# Petitioners Brief — Krauss Brothers Lumber Co. v. Mellon

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0075%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1928
- **Citation:** 276 U.S. 386

## Text

SUBJECT INDEX.

PAGE
GAie candace ckahenetsevisensetnesveets i
TABLE OF STATUTES AND RULES..........-eeeeeees ii
ORTON? GH THD CAG. 2 occ cccccccccccseceseses 1
Py. PD cccenccebebccesaverenesevees 3
i Me vepipecccestatresovucteres esos 6
BUEE F, WUMMMOTION B.. cc vcccccccvesvcscvevvecss 9
eM cecebcioneueereenserseivervedes 10
SEE Tee Tee TPIT TET Tee en 11
NE cveceeccccescencevedvcsesveaseoessaes 11

TABLE OF CASES.

Barber Asphalt Pav. Co. v. Standard A. & R. Co.,
OP Ci Ss. Me bes ctveeanedeens pesseserebense
Beuttell v. Magone, 157 U. 8S. 154.........eeeeeeee

Church v. Hubbard, 2 Cranch 187............-ee8:.
Illinois C. R. Co. v. I. C. C., 206 U. 8. 441..........-

Kelly v. Jackson, 31 U. 8. 622.........eceeccrcees
Kendall v. May, 10 Allen (Mass.) 59..............

Louisville d N. R. Co. v. Ohio Valley Tie Co., 242
Bie Wy AE a weve esos derrderodeddccnsevescsevsse

McDonald vy. Marwell, 47 8. Ct. 487..........-544.
Mills v. L. V. R. Co., 238 U. 8. 4738... 0. eee eee eee
Minneapolis & 8S. P. R. Co. v. Peoria & P. U. R. Co.,

Bee Oe BBB ic vcccccesscecsoveesesesvesvecs

ii

PAGE
Missouri K. & T. R. Co. v. Harriman Bros., 227 U. 8.

Ge | Sort ntardeasesndovenviedenbesrsreredene 13
Spiller vy. A. T. & 8S. F. R. Co., 253 U. 8. 117....... 11
Texas & P. R. Co. y. Abilene C. O. Co., 204 U. 8. 426. 12
Tilghman v. Proctor, 125 U. 8S. 136............0.06. 11
Vitelli & Son v. U. S., 20 U. 8. 355........cc00- 12

STATUTZS AND RULES.
ES TOE FO AD) vp wccckcvcavencvervevenesvisns 17
Interstate Commerce Act, Section 16.............. 14

Bupreme Court Rule 7.2... ccccccscccccccccccvcese 9

Supreme Court of the United States,
OCTOBER TERM, 1927.
No. 342.

>
ww

Krauss BrorHers LUMBER COMPANY,
Petitioner,
—against—

ANDREW W. MELLON, Director General of Railroads as
Agent under Section 206, Transportation Act of 1920;
Mosite & OnIO RaILRoAD CoMPANY and ALABAMA
GREAT SOUTHERN RAILROAD COMPANY,

Respondents.

”™
_

On Writ of Certiorari to the United States Circuit
Court of Appeals for the Fifth Circuit.

BRIEF FOR THE PETITIONER.

Statement of the Case.

A writ of certiorari was issued in this case under an
order containing, among other things, a requirement

“* * * that the argument be limited to the question
of practice in respect to the bill of exceptions upon
which the case in the Circuit Court of Appeals
was made to turn.”

2

The case below is reported at 18 F. (2d) 369.

The litigation in the present case started as a formal
reparation proceeding before the Interstate Commerce
Commission. Recovery of demurrage charges in the
amount of $10,356 was sought. These charges had been
collected because of delay or failure of the railroads
themselves in respect to carrying out duly-given recon-
signment instructions. There were no applicable tariff
provisions specifically authorizing imposition of demur-
rage charges on account of embargo delays, and the
Commission uniformly in such cases denied their legality.
The defense was based upon the single proposition that a
common-law right, superior to the Commission’s power,
had enabled the carriers to deny reconsignment until
embargoes were lifted, and, because of this common-law
right, the Commission had no power either to deny the
imposition of demurrage charges for the intervening
delay or to order their repayment.

The Commission’s findings show that the case was
narrowed down so that the only issue upon which the
Commission was asked to decide was the issue of law
concerning their power to order reparation, all other
points being admitted or waived. The findings and
order show that, upon the Commission’s decision of this
law point in petitioner’s favor, a voluntary stipulation
was filed showing the amounts recoverable if the Com-
mission were eventually sustained in its determination
of the law.

The case was carried from the Commission into the
United States District Court for the Northern District
of Alabama by a complaint filed pursuant to Section 16
of the Interstate Commerce Act. The findings and order

a —

3

were duly attached to the complaint as a part thereof,
and were as follows:*

REPORT OF THE COMMISSION.

Division 2, Commissioners Daniels, Esch and
Campbell. By Division 2:

Exceptions were filed by the complainant and
by the Director General of Railroads, as Agent,
to the report proposed by the examiner, and the
issues were orally argued.

Complanant is a corporation engaged in the
wholesale lumber business, with its principal office
at New Orleans, La. It alleges that defendants
unlawfully collected demurrage and reconsignment
charges on carload shipments of lumber, shipped
between November Ist, 1917, and January 12th,
1918, originally billed to Meridian, Miss., Jackson,
and Chattanooga, Tenn., and reconsigned at those
points to numerous destinations north and east
thereof. Reparation only is sought.

The lumber was loaded at mills with which
complainant had contracts, located at various
points in Mississippi, Alabama, Louisiana and
Texas. The shipments moved into Meridian and
Jackson over the Mobile & Ohio and into Chat-
tanooga over the Alabama Great Southern. Most
of them were placed in transit before being sold,
so that complainant did not know the ultimate
destination at the time they were started. Prior
or subsequent to arrival at the reconsigning points
the lumber was sold to purchasers at points in
Pennsylvania, Kentucky, New Jersey, West Vir-
ginia, Ohio, Indiana, and New York, and orders

* Headings omitted in this brief. Italics wherever used in this
brief, do not appear in the original text unless so indicated herein.

4

were transmitted to defendants directing recon-
signment to the latter points. These orders defend-
ants either refused to accept or in any event to
comply with immediately, because embargoes were
in effect against the points of destination from
the original points of shipment, and from the
reconsigning points when the shipments originated.
Demurrage was assessed for the resulting detention
of the cars. In some instances reconsignment
charges also were collected, which defendants admit
was done without tariff authority. Some of the
lumber was unloaded and stored at the reconsign-
ing points, but most of the shipments were held
in the cars and moved to destinations as the
embargoes were lifted from time to time. These
embargoes were brought about by severe congestion
of traffic throughout the east during the period
in question and were constantly being modified,
cancelled, and _ restored to meet particular
emergencies.

Complainant does not question the reasonable
ness or necessity of the embargoes, but contends
that as defendants’ tariffs contained no provision
against reconsignment to an embargoed point,
detention of the cars was due to defendants’
inability to fulfill the obligations imposed by the
tariffs, and that the charges were therefore illegal.
On January 13, 1918, rules became effective pro-
hibiting reconsignment when in conflict with
embargoes.

Defendants insist that complainant knew before
the shipments were tendered that embargoes were
in effect throughout the territory in question, and
as shipments could not have been made either from
the original points or locally from the points of
reconsignment, billing of the shipments to the

5

latter points was for the purpose of evading and
nullifying the embargoes. Complainant admits
that it knew that embargoes were in effect generally
throughout the territory in question, but states
that since the final destinations were not known
at the time shipments were started it could have
had no knowledge that they were under embargo.
It had been complainant’s practice for years to
reconsign at these same points, and it disclaims
any intention on its part to evade the embargoes.

We have repeatedly held that when tariffs con-
tain no restriction against reconsignment to em-
bargoed points, demurrage charges may not be
assessed for the car detention resulting therefrom.
Reconsignment Case, 47 I. C. C. 590, 634; Wood v.
N.Y. P. d& N. R. R. Co., 53 I. C. C. 183; Atlantic
Iumber Co, v. N. Y. P.& N. R. R. Co., 57 1. C. C.
129.

