Opposition Brief — Armour & Co. v. Alton Railroad

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| E

INTHE |

— Court of the United States

; Octoser Tzrm, 1940.

yA : No. 293 |

| y | 2 ARMOUR AND COMPANY, a Corporation,

: "A ; ; neh Petitioner,

| ‘ vs.

THE ALTON R AILROAD COMPANY Y, A. Corporation;

ET AL.,

Respondents.

3 :

fae

_ _. CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILROAD COM-

-___-RANY; PATRICK H. JOYCE AND LUTHER M. WALTER, TRUS-

TEES OF CHICAGO GREAT WESTERN RAILROAD COMPANY;

AND NORMAN B. PITCAIRN AND FRANK C. NICODEMUS, JR.,

RECEIVERS OF WABASH RAILWAY COMPANY, RESPOND-

ty 7 ENTS, IN OPPOSITION TO PETITION FOR CERTIORARI.

4 |

iy . , Meyer Morton,

% 1 Maa eB ELMer W, Freyraa, |

: 2 . /| Bryce L. Hawron, :

| Frank H. Towner,

. BRIEF ON BEHALF OF. HOLMAN D. PETTIBONE, TRUSTEE OF

Counsel for said Respondents. |

THE QUNTHORP- WARREN PRINTING COMPANY, 210 WEST JACKSON, FHICAGO

. “cp

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INDEX.

Opinions in Courts OS Sea an EnenaE eee Aa a org 1

Statement of Case, Sete es itt e ee eeseees maweeg ys ‘35

Summary of Argume nt: ee eee a HERS pO ee ee +e

Argument .

» , : c

(a) The action is not one for loss or damage....

(b) The case requires a decision as to the reason-

~ ableness ef Respondenit’s practices and as to

what is ineluded in transportation, and prior

resort to the Commission is necessary...... 8

. is no alleged: violation of the Interstate Com-

oe RS See CURDS na One gene parE rr ea |

-(d) The complaint does allege a violation of ‘the

_ Interstate Commerce Act....,.........:... 14

(e) The deliveries required by Petitioner com-

pelled a payment of the yardage charges of

- the Stockyard Bee Se a A Ea gee 16

SREB REISS sige dE agra apa ae ee ‘18

red me ie

ii | if

Cases Crrep. :

Adams v. Mills, 286 U.S. 397:............ eee

A. T. &8. F. Ry. v. U. 8., 295 U. 8. 193.-.... raay 2, 8,9

Aron v. Penna. R. Co., 10 Fed. Supp. 156; 80 Fed. (2),

SNES ERT AER receipts le et oi ME a non

A. T. & S. F, Ry. v. Commission, 335 Ill. 70........... 15

Adolf Gobel v. Carriers, 200 I. C..C. 606..... ENE 13

Allied Packers v. Carriers, 144 I. %. C. 377; 161 1,

O41, ...... PMN AE Ae any Og re ean Se, tiie ae PRIS 12

B. &.O. R. R. v: Pitcairn Coal Co., 215 U.S. @i..3.: 11

Board v. G. N. R. Co., 281 U. S. 412......... teseeeee 2

Camp v. Gress, 250. U. kg eo A aaa: Sea eee

_ Covington Stockyards v. Keith, 139 Wy Ws ee ekeees 12

- Director-General v. Viscose Co. 254 U.S. 498. hte wane 2

Dinsmore v. Southern Express Co., 183 U: 8. 115...: 18

Eastern Ry. of N. M. v: Littlefield, 237 U. §. 240.....'.. 12

EK. Kohn’s Sons Co. v. ae 192 I. C C. 705; 73°

Fed. (2) 948.........0000- Bence Merk Bere 12.

_G.N.R. Co. v. Merckants Elevator Co., 259 U. S. 285, .9, 14

General ete. Corp, v. Eldorado ete. Co., 308 U.S. 422. 12,18

Hygrade - te, %. v. Carriers, 195 I. C. C.-553..... io » BT

I. C. Ry. Co. v. Mulberry Coe] Co., 238 U.S. 275...... 12

Keogh v. C. & N. W. Ry. Co., 260 U.S. Ss. ae

Loomis v. L. & R.-Co., 240 U. 8. 48.0.0... cece ee eee 12,14 -

Louisville Cement Co. v. U. S., 19 Fed. Supp. 910..... 16

» Mitchel! Coal Co. v. Penna. R. Co., 2:0 U.S. 247...... 1

Morrisdale Coal Co. v. Penna. R. Ca., 230 U.S. 304.. “il |

Midland Valley. R.-Co. v. Barkley, 276 U.S. 482.. -- 12,1 &

Medusa ete. Co. v. I. C. R. Co., 287 Ill. App. 549..... Te.

en has ee oe

: iii

N. P. B. Co, v:Solum, 247 MEA atte We

Penna. R. Co. v. Clark Coal Co., 238 U.S. 456...,....

