Petition for Writ of Certiorari — Midstate Horticultural Co. v. Pennsylvania Railroad

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Sn the this Court |

OF THE 013°

United States eee |

Real

OcTOBER TERM, 1942

No. $13 16

MipstaTE Horricunrurat Co., INc., | -,

= Petitioner, | 2

Vs. se. . |

THE PENNSYLVANIA RAILROAD CoMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the Supreme Court of the State of California -

me and lt :

BRIEF IN SUPPORT THEREOF.

~ . | Hmam W. JOHNSON,

i ‘| THropore H. Rocue,

) JAMES FARRAHER,

Mills Tower, San Francisco, California,

scot Attorneys for Petitioner.

‘THEO. J. Rocue, |

GpORGE A, STOCKFLETH, ©. *

Mills Tower, San Francisco, California,

" %

Of Counsel, 3

Summary of pvint involved..................:....0..

The point was presented to California Supreme Court. .

» California court’s decision is directly contrary to this

court’s interpretation of the act......... icuneeukes

2 Ce ccc cite susnsennsan biacwewnauet

This court’s jurisdiction to hear petition............. "

IR ics casts a stakes aacikardasanuieareanbextd

eee eee 0 eee ac aseeUadeowe cou kek bans

California court.misled ia a “pederal trial court decision,

into ignoring this court’s decisions.................

Unsupported trial court decision in Susquehanna case.

This court’s decisions on the point......:...-.......-

Sec. 16: of Commerce Act is all embracing and applies

to all actions at law regardless of their origin or.

Character? ..... 5... cece cece eee ete ee eect eee e eames

Circuit Courts of. Appeals decisions following Phillips

ease decision by this court:............-.. Kihenene

Alleged waiver of limitation statute void because pro-

hibited by.Interstate Commerce Act as a discrimina- .

ear passe eccsecevececeeseseneseeeeces <<

Comelasion 5...) geen ccc cc ccccccccececeeeeccanscacés

28 ,

22

35

Se

Table of Authorities Cited

| Cases Oe a Pages -

American Ry. Express Co. v. Shideler (Ind. > 165 N. E, 336. 34

Arkansas Fertilizer Co. v. United States, 193 Fed. 667..... 24

“Blodgett Co. v. N.Y. Central, 159 N. EB. (Mass.) 45 io saan 25

Button v. A. T. & S. FP. Ry. Co.; 1 F. (2d) 709............ 25

Chicago I. & L. Ry. Co. v. Peterson, 169 N. W. (Wis.) 558 25.

‘Chicago &.N. W. Ry. Co, v. _o. rt Case Plow Wks., 180

N. W. 846 Ken aaed Chihanabeane cei vedaees cs seeeees 25

Kansas City ete. Co. v. Wolf, 261 U. S. 133, 67 L. Ed.

PU NGELGndehadea ance ccnatcenekercacewachaksiss ++ 12, 15, 20

Kirkpatrick Co. v. I; C. R. Co. (Miss.), 195 ee 26,27 .

ee ee ee ena ead bbe aa ee 24.

Penn. R. Co. vy. Susquehanna C. Co.; 23 F. (2d) 499........

Liebed Pak en beats Rds Cabanas . ..12; 15, 16, 23, 31, 35

Paltigs v. Grend Trunk, 236 U.S 662, 59 L. Ed. 774..... ae

oe Seen conc nee OE DS RS RES: * 15, 17, 18, 19, 21, 23

Spartan Mills v. ’ Davis, Director Gen. (S. C), 119 §. E.905 25

“Texas an -R. Co. v. Leatherwood, 250 U. S: 478, 63 L. Ed.

MOE oexciii cj cuamnascenn en pisehinpas ep Ducts veen the 26

U. S..ex rel. Louisville Cement Co. v. Interstate Comm.

Comm., 246 U. S. 638, 62 L.Ed. 914.......... \....18, 15, 21, 22

-- United States ¥: meni Gap Go.,-270-U--S:-512;- 76 Ea

4 EEE nae ooh ceackwnes Cagdenseceuseesl Ci viekgen ds khewne 34

~ Vicksburgh. ete. R. Co. v. Paup, 47 F. (2d) 1069........... 25

wwe’ Bridge & Tron Co. v. Illinois Terminal Co., 88

FP, See Mc awdwadasesuans nes stpeeeeees a rere 15,22

TABLE OF AUTHORITIES Crrep iii

Other References Pages

The Statute Involved, Sec. 163(a) gr err 2

* This Case: — e -

Reference. to. conteiee of California District-Court of

_ Appeal... wwe ee sa aa eeoeceseerececeeeeseee Fe eeeses 5 7,8

- Reference to decision of California Supreme Court... .10, 31

: This Court’s Jurisdiction :

See. 237 Jud. Code [28 U.S.C.A. 344(b)].......... ae

ae Permitting Filing of this Petition : . ie

> Rule $B(S)(a) ....ccceeccccetecececcceees tt eeeees 14

— St the Supreme Court

Hnited States

OCTOBER TERM, 1942

No.

- sf

MupstaTE: ‘Hornicv LTURAL Co., INc.,

"Petitioner,

- ; —

THE PENNSYLVANIA RAILROAD. CoMPANY, .

_ Respondent. Er

ae: _ PETITION FOR WRIT OF CERTIORARI

to the Supreme Court of the State of California.