Defendants admit that demurrage should not
be assessed if the final destinations were not under
embargo when the shipments left the point of
origin, but contend that if the points of final
destination were under embargo at the time the
shipments started and at the time of reconsign-
ment the carriers are no more required to reconsign
to such points than to accept the shipments at
the points of origin. They argue that since the
right of reconsignment attaches as of the date of
shipment, even if the order be given subsequently,
and since there was no obligation to accept the
shipments at points of origin on account of the
embargoes, there was likewise no obligation to
reconsign. The obligation to accept articles ten-
dered for transportation is governed by general
principles of law, while the obligation to reconsign
is determined by rules lawfully on file with us.

6

The right to refuse shipments temporarily for good
cause by the establishment of embargoes, which
are not required to be filed with us, is recognized.
The right to reconsign depends entirely upon the
construction of rules, which are required to be
filed in the same manner as rates, and if the
carriers do not restrict such rules to the extent of
their capacity to perform the service, the shipper
can not be held liable for the detention of cars
when it is not directly responsible for such deten-
tion and can not abate the cause thereof, as in the
case of an embargo, which is a disability of the
carrier.

We find that the demurrage and reconsignment
charges assailed were illegal; that complainant
made the shipments as described and paid and bore
the charges thereon; that it has been damaged in
the amount of the charges found herein to have
been illegally collected; and that it is entitled to
reparation, with interest. Complainant should
comply with Rule V of the Rules of Practice.

ORDER

At a General Session of the INTERSTATE COMMERCE
CoMMISSION, held at its office in Washington,
D. C., on the 13th day of November, A. D. 1922.

It appearing, That on March 2nd, 1922, the
commission entered its report in the above-entitled
proceedings, which is hereby referred to and made
a part hereof, and these proceedings now coming
on for further consideration on the question of
reparation, and the parties having filed agreed
statements with respect to the shipments in ques-

—_—

7

tion we find that complainant is entitled to awards
of reparation from the defendants named in the
following table in the amounts set opposite their
respective names, with interest:

With In-
Defendants Amounts terest From

James C. Davis, Director

General of Railroads,

OD: BOB as ss Kcasvesn $2,894.00 June 1, 1918
Mobile & Ohio Railroad

Company, and James

C. Davis, Director

General of Railroads,

ere ee 4,530.00 July 1, 1918
Alabama Great Southern

Railroad, and James

C. Davis, Director

General of Railroads,

GR MBs cs cancces 2,932.00 March 20, 1918

It is therefore ordered, That the defendants
named in the above table be, and they are hereby,
authorized and directed to pay unto complainant,
Krauss Brothers Lumber Company, on or before
December 28th, 1922, the amounts set opposite
their respective names in said table, with interest
hereon at the rate of 6 per cent. per annum from
the dates therein set forth, as reparation on account
of illegal demurrage and reconsignment charges
assessed on numerous carload shipments of lumber
reconsigned at Meridian, Miss., Jackson and Chat-
tanooga, Tenn.

By the Commission.

GEORGE B. McGINTY,
Secretary.

(SEAL)

8

Upon the trial of the case in Court no objection was
made to introducing in evidence the findings and order
at their face value.

The findings and order having been put in evidence,
together with proof of non-payment, the petitioner closed
its case. Thereupon the respondents offered, and, over
petitioner’s due objection, there was admitted in evidence
certified copies of the records in several proceedings
before the Commission, including numerous very large
exhibits from the files of the Commission. Some of these
records set forth the proceeding in which the reparation
order there had been made which is here in suit. Others
dealt only with subsequent hearings which had arisen
out of an effort of the Commission, when the subject-
matter of the present suit had already been duly lodged
in the District Court, to reopen the case and consider
new theories of law concerning it.

No evidence other than the Commission records was
offered by respondents in the District Court, except an
oral stipulation that only $245.00 of the entire $10,356.00
ordered to be repaid, had ever been received by respondent
Mobile & Ohio Railroad Company and evidence that only
$180.00 of such total sum ever had been received by
respondent Alabama Great Southern Railroad Company
(R., 58).

Both sides moved for a directed verdict which was
given by the Court in favor of respondents, and due
exception was reserved by petitioner. Thereafter, by
writ of error, the action of the trial Court was duly
carried up for review by the United States Circuit Court
of Appeals for the Fifth Circuit. The errors set forth
were the directing of a verdict for respondents and refus-
ing to direct a verdict for petitioner.

The waiver before the Commission of all issues except
the issue concerning the Commission’s power to order
reparation, and the respondents’ refraining from timely
objection to the findings and order when offered in Court
as evidence, seemed to limit the case to the controversy
disclosed upon the face of the findings. Therefore, in
preparation of the bill of exceptions, the circumstances
seemed to require the application of those principles set
forth in Subsection 2 of Rule “7”, “Revised Rules of the
Supreme Court of the United States”, which, under the
heading, “BILLS or EXcrpTion * * * OmIssiION oF UN-
NECESSARY EVIDENCE”, provides that: “The Judges of
the district courts in allowing bills of exception shall
give effect to the following rules:

“2. Only so much of the evidence shall be
embraced in a bill of exceptions as may be neces-
sary to present clearly the questions of law involved
in the rulings to which exceptions are reserved,
and such evidence as is embraced therein shall be
set forth in condensed and narrative form, save as
a proper understanding of the questions presented
may require that parts of it be set forth otherwise.”

Obviously the prima facie case established by the find-
ings and orders must have prevented direction of a
verdict against petitioner on the evidence, for at least a
jury issue would have arisen out of any denial of the
findings.

Therefore, pursuant to the rule aforementioned, a bill
of exceptions was prepared, approved and filed which
fully recited all the evidence, showing the identity,
subject-matter and introduction of each and every exhibit
and containing the usual statement, “This was all the

10

evidence in the case”. The bill disclosed, however, that
some of the exhibits which had been thus mentioned, had
not been fully set out but had been omitted—namely
(R., 58):

1. The original pleadings before the Commission.

2. The testimony and all exhibits taken and filed in
the Commission proceedings. (These were exceedingly
voluminous. )

3. Petition for reopening the case. (Filed after the
subject-matter had been placed in the District Court by
the present suit.)

4. Correspondence of the Director General with the
Commission leading up to the attempted reopening.

5. Testimony and exhibits in proceedings subsequent
to the attempted reopening.

The Circuit Court of Appeals affirmed the judgment
of the lower Court purely on the arbitrary rule that
unless all the exhibits were shown to be embraced in the
bill of exceptions the Court would decline to consider the
merits of the case.

Believing such an unjust and wholly unnecessary
decision in violation of Rule 7 of the United States
Supreme Court, petitioner sought and obtained a writ
of certiorari.

Assigned Errors Which Will Be Urged.

This appeal is limited to the question of practice in
respect to the bill of exceptions upon which the case in
the Circuit Court of Appeals was made to turn.

The errors assigned in the Circuit Court of Appeals,
and there urged, were the directing of a verdict for

ll

respondents and the refusal to direct a verdict for
petitioner.

SUMMARY AND ARGUMENT.

1. The finding of facts and order constituted “prima
facie evidence”.

Interstate Commerce Act, Sec. 16.

2. The term, “prima facie evidence”, has in Federal
law a well-defined meaning.

Kelly v. Jackson, 31 U. 8. (6 Pet.) 622, 631.

3. Unless “prima facie evidence” is “contradicted or
disproved by controlling evidence on the part of the
defendant”, the plaintiff is entitled to recover.

Kelly v. Jackson, supra.

4. Furthermore, the conclusions of a commission
such as the Interstate Commerce Commission, “depending
upon the weighing of conflicting testimony, have every
reasonable presumption in their favor’.

Illinois Cent. R. Co. v. I. C. C., 206 U. 8. 441;
Tilghman v. Proctor, 125 U. 8. 136, 149.

5. The findings and order accordingly made out a
complete case, rebuttable only by controlling evidence.

Spiller v. A. T. & 8S. F. R. Co., 253 U. 8. 117,
127, 131-2;

Mills v. L. V. R. Co., 238 U. 8. 473;

Cases cited above.

—

12

6. Conflicting evidence could only have raised a jury
issue and could not under any circumstances have war-
ranted the direction of a verdict for respondents.

7. It is clear, therefore, that only some defect in the
legal theory of the case, and not insufficient evidence,
could have warranted the Court’s charge.