| Penna. R. Co. v.. Puritan Coal Co., 237° U, | ee as

; - Penna. R. Co. v. International Coal Co., 230 U. 8.184... 15 ,

| Robinson v. B. & O. R. Co, 222 U. 8.506... ° TLS

Standard Oil Co, v. U.'S,, 283 U. 8. 235...6....6y - 212

1 St. L. B. & M. R. Co. v. Brownsville Dist., 304 U. S.. :

BSD Scinpwnaccctvess Vnarmenavhes ease te eis seret es .2

Southwestern ete. Co. v. Carriers, Bt a: | 12

~ Swift & Co. v. Carriers, 238 I. C. C.179......... Suissa

'. Strauss ete. Cor-v’ Carriers, 153 I, C. C. 609; 188

Pon PSR” SSR en oree Pe ieee 12

_'T.& P. Ry. Co. v. Abilene ete. Co., 204 T.'S. 426... 11, 14

T. & P. Ry. Co. v. “American ete Co., 234 U. S. 138.. 11

Terminal R. R: Assn. v. Commission, $04 Til, 312..... 13

| US Y.&T. Co. v0.8, 308 U, 8. 218..°.... pe 2, 18 >

U. S. v. American ete. Co., 301 6. We OU Vars seceeen - 10

W.& ACR. Ca. v. Commission, 267 U. 8. 498.......... 12.

- Y.&@M.V.R. Co. v. Mullins, 249 U.S. 531..........,. 18

£ SraTuTEs Crrep. a i

, interstate Commerce Act. )

Section. 13), 49 U. S. OQ. Bois ns vats ys Pawhuce nes r 3

‘Section "6(7), 49 U. 8. C. Aeeee cece ee old 14

Section 15(5), 49 U.S.C. A.. erate fee A pieces ae

Hlinois Public Utilities Act, Til Rev. ‘Stat. 1937, Chap-

ter 111- 2/3 RP Pye Dirge renee eee m es aired 13

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| \ IN THE

: Supreme Court of the United States .

| S| Ocrosen TexM, 1949.

iE ; No, 293

-(-* ARMOUR AND COMPANY, 4 coxroxanoy,

-— : Petitioner.

vs.

|) THE ALTON RAILROAD COMPANY, a corporartoy,

& | Respondents

ad ; Fd . - .

' BRIEF ON BEHALF OF HOLMAN D. PETTIBONE,

* ‘TRUSTEE OF .CHICAGO, INDIANAPOLIS AND

'. LOUISVILLE RAILROAD COMPANY, PATRICK H.

|: JOYCR-AND LUTHER M. WALTER, TRUSTEES OF

«CHICAGO GREAT WESTERN RAILROAD COM-

i PANY, AND NORMAN B. PITCAIRN AND FRANK |.

-. . ©. NICODEMUS, JR. RECEIVERS OF WARM A

" _ RAILWAY COMPANY, RESPONDENTS, IN OPPO. . ,

¢ Roe Tae oat

_SITION TO PETITION FOR CERTIORARI.

| + 3 Opinions in Courts Below.

‘As’ appears at page 3 of the brief in support of the

Petition for Certiorari, the ofinion of the District Court

heréin is reported at 27 Fed. Supp. 625,_and the opinion

of the Circuit Court of Appeals at 111 Fed, (2) 913.

y <

ae, _ «

OR, - ¢

cs Fr

ee |‘ Statement of the Case.

The Petition for Certiorari and brief, in support. thereof

- present this case as being an ordinary suit to recover dam. &

ages arising out of: the misdelivery of livestock. Thus,. -

at page 2 of the Petition it ig said that the case involves

’ the jurisdiction of the Federal District Courts to hear and

decide an action against a railroad for damage arising

from wrongful delivery of property.» The statement of

facts made at pages 2 to.4 of the Petition is greatly abbrevi-

ated, and is calculated to show that Petitioner’s-Complaint ~ x

filed in the lower court (R. 4-22) only asked for damages ©

ch resulting from ithe misdelivery of livestock belonging to it,

At page 7 of the Petition the issue in the case is simi-

larly stated.” In the statement of questions. presented, at

pages 8 and 9 of the Petition, all of the questions stated

| relate-to a railroad’s liability for failing toymake delivery *

of property,.and to a court’s jurisdiction to hear a syit to |

recover damages arising therefrom. The brief’ in support

of the Petition proceeds upon. the same theory. All this

* material creates, a false conception: of the case actually

_” made’ by Petitioner’s * »mplaint,

This. action was brought .to. recover certain yardage

charges ‘paid by Petitioner to the Union Stock Yard and

‘Transit Company. of Chicago (hereinafter called the’

“Stockyard Company’’) for the use of the facilities and

property of -the Stockyard Company by Petitioner’s live-

stock consigned to’it at the Stock Yards in Chicago. The

general ‘circumstangés aftendant upon the use of those

. facilities for delivery of livestock are fully set out in the

decisions of this Court-in Adams et al. v. Mills, 286 U.S.

397: A. T. & 8. F. Ry. Co. et al. v. United States,.295 U.S.

193; and Union Stock Yard and Transit Company v. —

States, 308 U. S. 218. : ‘

The allegations of Petitioner's Cceestatet may he briefly

ae?

> .