To the Honorable Harlan Fiske Stone, Chief Justice —

of the United States, and to the Associate Justices

of the Supreme Court of the United States:

_-Your- Te ona aon nme mee marae Inc.,

respectfully shows that: :

This petition — is. concerned with the construction

placed upon Section 16 (3) (a) of the Interstate Com-

merce Act by the Supreme Court of the State of Cali-

“fornia, which petitioner contends is’in direct contra-

- clean-cut legal proposition.

- diction of the interpretation placed-upon that section

‘loads of grapes from California, each of which was

(R-; 101-102, fols. 155-157) and another dated Novern-

2

by this Court and by every Federal Appellate Court —

which has been called upon to consider the section.

Section 16 (3)(a) of the Act reads:

' All actions at law by carriers subject to this.

~ chapter. for recovery of their charges, or any part

thereof, shall be begun within three years from |

the time the cause of action accrues, and not

after.” (49 U.S.C. ‘A,, See. 16 (3) (a)s) |

*

SUMMARY OF THE POINT INVOLVED. .

* This application presents for considersition : a singh |

In October and November of 1932 ‘sean car-.

rier transported on petitioner’s order twenty-one éar-

originally consigned, or, while in transit, diverted to

‘Jerome Distributing Company-at a stated destination 7

located either in New York or New Jersey.

None of the transportation charges for such grapes ,

was prepaid by petitioner: Although respondent car-’

rier was legally obligated to collect such transporta-

tion charges from the Jerome Distributing Company.

upon. delivery to it of the shipments; instead of so

~ doing, in purported payment of such: and other

charges (R. 104, fol. 160), it accepted from Jerome

Distributing Company, three checks, viz., one dated

November 21, 1932 for $10,433.46 (R. 100-1, fols. 153-

-.155), another dated November 22, 1932 for $7035.19

¢

3

ber 19, 1932 for $9237. 11: (R. 103-104, fols. 158-159.) ~

Photolithographs. of these checks will be found on’

pages 159 and. 164 of the record.

At or about the time ‘these checks were accepted,

_ respondent receipted-in full the freight bills covering

the shipments above mentioned and delivered them to

the consignee, Jerome Distributing Company (R. 111-

114, fols. 170-174), which in turn sent them to the

consignor, petitioner herein, obviously for the purpose

-- of convincing petitioner that the. transportation ©

charges had been paid. (R. 153-155, fols. 231-235.)

The bank upon which the Jerome Distributing.Com-

pany’s checks were .drawn refused payment on: the

~-ground—oef insufficiency of funds on deposit to cover

~* them. (R. 100, fol. 154; R. 102, fot: 156; R. 104, fol.

159.) Pees

Subsequently respondent carrier instituted an ac-

tion in‘the New York Courts against the Jerome Dis- |

tributing Company to enforce payment of the. three

checks above mentioned, and on July 9, 1936, secured

judgment against that company in the sum of. bm, -

- 294.00. (R. 121, fol. 184-185.)

All attempts by: respondent to enforce payment’ of.

the judgment, were without avail, because. of the in-

“> solvency of the Jerome Distributing Company.— a See

"No notice was given petitioner that the freight

charges had not been. paid, that respondent had taken

checks in payment or purported payment thereof, or

‘that the checks had been refused payment, until June

- 28, 1933. (R. 143-145, fols. 217-220.) .

?

4

_ Within a few days before the expiration of thé

‘three-year period within which ‘an ‘action. could be

brought to recover such transportation. charges, re-

spondent for the first time demanded payment thereof

from petitioner. (R. 122, fol. 187.) In fact, during

the interim, damage claims were paid by respondent

to petitioner without any attempt on the -part-of re-°

spondent’ to offset them because of the unpaid trans-

. - portation charges here involved. a 141-196, fols.

223, 224:) me }

To permit it to investigate the basis 6f said demand,

petitioner, on ‘October 25, 1935, signed a waiver of the

statute of limitations, in consideration of which re-_

_ spondent agreed to defer its threatened action until .'

January 1, 1936. This waiver, after reciting peti-

tioner’s’ desire for additional time to investigate the

claim, contained the following: :

| “Now, therefore, in consideration of the for-

bearance of The Pennsylvania Railroad Company.

to bring such a suit against the Mid-State Horti-

cultural Company, Inc. prior to October 28, 1935,

the said Mid-State Horticultural Company, Inc.

hereby agrees.that if and when The Pennsylvania

Railroad Company may find it necessary to bring

such an ‘action it, the said Mid-State Horticul-

tural Company, Inc., will not plead in any such

suit the défense of any general or special statute

- of limitations.

“This agreement is not an admission of the

alleged debt by the Mid-State Horticultural Com-

pany, Inc., and is made without prejudice to any

other defenses which the said Mid-State Horti-

cultural Company, Inc. may have to said ‘elaim.

, 5

“Dated gt: Philadelphia, Pa., this 25th day of

. October, . 1935.”". (Ex. C, attached. to First

_* Amended Complaint, R. 39-41, fols. 53d, 58e.)

Asa result of its investigation, petitioner, concluded

that it was not responsible for the claimed transporta-

_ tion charges and so advised respondent, whereupon — )

the action herein involved was instituted. |

‘In its defense petitioner contended that the waiver

of the statute of limitations signed by“it, and the _

coincident agreement by respondent to defer its con- 5

templated action until January | i 1936, violated the

"purposes intended to be accomplished by Congress

in enacting the Interstate-Commerce Act, as such pur-

poses had been repeatedly declared by this and other |

_ federal Courts, and, that-they were therefore void. As.