8. Failure to object to evidence constitutes a waiver
of defects and, in the case of documents, admits them at
their face value.

9. If the findings and order had not actually been
made by the Commission but only by members of the
Commission who were acting outside the scope of their
official powers, then the statutory provisions making
official findings of the Commission admissible would have
had no application.

Church v. Hubbart, 2 Cranch 187;
ef. Vitelli d Son v. U. 8., 250 U. 8. 355.

10. Whether the findings and order were genuine
and admissible might have been raised as a preliminary
question for the Judge; but, by electing to waive such a
preliminary inquiry, the respondents further showed
their intention to confine their defense to the single issue
apparent upon the face of the findings.

Kendall v. May, 10 Allen (Maas.) 59, 65.

11. Furthermore, only the issues actually contested
before the Commission were in litigation, all else having
been admitted or waived.

T. & P. Ry. v. Abilene Cotton Oil Co., 204
U. 8. 426, 435;

13
M. K. & T. R. Co. v. Harriman, 227 U. 8.
657, 668;
L. & N. R. Co. vy. Ohio Valley Tie Co., 242
U. 8. 288.

12. The bill of exceptions recites that it contains all
of the evidence in the case and is duly approved.

13. It was the duty of the District Judge to require
condensation of the record by eliminating therefrom
irrelevant matter.

Supreme Court Rule 7, subsection 2.

14. It is conclusively shown that no evidence which
would have cast any light upon any issue in the case
was omitted from the bill of exceptions.

15. The Supreme Court no longer favors purely
arbitrary requirements in respect to bills of exceptions.

McDonald v. Maawell, 47 8. Ct. 487;

Barber Asphalt Pav. Co. vy. Standard A. & R.
Co., 48 8. Ct. 183;

Supreme Court Rule 7, subsection 2;

ef. Equity Rule 75 (b).

16. All those proceedings in the Commission which
were based upon an effort to reopen the case were void
for want of jurisdiction inasmuch as the subject-matter
had previously become lodged exclusively in the District
Court by the filing of the present suit.

Minneapolis & 8S. P. R. Co. v. Peoria & P. U.
R. Co., 270 U. 8. 580, 586.

14

17. Even in the District Court the three parties
respondent openly agreed among themselves and with
petitioner concerning the division, among themselves, of
the wrongfully-acquired demurrage charges for the recov-
ery of which this suit is maintained, thereby further
admitting the facts in the case.

Bill of Exceptions (R., 57 and 77-78).

18. The parties having elected to rest their case upon
rulings of law, it would be proper for judgment to be
rendered against all of them in such amounts as the
Court deems proper.

Beuttell v. Magone, 157 U. S. 154;
Interstate Commerce Act, Sec. 16.

The Interstate Commerce Act (Section 16) provides
that the findings of fact and order in a reparation case
shall constitute “prima facie evidence”. In Federal law
the term, “prima facie evidence”, has been given a well-
recognized meaning. It is evidence which a jury may
not disregard and which is conclusive unless and until
controverted or disproved “by controlling evidence on
the part of the defendant’, as declared by the Court in
Kelly v. Jackson, 31 U. 8. (6 Pet.) 622, 631, wherein the
Court approved a charge “that the plaintiff had given
prima facie evidence in support of his case, and such as
was conclusive if uncontradicted and that this must be
contradicted or disproved by controlling evidence on the
part of the defendant, or the plaintiff is entitled to
recover’; while the Court disapproved a charge that
“the evidence upon the one side or the other should not
be submitted to the jury as prima facie or presumptive

>

15

evidence, either for or against a delivery; but the whole
evidence together, and from the whole, determine whether
or not the deed was delivered”. The Court in this con-
nection (Story, /.), said:

“What is prima facie evidence of a fact? It is
such as, in judgment of law, is sufficient to estab-
lish the fact; and, if not rebutted, remains suffi-
cient for the purpose. The jury are bound to
consider it in that light, unless they are invested
with authority to disregard the rules of evidence,

_ by which the liberty and estate of every citizen are
guarded and supported. No Judge would hesitate
to set aside their verdict and grant a new trial, if,
under such circumstances without any rebutting
evidence they disregard it.”

This Court, in Jllionis Central R. Co. y. Interstate
Commerce Commission, 206 U. 8. 441, declared as follows:

“The findings of the Commission are made by
law prima facie true, and this Court has ascribed
to them the strength due to the judgments of a
tribunal appointed by law and informed by experi-
ence.”

Furthermore, the waivers and admissions made in the
trial of this case before the Commission are binding.
(L. &d N. R. Co. v. Ohio Valley Tie Co., 242 U. S. 288;
T. & P. R. Co. v. Abilene Cotton Oil Co., 204 U. 8. 426,
435; M. K. & T. R. Co. v. Harriman Bros., 227 U. 8.
657, 668.)

The Commission declared that there was involved in
the case only the question of its power to regulate what
the carriers believed to be a practice absolutely within
their common-law rights. It found for the shipper and

16

requested that the amount of money involved in the case
be stipulated. When the stipulation was made it became
binding on the Director General.

In the District Court the defendants not only made
no resistance to the findings and order but actually
proved in open court what portion of the disputed money
had been received by each of them. This was, of course,
an admission that they had received the money concern-
ing which the Commission had rendered its findings and
order.

The effect of admitting “prima facie evidence” without
objection is discussed in Kendall v. May, 10 Allen ( Mass.)
59, 65, where the Court said as follows:

“The auditor having made his report, it is made
by statute prima facie evidence, and nothing more.
The finding as to this fact of the capacity of the
defendant to testify is not conclusive, but prima
facie only.

In respect to the other facts found by the
auditor, the report was to be submitted to the
jury, and the evidence to contradict the report
must be addressed to them. But it was not so as
to this fact; for the capacity of a witness to testify
is not a fact that is ever submitted to the jury,
but is always decided by the Court.

It would be impracticable to submit these col-
lateral issues to the jury. The auditor’s finding
on the point of capacity was to be affirmed or dis-
affirmed in this case by the Judge, upon evidence
to be presented to him. If it was affirmed, then
the report was to be sent to the jury * * *.”

Finally, the case of Barber Asphalt Paving Company
v. Standard Asphalt & Rubber Company, 48 8S. Ct. 183,
is believed to be controlling. Although it was an equity

a

17

case, nevertheless Rule 7, subsection 2, applicable to the
present case, and Equity Rule 75 (b), applicable to that
case, are almost exactly alike—so much alike that their
similarity cannot be merely accidental. Each such rule
requires that the evidence be “condensed” and set forth
in “narrative form”. The law rule says, “Only so much
of the evidence shall be embraced * * * as may be neces-
sary to present clearly the questions of law * * *”: while
the equity rule says, “The evidence shall not be set forth
in full * * * all parts not essential * * * being omitted.”
The general structure of the two rules is the same and in
meaning they are obviously identical.

In the Barber case a review of all the evidence was
sought by appeal from the final decree. Yet the Court
held that counsel had been guilty of bad practice in
embracing all of the exhibits in the statement.

In the case of McDonald vy. Marwell, 47 S. Ct. 487, it
appeared that the Appellate Court, as in the present case,
had declined to pass upon the merits because certain
facts had not been set out in a bill of exceptions, as
always theretofore required by the Appellate Court. The
action of the Appellate Court was reversed by the
Supreme Court on the ground that the record was ade-
quate for all practical purposes.

For the reasons aforestated, it is respectfully
asked that the judgment of the Circuit Court of
Appeals be reversed.

BRENTON K. FISK,
Attorney for Petitioner.

Harry 8. E.KIns,
J. P. Mupp,
Of Counsel.

IN THE

Supreme Court of the United States,

OCTOBER TERM, 1927.

Krauss Brorurrs LUMBER COMPANY,

Petitioner,
—against—

‘ANDREW W. MELLON, Director General of Railroads,
as Agent, and others,
Respondents.

i.
sa

BRIEF OF PETITIONER IN REBUTTAL,
SUPPORTING PETITION FOR CERTIORARI.

