in IST9 was taken
from the Constitution of Pennsylvania of 187:
(Sec. 38, Article NVED) and that provision of the
Pennsylvania Constitution was taken from an Aet
of the Legislature of Pennsylvania (March 7, 1861,
PL. 88) which provided that the local rates from
Pittsburg and Philadelphia to intermediate points
should at no time exceod the rate from Pittsburg
) Philadelphia or from Philadelphia to Pittsburg.
Central Tron Works ». PLR. RAT Pa. Cr. 652.)

In Central Tron Works v. PLR. RAT Pa. Ct.
2, supra, decided under the provisions of the Con-
titution of Pennsvivania, the Court held that a
yerson Who was charged more for the shorter haul
ould maintain conenrrently an action at law. to
recover the overcharge and a suit in equity to enjoin
the carrier from thereafter making a ereater charge
for the shorter haul,

odinad

>>

of this section.

The court then points out that the change brought
about by the amendment was to shift from the carrier
to the Commission the determination of when the carrier
may be relieved from the strict prohibition of the statute
and says:

12

“That is, it takes from the carriers the deposit
of public power previously lodged in them and
vests it in the Commission as a primary instead of a
reviewing function. * * * This being true, as
we think it plainly is, the situation under the amend-
ment is this: Power in the carrier primarily to meet
competitive conditions in any point of view by
charging a lesser rate for a longer than for a shorter
haul has ceased to exist because to do so, in the
absence of some authority, would not only be in-
imical to the provision of the fourth section but
would be in conflict with the preference and dis-
crimination clauses of the second and third sections.
But while the public power, so to speak, previously
lodged in the carrier is thus withdrawn and reposed
in the Commission the right of carriers to seek and
obtain under authorized circumstances the sanction
of the Commission to charge a lower rate for a
longer than for a shorter haul because of competi-
tion or for other adequate reasons is expressly pre-
served and if not is in any event by necessary im-
plication granted. And as a correlative the author-
ity of the Commission to grant on request the right
sought is made by the statute to depend upon the
facts established and the judgment of that body in
the exercise of a sound legal discretion as to whether
the request should be granted compatibly with a due
consideration of the private and public interests con-
cerned and in view of the preference and discrimina-
tion clauses of the second and third sections.”

13

In the case of United States vs. Louisville & Nash-
ville Railroad Co., 285 U. S. 814, the court had before it
certain rebilling rates in the consideration of which the
question of the long and short-haul clause arose. The
Interstate Commerce Commission had passed an order
which had been enjoined by the Commerce Court and
in considering the rates the court said, page 322:

“We pass this subject by, however, because its

_ consideration is not essential to determine whether
the Commission was right in prohibiting a continu-
ance of the rebilling privilege since we are of the
opinion that even if the allowance of such rebilling
privilege when originally made was authorized by
the statute and was therefore not a preference, the
right to continue it had been expressly prohibited by
statute until, on application. made to the Commis-
sion, its consent to that end was given, The ex-
press or implied statutory recognition of the au-
thority on the part of carriers to primarily deter-
mine for themselves the existence of substantially
similar circumstances and conditions as a basis of
charging a higher rate for a shorter than for a lon ger
distance within the purview of Section 4 of the Act
to Regulate Commerce, and the right to make a
rate accordingly to continue in force until on com-
plaint it was corrected in the manner pointed out
by the statute ceased to exist after the adoption of
the amendment of Section 4 by the Act of June 18,
1910, * * * This results from the fact that by
the amendment in question the original power to

14

determine the existence of the conditions justifying
the greater charge for a shorter than was exacted
for a longer distance was taken from the carriers
and primarily vested in the Interstate Commerce
Commission, and for the purpose of making the
prohibition efficacious it was enacted that after a
time fixed no existing rate of the character pro-
vided for should continue in force unless the applica-
tion to sanction it had been made and granted.”

Again in the case of Skinner & Eddy Corp. vs. U. S.,
249 U.S. 566, in considering the amendment to the long
and short haul clause of the Act, the Supreme Court
said:

“A special group of cases in which the Com-
mission may indirectly prevent unduly low rates
through its power to prevent unjust discrimination
is that provided for by the long and short haul
clause. It was enacted to remedy one large class
of discriminations by creating a legislative pre-
sumption that the charge of more for a short haul
under substantially similar circumstances and con-
ditions than for a longer distance over the same line
in the same direction was unjust. As originally en-
acted, the provision was construed to authorize the
carrier to determine primarily whether the required
dissimilarity of circumstances and conditions existed
and also to authorize the acceptance of competitive
conditions as a justification of a lower rate for the
longer distance. So construed, the provisions proved

15

inefficacious, and the act was amended in 1910 by
striking out the ‘substantially similar circumstances
and conditions’ clause and making the prohibition
absolute except to ‘the extent to which such des-
ignated common carrier may be relieved from the
operation of this section’ by the Commission. In-
termountain Rate Cases, supra.”

It is, therefore, settled and determined that by the
amendment of the Fourth Section as interpreted by
this Court that the carrier has no right to charge more
for a shorter haul over the same line or route than
it charges for a longer, the shorter being included
within the longer distance, until it presents the matter

to the Interstate Commerce Commission and gets an
order of the Commission permitting such greater charge
to the shorter point. In the present cases no such per-
mission was obtained, and therefore the greater charge
to the shorter point was illegal, it being expressly pro-
hibited by the statute.

It is contended by the plaintiffs in error that the ques-
tion as to which rate is illegal, that is, the rate to the
shorter point or the one to the longer point, is an adminis-
trative question, and therefore must be submitted to the
Interstate Commerce Commission for its ruling prior to
any action in court. This contention is based upon the
principle announced by the U. S. Supreme Court in
Texas & Pacific Ry. Co. vs. Avilene Cotton Oil Co., 204
U. S. 426, and other cases following that principle.
But, as stated by the District Court, this principle
applies “where the legal quality of the practices com-

16

plained of is not definitely fixed by statute, but is
an administrative question depending upon the facts to
be ascertained from investigation, in which case the Com-
mission has original jurisdiction.” Where, however, the
practice is directly prohibited by statute, the person in-
jured thereby need not go originally to the Commission
but may sue directly in court.

Penn. Railroad Co. vs. International Coal Co.,
230 U.S. 184.

Penn. Railroad Co. vs. Puritan Coal Co., 2387
U. S. 391.

Penn. Railroad Co. vs. Somner, 242 U. S. 120.

The principle is well illustrated by the three cases
decided on the same day found in 230 U. S. The first
is that of Pennsylvania Railroad Company vs. Inter-
national Coal Company, 230 U. S. 184, the second that
of Mitchell Coal Co. vs. Pennsylvania Railroad Co., 230
U. S. 247, and the third that of Morrisdale Coal Co. vs.
Pennsylvania Railroad Co., 230 U.S. 304.

The first of these cases was one instituted by a shipper
to recover damages on account of rebates given to plain-
tiff’s competitor. The contention was made that the
court had no jurisdiction and that the case should be re-
manded with instructions to dismiss the complaint “upon
the ground that the court had no power to adjudicate
the administrative question as to whether a carrier could
make a difference in rate between shipments of free and

17

contract coal. It argued that this was a rate making
question and that it was for the Commission as the rate
regulating body to determine not only whether a dis-
similarity existed but whether the rates were properly
adjusted to meet that dissimilarity.” (280 U. S. 196.)
The court then points out that there are many acts of
the carriers which are lawful or unlawful according as
they are reasonable or unreasonable, just or unjust, and
that determination of such issues is an administrative
question and calls for the exercise of the discretion of the
administrative and rate-making body, and then says:

“None of these considerations, however, operates
to defeat the court’s jurisdiction in the present case,
for even if a difference in rates could be made be-
tween free and contract coal, none was made in the
only way in which it could have been lawfully done.
The published tariffs made no distinction between
contract coal and free coal but named one rate for
all alike. That being true, only that single rate
could be charged. When collected, it was unlawfui
under any pretense or for any cause, however equi-
table or liberal, to pay a part back to one shipper
or to every shipper. * * * The tariff, so long
as it was of force, was, in this respect, to be treated
as though it had been a statute, binding as such upon
railroad and shipper alike. If, as a fact, the rates
were unreasonable the shipper was nevertheless
bound to pay and the carrier to retain what had
been paid, leaving, however, to the former the right
to apply to the Commission for reparation.”

18

This Court in that case sustained the jurisdiction
of the court to recover any damages caused by the un-
lawful rebating to the competing Coal Company.

In the case of Mitchell Coal Co. vs. Pennsylvania
Railroad Co., immediately following this decision, the
court denied relief because under the tariff the Railroad
Company was paying certain allowances in connection
with certain services, and held that as the services were
provided for in the tariff, the reasonablesness of such
allowances was within the primary jurisdiction of the
Commission and the courts could not allow damages to
a competitor until he had established before the Com-
mission the unreasonableness of the rule under which
the allowances were made.

In the Morrisdale Coal Co. case this Court denied
the jurisdiction of the courts to allow damages for
discrimination in distribution of cars under rules estab-
lished and filed with the Interstate Commerce Com-
mission until the Interstate Commerce Commission had
investigated the reasonableness of the rules and declared
them unreasonable.

This principle is further illustrated in Pennsylvania
Railroad Company vs. Puritan Coal Co., 237 U. S. 121,
and the primary jurisdiction of the court sustained on
the ground that the plaintiff was not attacking the rea-
sonablesness of the rule established for the distribution
of cars, but was attacking the manner in which the cars
were distributed under the rule, and sustained the right
of a shipper in the latter case to apply directly to the

19

court, and this principle is further amplified and clari-
fied in the case of Pennsylvania Railroad Co. ys. Son-
man Coal Co., 242 U. S. 120, which was also a car dis-
tribution case and where the shipper was attacking not
the reasonableness of the rule for distribution but the
manner in which the Railroad Company distributed its
cars under the rule established. In this latter case the
court says (242 U. S. 124);

“Thus we have heard * * * that the Act
does not supersede the jurisdiction of state courts
in any case, new or old, where the decision does not
involve the determination of matters calling for the
exercise of the administrative power and discretion
of the Interstate Commerce Commission, or relate
to a subject as to which the jurisdiction of the Fed-
eral Courts is otherwise made exclusive; that claims
for damages arising out of the application, in inter-
state commerce, of rules for distributing cars in
times of shortage, call for the exercise of the ad-
ministrative authority of the Commission where the
rule is assailed as unjustly discriminatory, but
where the assault is not against the rule but against
its unequal and discriminatory application, no ad-
ministrative question is presented and the claim may
be prosecuted in either a federal or a state court
without any precedent action by the Commission.”