~ aspecial defense, petitioner pleaded that because. of re-

' spondent’s conduct and silence, of which comment is _

made above, respondent was éstopped from enforcing

payment of such transportation vant against peti-

— ;-it being asserted by petitioner that if it had

been advised . by respondent that its transportation

| charges had not been paid, ‘or if respondent had not,

“-receipted the freight ‘bills covering said charges, in

settling its accounts with Jerome Distributing ‘Com-

_pany—no-credit would have been given to it by _peti--

tioner for such transportation “charges, and netitioner

would not now -be confronted. with the double pay- °

ment of these charges in the event the judgment ot”

the Court below is enforced. ~ | aa

The final pleadings in this case were: respondent’s

first amended complaint (R. 1-41) and _petitioner’s

. ad

> .

6

demurrer thereto (R: 41-49, fols. 54-65) ; petitioner's -

amended answer (R. 51-77, fols. 72-110) and respond-

ent’s demurrer to petitioner’s amended answers (R.

77-81, fols. 112-117.)

The first amended complaint was divided into

twenty-one causes of action (one for each carload of

grapes). Petitioner, by demurrer to its amended an-

swer, raised the point as to each count of plaintiff's

amended complaint that it did not

‘‘state facts sufficient to constitute a cause of‘

' . action, in that it appears on the face thereof that

the same ‘is barred by the provisions of par. 3, °

ses. 16, of the Interstate Commerce Act.’’. (R.

41-42, fol: 555 R. 42, fols. 55-56, ete.)

The trial Court struck from petitioner’s endian.

' and from the case, the special defense that respond-

ent-was estopped from looking to. petitioner for "pay:

ment of the freight charges because:

(1) It accepted the checks of Jerome: Dis-

tributing Company in paynfent of the charges,

’ indorsed ‘‘paid’’, on the freight bills, and de-

livered such bills so receipted to such company.

(2) Jerome Distributing Company delivered

its “‘receipted”’ bills to petitioner and thus seéured

a credit by offset against moneys owing to peti-

’ tioner from that company, save and except the

nominal sum of $790.00, and then became in-

solvent. |

(3) By prosecuting its ‘claim against Jerome.

Distributing Company to judgment it had sig-

°o

7

nified its election to look to that company for the

. debt. (R. 74, fol. 106; R. 75, fol. 108; R. 78-79,

fol. 114; R. 82, fol. 120.)

And following the trial, - reliance upon the pur-

_ ported “‘waiver”’ the Court found that the action was.

not barred by the provisions of Section 16 (3) (a), of

the Act, despite the running of the three-year period,

and gave judgment against petitioner for $21,822.86

and costs. _ : a: a

THE POINT WAS PRESENTED TO CALIFORNIA _

_ SUPREME COURT.

Petitioner appealed from the judgment and the °

_ appeal] was first heard and determined. by the District

. Court of Appeal of the State of California, for the

Fourth Appellate District. That Court described the

issue before it as follows:

‘*The sole question inv olved in this appeal is

this: Can:the limitation provided in sub-para-

raph ‘a’ of paragraph 3, of Sec. 16, of the In-

_ terstate Commerce Act be waived by the shipper

by a_written agreement executed upon sufficient

‘consideration before the statute has run?”’ (R. |

. 171, 172, fols. 256, 257.) ek:

The two members of that Court, who joined jin the

majority opinion were misled into the belief, that (to -,

quote the Court): | : oe

‘The only question necessary for consideration

is whether plaintiff’s right of action to recover

its bill for freight was created by the Interstate .

.

Commerce Act or whether it existed independent

of the act.’’ (R. 173, fol. 260.)

From that premise: they reasoned that the right of a”

railroad to sue for its charges existed at common law,

and affirmed the judgment with the conclusion that

since the right had existed at common ‘law, Section

(3)(a) of the Interstate Commerce Act was a mere

- statute of limitations which could be waived.

The third member of that Court wrote a strong dis-

senting opinion, analyzing the decisions: in point and

holding that: -

“We conclude, thedetete, that under the pro-

visions of Section 16 (3)(a), upon the expiration

‘of the period therein prescribed within which

action must. be taken by the carrier, the eause of

action is destroved and the court’s’ jurisdiction

over the matter is terminated; and that neither:

the carrier nor the shipper can legally waive the

provisions of said section, nor extend the period

within which an action must be instituted, and

that any such waiver or agreement to. forbear is

contrary to the plain policy of the act and is

therefore against — policy and void.’’ (R.

(191, fol. 284.) - | ;

Petitioner herein, thereafter sought and was granted

a hearing of the cause by the Supreme Court of the

State of California, the highest Court .of the state.

Petitioner in its petition fora hearing by that Court

- gave the followirig as the grounds:

_ “4, That the action is governed by the pro- |

visions of the Interstate Commerce Act, and par-’

9

- ticularly section 16 thereof, as construed and in-

terpreted by the United States Supreme Court, .

the appellate courts of appeal, and the —

courts of the various states. i

**2. That upon the expiration of. three years _

from the delivery of the shipments involved, the

“.right to collect ‘the transportation charges was

destroyed by the operation of section 16 (3) (a)

of the Act, which expressly provides that it shall

apply to ‘all carriers subject to this chapter’, and

therefore the court lacked jurisdiction to enforce

payment thereof.

“*3. ‘That the intent and purpose sought to, be

accomplished by Congress in passing the Act (im-

plicit inthe Act itself), prohibits the waiver of

the limitation period prescribed by section 16 of

the Act. —

‘*4. Whether the pending action is one to en- .

force a right based upon the Interstate Commerce

Act or rising out of contract is immaterial; .

fendant being a carrier subject to the Act,

either case upon the expiration of the limitation

period, the right of action ceases and jurisdiction

is lost.