A brief in rebuttal is filed in this case for the purpose
of clarifying two of the issues. Petitioner states that a
well-recognized administrative practice, enforced by the
Interstate Commerce Commission, forbade the assess-
ment of demurrage charges for embargo delays except in
cases where applicable tariff provisions specifically stipu-
lated for such charges. The respondent questions the
accuracy of the statement. Brushing aside mere differ-
ences in terminology, the statement of the Commission
on this point contains its own corroboration, reading as
follows (R. 63):

“We have repeatedly held that when tariffs
contain no restriction against reconsignment to
embargoed points, demurrage charges may not be
assessed for the car detention resulting therefrom.
Reconsignment case, 47 I. C. C., 590, 634; Wood v.

—

2

N.Y. P. & N. R. R. Co., 53 1. ©. C., 183; Atlantic
Lumber Co. v. N. Y. P. & N. R. R. Co., 57 £
C. C., 129.”

Respondent further argues that there is no right to
reconsign freight—that reconsignment is a mere privilege.

To claim the benefit of a tariff provision is not to
claim a mere privilege. Under laws forbidding discrim-
ination, tariff provisions must be uniformly applied and
it is a shipper’s lawful right to require that he be given
the fullest benefit of any and every tariff provision.

It is clear that the only problem before the Commis-
sion in this case was to determine the extent and effect of
a certain general rule of tariff construction, The parties
were requested by the Commission to agree upon the
charges collected of shipper in violation of this rule,
which the Commission, in its formal opinion, had just
declared to be law. The opinion discloses that the Com-
mission had limited its consideration of the case to this
single question of tariff construction—namely, whether
the existence of an embargo will justify a refusal to
comply with the provisions of a reconsigning tariff when
no mention of embargoes as limitations upon reconsign-
ing rights is contained in the tariffs. The narrowing of
the case is pointedly disclosed by the following sentence
in the findings (R. 63):

“Defendants admit that demurrage should not
be assessed if the final destinations were not under
embargo when the shipments left the point of
origin, but contend that if the points of final desti-
nation were under embargo at the time the ship-
ments started and at the time of reconsignment the
carriers are no more required to reconsign to such
points than to accept the shipments at the points
of origin.”

—

3

Even if there were no such direct admission, there is
certainly an equivalent admission to be implied from the
stipulation that charges had been collected of shipper
contrary to the rule of tariff construction above stated.

In petitioner’s judgment, the mere existence of ap-
plicable reconsigning tariffs and the absence of any
mention of embargoes as limitations upon them is all
tha’; has to appear in the record concerning tariff provi-
sious., The case involves no fine shades of meaning in the
phraseology of the several tariffs or im any embargo
order, Anti-discrimination laws require that tariffs
receive certainty in construction and uniformity in appli-
cation, Even if some of the tariffs held out reconsign-
ment merely as a “favor” to be granted or refused at the
carrier's convenience or pleasure, nevertheless the domi-
nating influence of anti-discrimination laws, which impose
rules of definiteness and certainty, require that such
provisions be construed as creating tariff rights to which
all shippers may have equal benefit. It is not lawfully
within the power of a carrier to grant valuable privileges
to some and withhold them from others. It is for the
Commission to standardize by its rules and decisions the
exceptions which will legalize a refusal to comply with
the terms of a tariff,

One of the rules of certainty which were applicable to
the present case was, as petitioner maintains, the rule
which the Commission has always applied and which is
stated in the first of the foregoing quotations,

Petitioner believes that the record presents thé issues
adequate§for review on appeal.

BRENTON K. FISK,
Attorney for Petitioner.

¥ 7
.
;
+ 7
7 ie
s . x «
’ S ;

Supreme Court of the United States,

OCTOBER TERM, 1927—No. 342.

»
—

Krauss Brotiers LUMBER COMPANY,

Petitioner,
—against—

ANDREW W. MELLON, Director General of Railroads as
Agent under Section 206, Transportation Act of 1920;
MosiLe & Onto RAILROAD COMPANY and ALABAMA
GREAT SOUTHERN RAILROAD COMPANY,

Respondents.

Lp
a

ON WRIT OF CERTIORARI TO THE UNITED
STATES CIRCUIT COURT OF APPEALS FOR
THE FIFTH CIRCUIT.

BRIEF IN REBUTTAL FOR THE PETITIONER.

The respondents’ brief seems to call for a clarifying
statement on one or two points.

It has at all times been the petitioner’s contention that
the respondents’ exhibits were irrelevant and that they
had no proper place in the bill of exceptions. The re-
spondents held a contrary opinion. In the preparation of
the bill of exceptions the trial Judge, together with the
attorneys for the parties, put into effect the plan, em-
bodied in the record and recited in the respondents’ brief,
whereby these original exhibits were transmitted with the
record to the Court of Appeals. A prime motive which

2

animated the petitioner to resist the inclusion of these
exhibits in the bill of exceptions and printed record was,
as the respondents relate, the saving of expense in pre-
paring the record. The respondents endeavored to be fair
and there is no desire on the part of the petitioner to
derive a handicap from the omissions.

The petitioner rests its case upon the proposition that
the printed record shows itself to be fully adequate for a
decision of the present appeal.

The respondents jointly, and not severally, made the
successful motion on which a verdict for all defendants
was directed by the Court. Jointly, therefore, they must
show themselves entitled to prevail in the present appeal.

The sequence of some of the events in this case will
aid in showing, it is believed, the adequacy of the present
record. It is shown that the following steps have been
taken :

First, the petitioner complained to the Commis-
sion that on reconsigned shipments there had been
imposed upon him demurrage charges which were
unauthorized by the applicable reconsignment
tariffs.

Second, the respondents replied that no recon-
signment provisions of any tariff had been applic-
able for the reason that common-law authority, in
connection with existing embargoes, had been supe-
rior to the tariff provisions. Consequently the
case could not be decided upon tariff provisions.

Third, the case was expressly narrowed down
to this single question of law.

Fourth, the Commission found the case gov-
erned by the reconsignment tariff provisions and
requested the parties to agree upon the charges

3

which should be refunded if the, Commission’s views
were sustained.

Fifth, an agreement was reached, a stipulation
was filed and the Commission therefrom made its

reparation order.

Sirth, an appeal of the catgse has now reached
the Supreme Court.

Seventh, the respondents mow insist that the
case cannot be decided without: construing the pro-
visions of the several reconsiginment tariffs which
heretofore they have renounc@q and which may,
perhaps, be found somewhere ijn the Commission’s
record.

From the Commission’s report of the proceedings, if
the report may be deemed reliable, ijt is clear that the
respondents did not defend upon thiss additional ground
which they now assert.

BREIQNTON K. FISK,
Att@rney for Petitioner.

Harry 8. ELKINS,
J. P. Mupp,
Of Counsel.

Brief of argument

Argument ached
CITATIONS

American Paper & Pulp Assn. v. B. & O. R. R., 41 1. C. ©. 506. ~5,11

Atlantic Refining Co. v. Director General, 57 I. C. C. 627__.. 4,10

Brennan Packing Co. v. Director General, 77 I. C. C. 307__--.- 4,9

Cannon Mfg. Co. v. Sou. Rwy. Co., 56 1. C. C. 128_----.--_-__ 5,13

Carolina Portland Cement Co. v. Director General, 83 I. C. C.

388. oo aise 4,8
CAs Re Ve Ey, Feb Ue BB eee ie 5,11
0. & O. Ry. v. W. C. K. Co., 270 U. 8. 260 iat 5,12
Cedar Hill Coal & Coke Co. v. C. &@ 8. Ry., 17 1. C. C. 479___--- 4,7
Cleveland Cooperage Co. v. Director General, 57 I. C. C. 423.... 5,138
Davis v. Cornwell, 264 U. 8. 560 anal 5,11
Davis v. Henderson, 266 U. 8. 92 cs 5, 12
Dietz Lumber Co. v. A., T. @ 8. F. Ry., 22 1. C. C. 75_---------- 4,7
Du Pont v. Director General, 59 I. C. C. 659 « BD
Duvall vy. Director General, 59 I. C. C. 442 5,10
Kaw Boiler Co. vy. Director General, 83 I. C. C. 339_-_-___- 5,10
Lafayette Bor Board Co. v. Director General, 59 I. C. C. 105_.. 5,13
Murray v. Director General, 69 I. C. C. 477- 4,8
North Packing € Provision Co. v. Director General, 73 I. ©. C.