+. ; ae as

stated. For many years Petitioner has owned and operated

a meat packing plant-adjacent to the Stock Yards in Chi-

~ eago, Which Stock Yards are owned and operated by the

Stockyard Company (Rk. 4). .Each of the Respondents.

herein owns or operates a line of railroad serving the Stock.

Yards (R. 4,5). Each Respondent designates Union Stock

~ Yards, Chicago, Illinois as being a station on its or their

. line of railroad, the station thus designated . by. each Re-

. *spondent consisting only of facilities owned by, the Stock-

yard Company at the Stock Yards and used in making

deliveries of livestock. consigned to partes located there

_ (R. 6). Zeiphe 3

‘In the course: of its inne, Petitioner _ purchased

and shipped to itself at the Stock Yards over the. lines of

Respondents, .niimerous shipments of livestock . (R. 8, 9)

which, upon arrival at the Stock Yards; were then unloaded __

- and delivered to Petitioner (R. 10). In rendering the serv-

ice, Respondents hauled the cars to the Stock Yards with -

their own power, and upon arrival the livestock.was then

~~ unloaded by employees of the Stockyards Company through

‘the use of the facilities owned by the Stockyards Company

(R. 8). After unloading, the animals were put into pens

of. the Stockyards Company or were delivered to Peti-

‘toner and removed to its plant (R. 9, 10).

None of the Respondents own any unldéading or storage

facilities for livestock at the Stock Yards, and all animals _

consigned to that point were and are required. to be un-

ldaded, stored or handled through -the use of or over

facilities owned by the Stockyard Company (R. 7). The

‘Stock Yards dre -publie stock yards subject to the jurisdic-

tion of the Sec retary of Agriculture under the Packers and

Stock Yards Act (7 U.S. C. A.- See. 202) ‘(R. 7) and. the

Btockyara Company is required to and does file: with the

‘Secretary of Agriculture its tariffs showing its charges. for

all stock yarés services performed by it.

For the services performed by it on livestock con-

Be brought this suit in the Circuit Court of Coak County (R. .

signed to Petitioner at the Stock Yards, each Respondent -

colle ‘transportation charges from Petitioner in accord.

ance with its tariffs on file with the Interstate Commerce .

Commission (hereinafter called the ‘¢Commissi i") or the :

Illinois Commerce Commission (R. 7). Out-of the amounts |

thus collected Respondents paid to the Stockyard Company H

its charges for unloading the livestock, the assessment of

- these charges ‘and their payment by Respondents being. j

authorized by tariffs of the parties on file with the Com. }

mission (R. 8).* :

‘ Under its tariffs on file with the Secretary of Agrivaltnp :

(R. 11, 35, 36) the Stockyard Company also collected from :

Petitioner a yardage charge on such livestock (R. 14, 15), ;

the yardagé charge being compensation. to the Stockyard :

Company for the use of its facilities and property .by stich |

animals after they—were unloaded. . Thus, Respondents’ §

charges for: transporta¥ion and the. yardage charges of the

Stockyard Company. were paid by Petitioner,. and the |

charges of the Stockyard Company for unioading the live-

stock were paid by Respondents. These practices have ©

obtained for many years (R. 6, 8, 10, 11). ed ae

In 1933 Petitioner demanded the right to remove its live-. 4

stock from the Stock Yards without payment of the yard- ©

“age charges of the Stockyard Company (R. 11, 12) and §

. served notice upon the Stockyard Company and Respond. «

ents that it would no longer pay tothe Stockyard Company ©

those yardage charges on livestock’ delivered to Petitioner -”

through the Stock Yards. Upon the refusal. of the Stock- FE

‘yard Company to release livestock consigned to Petitioner ©

d without payment of such yardage charges (R. 11, 35, 36), :

Petitioner agreed to pay the charges (R. 15) and thereafter =

' 38) seeking to recover all of the yardage charges which tt y

had. thus paid to the Stockyard Company and to secure 4 ©

mandatory injunction requiring Respondents to make fi-. |

+5 | arts Saar

ture delivery of Petitioner’s livestock to it at the ‘Stock ae

Yards without the payment by it of, any charge i in addition

= to that provided for i qn the tarifff’ of Respondents on file’

with.the Interstate and. State Commissions (R. Zi). :

; Petitioner does not claim any physical dainage to its

a ‘livestock or that delivery of such livestock was not made

* to it.at the proper destination. ‘Nor is there any claim

’ that. the charges paid by Petitioner were improper in-

_ amount .or that they were not contained ip_tariffs on file

--with the Federal and State Commissions or the § Secretary |

of Agriculture.. The.claim actually made is that. Respond- |

* ents should . delivered the livestock at the Stock Yards

"been required to pay the yardage charges of the Stockyard

Company (R: 16, 17). This delivery could only have been

_ accomplished through the payment of the yardage charges

- by Respondent, since deliv ery of livestock at the Stock

Campany ini addition to. those used in unloading.

- All charges*of misdelivery and failure to make delivery,

contained i in the’Complaint (R. 10, 13, 14, 15, 16, 17, 18, 22).