A later expression of this Court is in the case of St.
Louis, Iron Mountain & Southern Railway Co. vs. J. F.
Hasty & Sons, 255 U. S. 252, in which the interpretation
of a tariff was involved, and in which the question of

20

whether or not material called rough heading for barrels
came within an item of the tariff providing a rate “on
rough lumber, staves, flitches, bolts, and logs.” This
Court decided that it did come within that provision of
the tariff, and with reference to its being an administra-
tive question, the court says:

“The matter is so free from doubt that there is
no occasion to apply to the Commission for a con-
struction, as insisted by appellant under Texas &
Pacific Ry. vs. American Tie Co., 284 U. S. 188,
146.”

The last expression of this court which we have found
on this matter is Great Nor. Ry. Co. vs. Merchants Ele-
vator Co., 259 U. S. 285-296, in which a question as to
the right of the court to interpret a tarif f on which there
was a doubt as to whether the general rule or an excep-
tion to the rule applied to the particular shipments in
question, and the court reviews at considerable length
its former decisions and reaffirms the principle holding
that in such cases the court had original jurisdiction.

The rule seems clearly established that if the cause
of action depends upon the requirements of a change in
the established rules or tariffs of the carrier, then the
matter of determining the reasonableness of such rules
or tariffs is an administrative question and must go
before the Commission before action may be brought
thereon in court. If, however, the party is simply seek-
ing a right under the established rules or tariffs or the
enforcement of a statute which prescribes the rule, the
injured party may apply directly to the court for the
enforcement thereof, there is no administrative question

21

involved. It is simply an application of the established
rule or statute.

In the present case the statute specifically declares
that the carrier shall not charge more for the long haul
than for the short haul. There is no dispute as to the
fact that the shipments moved, that the carriers charged
a higher rate to Portland and Astoria, the short points,
than its established rate to North Portland. There is no
dispute of the fact that it had not secured an order of
the Interstate Commerce Commission permitting a
higher charge to the shorter points, and we submit that
there is no administrative question involved, but simply
the enforcement of the rule laid down by the statute.
The rate so established violated the provisions of the long
and short haul clause.

Section 8 of the Interstate Commerce Act provides
that in case any common carrier subject to the provision
of this Act shall do, cause to be done, or permit to be
done, any act, matter, or thing in this Act prohibited
or declared to be unlawful, or shall omit to do any act,
matter, or thing in this Act required to be done, such
common carrier shall be liable to the person or persons
injured thereby to the full amount of damages sustained
in consequence in violation of the provision of this Act,
together with reasonable counsel’s or attorney’s fees, to
be fixed by the court in every case of recovery, which
attorney’s fees shall be taxed and collected as a part
of the costs in the case.

Section 9 of the Act give the right to any person
claiming to be damaged to make complaint either to the

22

Commission or to bring suit for damages in the District
Court of the United States.

Under the principle above announced as to the cases
which may be brought directly in the courts and those
which must be brought primarily before the Commission,
we are seeking damages for violation of the long and
short haul clause. The statute makes the prohibition, we
have proved the violation of it, there is no administrative
question involved, and we are entitled to sue directly in
the court.

Il.

THE TRANSPORTATION, THOUGTI
WHOLLY BY WATER, IS SUBJECT TO
THE INTERSTATE COMMERCE ACT

It is contended in plaintiff's brief that because the
transportation was wholly by water that it is not subject
to the Act, but we submit that this is absolutely unten-
able, and that the carrier has accepted the provisions of
the Interstate Commerce Act and made itself liable
thereto. The record shows that the Oregon-Washing-
ton Railroad & Navigation Company, as owner of all of
the stock of the San Francisco and Portland Steamship
Company had applied to the Interstate Commerce
Commission, under Section 5 of the Act to Regulate
Commerce as amended by the Panama Canal Act, to
be permitted to continue the operation of this line as a
public convenience, and permission was granted by the
Interstate Commerce Commission. (Tr. No. 594, P.
61, Tr. No. 595, P. 55—Plaintiff’s Exhibit 2 in both
cases. )

23

This application and the permit granted was in
direct compliance with the Panama Canal Act, and the
steamship company has complied therewith by filing its
tariffs. It should not now after invoking the provisions
of this act and holding itself out to the public as sub ject
thereto, be heard to say that it is not bound by the pro-
visions of the act. Section 11 of the Panama Canal Act
of August 24th, 1912, 37 Stat. L. Page 566, provides
that Section 5 of the Act to Regulate Commerce should
be amended as follows:

“From and after the first day of July, nineteen
hundred and fourteen, it shall be unlawful for any
railroad company or other common carrier subject
to the Act to Regulate Commerce to own, lease,
operate, control, or have any interest whatsoever
(by stock ownership or otherwise, either directly,
indirectly, through any holding company, or by
stockholders or directors in common, or in any
other manner) in any common carrier by water
operated through the Panama Canal or elsewhere
with which said railroad or other carrier aforesaid
does or may compete for traffic or any vessel carry-
ing freight or passengers upon said water route or
elsewhere with which said railroad or other carrier
aforesaid does or may compete for traffic; and in
case of the violation of this provision each day in
which such violation continues shall be deemed a
separate offense.”

It is contended by the plaintiffs in error that the pro-
visions of the Panama Canal Act immediately following
this amendment did not in fact amend the Interstate
Commerce Act. In any event, it was a solemn act of
Congress and provided as follows:

24

“Jurisdiction is hereby conferred on the Inter-
state Commerce Commission to determine questions
of fact as to the competition or possibility of com-
petition, after full hearing, on the application of
any railroad company or other carrier. Such appli-
cation may be filed for the purpose of determining
whether any existing service is in violation of this
section and pray for an order permitting the con-
tinuance of any vessel or vessels already in opera-
tion, or for the purpose of asking an order to install
new service not in conflict with the provisions of
this paragraph. The Commission may on its own
motion or the application of any shipper institute
proceedings to inquire into the operation of any ves-
sel in use by any railroad or other carrier which has
not applied to the Commission and had the question
of competition or the possibility of competition
determined as herein provided. In all such cases
the order of said Commission shall be final.

“If the Interstate Commerce Commission shall
be of the opinion that any such existing specified
service by water other than through the Panama
Canal is being operated in the interest of the public
and is of advantage to the convenience and com-
merce of the people, and that such extension will
neither exclude, prevent, nor reduce competition on
the route by water under consideration, the Inter-
state Commerce Commission may, by order, extend
the time during which such service by water may
continue to be operated beyond July first, nineteen
hundred and fourteen. In every case of such exten-
sion the rates, schedules, and practices of such water
carrier shall be filed with the Interstate Commerce
Commission and shall be subject to the Act to Reg-

25

ulate Commerce and all amendments thereto in the
same manner and to the same extent as is the rail-
road or other common carrier controlling such water

carrier or interested in any manner in its operation”
* * *

There is nothing inconsistent with the provisions of
this act and the other provisions of the Interstate Com-
merce Act as attempted to be maintained by plaintiffs
in error. It applies to those water carriers owned or
controlled by rail carriers sub Ject to the act. The evils
aimed at were the practices of rail carriers in maintain-
ing water lines so as to prevent any water competition
and for the purpose of protecting their rail traffic against
such water competition, and the act of Congress was
designed to bring any such water carriers under the pro-
visions of the act. The plaintiffs in error accepted the
law and complied with it, and it seems to us that the
language is so plain that it cannot possibly be construed
as to except the water carrier when the transportation is
wholly by water and subject to the Interstate Commerce
Act only when it enters into a joint rate with the rail
carrier. Such transportation is sub ject to the Act and
was made so subject to the act prior to the enactment
of the Panama Canal statute by the amendment of Sec-
tion 1 in 1906.

We submit that Congress had only in mind the sub-
Jecting of railroad owned water carriers to the full terms
of the Interstate Commerce Act as to all of its business.
Otherwise, the evil at which these provisions of the Pan-
ama Canal Act were aimed would have been permitted
to continue after the enactment of the statute as well as
before, for such carriers could he e been used wholly to
destroy competition. The railre company could have

26

run its vessels only when some other carrier came on to a
route and cut rates so as to kill off the competition, leavy-
ing the railroad carrier’s business unmolested. The
whole object and purpose of the provisions of the Act,
as shown by its wording was to preserve such water
competition and not to kill it and Congress took the
means to preserve it by subjecting such railroad owned
carrier to the full measure of the provisions of the Inter-
state Commerce Act.

We therefore submit that the transportation between
San Francisco, Astoria and Portland, while wholly by
water is when carried in the railroad controlled vessels,
in all respects subject to the Act.

IIT.
ASSIGNMENT OF CLAIMS

It is claimed in the brief of plaintiffs in error that
the assignment of all the claims of the shippers to the
defendant in error was void because not complying with
Section 3477 of the revised statute. This objection
refers only to the case against the Director General. We
submit, however, that this question is not before this
court for the reason that it was not raised in the lower
court. The only reference in the bill of exceptions
thereto is found in Tr. No. 595 at Page 54 and is as
follows:

“Mr. Wilson offered documentary evidence
that plaintiff was the owner by assignment of the
claims mentioned in the respective causes of action
of the complaint and supplemental complaint, and
it was established that plaintiff is the owner of such
causes of action.”

27

There was no objection made to the assignments
when offered and no exception taken with reference
thereto. The sufficiency of said assignments was con-
ceded. No question was likewise raised in the Circuit
Court of Appeals and neither of the lower courts were
called upon as to the validity of said assignments.

Notwithstanding the fact that this question is not
raised by the record, we submit that claims of this char-
acter may be brought by the assignee. In the case of
Spiller vs. A. T. & S. F., 253 U. S. 184, this court has
sustained the right of an assignee to maintain an action
against a carrier on such claims. The fact that the
Director General was operating the line we submit did
not prevent the assignment. Section 10 of the Federal
Control Act provides:

“That carriers while under federal control shall
be subject to all laws and liabilities as common
carriers whether arising under state or federal laws
or at common law, except insofar as may be incon-
sistent with the provisians of this Act or any other
act applicable to such federal control or with any
order of the president. Actions at law or suits in
equity may be brought by it against such carriers
and judgments rendered as now provided by law
and in actions at law or suits in equity against the
carrier no defense shall be made thereto upon the
ground that the carrier is an instrumentality or
agency of the Federal Government.”

The defense of the invalidity of the assignments is a
defense based purely and simply upon the ground that
the defendant is an instrumentality or agency of the
Federal Government.

28

This court has held in the Spiller case above shown
that such assignments are valid as against a carrier not
under federal control and if assigned claims may be
maintained against such carrier, then it was plainly the
intent that such assigned claims could be maintained
against the carrier when under federal control.