749. 5,12
Sou. Rwy. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297--.. 4,7
Wood v. N. Y., P. € N. R. Co., 53 I. C. C. 183. 4,8

55003—27

(r)

Inthe Supreme Gourt of the Hnited States
OctToBER TERM, 1927

Krauss BrorHers LUMBER COMPANY, PETITIONER
v

ANpDREW W. MELLON, Director GENERAL OF RalIt-
roads, as Agent, etc., et al., respondents

BRIEF OF RESPONDENTS OPPOSING PETITION FOR WRIT
OF CERTIORARI

STATEMENT

This is a suit to enforce orders of the Interstate
Commerce Commission awarding reparation for
$10,356 with interest (Rec. p. 66.) The petitioner
between November 1, 1917, and January 11, 1918,
made numerous shipments of lumber from various
points in Mississippi, Alabama, Louisiana, and
Texas consigned to itself at Chattanooga, Tenn.,
Meridian, Miss., and Jackson, Tenn. (R. 61.)
Upon arrival, orders were given to reconsign the
shipments to various destinations in the East, the
principal market of the petitioner. (R. 61.)

Because these destinations were embargoed the
reconsignment instructions were refused by the re-
spondents and demurrage assessed for the detention

of the cars while awaiting further instructions. (R.
(1)

2

61.) The Commission held that there was no au-
thority to collect the demurrage charges* because
the tariffs publishing the reconsignment rules did
not have a rule prohibiting reconsignment to em-
bargoed destinations. The Commission, therefore,
ordered the demurrage refunded. (R. 64.)

The respondents contend that the demurrage was
properly assessed because reconsignment is a priy-
Tee ot ae) which, if availed of, attaches as
of the date of the original shipment, and therefore
is subject to all rights, privileges, and disabilities
pertaining to the original shipment, except such as
are specifically waived by the tariffs permitting
reconsignment. Consequently they may refuse to
reconsign to a destination which is embargoed
against shipments from the original point of origin
without so stating in their tariffs governng recon-
signment, and assess demurrage charges for deten-
tion of the cars while awaiting disposition, just as
they max refuse original shipments, if mied 00.40
embargoed destination, and collect demurrage
charges while the cars are awaiting instructions,
without publishing a rule in the tariffs governing
the original shipments that cars will not be accepted
to embargoed points.

The petitioner is in error in stating, on page 2,
that the respondents “ have disregarded a well-

The demurrage rules and charges applied to these ship-
ments were those published for general application, and were
contained in different tariffs from those publishing the recon-

signment rules and charges. The demurrage tariffs are not
in question here.

known and generally recognized administrative
practice upon which the Commission has uniformly
insisted.’’ See also pages 3 and 10. No “‘admin-
istrative practice’’ of the Commission is involved.
This is a question of the legal rights and obligations
of the respondents under general principles of law
and under their tariffs.

The following additional questions were raised
below. It was contended by respondent ‘Mellon’ :
(1) that even though the demurrage was illegally
assessed, he can not be held liable for that portion
which accrued for detention prior to Federal con-
trol, and which he collected for the railroad com-
panies and paid over to them in his final settlement
with them; and (2) that he, as a branch of the
United States government, is not liable for costs
and attorneys fees in the event the order of the
Commission should be held valid.

It was also contended by the Alabama Great
Southern Railroad Company that since it was not
a party defendant in the proceedings before the
Commission any order requiring it to pay any por-
tion of the reparation is null and void.

A discussion of these questions will not be of any
assistance in determining whether the petition for
certiorari should be granted, but they are stated
so that the Court may have before it a full state-
ment of the issues in the case.

A brief consideration of the merits will show that
the judgment of the District Court, that the orders

4

of the Commission are null and void, whith was
affirmed by the Court of Appeals is co The
reasons for the action of the Court of Appeals are
immaterial.

Petitioner states (pages 8, 9, 16, and 18) that
the portion of the record which was not printed, but
was sent up in the original form to the Court of
Appeals, is irrelevant and immaterial, That por-
tion of the record is material and relevant, and was
offered in evidence in the District Court to place
before the Court the entire record which was before
the Commission.

Demurrage charges were legally assessed, and the Com-
mission’s orders are void

Record 58, 61-63, Exhibit 8.

Dietz Lumber Co. v. A. T. & S. F. Ry., 22 1. C. C.
75.

Cedar Hill Coal & Coke Co. v. C. & S. Ry., 17 1.
C. C. 479.

Sou. Rwy. Co. v. St. Louis Hay & Grain Co., 214
U. 8. 297.

Wood v. N.Y. P. & N. R. Co., 53 I. C. C. 183.

Carolina Portland Cement Co. v. Director Gen-
eral, 83 I. C. C. 388.

Murray v. Director General, 69 I. C. C. 477.

Brennan Packing Co. v. Director General, T7
I. C. C. 307.

Atlantic Refining Co. v. Director General, 57 I.
C. C. 627.

5

Duvall v. Director General, 59 I. ©. O. 442.

Kaw Boiler Co. v. Director General, 83 I. ©. C.
339.

DuPont v. Director General, 59 I. ©. C. 659.

American Paper & Pulp Association v. B. &
O. R. R., 41 1. C. C. 506.

North Packing & Provision Co. v. Director Gen-
eral, 73 I. C. C. 749.

Cannon Mfg. Co. v. Sou. Rwy. Co., 56 1. C. C. 128.

C. & A. Ry. v. Kirby, 225 U. 8. 155.

Davis V. Cornwell, 264 U. 8. 560.

Davis v. Henderson, 266 U.S. 92

C. & O. Ry. v. W. C. K. Co., 270 U. 8. 260.

Cleveland Cooperage Co. v. Director General, 57
I. C. C. 423.

Lafayette Box Board Co. v. Director General,

59 I. C. C. 105.
ARGUMENT

Since it is admitted that the embargoes were rea-
sonable and necessary (R. 62), the only question is
the legality of the demurrage charges’ which were
collected for the detention of the cars at the recon-
signing points while they were being held for
further instructions or awaiting the lifting of the
embargoes.

The respondents contend that reconsignment is
a privilege (not a right) which if availed of at-
taches as of the date of the original shipment, and,

6

therefore, is subject to all rights, privileges, and
disabilities pertaining to the original shipment, ex-
cept such as are specifically waived by the tariffs
permitting this reconsignment. Consequently
they may refuse to reconsign to a destination which
is embargoed against shipments from the original
point of origin, without so stating in their tariffs
governing reconsignment, while awaiting disposi-
tion, just as they may refuse the original shipments
if billed to an embargoed destination, and collect
demurrage while the cars are held awaiting in-

structions, without any specific provisions in their ©

tariffs that shipments will not be accepted to em-
bargoed points.

The Commission held that the demurrage was
illegal because the obligation to accept original
shipments is governed by general principles of
law, while the obligation to reconsign is dependent
upon the construction of the rules in the tariffs
permitting the reconsignment, and that if the car-
riers do not restrict such rules to the extent of their
capacity to perform the service, the shipper can
not be held liable for the detention, since the em-
bargo is a disability of the carrier. (R. 63-64.)

In this case the embargoes were laid before re)

of the cars were offered for shipment at the orig-
inal shipping points. The petitioner knew when
it tendered the shipments at the original points of
origin that the entire eastern territory, where its
principal market was located, was embargoed.

|

7

The embargoes remained in effect all during the
transportation to the reconsigning points. They
were still in existence when the orders for recon-
signing were given, and they continued for some
time thereafter. Embargoes were also in force
against shipments from the reconsigning points as
original points of origin to the final destinations
in the East. In other words, the shipments could
not have been made either from the original points
of origin or locally from the points of reconsign-
ment to the final destinations. (R. 58, 61-62.)

These facts should be kept in mind in reading the
following discussion.

It is settled that reconsignment is not a right ve
which a shipper may demand but only a privilege | ae
that becomes available to him when extended by *
the carrier in its tariffs.

In Dietz Lumber Co. v. A., T. & S. F. Ry., 22
I. C. C. 75, 76, the Commission says:

The reconsigning privilege * * * is
not one to be demanded by the public as a
matter of right, but it is a concession volun-
tarily extended by the carriers * * *.