- are based Ypon the failure of Respendents to pay those

yardage charges. Thus, the real questions presented’ for de-

cision aré whetlfer the practices of Respondents in making

__ delivery of the livestock at the Stock Yards were and are

' unreasonable, and whether the services of the Stockyard

Company, for which it collected the yardage charges, were

and are a part of the transportation of the livestock.

aa at .

under such cif umstances that ‘Petitioner would not. have

. Yards can only be made by using facilities-of the Steckyard- —ananees

- a F 3 bad ;

a -. SUMMARY OF ARGUMENT. =

- a

. be ee, ‘,

. E Y ‘1 ae ‘This case. does not involve any question of loss of

or damage to Petitioner’s livestock. For this reason, deci-

. sions Telating t6 tRat subject have no application.

of Respondent’ Ss present practices, with réspect to the de-

livery of livestock at the Stock Yards, and the questioti of .

- what is included within the transportation and delivery .

of that livestock. These questions will not be ‘passed upon .=

DB Surt in the absence of a prior adjudication by the

Federal or State commissions.

-(e) Even if. Petitioner’s complaint did not allege a

violation of the Interstate Commerce Aet, the courts would

still not act in this case. The right to proceed herein does”

not result from a form of, words.

(d) -The complaint actually does allege a viol. ition of |

- tthe Interstate Commerce Act, in tha? the amounts sought

to.be recovered are said to’ be due Petitionet because of

Respondents’ failure to have on file a tariff justifying the

collection of the gmounts. | 2 a ees

(ey Under the facts alleged i in ‘the icouiplasnt Roaeks

ents con not have made’ delivery of Petitioner's livestock

in accordance with the billing instructions without using the

facilities of the Stockyard Company. Petitioner’s. method

ae)

of consigning these shipments compelled a use of those

facilities, with a ‘consequent obligation te pay the charges

of the Stockyard ey: .

+ 4

———

{(b)<The real issues in the case are the reasonableness. 4

Ah Sai SFA S RENE ACESS IRAE PARIS AN, AA AER ARE D.

, 5 r .

ARGUMENT. |

. ot. ;

THE DETERMINATION OF THE ISSUES PRESENTED FOR DECI- |

SION REQUIRES A DECISION ON THE REASONABLENESS OF .,

RESPONDENT'S PRESENT, PRACTICES, AND A DETERMINA-

TION OF WHAT IS EMBRACED WITHIN THE SERVICE OF’

"TRANSPORTATION AND DELIVERY OF PETITIONER'S LIVE-

STOCK BY . RESPONDENTS. THE EXCLUSIVE PRIMARY

_ JURISDICTION TO. DETERMINE THESE QUESTIONS Is VESTED

IN THE INTERSTATE COMMERCE COMMISSION’ AND THE

- ILLINOIS COMMERCE COMMISSION, AND THIS SUIT CANNOT

BE MAINTAINED, ‘WITHOUT A SHOWING OF PRIOR RESORT

TO THOSE COMMISSIONS,» =-~- “°

” Following the theory of. the Petition, the brief‘ in sup--

port of the Petition argues thaf since courts hdve primary

jurisdiction to’ determiné questions of loss and damage

arising out of the misdelivery of or failure to deliver prop-

erty, this action was properly brought in the courts; that

“this is demonstrated by the fatlure of tHe ollsaliaet —

allege a violation of the Interstate Commerce Act; and:

—that even if the complaint be held to allege the coleution

by Respondents of an.overcharge, the ccurts still have juris-

diction. It is’further argued that Respondents arbitrarily

imposed upon Petitioner the obligation .of* paying the .

~~ charges of the CLockyard Company by electing to make’ a

delivery at the Stock Yards, although they could have

made the delivery at other Boia whereby the charge would

/have been aa! .

i, (a) In view/of the issues ohenitr prepeuted by Peti~

tioner’s complaint, it is unnecessary to consider the loss

and damage decisions cited in the Petition (pp. 18, 19, 20- ‘

22) and sda brief. Fo the purpose of this argu: hin

rs y

/ ment, it might be admitted that the genera Tule is that :

a aa

ay | sae

_ brought in the courts. ~

of tat sort. The theory of the complaint is tliat Respond-

Petitioner was rélieved of the necessity of paying the yard...

| what. ‘was’ included in the transportation and delivery of

"go provi dgd except i in cases wheré the law or Respende

' ing charge of the Stockyard Company was paid by the >

_ railroads voluntarily. ° Under Section 15(5) of the Inter- - |

when a.common carrier“receives propert, {6r transporta-

tion, it has a: legal obligation to deliver such property at .

the proper destination to the proper consignee. For the °

purpose of this argumerit, it might also be admitted that”:

generally speaking, suits for loss, damage, injury to or mis-

delivery of property. by eer carriers wai Properly,

_—-But the case thade by Petitioner’ S complaint i is not a case

ents did not fully discharge their duties with respect to the . s |

transportation and delivery of Petitioner’s livestock ia.

that the livestock were not delivered in such fashion that

age. charges of the Stockya4rd Company. The decision of

~this question requires a decision on the reasonableness of

“* Respondent’s. present practices and a determination of &

_ that livestock. Decisions in suits for loss, damage and mis-

delivery have no application to these questions.

