# Opposition Brief — Central Transfer Co. v. Terminal Railroad Assn. of St. Louis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0315%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1933 - **Citation:** 288 U.S. 469 ## Text FILE COPY SUPREME COURT OF THE UNITED OCTOBER TERM, 1932. CENTRAL TRANSFER COMPANY, ] Ghee upreme-veury» FLL&ED DEC 12 193 No. S 3 : 523, Petitioner, v TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS et al., Respondents, BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT AND BRIEF IN SUPPORT THEREOF. EDWARD J. WHITE, J, M. BRYSON, E. T. MILLER, N. S. BROWN, T. M. PIERCE, Of Counsel. ‘ ‘. 0, Ww, 7% H. M. . HAROLD R. SMALL, BURG, CONNELL, DAVIS, KISKADDON, LARIMORE, ROBERTS, Ss P H N H G _L. H. STRASSER, - GUY A. THOMPSON, . THOS. W. WHITE, Counsel for Respondents. AO ee INDEX. PPT ere rer err eri fri ri iy ie ec. Summary of the argument... 1... 6.5. + eeeee seen eens e Argument ..........0 cece ee cece eee eee eeeeeceesres 18 « Petitioner’s right to sue....... 6.6 e cece eee eee ees 18 e Illegal combination ... 2.2.6... 66 eee eee eee eee 38 Z Other rulings of the Court of Appeals...........++- 67 Disposition of the case... 0.2.6.6... eee eterna 69 Celene. . occ cccdnskcsessvanvaeusteses seceanenes 72 Cases Cited. Atchison, T. & S. F. R. R. Co. v. Denver & N. O. R. Co., | Cie & | Seepeperermorrrererr rrr rrr he ers oe 16 Baltimore & Ohio R. R. v. Pitcairn Coal Co., 215 U.S. PLES Re POE er ery S Oe Et ree Ss Ce to 14 B. & W. Taxi Co. v. B. & Y. Taxi Co., 276 U.S. 518... 16 California v. Deseret Water Co., 248 U.S. 415........ 14 Chicago ete. R. R. Co. v. Pullman Car Co., 139 U.S. 79 16 Co-Ordination of Motor Transportation, 182 I. C. C. ee ere eee eee 14, 28 Diamond Alkali Company v. Tomson & Co., 35 Fed. be: ere Tree Tee Cay Cr 69 Discontinuance of Inland or Off-Track Stations in New York City, 173 1. C. C. 727... 2.2.2... 00-0 14, 27 Donovan v. Pennsylvania Company, 199 U. 5. 280. .16, 47 Express Cases, LIT U.S. 1.2.6... eee ee eee eee ees 16 General Investment Company v. New York Central ie ie Gig ae WO ORE) ORE... 8. cee ee eaeee 15, 37 General Investment Company v. New York Central R. MS oy sc new ceap cease nedkdwnecescnse 15,18 In the Matter of Legality of Tariffs Embracing Motor wee eee oe 6. Oo. ©. OD... oo oss. ooo dy ae Keogh v. C. & N. W. Ry. Co., 260 U.S. 156... 15, 17, 29, 72 Liberty Oil Company y. Condon National Bank ct al., I errs Biche hae as VG hk oh se 86 Sok www ae 17,71 Little Rock & M. R. Co. v. St. L. L. M. & S. Ry. Co., er trina tan gis eben penis odhakee xk ms 16 Merchants Warehouse Company v. United States, 44 Fed. (2d) 379, 283 U.S., 1. . 006.................. 16, 45 Midland Valley R. R. v. Barkley, 276 U.S. 483......15, 23 Missouri Pacific R. R. Co. v. Reynolds-Davis Grocery OR ry ee ee 16, 26 Moore v. New York Cotton Exchange et al., 270 U.S. a, EEDA D SSE 5 mer pi? op ea Re 31 eee 34 Morrisdale Coal Company v. Pennsylvania R. R. Co., cue i Ee eee 15 Motor Bus and Motor Truck Operation, 140 1. C. €. NA EI a o's Wie asda iors, Sky ashen edn ewe anos cc 14, 27 New York ete. R. Co. v. Interstate Commerce Com- II lS sad eben eccuascwas. 14 Northern Pacifie Rwy. Co. v. Solum, 247 U.S. 477... 14 Oregon Short Line & U. N. Ry. Co. v. Northern Pacific MIR EI ao abs vk doe ee ou face, 1 Palmer v. Doull-Miller Company, 2323 Fed. 309... ... 17,7 Perego v. Dodge, 163 U. S. 160.................... 17,7 Pennsylvania Co. v. United States, 236 U.S. 351..... 12, 2 6 ———————————=—_ 3 co ary S- EP . ETE LE LEE EOS OPI LE LS OAS — ia : oe ili Procter and Gamble v. U.S., 225 U.S. 282......... cy. Shapiro v. Lyle, 80 Fed. (2d) 971.......-..++++5555 17, 72 Skages et al. v. Kansas City Terminal Railway Co. ot ak, SS Week, WEE ox soca nk cn cesdvr ce Terre ... 16, 45 Smith v. Interstate Commerce Commission, 245 a. a «Ye ERO AR PE res wey Por Pee eee ee ee et 12 St. Louis Dravage Company v. Louisville & Nashville oe 3 SS A ereeer re eee re ee eee 16 Terminal Railroad Association v. United States, 266 ne. ag > A er ee eer ee 62 The Standard Oil Company v. The United States, 221 iS) ARR Oe ie eee ee 53, 66 Terminal Warehouse Company of Baltimore City v. United States et al., 31 Fed. (2) 951.............. 16, 44 Terminal Railroad Association v. United States, 256 “hha 2 BUS ane UUs nee a ae ae aera ane Creare eRe eee 16, 62 Texas and Pacifie Rwy. Co. v. Abilene Cotton Oil Co., Se a. ase ee renee ee Sey ee ee ee 14 Transter of Freight Within St. Louis ete., 155 1. C. C. gO re tt ee ee ee 14 Twist et al. v. Prairie Oil & Gas Company, 274 U.S. OL EONS Bena ne iy Bak ae a es ee 9 en ee ea 8 | Trucking Less-Than-Carload Freight ete., 18 ae oe ee re ore as Pare ees Sen Solas Cake one 14, 28 United States v. Joint Traffie Association, 171 U.S, Te tee a a ee Li nee wales Bh s-w A ae Re 16, 66 fnited States v. Fimell, 165 U: S. 255...........455. 14 U. S. Nav. Co. v. Cunard S. 8S. Co., 50 Fed. (2d) 83, Oe a I oon ns nie eed nwee 15 U.S. v. Terminal R. R. Association, 224 U.S. 383. ..16,51 United States v. B. & ©. R. R. Co., 231 U.S. 274....... 16 Wheeling & L. E. Rwy. Co. v. Pittsburgh & W. Va. Rwy. Co., 33 Fed. (2d) 390, 280 U.S. 593.......... 15, 30 White v. Sparkill Realty Corporation, 280 U.S. 9000. 69 AEE HOS). 2 = ote SRL AM DNS ORES OF SEIS YET PW EN eA ONT ee * 3 m4 ee, Bi re: * a :.° 3 : 38 : 3 a 8 y % 2 Bs i % #4 - 4 * spe a > 2 iv Statutes. Clayton Act (U.S.C. A., Title 15, See. 26)............ 11 Interstate Commerce Act, Section 12(1) (U.S. C. A, I ES ha eel as wad ada ssskeoessaune 12 Interstate Commerce Act, Section 1(3) (U.S. C. A, NE gt hoc ae orn Ao eene oe ex Ca deieek a Interstate Commerce Act, Section 3(3) (U.S. C. A. ER Re BO win bey ob oa eu deus aoc 12 Interstate Commerce Act, Section 1(6) (U.S. CL A, I so ra kook Pek eed ewe 13, 24 Interstate Commerce Act, Section 1(12) (U.S. C. : SE ae eae s oth eee ho eee ee eet 13 Interstate Commerce Act, Section 1(13) (U.S. C. A,, ea eter ey ae le een 13 Interstate Commerce Act, Section 6(1) (U.S. C. \ ee eC ee ea ci ead 13, 18 Interstate Commerce Act, Section 15(7) (U.S. C. A,, MI NN oa Fk 6a oa oy Mk es eae ken en 13 Interstate Commerce Act, Section 1(11) (U.S. @. Ss ND A 56 hv ose Vics on ood as we owe 22 ee ee 31, 69 Equity Rules. ce CO ET Oe Dee Oy here om peal, SFM Tage 69 TAPER SIE RS RET AMR CET LPL LI NTE PE BY EERE A POLIT RON NEY STEER TBST AR aT ee) : SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1932. No. 523. —— ler CENTRAL. TRANSFER COMPANY, Petitioner, Vv. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS et al., Respondents. eee a BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT AND BRIEF IN SUPPORT THEREOF. STATEMENT. In view of omissions and inaccuracies appearing in the statement of petitioner, respondents submit the following: This controversy has to do with the methods employed by carriers by railroad serving St. Louis, Missouri, and East St. Louis, Illinois, sometimes referred to as the St. Louis-East St. Louis switching district, in connection with the receipt, delivery and interchange of less-than- earload freight. WOE NT ME ABET Ped eo 8 ow —— Notwithstanding the various bridges, traffic has been handled by dray or truck between St. Louis and East St. Louis since 1854 (R. 83). Two methods of receiving and delivering less-than-carload freight have been and are employed, viz., through off-track stations designated by the carriers in tariffs filed with the Interstate Commerce Commission, hereinafter referred to as the Commission, and maintained and operated by transfer companies and by the so-called direct delivery plan under which traffic passes through a constructive station on its journey to and from the trader’s place of business, from and to the on- track stations in East St. Louis. During the early period of the transfer of less-than- earload freight between St. Louis and Kast St. Louis the charges for such transriver service were added to the rail rates to and from East St. Louis. Through various steps the rates of the carriers were extended to St. Louis and such transriver service from that time on was made by the earriers and the charges therefor included in their line- haul rates (R. 84). When this practice was established off-track stations became stations designated in the tariffs where freight would be received and delivered in the same manner as though they were located on the tracks of the carriers. The contract assailed in the bill of complaint (R. 49) to which we shall hereinafter refer, in so far as this pro- ceeding is concerned, has to do with the handling of less- than-carload freight between on-track stations of the car- Fe ees eae er la ee ae ares ee . ie es Le ee ra # a oo riers and between off-track and on-track stations of such carriers, although petitioner disclaims any concern or in- terest in traffie moving between on-track stations (R. 71). The less-than-earload traffic moving between on-track stations of the carriers is what is known as interchange traffic and may be described generally as traffic moving to Kast St. Louis over the line of a carrier ee at that point and transported by dray or truck #rem the on-track station of a carrier whose lines extend westerly from St. Louis. As to less-than-carload traffie moving between off-track and on-track stations of the carriers the following is illus- trative: The rails of important lines, such as the Baltimore and Ohio, end in Kast St. Louis, but by their tariffs these carriers provide rates to and from St. Louis on the same basis as applicable to and from Kast St. Louis. They, therefore, hold themselves out to deliver at and ship from St. Louis, and, not having their own rails to St. Louis, employ other means of performing the service between the ends of their rails and St, Louis. Such means consist of off-track stations established at points in St. Louis between which and their rails or on-track stations in St. Louis less-than-earload traffie is hauled by dray or truck and at the expense of such carriers. The carriers, for several vears prior to May, 1927, had been considering the meted in whieh less-than-ecarload freight was being handled in the St. Louis-Nast St. Louis switching district looking towards a discontinuance by such Fat ae BR ir: : ——— EERE EP EN PARR Sigg GENEL MIE TERME IY RMIT NS OPM NEG FPF LORI OO OT Le ot ea Ri 4 y ; q * ‘ 5 % ¥ Ot * 5 1 hee EPCS ot Gi sep aor s eee etary SPORES RARE IM LIGNITE DIRE SY AE ERIN HEY SP x on earriers of al'owances to numerous transfer companies and contracting for the service in question with only one transfer company (R. 43). Kspecially were such carriers concerned regarding what they considered waste and abuses that had grown up during the years in connection with the handling by drays or trucks of less-than-carload freight between off-track and on-track stations in such district, including the in- creased number of such off-track stations. In the opinion of some of the carriers the situation as far back as March, 1923, was admittedly bad and was resulting in unnecessary costs to the railroads of thousands of dollars annually. As far back as the date last mentioned transfer companies other than those then employed were in the field clamoring for recognition, and it was the thought of some of the carriers that the desired results could be obtained by con- fining the traffic to one trucking company (R. 43). Another abuse was the performance of the transfer com- panies employing soliciting forces to compete with each other to see which one of them would do the hauling for the carriers. The expense of such method was applied to operations and ultimately borne by the carriers who em- ployed the transfer companies as their agents. In some eases where off-track stations were located across the street from on-track stations of the carriers the haul per- formed by the trucking company would be only across the street from the off-track station to the on-track station (R. 78, 74). on ve In the opinion of the carriers the elimination of such duplication would have the effect of bringing about sav- ings to such carriers (R. 74). Also, one purpose of the carriers in arriving at the one- transfer plan was to determine for themselves where a given off-track station should be located and how it should be operated (R. 73). In response to numerous petitions filed with the Inter- state Commerce Commission by certain teaming associa- tions, transfer companies and others, the Commission, on May 2, 1927, ordered a general investigation concerning the lawfulness and methods then in effect at St. Louis and East St. Louis having to do with the receipt and delivery by dray or truck of less-than-carload freight at those points. During May, 1927, the carriers, through their joint pub- lishing agent, filed with the Commission their tariff ef- fective July 1, 1927, whereby it was proposed to reduce the number of off-track stations then in existence at St. Louis from twelve to seven, and to reduce such stations at Kast St. Louis from two to one (R. 49, 938). The tariff referred to was suspended by the Commission for the statutory period (seven months) and the Commis- sion entered upon an investigation as to the lawfulness of such tariff. The issues involved in the general investigation ordered by the Commission heretofore referred to and the issues involved in the investigation of the schedules heretofore ENERO SATEEN AA IRE a ae mentioned were consolidated and, commencing on Novem- ber 1, 1927, a lengthy hearing was held concerning the practices of the carriers by railroad in connection with the receipt and delivery of less-than-carload