In Cedar Hill Coal & Coke Co. v. C. & S. Ry.,
17 I. C. C. 479, 487, it is said:

Reconsignment is a privilege—not a right
to be demanded by shippers—and can only
be required where necessary to correct un-
just discrimination.

See also Southern Ry. Co. v. St. Louis Hay &
Grain Co. 214 U. 8. 297.

8

The theory of this privilege of reconsignment is

Saal that the shipment is in fact one shipment from point

of origin to the ultimate destination, so that the

‘| _ privilege of reconsignment applies as of the date

pluf of the original shipment. Wood v.N.Y.,P & N.,
53 I. C. C. 183.

In Carolina Portland Cement Co. v. Director

General, 83 I. ©. C. 388, the following appears at
page 391:

As reconsigned, the shipments became
through shipments from the original ship-
ping points to final destinations, and the ap-
plicable rates are those in effect for the
through movements as of the dates of ship-
ment from point of origin, whether joint or
combination rates.

and on page 184 of the Wood case:

If the rate from point of origin to ulti-
mate destination applies as of the date of
the shipment, so, too, must the right of re-
consignment speak as of the date of ship-
ment, even if the order be given subsequent.

See also Murray v. Director General, 69 I. C. C.
477, 482.

Clearly, therefore, all of the rights, privileges,
and disabilities pertaining to the reconsignment at-
tach as of the date of the original shipment, and
must be determined under the facts and circum-
stances existing at the time the original shipment
was made, unless specifically restricted or extended
by the tariffs permitting the reconsignment.

—_ pgammeceppesaeee

9

It is settled that a carrier may refuse an original

shipment offered to an embargoed destination (R.

63) where, as is admitted here, the embargoes are

reasonable and necessary (R. 62). Ifa car is tor jue
dered for shipment from an original point of origin

to an embargoed destination, and is refused we Gi om.
the carrier, demurrage is properly assessed while “gee
the car is held under load at the original point of

origin.

In Brennan Packing Company v. Director Gen- buxrer

eral, 77 I. C. C. 307, the complainant had ordered *“4 baka
certain cars placed for loading without stating the
destination. One of the cars was actually loaded
and tendered for shipment, but refused because an
embargo had been placed against the destination.
That car and the others which had been actually
placed, but not loaded, were held under demurrage
awaiting instructions from the shipper. The ship-
per contended that the carrier should have removed
the empty cars, and that he was not liable for
demurrage on the car loaded because the shipment
was prevented by the embargo which was the car-
rier’s disability. The Commission Says, on page
308 :

The cars were ordered by complainant,
and the carrier was under 20 obligation to
remove them unless instrucied to do so by
complainant. No such instructions were
given, and during the time the cars were
held by complainant, they were subject to
demurrage.

10

See also Atlantic Refining Co. v. Director Gen-
Las eral, 57 I. C. C. 627; Duvall v. Director General, 59

I. C. OC. 442; Kaw Boiler Co. v. Director General,
G 83 I. C. C. 3389; Du Pont v. Director General, 59
I. C. C. 659.

Tariffs do not specifically provide that a carrier
will refuse to accept an original shipment to an
embargoed destination (page 73 of Exhibit 8—the
testimony before the Commission), for, as the Com-
mission says (R. 63), the carrier’s right to refuse
such a shipment is governed by general principles
of law well established.

Since the carrier, without any provision in its
tariff, has the right, by the placing of a necessary
and proper embargo, to relieve itself of its common-
carrier liability to transport shipments offered,
why has it not the same right with respect to a re-
consignment, which attaches as of the date of the
original shipment, especially as the reconsignment
is not a duty imposed upon it by law, but solely a
‘concession voluntarily extended’’ to the shipper?
In other words, in granting a privilege it has at
least an equal right to the protection which the law
gives it as when it is performing the duties imposed

upon it by law as a common carrier, except to the
extent it specifically by tariff waived those rights.

The embargoes themselves (Exhibit 11 to the
testimony before the Commission—Exhibit 8 in
the record in the District Court) by their terms | y
prohibit reconsigning to embargoes destinations. |"

, aa
11

For example, on the first page of Exhibit 11 the
embargo provides ‘‘account connecting lines em-
bargoes Southern Railway System Lines West will
not accept freight as follows for delivery to or
movement via the following road, ete.’’ This would
certainly apply to a reconsigned as well as an orig-
inal shipment.

Furthermore, a carrier is prohibited by law from
reconsigning to an embargoed destination unlegs

the tariff specifically permits it, because that is a
special service.

It is settled that a special service can not be
granted except by publication in the tariff.

In American Paper & Pulp Association v. B. &
0., 41 I. C. C. 506, the Commission condemned the
practice of the carriers in giving an unlimited
amount of free time for unloading at certain ports,
because it was operating as a discrimination against
consignees who could not avail themselves of it and
was detaining the carrier’s equipment unduly, stat-
ing, on page 512:

And by Section 6 [Interstate Commerce
Act] no carrier may extend ‘‘any privileges
or facilities,’’ save as these have been duly
specified. But the primary duty of a car-
rier, is to carry. And it is not the duty of a
carrier, as such, to furnish storage beyond
the reasonable time necessary for unloading
or remoyal.

See also the decisions of this Court in C. & A.
Ry. Co. v. Kirby, 225 U. 8. 155; Davis v. Cornwell,

12

264 U. 8. 560; Davis v. Henderson, 266 U. S. 92;
C. & O. Ry. v. W. C. K. Co., 270 U. 8. 260.
There is another point which must not be over-
looked, and that is that for practical purposes an
embargo has the effect of eliminating the embargoed

point_as_a destination, and the situation then is

just the same as if no such point of destination
is named in the tariff. This is made clear by the

Commission’s decisions dealing with routes which
have been embargoed. They are not available, and
for practical purposes do not exist. In North Pack-
ing & Provision Co. v. Director General, 73 I. C. C.
749, the shippers claimed that they had been de-
prived of the right to route their shipments by
reason of the permit system which was then in
use on account of embargoes at New York. The
Commission says, on page 752:

Common carriers have the right, in order
to prevent complete paralysis of their oper-
ating facilities, to protect themselves by em-
bargo against acceptance of freight over a
certain route or routes which may be con-
gested. That right was exercised by defend-
ants, and the embargo which affected com-
plainants’ shipments also affected all routes
serving the port of New York and all export

* traffic intended for shipment to that port,
except shipments for the United States Gov-
ernment and shipments as to which the em-
bargo was lifted by special permit. A route
that is embargoed against certain traffic

|

13

can not be said to be available to shippers
tendering such traffic. We have frequently
construed section 15 to impose upon common
carriers the duty, in the absence of contrary
routing by the shipper, to forward shipments
over the cheapest available route, and failing
to do so, carriers have been found liable to
the damaged shipper in the amount of the
difference between the rate charged and the
rate over the cheapest available route. But
where, as here, because of congestion or other
justifiable cause and consequent embargo, the
route is not available, the carrier does not
violate its duty if it refuses to accept the
shipment until after the shipper agrees to
a route that is available.

See also Cannon Mfg. Co. v. Southern Ry., 56
I. C. C, 128, 130.

- Consequently a destination is not available where
embargoes are in effect, and for practical purposes
it.does not exist.

Furthermore, the petitioner did nothing to abate
the demurrage, and hence can not recover. See
Cleveland Cooperage Co. v. Director General, 57
I. C. C. 423, 425; Lafayette Box Board Co. v. Di-
rector General, 59 I. C. C. 105, 107.

Since the respondents were not required to state |
in their tariffs they would not reconsign to em- |
bargoed destinations, and since they can not re-
consign to embargoed destinations in the absence of
specific tariff provision permitting such a practice,
the demurrage was legally collected during the

|
\

14

the Commission’s orders are unlawful and void. =~
It is respectfully submitted, therefore, that the ~
petition for a writ of certiorari should be denied. =

SToKE.Y, ScrIvNER, Dominick & SMITH,
Sipney P. Smira,
Sipney F’. ANDREWS,
Arex. M. BULL,
Attorneys for Respondents.