“(b) Genérally speaking, the duty of loading and unload:

- ing carload freight rests upon a shipper: or consignee. The

- contracts under which Petitioner’s livestock were shipped

tariffs provided otherwise (R. 29). But.at the Stock Yards , :

the practice. has-long-been otherwise. A. T. dS. F. R. Co.

v. US., 295 YJ. S. 193, 198, 199. Prior to 1920, the unload-

state Commerce Act (49 U. S. C? A. Sec. 15(5)) the obliga. [7

tion to pay these chatges was placed upo:. the railroads. -+~

There: still remained, however, the ica whether the .

—

ae éigaieeot over. fhie-qiiestion ied to the décision i in 4 T.

“@ 3. PF. R. Carv. U. S.; 295 U.S. 193, The Interstate Com-

_theree “Aet does not define transportation beyond providing,

in paragraph 3 of Section 1 (49 U.S. C. A., See. 1(3)), that

the term transportation, shali include locomotives, ete>and

all instrumentalities¢ and facilities . of shipment, and all

services in cormection with the receipt, ‘delivery, ete: of.

property transported. Thus, while delivery i is included in

the term transportation, the statute: does riot say what i is.

- meant thereby. .

‘It cannot be assumed that the obligation of Respondents

- to deliver Petitioner’s livestock at the Stock Yards included :

an obligation to give -a free delivery of that livestock

through the” use of the facilities of the Stockyard Com-

pany. No] provision of the Interstate Comnierce act i imposes

' such an obligation upon Respondents, nor is it’ imposed '

by. their contract of transportation. To determine what

was ytroperly- included in.the transportation and delivery,

of: Petitioner’s livestock at.the Stock Yards, and whether

Respondent’s present practices are reasonable, requires:

a consideration of inany ‘intricate facts and cireumstan¢es

in connection with the handling of the shipnients. a aa

determination, ‘is committed to the exclusive : prim ry

, jurisdiction of: the Federal and State Commissions.

The rule is that where an inquiry. is essentially one| of

fact or.requires consideration of intricate facts of trans-

portation or customs or usage, the courts will not act} in

ihe absence of a prior determination by ‘the Commissijon.

In G. N. Ry. Co. v. Merchants Elevator .Go., 259 *

285, the question before this Court was the legal. ¢

struction of a tariff. This Court held that under

circumstances there pr esent a court would have jurisdic- .

tion, but: took occasion to say (p: 291) that initiai- resort

to the Commission must be had where it? is. necessary to

determine upon evidence the- peculiar meaning of words

we . . a P ‘eb ‘

‘ ry “ : ~ %

ad 4 coal : ‘ < oe : tee

°. ° 10 a

‘or the existence of incidents | alleged to be atteiched by

7 usage to a transaction, this preliminary’ resort: to the

‘Commission being necessary in order to. produce the.-uni-

formity which. it is the purpose of the Interstate Com- ;

- marce. Act. to’ secure. Certainly,, the determination of

what constitutes a delivery . of livestock at the Stock

* Yards would have to be reached upon “voluminous | and

conflicting evidence” with. respect to ‘intricate facts of

transportation.’’ It has been so held by this Court j in .

Adams -v. Mills, 286 U.S. 397, where the issue :was the

obligation of consignees of livestock located at (the Stock

Yards .to pay a 25¢ charge for unloading inbound ship- ©

ments, which charge the railroads had, refused to pay. ;

This Court said-at page 409:

‘Whether the unloading at the Yatds was a part |

of transportatior.was: not a pure question of law to’

be determined by merely reaching the tariffs. The’

decision of the question was dependent: upon the de-

termination of certain facts, including the history of

the ‘Stock Yards and their relationship to ‘the Tine .

haul carriers, the history. of the unloading charge of .

these ‘Yards and the action of. the parties is* relation.

_thereto.”? |

hs U.S. v. dmertion Sheet or Co., 301 U. S.. 402,. the ,

industry attacked an order of the Commission requiring

the railroads to discontinue free spotting service. ‘The

- contention of the industry as stated by this Court (p.

404). was that the spotting service was transportation

within the Interstate Comrterce Act. This Court held.

(p. 407) that the findings of the Coinmission constituted

an adjudication that the, spotting -service involved was

not transportation service, and further held (p. 408):

‘The Commission is clearly in power to-determine

what is embraced within tlie service of transporta-

‘tion and what lies outside that service.’’

‘The same conclusion was reached in Louisville Cement

Co. v: U. Set al., 19 Fed. Supp. 910,-which case involved —

% doe. - “pe i ery

—_—_ . d ‘ ° \ 2 3 ra.

foe a

the propriety of ar! order~of: the Commission donidernsing ies

‘the same spotting service. The Court said (p.: 916) :

“Tt is frequently. difficult to determine when ms ,

_ livery is completed or transportafien begun. It is:

- a question of fact and the Interstate Commerce Com-

’ mission is peculiarly fitted ‘to determine at what

point thé carrier has- begun. or’ oe straight |

transportation. cha | | ?

ae Mitchell Coai Co. v. ‘Peaies R. Co. 230 U. §. O47,

the question was where transportation began. This: Court

(p. 263) : es : ,

} ‘‘But neither the statute nor the tariff defines what

- are station limits, nor do they fix the exact point

from which - the transportation must begin, nor the

territory within: which the deliver? must be made.