This court in Mo. Pacific R. R. Co. vs. Ault, 256
U. S. 559, in construing this section says:

“The plain purpose of the above provision was
to preserve to the general public the rights and
remedies against common carriers which it enjoyed
at the time the railroads were taken over by the
President except in so far as such rights or remedies
might interfere with the needs of federal operation.
The provision applies equally to cases where suits
against the carrier companies were pending in the
courts on December 28, 1917; to cases where the
cause of action arose before that date and the suit
against the company was filed after it; and to cases
where both cause of action and suit had arisen or
might arise during federal operation. The Govern-
ment was to operate the carriers, but the usual
immunity of the sovereign from legal liability was
not to prevent the enforcement of liabilities ordi-
narily incident to the operation of carriers * * *
Operation was to be continued as theretofore with
the old personnel, subject to change by executive
order. The courts were to go on entertaining suits
and entering judgments under existing law, but the
property in the hands of the President for war pur-
poses was not to be disturbed. With that exception
the substantial legal rights of persons having deal-

29

ings with the carriers were not to be affected by the
change of control.”

The court further amplifies this language.

In another action pending before the District Court
of the United States for the District of Oregon this
identical question was raised and Judge Wolverton held
the assignments valid. Parrington vs. Davis, 285 Fed.
751.

In Seaboard Air Line Railway ys. Jnited States,
256 U. S. 655, this court discussed the reason for the
provisions of Section 3744 of the revised statute and

We submit that the assignments were not void but
action could be maintained thereon against the carriers
while under federal control.

an.

CARRIERS ARE LIABLE NOTWITHSTAND-
ING CERTAIN OF THE BOATS ON
WHICH PART OF THE SUGAR WAS
HANDLED WERE UNDER REQUISI-
TION OF THE UNITED STATES SHIP-
PING BOARD FOR A PORTION OF THE
PERIOD.

It appears in the record \(Tr. No. 595, P. 84) (No.
594, P. 90), that on October 12th, 1917, the San Fran-
cisco and Portland Steamship Company was given
notice by Bainbridge Colby, Commissioner, that the

30

United States Shipping Board was requisitioning all
American steamers enumerated therein, and that the
“Rose City” and “Beaver” of the San Francisco and
Portland Steamship Company were of the class requi-
sitioned. ‘These steamers continued on their routes and
were continued to be operated by the San Francisco and
Portland Steamship Company and the United States
Railroad Administration. The tariffs under which ship-
ments were carried were the tariffs of the San Fran-
cisco and Portland Steamship Company and the Di-
rector General. The contracts of carriage as shown by
the evidence were the contracts of the San Francisco and
Portland Steamship Company and the Director Gen-
eral; the agents receiving the shipments were the em-
ployes of these concerns. No tariffs were filed by the
United States Shipping Board with the Interstate Com-
merce Commission, and no contracts of carriage were
issued by that Company. The shippers therefore had no
contractual relations with the United States Shipping
Board, were never advised in any way that they were
dealing with the United States Shipping Board. The
contracts which gave rise to these actions were by the
shippers and the plaintiffs in error in this case and no
other. It made no difference to the shipper what. boats
‘ts contractors used for the transportation of these ship-
ments, and if these plaintiffs in error saw fit to contract
with the public during this period they were liable to the
public on those contracts, notwithstanding two of their
boats had been requisitioned by the Government, and
notwithstanding they may have carried the articles on
the requisitioned boats. Their tariffs holding themselves
out to the public as carriers during this entire period
were on file and anyone having traffic to haul could rely
thereon.

31

We therefore submit they still remained liable durin g
this period to the plaintiff's assignors.

V.

NORTH PORTLAND AND PORTLAND ARE
ON THE SAME ROUTE, PORTLAND
BEING INTERMEDIATE, ON SHIP-
MENTS FROM SAN FRANCISCO TO
NORTH PORTLAND.

It is claimed by plaintiffs in error that because the
boats of the San Francisco and Portland Steamship
Company might have run beyond the mouth of the
Willamette River up to North Portland and delivered
the shipments, or could have transferred the same
through the terminal of the City of Portland without
bringing them up to the vessels’ regular landing place
at Portland and there transferring to the line of the
Oregon-Washington Railroad & Navigation Company
that Portland is not intermediate from San Francisco to
North Portland and therefore it was no violation of
the Act.

Neither one of these contentions is tenable for the
reason that the San Francisco and Portland Steamship
Company does not include North Portland in its tariffs
except via Portland and the Oregon-Washington Rail-
road & Navigation line.

As heretofore pointed out, North Portland is farther
Kast than the mouth of the Columbia River where the
boats of the San Francisco and Portland Steamship
Company turn South into the Willamette River to Port-
land. The tariffs of the San Francisco and Portland

82

Steamship Company not naming North Portland as one
of the stations on its boat line, cannot carry traffic
thereto. The very first provision of Section 6 of the
Act to Regulate Commerce provides:

“That every common carrier subject to the pro-
visions of this Act shall file with the Commission
created by this Act and print and keep open to
public inspection schedules showing all the rates,
fares, and charges for transportation between dif-
ferent points on its own route and between points
on its own route and points on the route of any
other carrier by railroad, by pipe line, or by water
when a through route and joint rate have been
established * * * The schedules printed as aforesaid
by any such common carrier shall plainly state the
places between which property and passengers will
be carried” * * *

Not having named North Portland as one of the
places to which it would carry freight by its own boats,
that was not an available route for such transportation
under the Interstate Commerce Act.

The route through the Munipical Terminal was like-
wise not an available route. The Municipal Terminal is
located on the Willamette River, partly within and partly
without the city limits of Portland. It is north of the reg-
ular landing place of the San Francisco and Portland
Steamship Company vessels at Portland and can be
reached on the route from San Francisco tothe steamship
company’s regular landing placeat Portland before reach-
ing that landing. At the Municipal Terminal, which is
owned and operated by the City of Portland, there are
slips for the accommodation of vessels, and tracks from

83

these slips to a connection with the O.-W. R. R. & N,
line. Over these tracks are operated switch engines of
the City of Portland, and the nearest slip from the
line of the O.-W. R. R. & N. Co. would involve a haul
over these tracks of the City of Portland of at least
2,000 feet. The tariff of the City of Portland for the
use of these terminal facilities is not filed with the Inter-
state Commerce Commission (Tr. No. 594, P. 83, and
No. 595, P. 80). As stated by the witness Mount, “The
tariffs of the City of Portland change oftener than the
moon does”, (Tr. No. 594, P. 85, and No. 595, P. 80.)

The route from San Francisco to North Portland
via the San Francisco and Portland Steamship line, the
Portland Municipal Terminal and the Oregon-Wash-
ington Railroad & Navigation Company was not an
available route because the tariffs over that route were
not filed with the Interstate Commerce Commission,
Subdivision 4 of Section 6 of the Interstate Commerce
Act provides:

“The names of the several carriers which are
parties to any joint tariff shall be specified therein,
and each of the parties thereto, other than the one
filing the same, shall file with the Commission such
evidence of concurrence therein or acceptance
thereof as may be required or approved by the Com-
mission,” ete, * * *

Subdivision 7 of Section 6 of the Act to Regulate
Commerce provides:

“No carrier, unless otherwise provided by this
Act, shall engage or participate in the transporta-
tion of passengers or property, as defined in this

34

Act, unless the rates, fares, and charges upon
which the same are transported by said carrier have
been filed and published in accordance with the
provisions of this Act.” * * *

The tariff involved in this case does not and no other
tariff shown by the record permits the carrying of prop-
erty through Municipal Terminal No. 4 of the City of
Portland from San Francisco to North Portland be-
cause the City of Portland over that route would be a
participating carrier, and the law requires it to join in
the tariff, and neither the San Francisco and Portland
Steamship Company nor the Oregon-Washington Rail-
road & Navigation Company could publish a tariff over
that route without the participation of the City of Port-
land in the tariff.

There is another reason against the consideration of
this route and that is that the Municipal Terminal of the
City of Portland was not in existence until the spring
of 1919, long after the rates and route to North Port-
land through Portland were established. The fact is,
the tariffs in question from San Francisco to North
Portland in this case definitely fix the route. These
tariffs specify that this rate applies “via Route No. 1 as
shown on Page 34”, and on that page under the cap-
tion of “Routing”, Route No. 1 is specified as “via the
San Francisco and Portland Steamship Company to
Portland, Oregon, and Oregon-Washington Railroad &
Navigation Company from Portland to North Port-
land”, (Tr. No. 594, P. 64, and No. 595, P. 58). This
route was established long before the Portland Munici-
pal Terminal was in existence. The claim that the
Municipal Terminal route is an available route is a

35

makeshift in an attempt to avoid the penalty of the 4th
Section.

Mr. J. W. Mount, Assistant General Freight Agent
of the Union Pacific, a witness on behalf of the plain-
tiffs in error, when on the stand on cross examination
on the subject of the City of Portland joining in the
tariffs, said:

“All sugar going on the Oregon-Washington
Railroad & Navigation Company’s lines coming
into the City of Portland by boat is ordinarily
transferred at Ainsworth Dock. I merely mean to
say that physically, sugar can transfer from water
to rail at Municipal Dock No. 4, and that it is just
as good, if not a better physical connection than the
Ainsworth Dock.” (Tr. No. 594, P. 88, No. 595,
P. 83.)

It requires something more than a physical connec-
tion to establish a route within the meaning of the
Interstate Commerce Act. Via the only established
route as shown by the tariffs on file with the Interstate
Commerce Commission, the route to North Portland is
through Portland, and Portland is therefore intermedi-
ate to North Portland and a charging via this route, as
was shown by the evidence in this case, of a lower rate to
North Portland than that charged to Portland is a vio-
lation of the 4th Section of the Interstate Commerce
Act.

36
VI.

THE ACTUAL SHOWING THAT SHIP-
MENTS HAVE BEEN MADE TO NORTI
PORTLAND AS A CONDITION TO RE-
COVERY IS NOT NECESSARY.

The question was raised by the plaintiffs in error
that because the defendant had not shown actual move-
ments to North Portland that no violation of the Act
was shown.

At North Portland is located a packing plant of
Swift & Company, in which quantities of sugar are used.
The San Francisco and Portland Steamship Company
joined with the Oregon-Washington Railroad & Navi-
gation Company in establishing a joint rate thereto.
The law requires, as pointed out in the foregoing section
of this brief, the carriers to “print and keep open to
public inspection, all rates, fares and charges for trans-
portation between different points” * * * It is claimed
that because Section 4 of the Act provides that it shall
be unlawful for any carrier “to charge or receive any
greater compensation in the aggregate for the trans-
portation of passengers or of like kind of property for
a shorter than for a longer distance over the same line
or route in the same direction, the shorter being included
within the longer distance”, before recovery can be had
that it must be proved that not only the carrier pub-
lishes rates to the further point, but that it must also be
proved that it has actually charged those rates. This
would in many cases be an impossibility. The law re-
quires the publication of the rates and charges to be
made. It requires the carriers to keep them open to
public inspection. They cannot be changed except by

37

special permission of the Interstate Commerce Com-
mission in emergency cases under thirty days’ notice.
The public is bound to take notice thereof. It has a
right to rely upon this publication of the carrier and
when it publishes the lower rate to the further point,
unless it gets special permission therefor from the
Interstate Commerce Commission the higher rate to the
intermediate point ceases to exist.