freight at St. Louis and East St. Louis and concerning the lawfulness of the schedules contained in the tariff in question. Following such investigation and hearing incident thereto, a report was handed down by the Commission dated May 13, 1929 (R. 80). In such report the Commis- sion found: 1. That the proposal of the carriers, other than the Chi- cago and Alton, to employ a single transfer company for the operation of off-track stations and the hauling between such stations and the on-track stations of the railroads, and in the interchange of freight between railroads, is not violative of any provision of the Interstate Commerce Act. 2. That the proposal of the carriers, other than the Al- ton, to reduce the number of off-track stations in St. Louis from twelve to seven and at Kast St. Louis from three to two will not be harmful to the public interest or result in unreasonzble and inadequate service. The Commission, however, declined to approve the al- lowances proposed to be paid for such service on the ground that such allowances were not based upon a cost study, and required the carriers to make a cost study and submit the results thereof to the Commission. ~ — ;j-- A further hearing was held, and following such further hearing the Commission, on July 27, 1931, handed down its second report and order (R. 143). In such second report and order the Commission found (R. 150) that, based upon 830,514 tons, which the carriers stated was the total off-track and interchange service for a normal year, the reduced rates provided in the new con- tract would result in the saving of $181,398.37 annually. It further found that it was estimated that the discontinu- ance of the use of off-track stations by the St. Louis-San Francisco and Missouri Pacific and the partial discontinu- ance of the use of such stations by the other west-side lines, as provided in the new contract, would effect an annual saving of $125,000, or a total saving of $306,398.37. The allowances, therefore, to be made by the carriers for the services to be performed were approved by the Commission. On June 1, 1931, the carriers and the Columbia Termi- nals Company entered into the contract assailed in the bill of complaint (R. 49). Less-than-carload traffic covered by such contract, in so far as at present material, may be described as fol- lows: ‘‘(a) Between ‘on-track’ freight stations of the railroads in St. Louis, Missouri, and the said ‘off- track’ freight stations in East St. Louis, Illinois. ‘“(b) Between ‘on-track’ freight stations of the rail- Fase rhe (lt eee ne ng yaa N NEAR USS ALONE RIS 5 AAS RL TT ONE amote Seyerieeee ee Se ea ema | on ae roads in East St. Louis, Illinois, and the said ‘off- track’ freight stations in St. Louis, Missouri. ‘‘(e) From the said ‘off-track’ freight stations of the railroads in St. Louis, Missouri, to the ‘on-track’ freight stations in St. Louis, Missouri. ‘““(d) Between ‘on-track’ freight stations of the railroads located in St. Louis, Missouri (interchange service). ‘“(e) Between ‘on-track’ freight stations of the railroads located in East St. Lonis, Tllinois (inter- change service). ‘‘(f) Between ‘on-track’ freight stations in St. Louis, Missouri, and ‘on-track’ freight stations in Fast St. Lonis, Illinois (interchange service).’’ The effect of the contract was to confine the handling of less-than-carload traffic between on-track stations and between the off-track and on-track stations of the car- riers within the St. Louis-East St. Louis switching dis- trict to one transfer company, the Columbia Terminals Company. The contract also reduced the number of off- track stations at St. Louis from twelve to seven, and East St. Louis from two to one. Also, the carriers agreed to file the necessary tariff schedules with the Interstate Commerce Commission and appropriate state commis- sions. It should also be stated that by letter dated April 21, 1931, the Central Transfer Company, petitioner herein, through its vice-president and general manager, sub- mitted to the president of the Terminal Railroad Asso- scitcey : : “ — ond ciation of St. Louis its bid, asking to be permitted to con- tract as the sole transfer agent of the carriers for the transportation of less-than-ecarload freight now being handled by the Columbia Terminals Company through the a) = a 2 < S ti a € 3 & contract heretofore referred to (R. 76). On the 21st day of Angust, 1931, petitioner filed its bill of complaint in the United States District Court at St. Louis, Missouri, alleging a violation of Sections 1 and 2 of the Sherman Act, and praying temporary and perma- nent injunctive relief under See. 26, Title 15, U. S. C. A. (R. 2-10). When petitioner’s bill was filed the two regular Judges were out of the district and the case was especially as- signed to Judge Merrill E. Otis. On page 2 of the petition for writ of certiorari it is stated that a preliminary injunction was granted by Judge Merrill E. Otis, sitting specially, with bond fixed in the sum of $15,000.00. This statement is incorrect. A temporary restraining order only was issued at Kansas City, Missouri (R. 16, 17, 18), and such temporary re- straining order was issued for the purpose only of main- taining the status quo until the plaintiff ‘‘shall have had an opportunity to present to one of the Judges of the United States District Court for the Eastern District of Mis- souri its application for a temporary injunction’’ (R. 18). On September 21, 1931, the cause came on to be heard on motion for preliminary injunction, and, upon stipula- tion of the parties, was tried on its merits before Judge a Sa ca : 38 ri 3 : i on Charles B. Davis at St. Louis, argued orally and sub- mitted on briefs, and findings of fact and conclusions of law proposed by the parties thereto. On October 19, 1931 (R. 38), the District Court handed down its findings of fact and conclusions of law, denied plaintiff the relief prayed for, and entered its final de- cree dismissing plaintiff’s bill. Thereafter the tariffs in question went into effect. The District Court held: 1. That the matter involved is subject to the regulation ; and supervision of the Interstate Commerce Commission, 3 and that petitioner is not entitled to the injunctive relief q sought. 2. That the contract assailed in the bill of complaint was not in violation of the antitrust laws of the United States. peo hed eh re Foti e ts Le pore AON 1g DRTC EE Be L! On appeal to the Cireuit Court of Appeals, Eighth Cir- cuit, the decree of the District Court was affirmed (R. 178). aie: a 4 vA 4 Giese eerie rR PREM ET VENT PLS CE SS ATR AS AY OO RNIN Me ES te Oe _ a pe SUMMARY OF THE ARGUMENT. The Clayton Act confers upon any person, firm, corpora- tion or association the right to sue for and have injunctive relief against threatened loss or damage by a violation of the Antitrust Laws, with the proviso that ‘‘nothing herein contained shall be construed to entitle any person, firm, corporation or association, except the United States, to bring suit in equity for injunctive relief against any com- mon carrier subject to the provisions of Chapter 1 of Title 49, Transportation, in respect of any matter subject to the regulation, supervision or other jurisdiction of the Inter- state Commerce Commission.”’ Clayton Act (U.S. C. A., Title 15, See. 26). I. The Interstate Commerce Commission has authority to inquire into the management of the business of all common carriers subject to the provisions of the Interstate Com- merce Act, is in terms required to execute and enforce the provisions of such act, and the investigating and supervis- ing powers of such Commission extend to all of the activi- ties of carriers subject to the Interstate Commerce Act and to all sums expended by them which could affect in any PAIRS LEESON ETS NLS ODL LEP ELLE ee aE ple MLE. Oat Spe tee iy A by acc RUE ARS ERED DLR A RRR aa MILES erst Pesnenscy ot Deen rye Nin ae ments way their benefit or burden as agents of the public. Such powers must necessarily be expressed in generalities. Interstate Commerce Act, Section 12 (1) (U. S. C. A., Title 49, See. 12); Smith v. Interstate Commerce Commission, 245 U. S. 33. Iil. Transportation is defined to include locomotives, cars, vehicles, vessels and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, expressed or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation and transfer in transit, storage and handling of property transported. This includes such service as would be per- formed by trucking companies as employes of the carriers in handling less-than-carload freight in terminal service. Interstate Commerce Act, Section 1 (3) (U. S. C. A., Title 49, See. 1); In the Matter of Legality of Tariffs Embracing Motor Trucks, etc., 91 I. C. C. Rep. 539. IV. The service between on-track stations of the carriers performed by trucks as employes of such carriers con- stitutes interchange service and is within the control and supervision of the Interstate Commerce Commission. Interstate Commerce Act, Section 3 (3) (U. S. C. A., Title 49, See. 3); Pennsylvania v. United States, 236 U. S. 351. Was a pee V. Carriers by railroad are required to file with the Com- mission schedules showing the application of their line- haul rates, to what points such rates apply, and showing the services the carriers undertake to perform under their published rates, by the following provisions of the Inter- state Commerce Act: Interstate Commerce Act, Section 1 (6) (U.S. C. A., Title 49, See. 1); Interstate Commerce Act, Section 1 (12) (U. S. C. A., Title 49, Sec. 1); Interstate Commerce Act, Section 1 (13) (U. S. C. A., Title 49, See. 1); Interstate Commerce Act, Section 6 (1) (U. S. C, A., Title 49, See. 6); Interstate Commerce Act, Section 15 (7) (U.S. C. A., Title 49, See. 15). VI. Petitioner seeks an injunction to prevent the carriers from applying rates duly filed with the Commission, since the only method by which the carriers can establish or eliminate an off-track station is through the filing with such Commission of tariffs designating off-track stations from and to which their rates will apply. In so far as the movement of less-than-carload freight is concerned between off-track and on-track stations of the ARs Besos | eae," een carriers, the matter in controversy concerns only rates filed with the Commissicn, which question is committed to the jurisdiction of the Commission. Texas and Pacifie Rwy. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Baltimore & Ohio R. R. v. Pitcairn Coal Co., 215 U. S. 482; Transfer of Freight Within St. Louis, ete., 155 I. C. C. Rep. 129; Trucking Less-Than-Carload Freight, ete., 185 I. ©. C. Rep. 71; Co-ordination of Motor Transportation, 182 I. C. C. Rep., 1. ¢. 367; Discontinuance of Off-Track Stations in New York City, 173 I. C. C. Rep. 727, 730; Northern Pacific Rwy. Co. v. Solum, 247 U. S. 477; Procter and Gamble v. U. 8., 225 U. S. 282; Motor Bus and Motor Truck Operation, 140 I. C. C. Rep., |. ¢. 729. VIL. The contemporaneous construction of a statute by those charged with execution and application, especially when it has long prevailed, while not controlling, is entitled to great weight and should not be disregarded or overturned except for cogent reasons and unless it be clear that such d + Py a Oy x iP es] 4 ® a 3 construction is erroneous. ’ United States v. Finell, 185 U. S. 235; 5 New York ete. R. Co. vy. Interstate Commerce Com- 4 mission, 200 U. S. 361; t California v. Deseret Water Co., 243 U.S. 415. : Z| | a =. a Tae ——————eaw Sa Cael i ie ray aes VIII. The matter in controversy being subject therefore to the regulation, supervision or other jurisdiction of the Inter- state Commerce Commission, petitioner is not entitled to bring an action in equity for injunctive relief against re- spondents, common carriers by railroad subject to the provisions of the Interstate Commerce Act, because of an alleged violation of the Antitrust Laws of the United States. Midland Valley R. R. v. Barkley, 276 U. S. 483; General Investment Company v. New York Central R. R. Co., 271 U. S. 228; Keogh v. C. & N. W. Ry. Co., 260 U. S. 156; Wheeling & L. FE. Rwy. Co. v. Pittsburgh & W. Va. Rwy. Co., 33 Fed. (2d) 390, 280 U.S. 593; U.S. Nav. Co. v. Cunard S. 8S. Co., 50 Fed. (2d) 83, 7 U.S. Sup. Ct. Adv. Op. 300; Morrisdale Coal Company vy. Pennsylvania R. R. Co., 230 U.S. 304; General Investment Company v. New York Central R. R. Co., 23 Fed. (2d) 822. | b. The action of respondents in entering into and carrying out the contract assailed in the bill of complaint whereby one transfer company handles less-than-carload freight for the carriers between off-track and on-track stations and between on-track stations of such carriers in terminal Pr mane a PREP OAL RI OED T, PUES SHAD SV IET BORE is P Bk: $ % ag % 4 i i fg a is h' ‘ = service, does not violate Sections 1 and 2 of the Sherman Antitrust Act, or either of them, Skaggs et al. v. Kansas City Terminal Railway Co. et al., 233 Fed. 827; Donovan v. Pennsylvania Company, 199 & S. 280; Missouri Pacific R. R. Co. v. Reynolds-Davis Gro- cery Co., 268 U.S. 366; Terminal Warehouse Company of Baltimore City v. United States et al., 31 Fed. (2d) 951; Express Cases, 117 U.S. 1; St. Louis Drayage Company v. Louisville & Nash- ville R. R., 65 Fed. 39; Atchison, T. & S. F. R. R. Co. v. Denver & N. O. R. Co., 110 U. S. 680; B. & W. Taxi Co. v. B. & Y. Taxi Co., 276 U.S, 518; Chieago ete. R. R. Co. v. Pullman Car Co., 139 U. S. 79; Little Rock & M. R. Co. v. St. L. I. M. & S. Ry. Co., 41 Fed. 559; Oregon Short Line & U. N. Ry. Co. v. Northern Pa- cifie R. Co., 51 Fed. 465; U.S. v. Terminal R. R. Association, 224 U. S. 383; Terminal Railroad Association v, United States, 236 U.S. 194; United States v. Joint Traffic Association, 171 U.S. 05; Phillips v. Tola Portland Cement Co., 125 Fed. 593; Merchants Warehouse Company v. United States, 44 Fed. (2d) 379, 283 U. S., 1. e¢. 