. “5. That regiiédless of all other considerations,

it must be held that the Act created a rig.t of ac-

tion theretofore ‘non-existent in federal jurisdic-

tion, which Act prescribed the~ period withm

which such action had to be commenced, thereby

bringing the existing controversy within the ex-

ception to. the limitation rule recognized by the .

appellate court in its majority opinion.

“6. That if the appellate court aie: held

that the right of action was not: based upon the

Act, but was at common law, its further holding

that under the Act/the defense of estoppel was

not legally permissible, was unwarranted and eon-

_ Stituted a miscarriage of justice by subjecting. ap-

. pellant to double liability. .

“7, That a rehearing is essential to the end.

that uniformity of decision upon the important:

questions involved may be maintained (W. R.

Phillips Co. v. Grand Trunk R, Co., 236 U. S.-

662, 59 L. Ed. 774), and that appellant may not,

be: subject to double liability by failure of the

trial court to follow well-established legal prin--+

ciples.’’ (R. 194-195, fols. 300-301.) .

The Supreme Court of California heard the cause ,

_ and affirmed the judgment on the same grounds as had

_been adopted in the majority opinion of the lower

-Appellate Court. (For.the opinion see pages 196 ‘to

204 of the Record.). It conceded that if, under Sec- |

tion 16 of the Act, the lapse of time ‘‘operates to

_ terminate the obligation as well as bar the remedy”’,

no waiver of the time element could be of any effect.

(R. 199, fol. 307.) But it held that the cause of action

.is destroyed by the lapse of the period of limitations

provided by the statute, only in those cases where the

cause of action has been created by the statute, as

distinguished from one existing at common law. On-

’ this point the Court said:

“This general rule (that the statute may be

waived) governs unless the action is created by

11

statute and the language of definition requires

a construction that the- cause of action is de

stroyed by the lapse of the period of limitations

‘provided by the statute.’’ (R. 199, fol. 307.)

é

THE CALIFORNIA COURT'S DECISION IS DIRECTLY CONTRARY

TO THIS COURT’S INTERPRETATION OF THE ACT.

‘The above conclusion of the California Supreme

Court is directly contrary to this Court’s decision in

A. J. Phillips Co. v. Grand Trunk ,R. Co., 236 1. S.

- 662, in which another subdivision: of Section 16 of

the Act (which, in common with Section 16. (3) (a),

with which we are cuncerned, carried the words ‘and

after” ) was being interpreted, antl i in which this Court

said as to the.claim that the stattite of limitations

might be waived:

‘“‘*But that tule’ does not a:ply to a cause of

action arising under a statute which indicates its. _

purpose td prevent suits on delayed claims, by

the provision that all complaints for damages

should be filed within two years, and not after.

- Under such a statute the lapse of time not. only

’ bars the remedy, but destroys the liability * * *

To permit a railroad company to plead the stat-

uté of limitations as against some, and to waive

it as against others, would be to prefer some and:

discriminate against others, in violation of the

terms of the commerce act, which forbids all de--

vices by which such results may be acedémplished.

The prohibitions of the statute against unjust dis-

crimination relate not only -to inequality of

charges and inequality of. facilities, but also to

12

the giving of. preferences by means of consent

- judgments, or the waiver of defenses open to the

carrier. The railroad company therefore was

bound to claim the benefit of the statute here

* * * For when it. appeared that the complaint.

had not been filed within the time required by

the statute, it was evident, as matter.of law, that

the plaintiff had no cause of action.’.’’ (236 U.

‘S. 662, 35 S. Ct. 446, 59 L. Ed. 774.)

The decision of the California Court is likewise in

contradiction of this Court’s decisions in Kansas City

So. Ry: Co. v. Wolf, 261 U.S. 133, and in U. S. ez rel.

Louisville Cement Co. v. Interstate Commerce Gom-

' mission, 246 U. S. 638, 642, 88 Fed. (2d) 459, and other

decisions noted in our accompanying brief.

The California Supreme Court in this case, in order

to reach its décision against petitioner, ignored the

plain dictates of the above language of this Court

and adopted the contrary precedent of an Ohio Dis-

trict Court expressed in a less than one page, opin-

ion, containing no citation of precedent, rendered on.

the rouiine sustaining of a demurrer, in the case of

Pennsylvania Rr. v. Susquehanna Collieries, 23 Fed.

(2d) 499. (R..197-198, fol. 306.) That decision was

predicated on the theory that the interpretation of

this Court in the Phillips case did not apply where

the cause sued upon was of a kind recognized by the

common law; and it ignored the plain intention of thes.

words “‘and‘not after’’, which term this Court in ‘the

Phillips case (supra). ‘interpreted as. meaning _

what it says.

.

13

- THIS PETITION IS IN TIME.

The Supreme. Court’s decision in. the present case —

was rendered on November 27, 1942.° (R. 196, fol.

304.) It denied petitioner a rehearing, thus giving

finality to the judgment, on December 24, — (R.

205, fol. 312.)

On March 16, 1943 this Court extended the time in

which this petition ‘should be filed to and. including

April 22, 1943. (R. 207.)

THIS COURT'S JURISDICTION TO HEAR PETITION.