In United States vs. Louisville & Nashville, 235 U.
S. 322, this court says:

“The right to continue it” (That is, the greater
charge for the shorter distance), “had been ex-
pressly prohibited by statute until on application
made to the Commission its consent to that end was
given.”

And again, at Page 325, Mr. Chief Justice White
says with reference to the long and short haul clause * * *
“and for the purpose of making the provision efficacious
it was enacted that after a time fixed no existing rate of
the character provided for should continue in force un-
less the application to sanction it had been made and
granted. Int. Mountain Rate Cases, 234 U.S. 476. If
then it be that the rebilling privilege which is here in
question, disregarding immaterial considerations of
form and looking at the substance of things, was, when
originally established, an exertion of the authority con-
ferred or recognized by Section 4 of the Act, as there
is no pretense that permission for its continuance had
been applied for as required by the amendment and the
statutory period for which it could be lawfully con-
tinued without such permission had expired, it follows
that its continued operation was manifestly unlawful

38

and error was committed in permitting its continuance
under the shelter of the injunction awarded by the court
below.”

The above language was used with reference to rates
in effect at the time the amendment of 1910 of the 4th
Section of the Act went into effect. In the present case
the lower rate to the further point was established after
the amendment of 1910 went into effect. If a rate in
existence at the time of the amendment could not con-
tinue after a certain date without the authority of au
order of the Interstate Commerce Commission, then cer-
tainly a subsequently established higher rate to the inter-
mediate point, without first securing the Commission’s
order could not become effective. The only rate there-
fore which could have been legally charged in view of
this prohibition of the statute was the lower rate estab-
lished to the further point, because the other rate by the
establishment of this rate to the further point became
illegal, and therefore we submit it did not devolve upon
the shipper to prove an actual shipment to the further
point.

This question has been considered by the Supreme
Court of California with reference to the long and short
haul provision of the California law in California Ad-
justment Co. vs. A. T. & S. F., 179 Cal. 140, 175 Pac.
682. An examination of this case will show that the lan-
guage of the California law in this respect is identical
with that of the Interstate Commerce Act. With refer-
ence thereto that court says:

“Nor do we think it material, whether when the
shipments to intermediate points complained of as
excessively charged for were made no contempo-

39

raneous shipment to the more distant point was
made. Under the constitutional provision the legit-
imate maximum charge for the shorter haul is the
charge the carrier makes for the longer one, and it
is only necessary to show in proof of an illegal dis-
crimination that the shipper paid a larger sum for
the short haul than the defendant would have
charged for the longer one. Actual shipment for
the longer distance is not required to be shown. All
that is required is a showing that the defendant held
out and published to the shipping world that it
would charge certain rates for the transportation
of a certain class of merchandise from San Fran-
cisco to Los Angeles. This was shown, and when
shown, for the purpose of determining whether dis-
crimination was practised or not, the rates so held
out to be charged are deemed in law to have been
charged.”

The Supreme Court of Ohio likewise in Beeghly vs.
Public Utilities Commission (185 N. E. 641), passing
upon a similar long and short haul provision of the Ohio
law, arrives at the same conclusion.

WAM,
STATUTE OF LIMITATIONS

It is claimed that certain of the claims sued on in
Docket No. 594 are barred by the Statute of Limita-
tions, for the reason that the action was not commenced
within two years after movement thereof. In the brief
this same question is raised with reference to certain of
the claims in Docket No. 595, but the record in the
lower court in this Docket does not raise that question.

BiG iii hic tor essai tis Hie a RRL OL

40

In Docket No. 595 there was submitted a demurrer in
the following words:

“Comes now the above named defendant and
demurs to the complaint on file herein on the
ground that

I.

“This Court has no jurisdiction of the subject
matter of the action.

“Defendant will rely in presenting this demur-
rer on the proposition that the Interstate Com-
merce Commission has exclusive original jurisdic-
tion of controversies of this character.” (‘Tran-
script 595, Page 21.)

No general demurrer or demurrer on the ground
that the action had not been commenced as to any of
the claims within the time prescribed was filed. The
answer is simply one of general denial, except that by
special answer it is suggested that James C. Davis had
succeeded John Barton Payne. (Transcript 595, Pages
35 to 38.)

At the time of the trial no objection was made to
any of the claims, nor was any such question raised. In
fact, the claims had all been submitted to the defendant,
checked, and the amount agreed upon. The only reser-
vation made was that certain claims had been carried
during the time after the Shipping Board had wired
requisitioning certain steamers of the plaintiff in error
and prior to the date when the notice of release of said
vessels was sent, but no question as to any of said claims
not being within the Statute of Limitations was ever
raised.

41

As to Docket 594, the Demurrer did not raise the
question of the Statute of Limitations as to those claims
arising prior to January 1, 1918 (Transcript No. 594,
Page 22), so that the only question raised before the
lower court was as to those claims prior to January 1,
1918, in the case against the Steamship Company.

Reliance is had on case of Kansas City Southern,
plaintiff in error, vs. Wolf et al., 43 S. C. R., 259, de-
cided February 19, 1923. This case had not been de-
cided in this Court at the time the present cases were
decided. The decision in that case in the lower court
was to the contrary, as was the decision in the present
cases. The Interstate Commerce Act itself does not
specifically prescribe the limitation period for actions
commenced by shippers before the court. 'The Act does,
by Sections 8 and 9, give a choice of forum either before
the Commission or the District Court of the United
States, but the Act only specifically places a limitation
upon proceedings before the Commission.

The Court in the Wolf case bases its decision en-
tirely upon its former decision in the case of Phillips vs.
Grand Trunk Western Ry. Co., 236 U. S. 662, 667, but
that was a case on a claim which admittedly had to be
commenced originally before the Commission. Such a
case had been commenced before the C ommission, not
by the plaintiff in the Phillips case, but by another
plaintiff on a similar claim. The Commission had estab-
lished the right to recover and the plaintiff in the Phil-
lips case commenced his action in court based upon the
proceedings before the Commission, and the Court prop-
erly held that the person commencing in the Court could
not have a different period of limitation than that be-
fore the Commission.

42

In the Wolf case this Court holds that the same prin-
ciple applies. We respectfully ask for a reconsidera-
tion of this ruling. The Court in the Phillips case says
that in those cases where the statute reads as does the
Interstate Commerce Act, to-wit: that the proceeding
shall be commenced within two years from the time the
cause of action accrues and not after, the liability is
destroyed, If this is the case then we submit that the
same rule should apply to all questions of damages in
any case which might have been submitted to the Com-
mission, whether it may be sued upon in the state court,
the United States Court, or before the Commission, and
this Court has in several cases sinee the Phillips case
permitted recoveries in cases involving interstate traffic
which could have been submitted to the Commission, but
were commenced in the state courts and recovery was
permitted for periods considerably in excess of two
vears. Thus in the case of Pennsylvania Rid. Co. vs.
Puritan Coal Co., 287 U. S. 121, it appears that an
action for damages was commenced in the State Court
of Pennsylvania for damages for discrimination in dis-
tribution of cars under tariff rules prescribed by the
Railroad Company. It appeared that the cars desired
were for both destinations within and without the State
of Pennsylvania. (237 U. S. 124 and 127.) The ae-
tion was commenced in March, 1908, and it appears on
Pages 123 and 130 that claims as far back as 1902 were
involved. It likewise appears that the question of the
Statute of Limitations had been raised. (Page 123.)

The amendment of Section 16 of the Act to Regu-
late Commerce, approved June 29, 1906, reads as fol-
lows:

“All complaints for the recovery of damages
shall be filed with the Commission within two years

dpe
eee

43

from the time the cause of action accrues, and not
after. * * * Provided that claims accrued
prior to the passage of this Act may be presented
within one year,”

So that if the Act is to be construed, by reason of
the necessity for uniformity, so that this limitation ap-
plies to the Courts as well as the Commission, it should
likewise apply as well to actions in the State Courts as
those in the United States Courts, and would apply
to all of the interstate claims in the Puritan Coal case,
and hence, on the theory that the liability was destroyed,
all of said interstate claims in the Puritan Coal case
would have been barred, for they acerued prior to the
amendment of June 29, 1906, and they must necessarily
have been commenced within one year thereafter, but
the action was not commenced, as shown by the opinion,
until March, 1908, but this Court affirms the judgment
in that case permitting the recovery, and this opinion
was rendered subsequently to the opinion in the Phillips
case,

Again in the case of Pennsylvania Rld. Co. vs, Son-
man Coal Co., 242 U. S. 120, it appears that the Coal
Company had brought action to recover damages from
the Railroad C ompany for a period of four years, be-
ginning April 1, 1903. It does not appear from the
opinion just when the action was commenced, but it
covered a period of four years, and if the remedy was
destroyed by the Act of 1906, a part or all of these
claims should not have been allowed, but the recovery
allowed in the State Court was af firmed in this Court,
and that in an opinion subsequent to the Phillips case.
In the lower court these cases were attempted to be dis-
tinguished on the ground that they did not apply to

44

interstate shipments and could not apply if the damage
were one coming under the interstate commerce law, but
numerous cases of the same character have been brought
before and considered by this Court, and are of a char-
acter which could have been brought before the Inter-
state Commerce Commission on the identical claims.
This is plainly shown by the decision of this Court in
the case of Pennsylvania Rid. Co. vs. Steinman Coal
Co., 242 U. S. 300, in which this Court held that the
State Court had jurisdiction, but the case was reversed
on the ground that in another case the identical rule on
which the case was based had been declared unreason-
able by the Commission, and therefore the shipper could
not bring action in court and recover on it, but the prin-
ciple is clearly demonstrated that these cases are of a
character which can be tried either in the State Court,
the United States Court, or before the Commission. In
that regard we quote the following from this Court's
opinion in the Steinman Coal Company case: (Page
299)

“The coal company was engaged in coal mining
on the carrier’s line in Pennsylvania and was ship-
ping the coal to points in that and other States.
Other coal companies were engaged in like opera-
tions in the same district. A rule of the carrier pro-
vided for a pro rata distribution of the available
supply of coal cars in times of car shortage, but did
not require or contemplate that individual cars,
owned or controlled by the shipper, should be
charged against his distributive share. Without
questioning the reasonableness of this rule, but, on
the contrary, assuming that it was unobjectionable

45

and became the true measure of the shipper’s right
and the carrier's duty, the coal company claimed
that the carrier had unjustly discriminated against
it te its damage by furnishing it a smaller number
of cars, and some of its competitors a greater num-
ber, than the rule contemplated or permitted. In
other words, the claim was, not that the rule was
discriminatory, but that it was violated or unequally
enforced by the carrier. Of such a suit we said in
Penn. R. R. Co. v. Puritan Coal Mining Co., 237
U. S. 121, 131-132, where the provisions of the In-
terstate Commerce Act were extensively considered:
‘There is no administrative question involved, the
courts being called on to decide a mere question of
fact as to whether the carrier has violated the rule
to plaintiff's damage. Such suits, though against
an interstate carrier for damages arising in inter-
state commerce, may be prosecuted either in the
State or Federal courts.’ Adhering to this view, we
think the suit was properly brought in a state court.
See Penn. R. R. Co. v. Sonman Shaft Coal Co.,
ante, 120.”