506; United States v. B. & O. R. R. Co., 231 U.S. 274. SMPTE A NIE IOS! HOP RO LIT \ RANT DRT AL! PRICE LPI — a. X. The petitioner is not entitled to have the case transferred to the law side of the court, and the Court of Appeals, in ee ee not determining that the evidence shows a case for the law side of the court, committed no error. Twist et al. v. Prairie Oil & Gas Company, 274 U.S. 684; Liberty Oil Company v. Condon National Bank et al., 260 U. S. 235; Perego v. Dodge, 163 U. 8. 160; Palmer v. Doull-Miller Company, 233 Fed. 309; Shapiro v. Lyle, 30 Fed. (2¢) 971; Keogh v. C. & N. W. Ry. Co., 260 U.S, 156. lw - BRSH Kea we ee a feta ENR LL EPL ENE SEE RINE es | REWER AMTEN SP RRR EN SA ; | a. ARGUMENT. I. Petitioner’s Right to Sue. The Covrt of Appeals held (R. 177) that the suit brought by petitioner is in respect of a matter subject to the regulation, supervision or other jurisdiction of the Interstate Commerce Commission, and that the court below was correct in holding that petitioner had not the right to bring it. At page 9 petitioner says that the Court of Appeals declined to discuss the merits. While it is true the Court said there was no occasion for discussing the question whether the agreement violated the antitrust laws, nevertheless, the decision that petitioner has not the legal capacity to maintain the action is a decision on the merits. General investment Company v. New York Central R. R. Co., 271 U. 8. 228. The Interstate Commerce Act, Section 6(1) (U.S. C. A., Title 49, Sec. 6), provides, in substance, that every common earrier subject to the provisions of the Inter- state Commerce Act shall file with the Commission cre- ated by the act and print and keep open to public inspec- tion schedules showing all rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, ete. The tariffs in question were filed in conformity with the provisions of that section. wm PRM MERE SEALER I OME I a —— os. Off-track stations of the carriers can be made available only through the medium of tariffs filed with the Commis- | sion and permitted to become effective by that body. What 4 petitioner is attempting to do is to enjoin the carriers, not : from carrying out the contract assailed in the bill of com- 3 : plaint, but from carrying out the provisions of tariffs filed and required to be filed with the Commission. Petitioner secks to separate the controversy into two parts: One a matter of contract and the other a matter of tariffs. Without in terms assailing such schedules in its bill, petitioner attempts to enjoin the respondents in respect of the contract. Since the places of business of petitioner are not designated in such tariffs as off-track stations the question naturally arises: Ii respondents are enjoined from carrying out the provisions of the contract attacked, what becomes of the tariffs on file with the Commission? When this action was instituted there were on file with the Commission the tariffs of the carriers designating only the places of business of the Columbia Terminals Company as off-track stations of such carriers and can- celing previous tariffs designating the places of business of the petitioner as off-track stations. Had the court below entered a decree granting the injunctive relief sought, how would that have availed petitioner? To have granted petitioner any Measure of relief, would not the Court necessarily have been required to by its decree not only compel respondents to file tariffs then on file with See oe ne oe nh a la CORRELA EPL IDIE LUINA OT ca EOF eee the Commission and approved by that body, but also restore the places of business of petitioner as off-track stations through the filing of additional schedules with the Commission? Petitioner concedes that the services performed by the earriers in furnishing off-track stations and in transfer- ring less-than-carload freight from on-track to off-track stations are matters over which the Interstate Commerce Commission has jurisdiction (R. 172 In its reply brief in the Court of Appeals the petitioner states: ‘*We have always conceded that the Interstate Com- merce Commission has jurisdiction of the services performed by these trauster companies, and that the Commission may investigate the service to determine whether the carrier appellees have violated any of the provisions of the Interstate Commerce Act. ‘There is no doubt about this jurisdiction of the Commission, but, as the Commission has correctly held, it has no ’ jurisdiction to control the carriers’ discretion in: se- lecting their agents who perform the service.”’ The Court of Appeals correctly describes petitioner’s theory of the case in the following language (R. 172): ‘It is the plaintiff’s theory that, while the services to be performed under the coutract, the cost of which is necessarily reflected in the rates contamed in the tariffs filed with the Commission, are matters subject <_< poe to the jurisdiction of the Commission, the agreenient itself providing for such services and fixing compensa- tion therefor is not such a matter, and therefore that a suit brought for injunctive relief against the per- formance of the agreement is not in respect to any matter within the jurisdiction of the Commission. It is asserted that the Court may prevent the carrying out of the contract without affecting the services io he performed or the rates to be charged for such services. To separate the matter of the services required to be performed for the carriers by the Columbia from the agreement by which the railroads have contracted for their performance, and to enjoin the carrying out of the contract without affecting the services or the “ates, would seem to require one of those delicate major operations which, while successful froma surgical standpoint, necessarily kills the patient. Un- der the plaintiff’s theory, the Court can enjoin the carriers from establishing off-track stations at the places of business of the Columbia, as provided by the contract, but leave the tariffs designating such sta- tions undisturbed: it may enjoin the carriers: from employing the Columbia as their sole transfer agent, and yet leave undisturbed the services which the Columbia is to perform for the carriers at a_stipu- lated cost, as well as the tariff rates which reflect the cost of such services.’’ The Court of Appeals further finds, and correedy CR, 173): “Unonestionably, as the plaintiff concedes, the Tn- terstate Commerce Commission had jurisdiction to cen ST er ie a ; bl BY by i ose investigate, as it did, the reasonableness and lawful- ness of what the carriers proposed to do, namely, to reduce the number of off-track stations and to employ a single transfer company to maintain for them such stations and to receive and deliver less-than-earload freight from and to their off-track stations. ”’ In connection with the contention of respondents that the matter here involved is within the supervision and control of the Commission, attention should be called to the various provisions of the Interstate Commerce Act, which, in our opinion, conclusively establish the fact that this controversy, being one of rates and transportation under such rates, is for the Commission. In Interstate Commeree Act, Section 1 (3) (U.S. C. A., Title 49, See. 1), transportation is defined to include locomotives, cars, vehicles, and all instrumentalities and facilities of ship- ment or carriage, irrespective of ownership or of any con: tract, expressed or implied, for the use thereof, and all services in connection with receipt, delivery and storage and handling of property transported, This includes such services as would be performed for the carriers by the transfer company under the contract assailed in the bill of complaint. By Interstate Commerce Act, Section 1 (11) (USS. C. A., Title 49, See. 1), it is made the duty of every earrier by railroad subject to the Act to furnish safe and adequate car service and to establish, observe and enforce just and reasonable rules, regulations and practices with respect thereto. a, yo It is obvious that, in view of the prior definition of ‘‘transportation,’’ the term ‘‘car service”? is broad enough to include the service performed for respondents by the transfer company, and it also follows that the Commission may condemn as unlawful and require to be canceled any tariff provisions which prevent or threaten the perform- ance of the carriers’ duties under said paragraphs (3) and (11) of section 1 of the act. This Court held, in Pennsylvania Co. v. United States, y)? 936 U.S. 351, in considering the jurisdiction of the Com- mission, that: “Not only does the act define railroads, but it spe- cifically defines what is | meant by transportation, which is made to include ‘cars and other vehicles, and all instrumentalities and facilities of shipment or carriage, irrespective of ownership, or of any con- tract, expressed or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation and transfer in transit, ventilation, refriger- ation or icing, storage and handling of property trans- yorted,? *’ The handling of traffic by the carriers between on-track and off-track stations was necessarily a part of the serv- ices to be performed under the schedules filed with the Commission, and how that service was to be performed Was necessarily an essential part of any Investievation that might thereafter be conducted by the Commission, In the case of Midland Valley R. R. v. Barkley, 276 U.S. te we * hy, a 6g ¥, “wt % # oa ¢ eu ea % ie nt Bipine Wes ee 483, the Supreme Court, in discussing the failure to furnish cars for interstate movement of coal during car shortage, held that the question involved was administrative and committed to the exelusive jurisdiction of the Interstate Commerce Commission. In that case Justice Brandeis said: “The assertion that no administrative question is here involved rests upon a misapprehension, It may be assumed that there was no order of the Commission which required the Midland to distribute all available open top cars among the tipple mines, but the rea- sonableness of the Midland’s practice in doing so and in allotting box cars to the wagon mines was the snb- . stantial matter in controversy. * The reasonable- ness of the rule adopted by the carrier is a matter for the Commission.’’ The Interstate Commerce Act, Section 1 (6) (U.S. C. A., Title 49, Sec. 1), direets the carriers to establish rates, regulations, practices and facilities for the handling, trans- porting, storing and delivery of property, and it is clearly within the jurisdiction of the Commission in its administrative capacity for that bedy to determine when the carriers have complied with the provisions of such sec- tion. The service here involved is a terminal and deliv- ery service and the use of a transfer company to affect such terminal and delivery service is essentially the use of a facility. It is the contention of petitioner that the con- ae or tract in controversy under which the carriers employ one transfer company to transport less-than-carload freight between the off-track and on-track stations, specified in the schedules on file with the Commission, is an instrument over which the Commission does not have jurisdiction. The error into which petitioner fell is obvious. Under the Clayton Act if is the subject matter covered by the contract that must be within the jurisdiction of the Com- mission. If such subject matter is committed by the Inter- state Commerce Act to the supervision, administration or other jurisdiction of the (Commission, then the presence or nonpresence of a contract as incidental thereto does not affect the regulatory powers of the Commission. Two or more carriers might agree to maintain a certain rate be- tween two given points and file tariffs with the Commis- sion carrying out such agreement, and in such a case un- questionably the lawfulness of that rate would be for the Commission to determine, notwithstanding the fact that such rate was bronght about by an agreement which vio- lated the Antitrust Laws of the United States. The contemporaneous construction of a statute hy those charged with its exceution and application, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned except for cogent reasons and unless it be clear that such construction is erroncous. The Interstate Commerce Commission lias had oceasion to determine its jurisdiction in connection wl the matters involved in this controversy, aes SE antes It is the contention of respondents that the transfer company is merely an agent and facility of the respond- ents, transports no freight for its own account iso far as this controversy is concerned, but is only employed by the rail carriers in interstate commerce. This contention is fully borne out by the decision of the Supreme Court in Missouri Pacifie R. R. Co. ve Revnolds-Davis Grocery Co., 268 U.S. 366, which holds that those performing only terminal services are merely the agents of the line haul carriers, that their charges are in the nature of switeh- ing charges and are absorbed by the line haul carriers. In the case of In the Matter of Legality of Tariffs km- ’ bracing Motor Trucks, ete., 91 1. C. C. 539, the Commis- to] > sion said: **In discussing the legality of the tariffs under in- vestigation, the extent of our jurisdiction over the different: kinds of service by motor truck or wagon transfer hereinbefore deseribed should first be de- termined.’’ After a discussion of the proposition and after refer- ence to certain applicable provisions of the Interstate Commerce Act, the Commission concludes: “While motor truck or wagon transfer companies are not common earriers subject to the act, truck or wagon transfer services performed in connection with terminal services of a common carrier subject to the act, or with transfer of freight in transit at an inter- mediate point by such common carriers, are subject te our jurisdiction. Such service is a part of a trans- portation service by a farrier, over Which we have jurisdiction,” The Commission again had occasion to consider the same question in Discontinuance of Inland or Off-Track Stations in New York City, 173 I. C. C. 727, and arrived at the conclusion that the services such as here involved were squarely within its jurisdiction. The Commission also passed upon the question of its jurisdiction over terminal trucking service performed by railroads in Motor Bus and Motor Truck Operation, 140 | 1. C. C. Rep. Le. 729, where it said: “We have held that motor carriers are not common carriers subject to the act, but that when services are performed by motor ‘arriers in connection with terminal services of a common carrier subject to the net, or With the transfer of commerce in transit at an intermediate point by such common carrier such motor service is part of the transportion service by a earrier over Which we have jurisdiction and such motor-carrier service is under our jurisdiction, Car- riers subject to the act may publish tariffs covering charges for such terminal services by motor carriers the same as charges for any other service granted by them as part of their transportation service (‘Tariffs Kmbracing Motor-Truck or Wagon Transfer Service, 91 1. €. C. 338)."* J ae Sa To the same effect is the case of Trucking Less-Than- Carload Freight, ete., 185 LC. C. 71.) In that case the Commission, commencing at page 72, says: “We have held that motor-truck or wavon-transfer companies are not carriers subject to the aet: that line-haul service performed by them is not transporta- tion subject to the act, but that motor-truck or wagon- transfer service performed in connection with ter- minal services by a rail carrier is subject to our juris- diction (Tariffs Embracing Motor-Truck or Wagon Transfer Service, 91 LC. C. 539). When a motor- truck service between freight houses within the same terminal district is performed in interstate commerce by a carrier subject to our jurisdiction, the extent of the service and the rates therefor must be pub- lished in tariffs filed with us.’’ To the same effect is Co-ordination of Motor Transpor- tation, 182 1. C. C. Rep., 1. ¢. 367.) Throughout its petition petitioner directs attention to the faet that the Com- mission has held that motor-trueck or wagon-transfer com- panies are not carriers subject to the Interstate Commerce Act. The cases just cited deal with the question fully and hold that the terminal services performed by such instrumentalities for carriers subject to the aet are like- wise subject to the Interstate Commerce Act, Without regard to the contract assailed in’ petitioner's bill, since the subject matter of this controversy is within the supervision and regulation of the Commission, plain- tiff is not entitled to maintain this suit. yy) A ease much in point is that of Keogh v. C. & N. W. Ry. Co., 260 U. S. 156. That case was an action under paragraph 7 of the Antitrust Act of July 2, 1890, brought by Keogh in the Federal District Court for Northern Tlli- nois, Eastern Division. The cause of action set forth was that Keogh was a manufacturer of flax tow, and that the corporations, defendants, were interstate carriers, and that euch carriers had formed an association known as_ the Western Trunk Line Committee; that it was the function of that committee to secure an agreement in respect to freight rates among railroad companies which would otherwise be competing carriers, and that by means of such agreement competition was eliminated. Uniform rates were established and interstate commerce restrained, he defendants set up the fact that every rate com- plained of had been duly filed by the several carriers with the Interstate Commerce Commission; that upon such filing the rates had been suspended for investigation upon complaint of Keogh, and that thereafter the rates were ap- proved by the Commission and made effective. In disposing of the Keogh Case the Court said, in part: “The instrument by which Keogh is alleged to have been damaged is rates approved by the Commission. It is, however, conceivable that, but for the action of the Western Trank Line Committee, one or more of these railroads would have maintained lower rates, Rates somewhat lower might also have been reasona- ble. Moreover, railroads had often, in the fierce a ‘ struggle for business, established unremunerative rates.’’ Thereafter the Court further states: ‘But under the Antitrust Act a combination of car- riers to fix reasonable and nondiseriminatory rates may be illegal, and if so, the Government may have redress by criminal proceedings under seetion 3, by injunction under section 4, and by forfeiture under section 6. That was settled by United States v. Trans- Missouri Freight Association, 166 U. S. 290, and United States v. Joint Traffie Association, 171 U.S. 505. The fact that these rates had been approved by the Commission would not, it seems, bar proceedings by the Government. It does not, however, follow that Keogh, a private shipper, may recover damages under section 7 because he lost the benefit of rates still lower, which, but for the conspiracy, he would have enjoved. There are scveral reasons why he ean- not.’’ The case of Wheeling & L. E. Ry. Co. v. Pittsburgh & West Virginia Ry Co., 53 Fed. (2d) 390, is also an au- thority for the contention that there is no room for injune- tive relief under the Clayton Act, if the matters com- plained of are subject to the regulation and supervision of the Interstate Commerce Commission, Certiorari to review this decision was denicd by the Supreme Court in P. & W. Ry, Co. v. W. & LL. E., 280 U. S$. 593. Petitioner contends at pages 22 and 23 that the Colum- ey: oe bia Terminals Company is a necessary party and that that situation deprives respondents of the defense that the subject of the action is within the jurisdiction of the Com- mission. The point is overlooked that if the matter in question is subject to the regulation and supervision of the Commis- sion, the authority to bring a suit because of the violation of the Antitrust Laws is with the United States, and the question of who is a necessary defendant is immaterial. The point involved here is not who may be made defend- ants, but who may be made a plaintiff. Petitioner cites the case of Moore v. New York Cotton Ixchange et al., 270 U. 8. 