WasHinaton, D. C., July 11, 1927.
O

lic of detention at the reconsigning points, and ‘

INDEX

Statement_....... ahnESeeEeEE aE

EE
CITATION

ED ta tle at SUNN GIN. ccunmssenncindemmemncindiomemadinaes
89558—28

Page
1

Inthe Supreme Court of the Wnited States

Ocroser TERM, 1927

No. 342

Krauss Broruers LUMBER Co., PETITIONER

v

ANDREW MELLON, Director GENERAL OF RAILROADS,
as Agent, etc., et al., respondents

STATEMENT

A writ of certiorari was issued in this case, the
order requiring ‘‘ that the argument be limited to
the question of practice in respect to the Bill ef
Exceptions upon which the case in the Cireuii
Court of Appeals was made to turn.”’

We make our own statement because the state-
ment of the case in the brief for petitioner does not
sufficiently set forth the facts with regard to the
question now before this court and is inaccurate in
certain respects, particularly the statement on page
2 purporting to set out the position of respondents
in contesting the order of the Commission. It may
be briefly stated that our position is that on a recon-

signed shipment all of the rights, duties, and liabili-
(1)

2

ties of the carrier and the shipper date back as of
the date of the original shipment, and, hence, since
. the embargoes were in effect when the shipments
left the original point of origin and continued jin
effect while the shipments were held at the recon-
signing points, the carriers have the same right to
assess demurrage at such reconsigned points as they
would have had to assess demurrage at the original.
point of origin under like conditions. The Commis-
sion held the right to lay the embargoes and assess
demurrage at the original point of origir Is gov-
erned by well-settled principles of law, but that the
rights as to reconsignment are governed by the
rules in the tariffs and consequently the carriers
. forfeited anv rights whieh were not sndej feallv re-
servxl i the rceousigning tariffs. It 1s obvious,

'... therefore, that it was important that the court have

before it the tariff and other portions of the record
before ‘he Commission (see Rec. page 58 and opin-
~ jon, the Court of Appeals, Ree. 96) before the court
can intelligently pass upon the issues. These ques-

~ ." tions are fully discussed in our brief opposing the

- granting of the certiorari but are not repeated here
- because not relevant to the point now before the
court. |

This is a suit to enforce an award of the Inter-’
.state Commerce Commission. To the petition filed
in the District Court to enforce the order, the de-
fendants (respondents here) filed a ‘‘plea of general
issue pleaded in short by consent, with leave to give

ae

in evidence any matter which, if well pleaded, would
be admissible in defi nse of the action, and have
effect as if so pleaded * * *,”? (Ree. p. 54.)
The jury. found in favor of the def ayants under 4
a direeted verdict (f 4 79). % — . | ait
. The Bill of Exceptions shows that defendants
introduced, amongst other evidence, Exhibits 7, 8,
9, 10, and 11, which contain all of the record before
the Commission, each exhibit being described in the
Bill of Exceptions (58).
The concluding paragraph of the Bill of Excep-
tions (59) states in part:
By virtue of an order of the Presiding
Judge, ¥’. I. Grubb, plaintiff’s Exhibit No. 6
and defendants’ Exhibits Nos. 7, 8, 9, 10, and.
tl, respectively, are omitted from the bill of
exceptions in prder.that they may he sent by
the Cferk of the tower Court’ in ny i}xnee :
with the said order of the l’residing Judge,
direct to the Court of Appeals.
The Bill of Exceptions then ‘stated, ‘‘This was
all the evidence in the case’’ (59).
The order of the Court reads:

It appearing to the court that in this cause
it is necessary and proper in the opinion _
of the court .that certain original*papers and °
documents should be inspected in the Cireuit —
Court of Appeals upon writ of error by said
court: ’ ‘ .

it is therefore ordered that the following
papers to-wit: Exhibits 6 to 11, inclusive,
referred to and described in the bill of ex-

4

ceptions, be transmitted by the Clerk of this
court to the Clerk of the Circuit Court of
Appeals at New Orleans, La., and returned
after the disposition of the writ of error to
the Clerk of this Court.

The stipulation of the parties is as follows:

The parties to this cause by their respec-
tive counseldo hereby stipulate and agree as
follows: _

That the plaintiff’s exhibit No. 6 and that
the defendants’ exhibits 7, 8, 9, 10, and 11
may be omitted from the bill of exceptions,
and sent by the Clerk of the trial court direct
to the Court of Appeals in their original
form, and further that the exhibits need not
be printed in the record. This agreement
is made in conformity with an order of the
trial court by the presiding judge that said
exhibits, viz: 6, 7, 8, 9, 10, and 11 shall be
omitted from the record, and sent direct by
the Clerk of the trial court to the Court of
Appeals.

After quoting the concluding paragraph of the
Bill of Exceptions, above referred to, the order
of the Court, and the stipulation of the parties, the
Court states that Exhibits 6, 7, 8, 9, 19, and 11,
which were before the District Court, are not in-
eluded in the Bill of Exceptions and are not
printed in the transcript, but that the original
documents were sent up in compliance with the
order, but without anything to show that they were
made a part of the bill (97-98). The Court refers
to its Rule 14, Paragraph 4, with regard to the

ee :
5

transferring of original papers from the District
Court, which is similar to Pe~agraph 3 of Rule 9
of this Court, and says that the order transmitting
the originals should not have been granted, and
that Rule 14, Paragraph 4, ‘‘was never intended
to permit the sending up of a mass of original
documents that could have been copied in the
printed record, for the purpose of saving expense”’
(98).

The Court concludes that all of the evidence upon
which the case was tried is not in the Bill of Ex-
ceptions and consequently the exhibits sent up in
original form can not be considered, and holds
(99) :

Where instructions of the Court are as-
signed as error on a motion to direct a ver-
dict or otherwise, unless the entire evidence
pertinent to the question is in the bill, the
Appellate Court must presume that the
omitted evidence justified the instructions.
(Citing Authorities.)

The Court affirmed the judgment of the District
Court (18 F. (2d) 369) on the ground that it was
unable to review it because of the state of the

record (99).
ARGUMENT

As the Court of Appeals suggests, and as would
seem apparent from the record, the exhibits men-
tioned were sent up in the original form to save the
cost of printing, and it was so stated to respondents

6

when they were asked to sign the stipulation here-
tofore quoted.

Obviously, since exhibits 7, 8, 9, 10, and 11 consti-
tuted practically all the respondents’ testimony,
they would not have consented to any stipulation
which would have omitted them completely from the
Bill of Exceptions and from the consideration of
the Court. Furthermore, if they had not been pre-
sumed to have been incorporated, by reference at
least, in the Bill of Exceptions, there would have
been no purpose in sending them up in theiy origi-
nal or any other form because, as the Court points
out, they could not have been deemed to be before
the court.

The record is perhaps somewhat ambiguous on
the question of their inclusion in the Bill of Excep-
tions. Of course, they are not printed in the Bill
of Exceptions, and in that sense are omitted, but if
they were not to be presumed to have been incorpor-
ated by reference i the Bill of Exceptions, there
would have been no object whatever in sending them
up in the original form, nor of mentioning them,
and the stipulation, and the order of the Court
would have been useless.

Consequently, when the record is read in connec-
tion with the fact that the exhibits were actually
placed before the Court of Appeals it would seem
clear that the exhibits were included by reference
in the Bill of Exceptions, and the court should have
considered them.

7

The stipulation for sending up the exhibits in
original form was made in good faith by the part-
ies, respondents, at least, having understood that
this practice was } »per, and that the ecurt would
consider the exhivits, and the failure to print was
apparently due to an honest mistake for which the
petitioner ought not to be made to suffer. There-
fore, if that were the contention of petitioner, re-
spondents would interpose no objection to the
Court of Appeals or this court reviewing the entire
record, including the exhibits (the petitioner being
required to print them or the substance of them for
the record if the court deemed that necessary ).

However, the position which petitioner has taken
in his brief in this Court presents an entirely dif-
ferent question. He contends that the Exhibits
were irrelevant, and consequently under Section 2,
Rule 7, should have been and were omitted from the
Bill of Exceptions. That Rule requires that ‘‘only
so much of the evidence shall be embraced in a Bill
of Exceptions as may be necessary to present
elearly the questions of law involved in the ruling
to which exceptions are reserved * * *,” Tf
they were omitted because of that rule, sending
them up in the original form would have been as
much in violatior of Rule 7 as if they had been
printed in the record, and would have been a useless
proceedure.