Therefore, under the contention made by counsel for
the railroads, if the two year limitation applied to all
cases which might come before the Commission or might
be sued on in court originally, as has been ruled in the
cases which are required to be brought in the first in-
stance before the Commission, then the decisions above
pointed out in the Puritan case and in the Sonman case
are inconsistent with the interpretation contended for,

46

for if this rule is based upon the necessity for uniformity
in all cases, then that limitation must apply to every case
which might have been brought before the Commission
even though it be brought in the State Court, but this is
not the fact, because the court has permitted and does

permit actions on claims more than two years old.

This contention is further confirmed by considera-
tion of the case of Morrisdale Coal Co. vs. Penn. Rail-
road Co., 230 U. S. 304, in connection with the cases of
Penn. Railroad Co. vs. Puritan Coal Co., 237 U. S. 121,
and Penn. Railroad Co. vs. Sonman Coal Co., 242 U.S.
120. In the Morrisdale case the plaintiff was attacking
not the method of distribution of cars under the car dis-
tribution rules, but was attacking the rules themselves.
In each of the other cases referred to the plaintiff was
attacking not the rules, but the method of distribution
under the rules. In the Morrisdale case the court held
that the Interstate Commerce Commission had primary,
original, exclusive jurisdiction. The proceedings were
commenced originally, however, in court and the request
of the court was made that the case be not dismissed
but held in abeyance while application could be made to
the Commission for an administrative ruling, but the
court denied this application on the ground that the
period of limitation for proceedings before the Commis-
sion had expired and the Commission would have no
jurisdiction to grant any relief on the particular ship-
ment sued on in that case, the court saying:

47

“It is argued in the plaintiff's brief that if this
view of the law should be sustained the case should
not be dismissed, but stayed until the plaintiff could
apply to the Commission and obtain a ruling on the
question as to whether the method adopted by the
Pennsylvania Railroad was not, during the years
1900 to 1906 unjustly discriminatory. aie
is called to Southern Ry. v. Tift, 206 U. S. 428, 434,
which it is said would support such a provision in
the mandate. In that case the shippers filed, on
April 14, 1903, a bill to enjoin an advance in rate.
The injunction was refused and the advance went
into effect. The cause was stayed while the com-
plainants were pressing their application for an
order from the Commission that the rates were un-
reasonable. Its report was in their favor and on it
the Circuit Court made an order of restitution (206
U.S. 436). But in that case the statute of limita-
tions had not run when the bill was filed, when the
stay order was granted, nor when the application
was made to the Commission; while in the present

case the plaintiff was barred of the right to apply to
the Commission at the date the suit was filed in the
United States Circuit Court. The damages which
were claimed arose from a failure to deliver cars
prior to Dec. 31, 1905. The suit was brought July
17, 1908, more than two and a half years later and
after the passage of the act of June 29, 1906, 34
Stat. 584, 590, that ‘all complaints for the recovery
of damages shall be filed with the C ommission

48

within two years from the time the cause of action
accrued and not after, and a petition for the en-
forcement of an order shall be filed in the Circuit
Court within one year from the date of the order
and not afterwards; provided, that claims accrued
prior to the passage of this act may be presented
within one year.’

“The provisions of this statute would prevent
the modification asked for, and the judgment is
affirmed.”

Irom this case, taken in conjunction with the Puri-
tan case and the Sonman case, which latter cases were
proceedings directly in court without prior application
to the Commission, it will be seen that the court per-
mitted recovery for more than the two-year period prior
to commencement of the actions, holding that no prior
proceedings before the Commission were necessary.

In the Morrisdale case, however, the Court says that
prior action by the Commission is necessary, and that
the claims are barred. The practical result of these
cases is therefore that the two year limitation has not
in fact been applied to actions in Court, except in those
cases where primary action of the Commission is neces-
sary, but in all cases where the original jurisdiction in
the Courts has been sustained, recovery for more than
a period of two years has been permitted, and such re-
covery has been affirmed in this Court in decisions sub-
sequently to the Phillips case in which the Court says
that after the two vears the liability is destroyed, and
upon which case the later decision in the Wolf case has
been rendered. We, therefore, submit that in the light
of this practical construction which has been given this

49

statute, and there has been no c
as far as this question is concerne
of 1906, that the question sh
The ordinary rule heretofore applied is that, where the
United States statute js silent, the state statute of limi-
tations shall govern. Is it the purpose that the state
statute shall govern in those cases like the Puritan Coal
Company and the Sonman Coal Company where the
Court holds that the action may be commenced in the
State Courts, and that the two year period shall apply
only to actions in the United States Court and |
the Commission? The statute is silent
tion before any Court, and it is
rule of uniformity that the period of limitation pre-
scribed before the Commission is made to apply in any
Court. If it had been the intent of the Congress to
prescribe this limitation in the Courts would it not have
specifically so provided, and certainly if the rule of unj-
formity is controlling it should apply to interstate ship-

ments in the State Court as well as in the United St
Court.

hange in the language
d since the amendment
ould be reconsidered.

vefore
as to the limita-
only by reason of the

ates

We respectfully submit that the rule should only
be enforced as to those cases in which primary action
must be brought before the Commission.

VIII.

THE INTERSTATE COMMERCE COMMIS-
SION 4TH SECTION ORDER MADE IN
CONNECTION WITH THE GENERAL
ADVANCE IN RATES.

In the argument of these cases in the Circuit Court
of Appeals there was presented a brief by Ben C, Dey
as amicus curiae in which he attempted to raise the ques-

50

tion that the Interstate Commerce Commission had
legalized all of the violations of the long and short haul
clause. The order in question was made by the Inter-
state Commerce Commission when the general advance
in rates in June, 1918, was permitted, and this order
was necessary to permit the advance because of the in-
crease in the measure of certain long and short haul
violations which had been permitted by the Commission,
and also because the rule adopted with reference to the
disposition of fractions created some small violations
which were necessary to be covered.

This question was not raised in the District Court
and the Circuit Court of Appeals refused to consider it.
(Tr. 594, Page 156.) But it has now been referred to
in the brief of plaintiffs in error. We think our brief
before the Circuit Court of Appeals covers the matter
and we will embody here what was said on this subject
‘nthe Circuit Court of Appeals in view of the haste with
which this brief is required to be prepared.

It is next contended that the increase in rates made
by General Order 28, and the order of the Commission
permitting these increases to go into effect, and per-
mitting them to violate the long and short haul clause
insofar as necessary to permit the increase to go into
effect, had the effect of legalizing all violations of the
Jong and short haul clause, irrespective of whether or
not the particular violation was caused by the increase
‘n rate or whether it had existed prior thereto and with-
out any order of the C ommission permitting the same.
In other words, that this order of the Commission was
a general carry-all legalization which had the effect of
doing away with the prohibition of the long and short

51

haul clause as far as the Railroad Administration was
concerned.

This question, we submit, can have no bearing in this
court in these cases for the reason that it is not raised
by the record. It does not appear on the face of the
complaint, was therefore not raised by the demurrer to
the complaint, and was not pleaded in the answer. Coun-
sel seems to be acting on a sort of general assumption
that without any pleading, this court will consider any
order of the Interstate Commerce Commission on the
basis that the court will take Judicial knowledge of the
orders and reports of the Interstate Commerce Commis-
sion. This is not the case. In order to justify their
actions under any such orders of the Commission, the
plaintiff in error must have pleaded the same. Having
failed to plead the same, he waived any right thereun-
der. The question of the effect of Judicial notice of
the acts of the Interstate Commerce Commission was
considered by the Supreme Coourt of the United States
in Robinson vs. B. & O. Railroad Company, 222 U. S.
p. 511, where the court says:

“The next question to be considered is, whether
Judicial notice should have been taken of the de-
cision of the Commission in Glade Coal Co. v. Balti-
more & Ohio Railroad Co., wherein, as it is said,
the rate here in question was found to be unjustly
discriminatory and the railroad company was di-
rected to desist from its enforcement. The decision
was rendered April 28th, 1904, and authoritatively
published in 10 I. C. C. No. 226, but was not men-
tioned in the pleading or in the agreed statement
of facts. In the Supreme Court of Appeals of the

52

State it was contended that the decision should have
been judicially noticed by the trial court, but the
contention was rejected, and that ruling is now
challenged as contravening the provision in See. 14
of the act (25 Stat. 855), which reads: “The Com-
mission may provide for the publication of its re-
ports and decisions in such form and manner as
may be best adapted for public information and
use, and such authorized publications shall be com-
petent evidence of the reports and decisions of the
Commission therein contained, in all courts of the
United States, and of the several States without any
further proof or authenti sation thereof.’

“Undoubtedly, this provision makes the de-
cisions of the Commission, as so published, admis-
sible in evidence without other proof of their genu-
ineness, but it does not require that they be ju
dicially noticed or relieve litigants from offering
them in evidence as they would any other com-
petent evidence intended to be relied upon. — Its
purpose is to relieve litigants from the inconven-
ience and expense of obtaining certified copies of
the decisions by authorizing the use of the published
copies, but it does not otherwise change the rules of
evidence. The ruling, therefore, was not in con-
travention of the statute.”

If counsel intended to rely upon any order of the
Interstate Commerce C ommission as a justification, he
should have pleaded the same, and proved it. The
judicial notice which the court takes is of the published
records of the Commission and his proof would not have
had to have been certified, but these orders of the Com-

53

mission do not have the force and effect of a public
statute which any court may take into consideration and
apply at any stage of the proceeding without being
pleaded or the proof incorporated in the record. This
isan appellate court, and counsel is attempting to inject
certain proof in this court not offered in the lower court.