These limits necessar‘ly: vary with the size of the

communities; the extei't of the yards, the practice of ~

the carriers, and: the bounds within which it~ uni- |

formily receives and delivers freight. iy

Thus, the qinetions of the reasorfablerfess of Respond.

ent’s practices and what is included in transportation by

case, have been definitely held to be -within the Commis-

_,’ was based upon the facts obtaining at the Stock; Yards.

| here involved. The’ rule with respect to the Commis- >.

sion’s exclusive primary jurisdiction has been applied to

many phases of, car rier activity, such as the reasonable-

Tess of rates, car distribution, allowancés to shippers,

a classification of tommadities, routing, etc.: 7. é P. R. Co.-

1 v. Abilene ete. Co., 204 U. 8. 426; B. é O. R. Co. v. Pit-

cairn Coal Co., 915 U. S. 481; Robinson v. B. é O. R. Co.,. °

222 U. 8. 506; Mitchell Coal Co. v. Penna. R. Co., 230 U.S.

246, 256; Morrisdale Coal. Co. v. Penna. R. Co., 230 U. Ss.

804, 313; T. & P. R. Co. v. American Tie Co., 234 U. S. 138;

146; Pine, R. Co. v. Clark Coal Co., 238 U. Ss. 456, 469 ;

held that resort to the Commission was necessary, saying. as

railroad, which are the ‘exact- issues presented in this - 2

sion’s primary jurisdiction, and one. decision so holding

=F.

a 1

-Ipomis ¥. Lehigh Valley R:€o., 240 U. S. 43, 50; Northeri

Racific R. Co. v. Selum, 247 U. S. 477, 482; Director Gen

eral v. Viscose @o., 254 U. S. 498, 500; Keogh v. C1. dN

W. R. Co., 260 U. S, 156, 163; W. &A. R. Co: v. Commis

sion, 267 U. S493, 497; Midland Valley R. Co. Vv. ‘Barkley

276. U.S. 482, 484; Board v. Great. Northern R. Co., 28)

UL & 412, 420-424; Standard. Oi Co. v. U. S., 283 U. S

235, 238, 240; St. i B. & M. R, Co. v. Brownsville Dis

trict, 304 U.S. 295 5, -General ete, Corp. v. / Eldorado etc

Co., 308 U.S. 422. .

There are no ‘cases ‘Wolding contrary to those to whicl

"we ab cited... Petitioner’s brief (pp. 14, 15) refers. t

the Pi .

- field case, 237 USS. 140, and’ the Mailberry Hill,Coal Co

ease, 238 U: S. 275, but these cases. are not applicable

uritan Coal Mining Co. case, 237 U.S. 121, the Little

All wf them were ‘referred to ‘and distinguished by. this

Court in the Barkley case, 276 .U. S. 482, 486, 487. Coving

ton Stock Yards v. Keith, 139 U. §. 128,. heavily relie

upon by Petifioner, is not in point. That case. lays dow!

genefal rules of law with respett to transportation am

deljvery ot property by railroads, but the cause of actjo1

arose prior to the effective date of the Interstate €om

merce Act.. If the case arose’ under the law now applica

ble, there can be no doubt that the decision world be i u

conformity with those we have cited. . :

‘The ‘precise, issues presented: for” POS ar in thi

case haye™ been. submitted to the Commis ssion many times

and have been decided by it under varying facts and it

connection witl? deliveries at, various public stoekyards

Examples of the exercise of the Commission’s jurisdictior

are the-decisions in Southwestern ete. Co. v. Carriers

129 I.°C. C. 730, 737, 738; Allied ‘Packers v. Carriers, 14:

LC. C.. 377, 382, 161 LC. C. 641, 645; Strauss etc. Int. v

Carriers, 193 1. C. c. 609, 188 I. C. C. 487; E. Kahns. Son

‘2 ee

. @e

Pais

oa oe Sees

Hygrade etc. ‘Corp. v. Carriers, 195 L C. C. 553, the Com-

mission also exer rcised | its primary jurisdiction to de-

termine these issues at the Stock Yards in Chicago, , its

, order being, revie owed’ and reversed . this Court in A. <:

€68. F. R,Co. v. U. S., 295 U.S.

8, 1940, in Swift & Co. et al. y. Alton R. RCo. et al., 238

I. C. C. 179. In that: case the Commission held that the

and that it had no-jurisdiction over the yardage charges of

the ‘Stockyard Company. A tontrary decision herein

= would+credte the very lack of uniformity condentned by

- this Court. An interesting feature of that case was that

| stating in its intervening petition | that it had instituted the

. _ ase. at bar and that the case involved ° substantiatly the

.- same issues.as the proceeding, before the Vemmaanton ard

prayed for similar relief.