This Court’s jurisdiction to hear and grant this

petition is found in Section 237, Judicial Code (28

U.S. Cc. "A. 344 (b)), the pertinent. ere of which

reads-as follows:

“(b) It shall be competent ‘for the Supreme

Court, by certiorari, to require that there be cer-

tified to it for review and determination, with the

same power and authority and with like effect as

if brought up by writ of error, any cause wherein

a final judgment or. decree. has been rendered or

passed by the highest court of a State in which a

decision could be had * * *. where any title,

right, privilege, or immunity is specially set up

or claimed by. either party under the Constitution,

or any ‘treaty or statute of, or commission held or

authority exercised under, the United States; and

_ the power to review under this paragraph may be

exercised as well where the Federal claim is sus- .

~.tained as where it is denied.”’

14

CONCLUSION.

Petitioner believes. that this petition should be

granted under the reason of Rule 38 ©&) (a) of this

- Court, which reads: . —

‘*(a) Where a state court. has s decided a. Fed-

eral question of substance, * * * in a way ‘prob-

ably not in accord with applicable decisions *

this Court.” :

Dated, San Francisco, California,

April 5, 1943.

Respectfully submitted,

“- Higam W. JOHNSON,

THEODORE H. ROcHE,

JAMES F'ARRAHER,

- ' Attorneys for Petitioner.

. Tuo. J. RocHE, | ee :

Grorce A. STOCKFLETH,

Of Counsel.

15

_BRIEF IN SUPPORT OF PETITION.

. The Supreme Court of California adopted a remark-

able procedure in this case—in; that it’ gave to a trial

Court decision, rendered in a routine overruling of a

‘demurrer, precedence over the decisions of this, the ,

highest Court of the land, as well as of decisions of

Federal Courts of Appeal.

The state Court decision after conceding that ‘‘the

-answer to the question is controlled: by the Federal

statutes and the Federal Courts’ construction thereof

as applied to similar facts’, made its choice between:

(1). Following this Court’s decisions in Phillips

v. Grand Trunk Western R. Co., 236 U.S. 662; United

States ex rel. Louisville Cement Co. v. Interstate Com-

merce Commission, 246 U. S. 638, and Kansas City

So, Ry. v. Wolf, 261 U. 8. 133; the decision of the

Circuit Court of Appeals of the Seventh Circuit in ~

“Wisconsin Bridge & Iron Co. v. Illinois Terminal Co.,

88 Fed. (2d) 459, and the decision of the Circuit Court

of Appeals of the Sixth Circuit in Louisville & N. R.

Co. v. Cory, 54 Fed. (2d) 8, on the one hand,

(2) Following at respondent’s insistence the lonely

- decision of an Ohio District Court in Pennsylvania R:

Co. v. Susquehanna Collieries ise 23 Fed. ae 499,

on the other. | |

Surprising enough it is that the Court chose to

- follow ‘the District Court decision, on the stated ©

ground that it was the only case where the facts were

as

identical with hove j in the case at bar, end also chose

to ignore the fact-that the identical principle inivolved

in the’ present case was involved and interpreted in.

‘ the above cited decisions of this Court ana, of two

Circuit Courts of Appeals. . |

But: more surprising still is the fact that -the

precedent which that state Court adopted was a one-

half page opinion rendered by @ trial Court on the-

overruling of a demurrer, which contains ‘no. citation

of authority ; and, although decided in 1927, over 17

years ago, has never been cited—the state Court re

it has been ‘‘neither disapproved or criticised”. .

other words it ray neither -‘‘ pride ot meet,

nor hope of posteri

: The holding in the Susquehanna ase. j

The Susquehanna case (supra) involved the same _

statute as is here involved, namely, Section 16 (3) of

the Interstate Commerce Act. It was an action to

recover demurrage charges, brought more than three

years after the accrual of the action. The plaintiff

alleged a written. agreement of defendant waiving the

. statute. " The defendant demurred, raising the bar of

Section 16 (3). ;

The Court overruled the demurrer, giving as a

» ground that the cause of action was one growing out

of contract rather than one conferred by the Inter-

state Commerce Act, and therefore the statute of limi-_

tations might be waived. .

74

17

This Court's decisions on this point. -

This Court in Phillips v. Grand Trunk R. Co., 236

. U.S, 662, very definitely disposed of the distinction —

upon which the Ohio District Court based its opinion,

if any such distinction had ever existed, That was —

an action filed in the Circuit Court of the United

States for the Eastern District of Michigan, by a

shipper against a carrier for an overcharge. of freight.

rates, and was predicated upon the fact that an in--

erease in, rates, which had. been filed and upon which‘

the charges were based, had been held unreasonable by.

the Interstate Commerce ‘Commission. The action

- was instituted more than 2-years after the cause ac-

-erued. The limitation statute then read:

‘‘All complaints for the recovery of damages shall

be filed with the commission within two years

from the time the cause of action accrued, and)

‘not after.” (34 St. at Large, 590, Chapter 359

The defendant carrier demurred on, the ground of

the statute. The plaintiff unsuccessfully sought to

avoid dismissal by arguing .that the point was not

‘raisable by demurrer ‘since undér Michigan law the

defense of statute of limitations could not be the sub-

eek of a demurrer.

This Court held that wpon the expiration of the

- two-year period, the cause of action was utterly de-

_ stroyed; and in so deciding answered every argument

. respondent herein could make in support of ‘the de-

cision of. the ‘California Supreme Court in this case.

For that reason we take the liberty of setting forth |

the following long quotation from that opinion :’

18 ©

“It is argued, however, that under the con-

formity act (Rev. Stat. Sec. 914,, Comp. Stat.

1913, Sec. 1537), the case is to be governed by

the Michigan practice, which does not permit a

defendant to take advantage of the statute of limi-

tations by a general demurrer to the declaration.

But that rule does not apply to a cause of action

arising under a statute which indicates its pur-

pose to prevent suits on delayed claims, by the.