But even aside from the question that the point was
not raised by the pleadings or proof, we submit that the
alleged relief from the Fourth Section has not the gen-
eral carry-all effect that counsel contends for it. The
Federal Control Act, Sec. 10, 40 Stat. at Large, 451,
provides: ,

“See. 10. That carriers while under Federal
control shall be subject to all laws and liabilities as
common carriers, whether arising under State or
Federal laws, or at common law, except insofar
as may be inconsistent with the provisions of this
Act or any other Act applicable to such Federal
control or with any order of the President. Actions
at law or suits in equity may be brought by and
against such carriers and judgments rendered as
now provided by law; and in any action at law or
suit in equity against the carrier, no defense shall
be made thereto upon the ground that the carrier
is an instrumentality or agency of the Federal Gov-
ernment. Nor shall any such carrier be entitled to
have transferred to a Federal Court any action
heretofore or hereafter instituted by or against it,
which action was not so transferable prior to the
Federal control of such carrier; and any action
which has heretofore been so transferred because
of such Federal control or of any Act of Congress

54

or official order or proclamation relating thereto
shall upon motion of either party be retransferred
to the court in which it was originally instituted,
But no process, mesne or final, shall be levied
against any propery under such Federal control.”

The only provision relieving the Railroad Adminis-
tration from the regular provisions of the Interstate
Commerce Act is that the Commission shall not suspend
any rates or fares pending final determination.

The Railroad Administration was subject to the
long and short haul clause the same as the carrier itself.
It could not violate the long and short haul clause ex-
cept after having first applied to the Commission and
obtained its order relieving it in special cases from the
operation of the long and short haul clause. There was
no pretense that any such application was made permit-
ting the Railroad Administration to charge less for
hauling sugar from San Francisco to North Portland
than to Portland. When the rates were increased by
General Order 28, it was a general increase of 25 per
cent on all rates, and where certain violations of the
long and short haul clause existed before, these viola-
tions were increased by the increase in rates.

Furthermore, certain violations of the long and short
haul clause were created by this order in the split of
fractions in figuring the rates, and the application to
the Commission was for the purpose of permitting this
increased rate to go into effect and to be relieved from
the Fourth Section of the Act to Regulate Commerce
insofar as was necessary to permit this increase to go
into effect. There were no other special circumstances
before the Commission, and no other special applications

55
were made to the Commission,
mission was granted to the car
Section. It was permission on

to permit the increased rate
was all that was granted by

and no other special per-
rier to violate the Fourth
ly to the extent necessary

S to go into effect, and that
the C ommission.

As the Railroad Administration was
Act to Regulate Commerce as shown by Section 10 of
the Federal Contro] Act, a general order of the Com-
mission without evidence and finding thereon would not
relieve or legalize a violation of the section theretofore
in existence not authorized. The court will note the read-
ing of the proviso of the Fourth Section:

subject to the

“Provided, that upon application to the Com-
mission, such common carrier may in Special cases
after investigation be authorized to charge less for
a longer than for a shorter distance for the trans-
portation of passengers or property, and the Com-
mission may from time to time prescribe the extent
to which such designated common carrier m

av be
relieved from the operation of this section,”

And this Court has stated in U. S. ys. Merchants
Association, 242 U. S. 187, that. this clause “was
designated to guard against the issue by the Commission
of general orders suspending the long and short haul
clause, and to insure action by it separately in respect to

particular carriers, and only after consideration of spe-
cial circumstances existing.”

The amicus curiae is seeking to have an order, which
had no relation to this particular violation of the long
and short haul clause but which did have relation to a
general advance in rates, considered as a carry-all and

ob

general order to legalize all violations of the long and
short haul clause, which is contrary to the interpreta-
tion placed thereon by the Supreme Court. Counsel
seems to take solace in the fact that in the case just
cited, there were a great many carriers involved, but the
characters of the violations which were under considera-
tion were all of a particular kind, evidence had been of-
fered before the Commission as to what they were, and
the order of the Commission, after considering the cir-
cumstances, laid down the basis on which, and the ex-
tent, to which, those carriers could charge more for the
long than for the short haul. It was a special case, spe-
cially and thoroughly investigated, and a_ particular
order entered therein. But amicus curiae is seeking to
have an order having no relation to this particular vio-
lation on which no evidence with reference to this vio-
lation was offered construed into legalizing and author-
izing this particular violation. It can’t be done.

IX.

MEASURE OF DAMAGES

The carriers are contending that the difference be-
tween the rate to North Portland and to Portland is
not the measure of damages but we submit that under
the law the North Portland rate is the only rate which
can be applied, as the higher rate to Portland did not
exist, as pointed out under the decision of Mr. Chief
Justice Brewer in the case of United States vs. Louis-
ville & Nashville, 235 U. S. 314, and hence any sum in
excess of said North Portland rate was illegally exacted,

The Circuit Court of Appeals for the 9th Circuit
has applied this rule in California Adjustment Co. vs.
S. P., 287 Fed., 954, and the Supreme Court of Cali-

o7

fornia has likewise adopted this as the measure of dam-
ages in California Adjustment Co, vs. A. T.& S. Py
185 Pac., 282,

The language of the Supreme Court of Kentucky in
the case of Louisville & Nashville ys, Walker, 110 Ky.
961, 63 S. W. 20, cited in S. P. Co. vs. Cal. Ad justment
Co., 237 Fed. 960, is very pertinent, to-wit:

“As one means of protecting the legal shipper
this section fixed a maximum limit beyond which he
should not be charged. It was thus made unlawful
for the carrier to charge a greater compensation
for the same service for a shorter than for a longer
distance over the same line in the same direction,
the shorter being included Within the longer dis-
tance. When the charge for the longer haul is
fixed, to charge more for the shorter haul is just as
clearly illegal as it would be to charge a greater
sum than the law allowed where the law itself fixed
a sum as the limit of charge. The carrier is allowed

ng for the same service
in the shorter haul, and when appellant exacted of
appellee more than it could legally charge, his right
to recover the excess sO paid is precisely similar to
the right to recover for any other illegal exaction,
He whose money is taken from him illegally is to
that extent damaged. It is not necessary for appel-
lee to show anything more than that he was com-
pelled to pay more than appellant had a right to

58

charge. To illustrate, if it had been provided by
statute that appellant should charge no more for
hauling tobacco than it charged for hauling other
like freight, and appellant while it charged 20 cents
per hundred for hauling like freight had charged
appellee 29 cents per hundred for hauling his
tobacco, it would be clear that 9 cents per hundred
had been taken from appellee in violation of law,
and it would be no defense for appellant to say that
appellee was being prejudiced by its giving lower
rates to other freight and it did not hurt him in any
way that other people were charged less than they
ought to have been charged, for in such a case the
excessive charge for carrying tobacco would be
illegal.”

It is true that the Interstate Commerce Commission
in the cases pointed out by the brief of plaintiffs in error,
has refused to follow this rule, basing their decision upon
the decision of this Court in Pa. R. R. Co, vs. Inter-
national Coal Co., 280 U. S., 184. That case, however,
vas not one for recovery of damages which were specifi
cally provided by statute, but was an action for damage
by one person who had been receiving a rebate on ac:
count of the fact that another shipper had received a
greater rebate than he, and it was attempted to be
claimed that his measure of damages was the difference
‘n the two rebates but the Court held as neither person
was claiming under a legal rate he could only recover such
damages as he could prove by reason of the fact that
the other shipper had received a greater rebate. That,
we submit, is not proper authority to refuse to grant the
difference in the rate charged over that which the stat:

59

ute says shall not be exceeded. The measure of damages
is prescribed by the statute. In the present case the
carriers have taken a certain amount more than the stat-
ute says they could take. The measure of damages is
certainly the difference between this amount and the
amount which they did charge,

The distinguishing feature of the International Coal
case is pointed out by the Circuit Court of Appeals of
the 9th Circuit in California Adjustment Co. vs, S. |
237 Ied., 965, and in the later case in this Court of
Southern Pacific Company vs. Darnell Taenzer, 245
U. S., 584, this Court likewise distinguishes the Inter-
national Coal case in the following language;

“The cases like Pennsylvania Railroad Co. vs.
International Coal Mining Co., 230 U. S., 184,
where a party that has paid only the reasonable
rate sues upon a discrimination because some other
has paid less, are not like the present. There the
damage depends upon remoter considerations, But
here the plaintiffs have paid cash out of pocket that
should not have been required of them, and there
is no question as to the amount of the proximate
loss.”

So in the present case the plaintiffs’ assignors have
paid out of pocket an amount which the statute said
should not be exacted of them and their damages are
definitely fixed by the statute,

eS

pe oh a3

60
X.
ATTORNEY’S FEES IN THIS COURT

If the judgment of the lower court is sustained, we
respectfully submit that this Court should assess as part
of the costs, attorney’s fees in this Court. Section 8 of
the Act provides for the assessment of a reasonable
counsel’s or attorney’s fee to be fixed by the court in
every case of recovery, which fees shall be taxed and
collected as part of the costs in the case. The District
Court limited the attorney’s fees to the fees in that court,
The Circuit Court made an additional allowance for
fees in that court and we suggest that similar allowance
be made in this Court. This seems to be the practice
outlined in Mills vs. Lehigh Valley, 226 Fed., 812, and
N. Y. N. H. & H. vs. Ballou & Wright, 242 Fed., 862.

We therefore submit that the judgment of the Cir-
euit Court of Appeals should be affirmed with the addi-
tion of attorney’s fees in this Court.

Respectfully submitted,

JAMES G. WILSON,

Attorney for Defendants in Error.

N. B.—The foregoing brief has been very hastily
prepared. Our information was that these cases would
be reached about the last of November. At noon Thurs-
day, October 11th, we were advised the case would likely
be heard October 18th or 19th. We necessarily had to
have this brief complete in the printer's hands by noon
of the 12th. We offer this by way of explanation of
any errors or lack of full discussion

: » ee |
boy en 4 op Sig.

. MONTAVILLA

TABLE OF CONTENTS

Page
-secconspmpdiaae’ ipa RULE C CECT 1
Points and Authorities .................... 9
PO ane a when ecesnssirnvaccs,..., 18
Application of Commerce Act to Transporta-
tion Wholly by Water................._. 18
Validity of Assignments of Claims Against
Director General ....................._. 24
Liability during operation by Shipping Board 28
Jurisdiction of District Court............_. 29
If Section 4 Applicable was it violated’... ... 59
Measure of Sais, st ORC Rees 68
Statute of Limitations ................. | 75

STATUTES AND CASES CITED

Allen & Lewis vs. O. R. & N. Co., 98 Fed. 16... . 15-63
Alabama, ete. R. Co. vs, J ourney, 42 S.C.R. 6.14—-15-55
American Exp. Co. ys, Caldwell, 244 U. S. 617. .11-385

Anaconda Copper Mining Co, vs. Director Gen-
onal, 64 ECC. 186... 6.0... 14-62

AOR EWES RN Aw ken hgavdicdicclvccc. 16-73-74
Baltimore & Ohio R. Co. vs. Pitcairn Coal Co.,
oye ag ae se EE ee aaa 10-29

C.& N. W. R. Co. vs. Osborne, 52 Fed. 912... .. 15-638
Clark Bros. Coal Mining Co. vs. Pennsylvania R.