‘The Iinois rule is the same as that ae by this

Court.. The Illinois Public Utilities Act (IIL Rev. Stat.

the transportation and delivery of livestock. The deci-

. Sions of this Court have been held to be persuasive in de-

termining questigns ‘arising under the Illinois law, Termi-

: | nal R. R. Assn. v.. Commission, 304 Ill. 312, and the rule —

has. been applied ‘in Illinois upon the authority of’ this

fourt’s decisions. . Medusa, etc. Co. ¥. I. C. RB. Co., 284

Til. App. 549. Sagres bl eae

-n0 violation of thé Interstate Commerce Act, and ‘that

tion in the Commission. We do not conctde the correet-

| - ness of the claim, but even if “the coniplaint did not éon-

a tain stich an allegation, it would not deprive the Commis-

- 950, and Adolf Gobel v. Carriers, 200 I. C. C. 606, 608: In

; The Commission’s last TANS on the situation: ”

at the Chicago Stock Yards was made as. recently as April,

transportation of livestock to the Stock Yards ended when —

the livestock had been unloaded into the unloading pens,

Petitioner intervened in support of the complaint, therein,

- 1987, Ch.'111-2/3) does not prescribe what‘is included in.

this circumstance defeats any claim of primary jurisdit- *

’

- sion of jurisdjction. In the Abilene Cotton Qil Co. case,

— 204.U..8. 426, the actioy was for damages for- a. violation

of an allegéd commen law right (p. 432)¢ In the Loomis

case, 240 U. S. 43, the. action was-for damages resulting -|

from the claimed failure of! the railroad to perform its

common law duty to furnish cars (p. 47). This was also

true in the Barkley case, 276 U. S. 482, 483, 484. It is

certain that the jurisdiction of the Commissios cannot be

defeated by any-form of words.

(d) ‘ While Petitioner argues that its complaint ‘eon

tains no allegations of a violation of the Interstate Com-

merce Act, yet that is the effect of the allegations made.

While admitting that all charges: paid by it were war- '

ranted by tariffs OM file with the State or Federal Com-

missions or with the Secretary of Agriculture, Petitioner

still wants Respondents to refund to it all yardage charges ~

3 which it has paid’ to. the Stockyard Company (R. 21), |

‘and ‘to pay the yardage charges of the Stockyard Com-

pany on futire shipments.

It is claimed that by making deliveries vita required

Petitioner, tO, pay these charges, Respondents subjected .

Petitioner. to the enforced payment of charges not justi-

fied by any tariff of Respondents on file with any Com-

mission (R. 8, 13, 14, 17, 18). This amounts to a claim

. that Petitioner has beén required to pay charges in vio-

lation of Section 6(7) of the Interstate Commerce Act.

Nor i is this a claim whith‘ can be decided by a court from

a mere reading of tariffs, as in the Me rchants Elévator Co.

case, 259 U. S, 240. If any court granted Petitioner a re-

covery, it would be ‘first required to determine the pro-

; priety. of the yardage charges of the Stockyard Company,.

since the payment of those yardagescharges by* Respond-

“ents would in effect be an allowance to Petitioner. It

would then be required to pass on the propriety’ of Re- .

spondents’ charges for the transportation of Petitioner’s

P aE : : .

— ®

*, Se ay a vr oe

Rape RE a ENO See LRN So OE Spero RENO LY TO eet gay

reg

15.

“‘geestock to Sateen if they should be reduced by the |

amount of the allowance.

~ So long as they are in effect, the tariffs of Respondents ,

and of the Stockyard Company have the force and effect. -

» of statutes, both as to interstate and. intrastate traffic.

Penna. R. Co. v. International Coal Co., 230 U. S.. 184; .

Atchison & S. F. R. Co. v.. Commission, 335 Ill. 70, 85, |

6. But.the granting of Petitioner’s complaint would nec- ‘ ~

essarily require a reduction in Respondent’s tariff charges,

since the yardage charges of the Stockyard Company inust

be paid by someone. it is elementary that a court will

not undertake such an inquiry with respect to the rates

and charges of Respondents and the Stockyard Company.

An effort at recovery somewhat similar to that now

being made by Petitioner was made in Aron v. Penna. R,

Co., 10 Fed. Supp. 756. In’ that cast the’ plaintiff. sought

_to recover froin the railroad ainounts which the railroad.

had paid to certain stock yards for. servicing livestock, , '

and whieh the railroad had*then collected from the plain-

_ tiff. The claim was that ‘by collecting these charges from

the plaintiff after- having paid them to the stock yards

“eompany, the railroad had collected a charge not included.

_in its tariffs. .The Commission had previously held that

the service performed by the stock yards company was a

" part of transportation, and had viii the charge made

therefor.

Under -these eireunistances the. court denied the claim.

- (pp. 760, 761) upon the ground that a recovery would re-

quire the court to decide ‘‘upon a subject which lies within ,

the special jurisdiction of the, Commission.’’ This deci-

sion was affirmed at 80 Fed. (2) 100, where the Court of

. Appeals held (p..101} that the question of whether the

Services involved were a part of transportation was a

question of fact, and (p. 103) that since there had been |

no finding by the Commission with respect to the plain-

i 16 : i

tiff’s claimed: damage, there could be no recavery in a

~ court of law.

fe) Petitioner endeavors to poor the application of

the cases we have cited by arguing at length that the de.

livery of its livestock to: ‘tthe unloading facilities of. the

Stockyard Company was a voluntary act on tlie part of

Respondents ; that they could have made other deliveries

of the livestock at, points within the station known as

Union Stock Yards, Illinois, and thus avoided the i IMposi- °

tion of yardage charges of the Stockyards Company, and

that sitice they voluntarily elected to make a delivery re

sulting in the assessment of the charge, Petitioner should

not suffer as a result thereof.