‘provision that all complaints for damages should

-be filed within two years, and not after. Under

such a statutethe lapse of time not only bars the

*remedy,. but: destroys the liability (Finn v.

United States, 123 U. S. 227, 232,.31 L. ed.-128,

130, 8 Sup. Ct. Rep. 82), whether complaint is

-. filed with the Commission or suit is brought in

a court of competent: jurisdiction. This will more -

distinctly appear by considering the requirements

of uniformity which, in this, as in so many other .

instances, must be bortié i in mind in construing the

commerce. act? The obligation of the carrier to

adhere to the: legal rate, to refund only what is:

permitted by law, and’ to treat all shippers alike,

would have made it illegal for the carriers, either

by silence or by express waiver, to preserve tio

the Phillips Company’a right of action which the

statute required Should be asserted within a fixed

period. To-have one period of limitation where

the complaint is filed before the Commission, and

the varying periods of limitation .of the different

states, where a suit was brought in a ‘court. of

competent jurisdiction; or to permit a railroad

company @ plead the-statute of limitations as

against some, ‘and to waive it as against others.

would be to prefer some and discriminate against

.

*

19

others, in violation of the terms of the commerce

‘act, which forbids all devices by which such re-

sults may be accomplished.. The prohibitions of

the statute against unjust discrimination relate

not only to inequality of.charges and inequality

of facilities, but also to the giving of preferences.

by means of consent judgments, or the waiver of

defenses open to. the carrier. The railroad com-

~ ‘pany therefore: was bound to claim the benefit of

the statute here, and could do so here by general

demurrer. For when it appeared that the com-

‘plaint had not been filed within the time required —

by the statute, it was evident, as matter of law,

that the plaintiff had no cause of action. The car- .

rier not being liable to the -plaintiff for _ syer-

charges coliected more than four years prior to

the bringing of this suit, it was proper to dismiss

the action.”’ (Emphasis by italics ours, by black-

face, the Court’ 8.) A

From the foregoing quotation it will be observed

that this Court's’ reasons for deciaring that the lapse

~ Of the statutory time + weatreys eee 7 are -pri- ——-

marily that:

(1) - The statute ‘‘indicates its purpose to pre-

vent suits on delayed claims; by the provision

that all.claims for damages should be. filed within

two years and not after.” (Thus placing its em-

phasis on the. words “‘and not after.’’)

(2) The requirements of uniformity, -“*which

_ must be borne in mind in construing the com-

merce act, demand that all defendants in actions

-between carrier and shipper be treated alike and

prohibit ‘‘either by silence or by express waiver’

the extending of the time within which to file

suit beyond that fixed by the act as the limit of

action, and furthermore this Court went so far in

its determination as_to apply the statute. which

was particularly directed ‘to actions filed before.

the Commission, to actions filed somes the Courts.

In the present case as we have seen aa the

pertinent statute applies , to ‘‘all actions at law by

carriers for recovery of. their charges’’, and declares

that such actions must be begun ‘within three years

from the time the cause. of action accrues and not

after”. (See. 16 (3) (a) of the Act; 49 U. S.C. A,,

Sec. 16 (3) (a).) :

In Kansas City Reiters Ry. Co. v. Wolf, 261 U.S.

. 133, the plaintiff shipper withoyt filing. a claim with

the Interstate Commerce Commissioner, sued the rail-

road to recover charges collected over and above the

published tariff rates. The statute gave the shipper -

the alternative: of filing a claim with the Interstate

-Commerée Commission’ or suing direct in the Courts.’

The limitation statute Section 16 (3) (b) of the act read 7

and still reads that ‘‘all complaints for damages shall

be filed with the Commissioner within two years from

the time the cause of action accrues, and not after’’.

The defendant demurred to the complaint on the F

ground that the catise of action was’ barred by the

above referred to language of the act, while plaintiff

contended that the two year statute was directed solely

to complaints filed before the Co.nmission. This Court .

held, that the two vear limitation applied irrespective

of whether the action was before the Commission or

in the Courts, and quoted in support of its holding, the |

21

language from the decision in Phillips Co. v. aed

Trunk (supra),:which we have quoted on pages 18- 19

herein. In conclusion, this Court said: .

**The lapse of time has destroyed any liability

by the carrier-to the shipper.” _ (140)

The same conclusion was ere by this Court in

U.S. ex rel, Louisville Cement. Co. v. Interstate Com-

merce Commission, 246 U. S. 638, at 642, in which in

applying Section 16 of the Act to a proceeding before -

the Commission, the Commission had held it had com-

pletely lost jurisdiction when the two years expired.

-This Court concurred in the following language:

‘‘We agree with this conclusion of the Com-_ -

mission, that the two-year provision of the act

is not a mere statute of limitation, but is juris- ,

@ictional, * * * is-a limit set to the power of the

Commission, as distinguished from a rule of law

for the guidance of it in reaching its conclusion.

(Interstate Commerce Commission v. Northern |

P. R. Co., 216 U. S. 538, 544, 54 L. Ed. 608, 609,

30 Sup. Ct. Rep. 417.) That such was the opinion —

. of this court was clearly intimated in Philltps Co.

v. Grand Trunk Western R. Co., 236 U. S. 662,

667, 59 L. Ed. 774, 776, 33 Sup. Ct. Rep. 444, and.

it conforms in principle- to the holdings of the

: court with respect to a similar limitation, but for

six years, on tiie jurisdiction of the court of

claims. (Ford v. United States, 116 U.S. 218, 29

L: Ed. 608, 6 Sup. Ct. Rep. 360; Finn v. United

States, 123 U.S. 227, 232,31. L. Ed. 128, 130, 8

- Sup. Ct. Rep. 82; United States v. Wardwell, 172

U. S. 48, 52, 43 L. Ed. 360, 361, 19 — Ct. Rep. °

86.) ”’ (Italies our’. )

22

It: was held to the same effect in Danzer & Co. v.