‘nd gta ijane ang, laa 16-74
Crescent Coal & Mining Co. vs. C. & E. I. R. Co.,

AS, eer vale 12-44
Davis, Dir. Gen. ys. Zirkle, 138 N. E. 266...... 10-28
Director General vs. Viscose Co., 254 U. S. 498. . 10-30
Eberhart vs. U. S. 204 | 17-77

RI Certo

PE OO ty ASRS OR Bene

OTC ee AT

RSET Be

TABLE OF CONTENTS—Continued

Federal Control Act, Section 10............... 13-50
Heath vs. Wallace, 188 U.S. 578.............. 13-37
Hillsborough Mills vs. Boston & Maine R. Co. 269

CRIES Sart, rt ee ee Ry ee 16-73

Homestead Coal Co. vs. Des Moines Elec. Co.
IE ee ee a he 16-73

Interstate Commerce Commission Fourth Section

Ropes Tee ONE FOE cca ccc ccassasencees 15-31
Interstate Commerce Act, Sec. 4.............. 11-14
Interstate Commerce Act, Sec. 6.............. 11-32
Interstate Commerce Act, Sec. 15.............. 9-18
Interstate Commerce Act, Sec. 16.............. 17-75
Interstate Commerce Commission vs. C. ete. R.

Co. 06 Ped. 065-108 U. &. 1664... .. 626.000. 15-63
Interstate Remedy Co. vs. American Express Co.

ee ee ee 12-43
Iten Biscuit Co. vs. C. B. & Q. R. Co., 53 1. C. C.

RA eae me oe ae eee ere 13-47

Judson on Interstate Commerce, 3rd Ed. p. 529. .14-61
Kansas City Sou. R. Co. vs. Wolf, 43 S.C. R.
MPT EE ERE UL ERE TE LOT TUTE CSTE eT 14-17-58
Keogh vs. C. & O. R. Co, 48 S. C. R. 47......... 12-39
Knickerbocker Ice Co, vs. Stewart, 253 U.S. 149,
Se Pere ee ee eee CR See Ce eee CTE TET Lee 9-22

Lewis’ Sutherland Statutory Construction, 2nd
as. We, ir ND ive ca sek ec need in vans 9-23
Lehigh Valley R. Co. vs. Rainey, 112 Fed. 487. . . 14-62
Lehigh Valley R. Co. vs. American Hay Co., 219
5 os 5 ks CGS a aes a ATA e Aaah eek uae’ 16-74
Mitchell Coal & Coke Co, vs. Pennsylvania R. Co.
EERE CAC NGSALERARARSALA CR CAEN SOK 10-30
Morrisdale Coal Co. vs. Pennsylvania R. Co. 230
REC Raabe biases ees kRh Caves sts eau s 10-30

Missouri Pacific R. Co. vs. Ault, 256 U. S.
cAckehntan cede eGheehen an whens 9-14-15-26-55

TABLE OF CONTENTS—Continued

National Bank vs. Downie, 218 U.S. 845....... 9-25

Northern Pacific Ry. vs. Solum, 247 U. S. 477. .10-30
Northern Pacific Ry. vs. North Dakota, 250

WOMAN wedineksonwkesee seuss (in ceccs 15-52-64
Panama Canal Act, 37 Stat. L. 560, 566........ 9-18
Payne vs. Bassett, 235 S.W.917.............. 12-33

Parsons vs. C.& N. W. R., 167 U.S. 447. .11-34-61-68
Pennsylvania R. Co. vs. International Coal Ca.,

PRPs TD nn een vinencciccs.c. 11-31-—40-70
Pennsylvania R. Co. vs. Puritan Coal Co., 237

SOME Clan dkadebg ha uncinneakvdscaucic 10-31
Pennsylvania R. Co. vs. Sonman Coal Co. 242

ie Ws WN ak Ch 0494 Vana Kevecan cnn ec. c. 11-31
Phillips vs, Grand Trunk Ry. 236 U. S. 662..... 14-75
P.C.C.& St. L. vs. Fink, 250 U.S.577........ 12-39
Poor Grain Co. vs. C. B. & Q. R. Co., 12 1.C. C.

oh CLeee LL eee ene 12-41
Public Service Commission vs. New York Central,

185 N. Y. Supplement, 268................. 16-67
Revised Statutes, Section 3477................ 9-24

Seaboard Air Line vs U. S. 256 ,. &. O88...... 9-26
Spoffard vs. Kirk, 97 U.S. 484............. 9-24-25

TABLE OF CONTENTS—Continued

Transportation Act, Section 208 (a)
2). By Ve, Bere, BO Fed, GOO... ae cee cceesces
U. S. vs. Cerecedo, 209 U.S. 887...............

Wasatch Coal Co. vs. Baldwin, 208 Pac. Utah,
1109

CREASE SPOR SSREASRAEAPHRAAAESEARAAHR ASE OH ER SOS

In the Supreme Court
ot the United States

OCTOBER TERM, 1922

Ye
s
a
8
:
»

THE SAN FRANCISCO AND PORT-
LAND STEAMSHIP COMPANY, a
corporation,

Plaintiff in Error }

Vs.
A. J. PARRINGTON,

Defendant in Error.’ .

UPON WRIT OF ERROR TO THE UNITED
STATES CIRCUIT COURT OF APPEALS _
FOR THE NINTH CIRCUIT.
No. 5738

JAMES C. DAVIS, Agent, United States
Railroad Administration,
Plaintiff in Error,
vs.
A. J. PARRINGTON,
Defendant in Error.

UPON WRIT OF ERROR TO THE UNITED
STATES CIRCUIT COURT OF APPEALS ;
FOR THE NINTH CIRCUIT. i

STATEMENT OF CASE
These two actions were tried together in the Dis-
trict Court of the United States for the District of

Oregon, consolidated for hearing in the Circuit Court
of Appeals, and application will be made for consoli-

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2

dation in this Court. The same questions are involved
in both actions, and therefore it seems appropriate that
they be briefed jointly.

Both actions were brought in the District Court of
the United States for Oregon by Defendant in Error,
whom we shall hereafter refer to as “the plaintiff”, on
claims assigned to him by various shippers. No prior
application was made to the Interstate Commerce Com-
mission for relief. The actions involve alleged viola-
tions of the long and short haul clause (Section 4) of
the Act to Regulate Commerce, in respect of shipments
wholly by water from San Francisco, California, to
Portland and Astoria, Oregon, before, during and after
Federal control of railroads.

The water carrier involved is The San Francisco
and Portland Steamship Company, which for brevity
we shall hereafter call “The Steamship Company”. Its
stock is owned by Oregon-Washington Railroad &
Navigation Company, an interstate rail carrier. There-
fore, under the terms of the Act of Congress of August
24, 1912, entitled “An Act to provide for the opening,
maintenance, protection and operation of the Panama
Canal, and the sanitation and government of the Canal
Zone”, (87 Stat. L. 566), if the Steamship Company
did or might compete with the Railroad Company, it
was necessary for the rail carrier to secure permission
from the Interstate Commerce Commission to continue
ownership and operation of the Steamship Company
after July 1, 1914. Such an application was made and
granted, and, it is contended, thereby the Steamship
Company submitted to the requirements of the Panama
Canal Act, that “the rates, schedules and practices of

3

such water carrier shall be filed with the Interstate
Commerce Commission and shall be subject to the Act
to Regulate Commerce and all amendments thereto in
the same manner and to the same extent as is the railroad
or other common carrier controlling such water carrier.”

The period involved begins May 10, 1916, and ends
April 80, 1921. During that period the Steamship
Company’s vessels were under corporate control from
May 10, 1916, to October 15, 1917. On the latter date
all the Steamship Company’s vessels were requisitioned
by the United States Shipping Board and the Steam-
ship Company directed to continue to operate them “for
account of the Government”. A charter of the vessels
to the Shipping Board was later executed as of that
date. On May 24, 1918, the Shipping Board gave to
the Steamship Company “five days’ notice of the ean-
cellation of the requisition charter”, and “that on and
after May 29th the Shipping Board will be under no
responsibility whatsoever with respect to said vessels”.
On May 30, 1918, the Director General of Railroads
assumed control over the Steamship Company and its
vessels and continued in control until March 1, 1920,
the date of termination of Federal control of railroads.

The gravamen of plaintiff's suits is that the Steam-
ship Company and Oregon-Washington Railroad &
Navigation Company (and during Federal control the
Director General) had on file with the Interstate Com-
merce Commission certain joint water and rail tariffs
naming rates on sugar from San Francisco to North
Portland, Oregon, which were lower than the rates
charged plaintiff's assignors on similar shipments from
San Francisco to Portland and Astoria. The com-

4

plaints assert that Portland and Astoria are intermedi-
ate to North Portland and that therefore the long and
short haul clause of the Commerce Act (Section 4) was
violated. The defendants admit that Astoria is an
intermediate point between San Francisco and North
Portland, but deny that Portland is intermediate.

The particulars of the claims are as follows: Prior
to May 10, 1916, a rate of 124%c per hundred pounds

on sugar from San Francisco to Portland and Astoria
was carried in the Steamship Company’s local tariff and
a similar rate was named on sugar from San Francisco
to North Portland in a joint water and rail tariff pro-
mulgated by Oregon-Washington Railroad & Naviga-
tion Company and the Steamship Company. On May
10, 1916, the rates to Portland and Astoria named in
the Steamship Company’s local tariff were increased to
15e. Through oversight, or for some other reason not
disclosed, no corresponding increase was made in the
rates to North Portland named in the joint water and
rail tariff. On June 25, 1918, the Director General of
Railroads by his General Order No, 28 increased the
rates of all carriers throughout the United States by
twenty-five per cent. The rate to Portland and As-
toria carried in the Steamship Company’s local tariff
was thus increased to 19¢c and the rate to North Port-
land named in the joint water and rail tariff to 15.
No changes were made in these rates until August 26,
1920, (after Federal control), when the Commission
granted a second general increase of twenty-five per
cent. to all carriers in the Pacific territory. The rates
to Portland and Astoria were correspondingly increased
to 24c and the rate to North Portland to 191/c and these

—

2

rates were not again changed up to the time the com-
plaints were filed.

An inspection of the map attached to the fly leaf of
this brief is necessary to an understanding of the loca-
tion of Portland and North Portland. Portland is
located on the Willamette River, about twelve miles
above its confluence with the Columbia River. North
Portland is located on Oregon Slough, a navigable arm
of the Columbia River, and is about four miles above
the confluence of the Willamette and Columbia. To
reach Portland, vessels must pass the mouth of Oregon
Slough, thus passing the docks at North Portland at a
distance of about four miles. It is also necessary for
such vessels to pass Municipal Terminal No. 4, from
which shipments to North Portland may be transported
by rail over the lines of the Oregon-Washington Rail-
road & Navigation Company. The customary route
for the Steamship Company’s vessels is to land at Ains-
worth Dock, in the heart of the City of Portland, but
this is a matter of Company convenience and there is no
physical obstacle which would prevent the vessels from
landing first at North Portland or at Municipal Ter-
minal No. 4.