’ Thus, the Petition states that the. Stock: pas did not

which the livestock was consigned: (p. 3); that Petitioner ;

left the selection of the delivery point within the station #

limits to Respondents (pp. 5, 17), and that. the Court of i"

‘Appeals has held that this election of Respondents de-

prived the courts of jurisdiction in the case ¢p. 18). This

“claim is reiterated atsnumerous places i in the brief, and is 3

laborateti at pages 21 to 32, both inclusive. Upon the |

Rais of this argument,. the Petition assigns as a ground 5

for granting the writ a claimed | incoifsistency between

decisions of this Court (pp. 5, 10- 15).

In making this argument, Petitioner has misconceived |

or overlooked the a’ gations of its complaint. Paragraph

4 of that complaint (R. 6) alleges the publication of rates i

by Respondents to their statign known as, Union Stock *

Yards, Illinois. Paragraph 9 (R. 8, 9) alleges the ship-

ment of the livestock here involved to the station Union | :

Stock Yards, Ilinois.. Paragraph 3 (R. 5, 6) alleges that. @

as to all livestock shipped to Union Steck Yards, -[hnow,

Respondents use a common depot or stafion,for unloading P

and delivering livestock, which ‘station is said to incjude

itd 0X ate Pah Tas Be bisa

inched ty Regen

i -

fee ee

Pare

‘e oe: |

“the platforms, deities, pens and other facilities riecessary

in the delivery of such livestock. - - Paragraph 4 (Re 6)

alleges that the unloading facilities described in para-

_ graph 3 are owned and operated by, and dre located on

_ the property of, the Stockyard Company, and that they

are the facilities which ‘‘have been designated and used.

by each of the Defendants as their station.or depot known

as Union Stok ‘+k Yards in the City of Chicago, Htinois, for.

the delivery of livestogk.’’

Supplementing these charges are allegations that Re-

spondents have no fagilities at Union Stock Yards, -Illi-

_niois, for the unloading and. delivery of livestock other —

than those lof the Stockyard Company (par. 7, R. 7); that—~

Respondents knew they~could not complete the transpor-

tation. of Petitioner’s livestock. to Union Stock Yards, |

Illinois, ex¢ept by. using the facilities of fhe Stockyard,

Company (jar. 19, °R. 13), and that Petitioner’ s only de-

sire is to ba per mitted to use the facilities of the- Stock-

yard Company at Union Stock Yards, Hlinois, without

expense (parr. 24, 25, R. 16). All this reduces to,allega-

- tions that all shipments here involved were consigned to

a station known as Union Stock Yards, "Ilinois; that that

station consisted of: nothing but the unloading platforms

and other facilities owned and operated ‘by ‘the Stockyard |

Company and through the use of which livestock was’ un-

loaded and deliv ered; and that there were no other facili-

tiey.within the. limits of that station which could be ‘used

‘in unloading and delivering the shipments.

. The complaint ‘contains no suggestion that Respondents

could have delivered Petitioner’s livestock at U nion Stock

Yards, Illinois, in any other manner than by using the

facilities of the Stockyard Company. If results that by

billing its livestock to. Union Stock Yards, Mlinois, Peti-

“tioner compelled a use of facilities of the Stockyard Com-

pany and a payment of its charges. And Petitioner was:

; _ 308 U. S. 422: We submit me the Petition for Certiorari

ra ‘

18 .

- fully aware ofthe fact, as the practice had been in effect

- for many years (R. 6, 8, 10, 11). The claimed inconsist. -

ency between the decisions of this Court is fanciful. See

U.S. Y.& T. Co. v. U. S., 308 U, S; 213, 219.

‘1... 7? :

Conclusion.

The Petition and brief i in support thereof, contain vari-

ous criticisms of the decision of the Court of Appeals, to

‘which we have made no answer, since we submit that no

importance should, be attached to. these criticisms, even if”

they were well- founded. Under the law, the decisions/of

the District Court and the Court of Appeals” were corredt 4

fcr the reasons which we’ have assigned, and since a |

correct conclusion has been reached, the niethods by which |

those courts may have reached that conclusion are of no.

consequence. Dinsmore v. Southern Express Co., 183 U:8.

115,121; Camp v. Gress, 250 U. S. 308,317; Y.&-3f. V.

_R: Ca. v. Mullins, 249 U. S. 531, 532. |

For the reasons assigned in the opinion of the Court:

‘of Appeals (R. 85), this is not a case which should remain |

pending in court under the holding of this Court in Gen @

eral American Tank Car Corp. v. Eldorado Termindl Co.,

should be denied.

Respectfully submitted,

Meyer Morton,

ELMer W. FReytaa,

‘Bryce L. Hami.ron,

my Frank H. Towner,

ar Attorness for said Respondents. .

——

’

ee ae

vieeied baae

)

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