. Gulf a Ship Island, R. R. Co., 268 U.S. 633

Cireuit Courts of heneale: ‘eee

following “*Phillips’’ case decision.

In Wisconsin Bridge & Tron Co. v. Illinois Terminal

Co., 88 Fed. (2d) 459, 461, the Circuit Court of* Ap-

peals.of the 7th Circuit, reversed a Distriet Court

_ decision to, the effect that the defendant was estopped -

from setting up the limitation of Section 16 (3) of-

the act, by requesting the submission of the contro-

' versy to the commission before bringing action. The

_ court qf appeals said with reference to that section ?

of the act: : are ;

“The Supreme Court has in numerous cases.

construed these limitations as jurisdictional, and

held that’ the lapse of time .not only bars the

remedy but also destroys the liability.”

and cited the four decisions of this Court which we

_have cited earlier in this brief, and_quoted from that

portion of the decision in U. S..ex rel. Lowsville Ce-

ment Co. v. 1. C.C., 246 U. S. 638, which declares that

: Section 16 “‘is not a mere statute of limitation; but ts

jurisdictional” and that ‘‘the defense of statute ae

limitation was not subject to estoppel”. (Emphasis

ours.)” . . | )

‘The opinion closed with the statement that “events )

occurring subsequent to the delivery’’ (of the goods

to the carrier) ‘‘may not be relied upon to extend the

period within which this suit must be brought’’. (462)

(Emphasis ours.)

23

In Louisville & N. R. Co. v. Cory, 54 Fed..(2d) 8,

- the Court of Appeals of the Sixth Circuit, in reversing

a District Court, answered the argument used by re- —

spondent in this case that Section 16 (3) of the Act

does not apply to actions existing at common law, by

holding that since Congress has.made Interstate Com-

. merce the subject matter of direct. legislation, that

section applies to all actions where the shipper has

the right to petition the Interstate Commerce Commis-

‘sion “and this whether the shipper elects to pursue

aa form of remedy oF one given him by the common

w’?. (Citing — v.. Grand Prunk ete. — )-=

ii)

In face-of the foregoing decisions of this Court and

‘ of the Courts of appeal, the decision of the California

Supreme. .Court must stand or fall on the contrary

precedent created by a trial judge in the Susquehanna

case.

~ Foreed to concede that “the answer to the que

is controlled by the federal statutes and the teteral :

‘ court’s construction ‘thereof’? (R. 197, fol. 305), the

California Supreme Court selected as its precedents:

'(1).that portion of the trial Court’s decision in the

: Susquehanna case which (without any cited precedent,

federal or state) held that the right of action to re-

cover charges grew out of contract and therefore could

be kept alive by contract beyond the statutory period,

and (2) the rule expressed in three California cases _—

and two encyclopedia texts that ‘‘cenerally a statute

of limitations inay be. extended or walv ed”. (R. 199,

fol. 307. )

“4.

We have already shown how the interpretation’ of

~ the titerstate Commerce Act, contained in the Susque-

hanna decision, is overridden by this Court’s decisions.

_ and those of different Circuit Courts of Appeal—and

that the section of the act involved, by use of the words

“of emphasis ‘‘and not after’? déstroys the cause of

action at the end of three years, despite any general

rule as to the rights of waiver or estoppel.

The distinction claimed by respondent to exist be-

tween statutory actions and actions upon contract is -

_ here entirely inapplicable for the obvious reasons that _

the only thing contractual or within the power of

; agreement of the parties is the question of whether the

_ shipper will ship. Thé conditions of shipment and the:

'- tariff to be paid are fixed by the Interstate Commerce

Act and the regulations thereunder. The relationship, *

as well as the liability, arises out of and is based upon

the Commerce Act. .

_ The Cireuit Court of Appeals of the Fourth Circuit _

declared in.

Pennsylvania R. Co. v. Carolina Portland Ce-

ment Co., 16 F. (2d) 760, at 762,

that an action for demurrage charges, which is closely

akin to'an action for transportation charges, |

‘is one which arises out of the statutes of the

United States and the action of the Interstate

Commerce Commission taken thereunder.”’

To the samie effect, see: : ot

Arkansas Fertilizer Co. v. United States, 193

Fed. 667 at 671 (Commerce Court);

25 | Ree See Sera

Button vy. A. T.& S. F, R. Co., 1 F. (2d) 709 at

711, 8th C.°C. A.; ;

Chicago & N. W. R. Co. v. J. I. Case Plow Wks.,

180 N. W. (Wis. ) 846 at 847;

- Chicago I. & L. Ry. Co. v. Peterson, 169 N. wW.

. (Wis.) 558 at 559;

Vicksburg etc. R..Co. v. Poup, 47 F. (2a) 1069,

—=« StH CL AL;

Blodgett Co. v. N. Y. C. R. Co., 159 a E.

(Mass.). 45 at 47.