Plaintiff's assignors are wholesale grocers and sugar
merchants who transport sugar in large quantities to
Portland and there sell to the retail trade. They have
no competitors at North Portland, there being at that
point only one user of sugar—a meat packing plant
which uses a limited amount of sugar in its packing
process. The evidence discloses no shipments of sugar
from San Francisco to North Portland and the rates ©
named in the joint water and rail tariffs were merely

6

paper rates. Presumably the meat packing plant at
North Portland purchases its sugar from plaintiff's
assignors.

The assignments under which plaintiff claims are in
ordinary form and do not attempt to comply with the
provisions of Section 6383, U. S. Compiled Statutes of
1916, relating to assignments of claims against the
United States. Neither plaintiff nor his assignors
applied to the Interstate Commerce Commission for
any form of relief, but on February 12, 1921, plaintiff
began his two suits in the District Court of the United
States for the District of Oregon. His complaints
recite the history of the rates to Portland, Astoria and
North Portland, as heretofore set out; allege that the
Portland and Astoria rates violated Section 4 of the
Act to Regulate Commerce, and pray judgment for
the difference between the Portland and Astoria rates
and those to North Portland. The theory of the suits
is money had and received. The complaints do not
allege that the Portland and Astoria rates were unrea-
sonable nor that plaintiff's assignors were damaged in
any way except that they paid the tariff rates to Port-
land and Astoria, which were higher than the rates to
North Portland. No evidence of unreasonableness of
any of the rates was offered nor any evidence of dam-
age other than the payment of the rates.

Demurrers were interposed by defendants, chal-
lenging the jurisdiction of the District Court and, in
the Steamship Company’s case, challenging the suffi-
ciency of the complaint and setting up that action on
those claims arising prior to January 1, 1918, was not
commenced within the time limited by the Act to Regu-

7

late Commerce and the laws of the State of Oregon.
These demurrers were overruled and the defendants
answered. The Steamship Company denied it was in
control of its vessels between October 12, 1917, (this
should have been Octover 15, 1917, the date the Ship-
ping Board requisitioned the vessels) and the termina-
tion fo Federal control, or that it collected any sums
from plaintiff's assignors during that period. The
Director General denied that he operated the vessels
prior to May 30, 1918, (the day after the Shipping
Board requisition charter was cancelled) or that he col-
lected any charges from plaintiff’s assignors prior to
that date. The Steamship Company also set up the bar
of the two-year limitation in the Act to Regulate Com-
merce against claims on shipments moving and charges
paid prior to Federal control, and further pleaded that
the charges collected after Federal control and before
August 26, 1920, were in accordance with the rates
shown in the Director General’s tariffs at the termina-
tion of Federal control, and that the rates collected
from and after August 26th were on the basis of the
Director General’s rates plus the twenty-five per cent.
increase ordered by the Interstate Commerce Commis-
sion, effective on that date.

Judgments were returned in favor of the plaintiff
as follows:

Against the Steamship Company for $11,380.69, of
which $2648.64 was on shipments moving prior to Jan-
uary 1, 1918, and included shipments moving during
the time the vessels were operated under the Shipping
Board charter, and $8782.05 on shipments moving after
Federal control. Interest was allowed and $2000.00 as

8

attorney’s fees. The attorney’s fees were later increased
by $1000.00 in the Circuit Court of Appeals.

Against the Director General for $7339.06, on ship-
ments moving between January 1, 1918, and March 1,
1920, the period of Federal control of railroads, and
including shipments moving between January 1, 1918,
and May 29, 1918, the date of termination of the Ship-
ping Board requisition charter. Interest was also
allowed, and $1500.00 as attorney’s fees, which latter
sum was increased by $600.00 in the Circuit Court of
Appeals.

The Circuit Court of Appeals for the Ninth Circuit
affirmed the judgments and allowed further attorney's
fees in the sums stated (281 Fed. 10). The cases are
brought to this Court on writ of error.

9

POINTS AND AUTHORITIES
I.

Under the terms of Section 15 of the Interstate
Commerce Act, as amended in 1910 and 1920, trans-
portation wholly by water is not subject to the Act,
notwithstanding the provisions of the Panama Canal
Act.

Section 15, Interstate Commerce Act, 36 Stat.
L. 552.

Transportation Act of 1920, Sec. 408, 412, 413,
418; 41 Stat. L. 482, 4838, 485.

Fed. Stat. Ann. 1920 Sup. pages 104, 105, 106.

Panama Canal Act, 37 Stat. L. 560, 566.

Knickerbocker Ice Co. vs. Stewart, 253 U. S.
149, 160, 164.

Lewis’ Sutherland Statutory Construction, 2nd
Ed. Vol. 2, page 667.

II.

Assignments of claims against the Director Gen-
eral not complying with Section 3477, Revised Statutes,
are void.

Section 3477, Revised Statutes.

Spoffard vs. Kirk, 97 U.S. 484.

National Bank vs. Downie, 218 U. S. 345.
Mo. Pacific R. Co. vs. Ault, 256 U.S. 554.
Seaboard Air Line vs. U. S. 256 U. S. 655.

| 10

ITI.

No liability can attach either to the Steamship Com-
pany or the Director General on shipments moving dur-
ing the time the Steamship Company’s vessels were
being operated by the Shipping Board.

Mo. Pacifie R. Co. vs. Ault, 256 U. S. 554.
Davis, Director General, vs. Zirkle, 138 N. E.
266.

IV.

The District Court was without jurisdiction, exclu-
sive original jurisdiction being lodged in the Interstate
Commerce Commission.

Texas & Pacific Ry. Co. vs. Abilene Cotton Oil
Co., 204 U. S. 426.

Baltimore & Ohio R. Co. vs. Pitcairn Coal Co.,
215 U.S. 481.

Robinson vs. Baltimore & Ohio R. Co., 222 U. S.
506.

Mitchell Coal & Coke Co. vs. Pennsylvania R.
Co., 230 U. S. 247.

Mcrrisdale Coal Co. vs. Pennsylvania R. Co.,
230 U. S. 304.

Texas & Pacific Ry. Co. vs. American Tie Co.,
234 U. S. 138. cs

Northern Pacific Ry. vs. Solum, 247 U. S. 477.

Director General vs. Viscose Co., 254 U. S. 498.

Pennsylvania R. Co. vs. International Coal Co.,
230 U. S. 184.

Pennsylvania R. Co. vs. Puritan Coal Co., 237
U. S. 121,

Fe RN ERIS BOI IRL a MT mS SN ° rw ney Be 4 SEES oer
; ay Pe TS a

11

Pennsylvania R. Co. vs. Sonman Coal Co., 242
U. S. 120.
St. Louis ete. R. R. Co. vs. Hasty, 255 U. S. 252.

V.

Section 4 of the Interstate Commerce Act, (the long
and short haul clause), is a statute relaiing to a form
of discrimination and not one merely declaring the in-
termediate rate unlawful.

Parsons vs. C. & N. W. Ry. 167 U.S. 447.
Fourth Section, Interstate Commerce Act.

VI.
Discrimination may be removed either by raising one
rate, lowering the other, or changing both, and the fact
that a rate “iscriminates againsi one locality in favor

of another one does not in itself entitle the first locality
to the same rate as the tariff provides for the second.

American Express Co. vs. Caldwell, 244 U. S.
617.

St. Louis ete. Ry. Co. vs. U. S. 245 U.S. 144.

Hillsborough Mills vs. Boston & Maine R., 269
Fed. 816.

VIL.

Section 6 of the Interstate Commerce Act requires
carriers to collect the rates published in their tariffs and
forbids transportation except when an applicable rate
is contained in a published tariff. In view of this section
the carriers were compelled to collect their published
rates or refuse to accept the commodities for shipment.
Section 6, Interstate Commerce Act.

Section 4, Interstate Commerce Act.

12

VIII.

Under Section 6 the carriers must collect their pub-
lished rates, even though they are violative of other
sections of the Act.

Armour Packing Co. vs. U. S. 209 U. S. 56.

P.C.C. & St. L. vs. Fink, 250 U. S. 577.

Keogh vs. C. & O. R. R. Co., 43 Supreme Court
Reporter, 47.

Pennsylvania R. Co. vs. International Coal Co.,
230 U. S. 184.

Poor Grain Co. vs. C. B. & Q. R. Co., 12 I. C. C.
418.

Interstate Remedy Co. vs. American Express
Co., 16 I. C. C. 436.

Crescent Coal & Mining Co. vs. C. & E. I. R. Co,
241.C. C. 149.

IX.

Under plaintiff’s theory that the rates to Portland
were not legally published rates, there were no legally
published rates at all—the transportation must there-
fore have been unlawful, and the courts will not aid
shippers in collecting any part of the charges which they
paid.

Payne vs. Bassett, 235 S. W. 917.

X.

The mere fact that a rate is violative of the long
and short haul clause of the Interstate Commerce Act

13

does not entitle shippers to an intermediate point to
recover the excess over the rate to the more distant
point.

Parsons vs. C. & N. W. R. Co., 167 U. S. 447.

International Coal Co. vs. Pennsylvania R. Co.,
230 U.S. 184.

Iten Biscuit Co. vs. C. B. & Q. R. Co., 58 LC.C,
729.

Topeka Banana Dealers’ Assn. vs. St. L. ete.
R. Co., 13 1.C.C. 620.

XI.

The long line of decisions of the Interstate Com-
morce Commission in Fourth Section violation cases
holding that mere proof of the difference in the rates
is no evidence of damage, should be followed by this
court, because not manifestly incorrect.

Heath vs. Wallace, 188 U. S. 573.
U.S. vs. Cerecedo, 209 U. S. 337.

XII.

Section 10 of the Federal Control Act, and the
Transportation Act of 1920, lodged exclusive original
jurisdiction of cases against the Director General in-
volving violations of the Interstate Commerce Act in
the Interstate Commerce Commission.

Section 10, Federal Control Act, 40 Stat. L. 451.

Northern Pacific R. Co. vs. North Dakota, 250
U. S. 185.

14

Alabama & Vicksburg Ry. Co. vs. Journey, 42
Supreme Court Reporter 6.

Transportation Act of 1920, Section 206 (c) 41
Stat. L. 462.

25 RK. C. L. 1019.

Phillips vs. Grand Trunk Ry., 236 U. S. 662.

Kansas City Sou. R. Co., vs. Wolf, 43 Supreme
Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0445%3A10. Public record. Not legal advice.