593, as authority in support of its right as a private litigant to maintain this suit against respondents for injunctive relief and refers to the fact that the Western Union Telegraph Company was one of the defendants in that case and that it is a common car- rier, subject to the provisions of Chapter 1 of Title 49, U. s. ©. A., Transportation, and to the fact that the District Court, the Cireuit Court of Appeals, and this Court as- sumed full jurisdiction of that case and decided all ques- tions presented therein on the assumption that the plain. tiff had a right to bring the suit under Section 26, Title 5 U. 8. C. A, notwithstanding the proviso contained therein. Petitioner discusses this case at some length and evi- dently relies upon it as an authority in its favor to main- tain this suit. iy El nes Petitioner says that whether jurisdiction was assumed because of the jJoinder of an indispensable party, the Cot- ton Exchange, which is not subject to the Interstate Com- merce Act, or because the subject matter of the bill was not in respect of any matter over which the Interstate Commerce Commission has jurisdiction, does not appear from the opinion in the case. That case is not even re- motely analogous to the case at bar. The Moore ease in- volved a controversy between the Odd-Lot Cotton Ex- change and the New York Cotton Exchange and the West- ern Union Telegraph Company and a subsidiary of the Telegraph Company over the distribution of quotations of cotton prices. The Odd-Lot Cotton Exchange made ap- plication to the two telegraph companies for this service which was refused, the New York Cotton Exchange hav- ing declined to give its consent upon the ground that the Odd-Lot Exchange was conducting a bucket shop. Plaintiff then sought a mandatory injunction requiring the New York Cotton Exchange to furnish it with continuous quo- tations. Federal jurisdiction was invoked under the anti- trust laws of the United States. This Court said, at pages 603 and 604: ‘First. We are of opinion that upon the allega- tions of the bill no case is made under the Federal Antitrust Laws. The only possible ground on which the suit can be maintained rests in the claim that there is a violation of Sections 1 and 2 of the Sherman Antitrust Act, c. 647, 26 Stat. 209, for which appellant is entitled to sue under Section 16 of the Clayton Act, ¢. 323, 38 Stat. 737. And whether this elaim is tenable turns alone upon the effect of the contract hetween the New York Exchange and the Western Union. Independent of that contract, there is no averment of fact in the bill upon which a violation of the Antitrust Act can be predicated. The New York Exehange is engaged in a local business. Transactions between its members are purely local in their inception and in their execution. They consist of agreements made on the spot for the purchase and sale of cotton for future delivery, with a provision that such cotton must be represented by a warehouse receipt issued by a licensed warehouse in the Port of New York and be deliverable from such warehouse. Such agreements do not provide for, nor does it appear that they con- template, the shipment of cotton from one state to another. Lf interstate shipments are actually made, it is not beeanse of any contractual obligation to that effect: but it is a chance happening whieh cannot have the effect of converting these purely local agree- ments or the transactions to which they relate into subjects of interstate commerce,” Ginee interstate commerce Was not involved, how could the Interstate Commeree Commission have any jurisdie- tion in the premises? That Commission had no jurisdic- tion over any of the matters involved in that suit, whereas sn the suit at bar the Commission has complete regulatory supervision. The opinion of the Court of Appeals in the Moore case LOE OG IE DOG LG PBR emphasizes the fact that interstate commerce was not in- volved. In 296 Fed. 61 it is said, at pages 70 and 71: **(8) The complainant asks a mandatory injunction compelling the defendants to furnish to it the contin- uous quotations of prices of contracts for the future delivery of cotton made on the New York Cotton Ex- ehange. The transactions in which the latter exchange a % ss ZB % + 3 f 5 it x a abe: Ke is engaged and in which the complainant itself is engaged constitute, it is claimed, interstate commerce. The bill alleges that the purchases and sales made on the exchange ‘constitute a large and important part of the interstate commerce as between said cotton- growing states and other states, including the State of New York. That in addition to the said interstate sales and purchase as alleged for delivery from said states, through and into many states of the United States, and into the State of New York, the said in- terstate commerce involves the interstate shipments and transportation of said commodity, through and from said cotton-growing states to the State of New York, whence it is consigned and shipped te other cotton markets of the United States and foreign coun- tries for manufacture.’ The coutracts made on the New York Cotton Exchange are made in the board room of the exchange in the city of New York, and they provide that the cotton is deliverable from licensed warehouses in the Port of New York. Per- formance of the contract is made by the delivery of negotiable wareliouse receipts issued by licensed ware- houses in New York. There is no obligation to make delivery at any place except in the Port of New York. Such a transaction is local in its character and does not involve interstate commerce. The decisions of the — Supreme Court make this clear. In Hopkims v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 290, it was held that the Kansas City Live Stock Exchange was not engaged in interstate commerce under the following circumstances: It received consignments of cattle from owners in other states upon al under- standing that they should be sold and the net amount realized on the sale returned to the owners. In its opinion the Court said: se 6* * * It is immaterial over how many states the defendants may themselves or by their agents travel in order to thereby secure the busi- ness. They do not purchase the cattle themselves; they do not transport them. They receive them at Kansas City, and the complaint made is in re- gard to the agreements for charges for the services at that point in selling the cattle for the owner, Thus everything at last centers at the market at Kansas City, and the charges are for services there, and there only, performed. “