The Bill of Exceptions shows (58) that when
the Exhibits were offered by the defendants (the

8

respondents here), they were objected to on the
ground that they were immaterial, irrelevant, and
incompetent, and the objection was overruled (59).

Obviously, therefore, respondents would never
have entered into any stipulation which would have
taken away from the consideration of the Appel-
late Court the Exhibits which constituted practi-
cally all of their evidence in the District Court.

Furthermore, the Bill of Exceptions refers to
and describes these Exhibits (58). It is manifest,
therefore, from the Bill of Exceptions that there
was evidence which the District Court at least
deemed material, because it was admitted over ob-
jection, and which was before the District Court,
but which was not before the Court of Appeals.
The burden was upon the petitioner to make the
record, but had the respondents not understood that
under the agreement and order of the Court the
Exhibits were incorporated in the Bill of Excep-
tions by reference, and would be considered by the
Appellate Court, it is clear that they would have
insisted that they be included in the Bill of Ex-
ceptions and printed, for they would never have
stipulated, because petitioners deemed it irrele-
vant, that their evidence admitted cver objection
should be left out.

In this case the District Court directed a vex
dict upon all of the evidence. Obviously, there-
fore, all cf the evidence is necessary in order that
the Appellate Court may intelligently pass upon

9

the action of the District Court, as the Court of
Appeals correctly states, citing authorities (99) :
Where instructions of the Court are as-
signed as error on a motion to direct a ver-
dict or otherwise, unless the entire evidence
pertinent to the question is in the bill the
Appellate Court must presume that the omit-
ted evidence justified the instruction.

Therefore, if the real reason for not printing the
exhibits was that now contended for by petitioner,
namely, that they were omitted in accordance with
the provisions of Paragraph 2 of Rule 7 of this
Court, this court must affirm the Court of Appeals
because the Bill of Exceptions describes them and
shows they were actually before the District Court
when it directed its verdict.

However, as stated before, responcents at the
request of petitioner signed the stipulation above
quoted upon the statement to them that it was for
the purpose of saving the cost of printing, and
they understood that the rules of the Court of
Appeals would permit it. They understood the
entire record, including the exhibits sent up in
original form, would be considered by the Court of
Appeals and the case determined upon its merits.
Consequently they do not now object to such action
by the Court of Appeals or this Court. Their only
concern is that those Exhibits should not now be
held to be not before the Court under Paragraph 2
of Rule 7. Such a ruling would penalize the re-

10

spondents by omitting substantially all of their evi-
dence from the record, because they had agreed to
a procedure which they were advised was taken to
save petitioner expense and place the entire testi-
mony before the Court. Otherwise would not have
consented.
Respectfully submitted.

StToke.y, ScrivNer, Dominick & Sirs,

Sipney P. Smrra,

Sipney F’. ANpREws,

Arex. M. Butt,
Attorneys for Respondents.

Wasurnaton, D. C. February 24, 1928.

U

Inthe Supreme Court of the Wnited States

OctToserR TERM 1927

No. 342

Krauss BrorHers LUMBER COMPANY, PETITIONER
v.

AnNpREW W. MELLON, Direcror GENERAL OF RalL-
roads, as Agent, etc., et ai., respondents

MOTION BY RESPONDENTS TO AMEND JUDGMENT AS TO
COSTS AND RETAX COSTS

Now come the respondents and, leave first having
been asked and obtained, move the Court to amend
the judgment in this case so as to tax the costs in
this Court against the petitioner instead of against
the respondents, for the reason that the Writ of
Certiorari was granted to consider a question of
practice which arose because of the manner in
which the record in the Circuit Court of Appeals
was prepared by petitioner and for which the peti-
tioner was solely and entirely responsible.

The opinion of this Court rendered April 9, 1928,
does not state that costs will be assessed against
respondents, but we understand that under para-
graph 3 of Rule 29 the costs will be assessed against

respondents in the absence of a ruling by the Court
9977428 (1)

2

to the contrary, the judgment of the Court of
Appeals having been reversed.

This case was brought in the District Court to
enforce an order of the Interstate Commerce Com-
mission against respondents’ for $10,365, demur-
rage charges, alleged to have been illegally collected.

The District Court directed a verdict in favor
of the respondents. (R. 79.) The duty of pre-
paring the record for the Court of Appeals, there-
fore, rested primarily upon petitioner. In order
to avoid the cost of printing certain exhibits (see
page 2 of the opinion of this Court, and the opin-
ion of the Court of Appeals, R. 98) petitioner re-
quested respondents to stipulate that certain ex-
hibits should be sent up to the Court of Appeals
in original form, which was done (R. 59, 80, 82).
One of those exhibits was a part of petitioner’s
evidence. At no time did petitioner ask respond-
ents to acquiesce in any other method of preparing
the record. Respondents have never questioned
this procedure nor sought bo take advantage of the
manner in which the record was made up.

‘The Circuit Court of Appeals, of its own mo-
tion, and not by request or consent of either party”’

‘The opening paragraph of the opinion of this Court
states that the Commission ordered the Mobile & Ohio Rail-
road and the Alabama Great Southern Railroad Gompany
to pay the reparation. The orders are against the Director
General of Railroads as well as the two railroad companies
wamed (Rec. pp. 65-69, 76), the greater portion of the
reparation being against the Director General of Railroads
(Ree., 57, 66, 76).

3

(see page 4 of this Court’s opinion), held that the
matter sent up in the original form was not a part
of the Bill of Exceptions and could not be con-
sidered by it, and consequently affirmed the judg-
ment of the District Court, applying the rule that
where the Bill of Exceptions does not contain all
the evidence, it will be presumed that the evidence
omitted was sufficient to justify the action of the
Court in directing the verdict.

Petitioner then applied to this Court for a Writ
of Certiorari, which was granted, with the order
that the argument be limited to the question of
practice in respect to the Bill of Exceptions upon
which the case in the Court of Appeals was made
to turn. (R. 102.) Reference to respondents’
brief opposing the Writ of Certiorari (pages 3 et
seq.) will show that objection to granting the Writ
was based solely on the merits of the case and not
upon the state of the record. Respondents’ brief
filed in this Court after the granting of the cer-
tiorari shows (pages 5, 7, 9) that again respond-
ents made no objection to the manner in which the
record was prepared, but opposed petitioner only
on his contention that the exhibits had been omit-
ted because irrelevant, and it was distinctly stated
by respondents that they did not oppose a review
by the Court of Appeals of the case on the merits
on the entire record, as they understood that the
exhibits had not been printed in order to save the
petitioner the cost of so doing.

4

At the oral argument in this Court respondents
again stated that they had no objection whatever
to the Court of Appeals considering the case on its
merits on the entire record; that they had briefed
and argued the case to the Court of Appeals upon
the entire record which they understood was before
it, and that the only opposition that respondents
made to the petitioner’s argument in this Court
was to the contention that the exhibits referred to
had been omitted from the Bill of Exceptions in
accordance with paragraph 2 of Rule 7 of this
Court, because irrelevant.

In other words, throughout this case respond-
ents not only have not opposed the method in which
petitioner prepared the record, but have actually
cooperated with him in every way, as far as they
have been requested, in the preparation of the
record in an effort to save the petitioner the cost
of printing evidence, some of which was his own,
and the remainder of which was introduced and
admitted by the Court over objection that it was
irrelevant.

It is manifestly unjust, therefore, that respond-
ents should now be penalized by being required to
pay the costs of bringing the case up to this Court
on certiorari on the question of practice which
arose entirely because of petitioner’s method of
preparing his record.

It is respectfully requested, therefore, that the
judgment rendered April 9, 1928, be amended so
as to tax against the petitioner, and not against

ae

respondents, the costs accruing in connection with
the Writ of Certiorari granted October 24, 1927.
Respectfully submitted.
SToKELY, Sortvner, Dominick & Smiru,
Sipney P. Smrra,
Smpney F’. ANDREws,
AtEx. M. Butt,
Attorneys for Respondents.
Wasuineron, D. C., April 18, 1928.

CERTIFICATE OF COUNSEL

I hereby certify that I have prepared the fore-
going Motion, and in my opinion it is well founded,
and it is not interposed for delay.

Arr. M. But,
Of Counsel for Respondents.

O

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0075%3A2. Public record. Not legal advice.