_The higher Courts of other states have found no

difficulty in determining the proper federal interpre-

tation of the act in fts relation to the time of com-

mencing actions, without recourse to trial Court

opinions. ©

In Spartan Mills v. Deits Director General, 119

S. E. 905 at 907, the claim was made that the limitation

as specified i in the bill of lading had been w ‘aived by the

rey. The South Carolina Court. of last resort after

‘that the Waiver was legally deficient, said :-

Even if theré had been a positive agreement’

on the part of the defendant to extend the time

within which such suit should be commertced it’

would not avail the plaintiff. * * * If the carrier

may by agreement or by conduet fix what is a

‘reasonable time for delivery’ in. any. case it would

seem that it might or might not invoke. the de-

fense of this contractual limitation at its option,

and could in'that particular practice at pleasure

discrimination in the. payment or contest of

claims.” Ee it ted 7

26

It then quotes from

Texas etc. R. Co. v. Leatherwood, 250 U. S. 478,

63 L. Ed. 1096, as follows:

“It was decided that the parties to an interstate

bill of lading cannot waive its terms; that the car-

rier cannot by its conduct give the shipper a right

to ignore them; and that ‘a different view would

‘antagonize the plain policy of the Act and open

the door to the very abuses at which the Act was

aimed’. 99 . ;

The Carolina Court then declared that:

“This declaration is equally applicable to the

contract limitation relating to commencing suit.”

In the late case of L. M. Kirkpatrick Co. v. I: C. R.

Co., 195 So. 692, 694, it was claimed that the action was

_ barred because not brought.within two years and a

day from the time appellee rejected in writing appel-

lant’s claim for damages as required by-the ‘bill of -

___lading._In_ affirming a-judgment_in favor of the de-~

fendant the Mississippi Supre me Court, among me

things, said:

‘“The outstanding purpose of the Commerce Act:

was to absolutely uproot and destroy all discrimi-

nations in interstate commerce regardless of how

conceived or by what plan, scheme or device they

- may besought to be accomplished. To that end,

the. carrier is without power to waive any. valid

provision of the contract constituting a defense.

Blair-Baker. Horse Co. v. Atchison, T. & S. F.

Ry. Co., 200 S. W. 109.”’ :

And after quoting from earlier cases, the decision

_ proceeds:

27

“‘The.carrier cannot by conversations, letters

and negotiations extend the time for suit ‘beyond. . *.

that limited by the bill of lading and the Commerce ©

Act. Shroyer v. Chicago R. I. & G. Ry. Co., 111 ©

Tex. 24, 222 S. W. 1095. ‘An interstate carrier

cannot extend the time within which under the

bill of lading a suit against it for loss of the goods

may be brought, as that wenn involve a nauasinial

nation.’ ”’

The decision then cites a number of state and —

” federal cases, and with respect thereto states that they:

“although not directly in. point lay down prin-

ciples which inevitably lead to the conclusion that

when the statute’of limitations is put in operation,

it cannot be estopped by agreement between the

earrier and the shipper. * * *.

. - ‘These: decisions mean that under” the seork:..

sions of the Commerce Act, and the uniform bill

of lading provided by the Interstate Commerce |

Commission, the time fixed within which claim. .

ea for toss~shait be-fited, as-welt-as-the-time-fixed — tn

‘within which suit must be brought, are conditions

. precedent to liability. In other words, after the

‘lapse of such time, both the right and the remedy

_ are barred. And, they mean further that neither

period of time can be waived by’ the carrier.

- Otherwise, the door would. be opento discrimina-

tions in favor of one class of shippers over an-

other. The Commerce Act sought as far as pos-

sible to bring about not only uniformity and

equality in rates but uniformity and equality in,

all services and practices of common carriers in

interstate commerce. In consideting this question,

it should be borne in mind that this is not exclu-

Zz

3

. sively private litigation—the result affecting alone

the parties to the cause. In a large measure, it is

_ public litigation—the result affecting the public

generally, as well ag the parties to the particular

_gause. The. question as to. what rights can be

waived by a party to a transaction affected with

| a public interest, is very different where the rights

‘ of the parties alone are involved.”’

|

|

SECTION 16 oF THE COMMERCE ACT IS ALL E EMBRACING AND —

APPLIES TO. ALL ACTIONS AT LAW oan we OF.

THEIR ORIGIN’ on CHARACTER, ,

Regardless of any other sities: Section 16

of the-Commeree Act is determinative of this contro-

versy. | : a

The majority opinion of the District Court of Ap-.

peal was based solely upon the ground: that the action

is a common law action, and not one created by or -

______based upon the Interstate Commerce Act, and there-

fore Section 16 thereof, as to such character of action,

should. not be construed in accord: with the decisions

cited by petitioner. |

.

The decision of the Supreme Court. of California

" partakes largely of the same infirmity. ».

Such holdings, if adhered to, ‘would necessarily re-° -

quire that said Section 16, with respect to-one type

of action at law should receive one construction, and

-” as to all other actions at law another. In support of *

this strange and heretofore unknown rule of construc-

tion no atithorities are or can be cited. To any such

+ 99-

.principle petitioner is unable to subscribe. No such

intention can logically’ or legally be ssp to Von-

gress when enacting such section.

If Section 16 is applicable at all to thie case (which

respondent concedes) its effect, as heretofore judicially

' determined, is equally applicable.

It is, as it must be, conceded that Congress: was con-

stitutionally authorized to enact the Interstate -Com-

merce Act, and that if deemed appropriate, it was

legally empowered to therein provide that any gction

at law, whether brought by or against a carrier en-

gaged in interstate commerce respecting interstate

shipments, must be commenced within a specified _

period, and not after, with the intention that unless so —

__ instituted within the prescribed limitation period the |

cause of action would be destroyed and the Court de- ~

prived of jurisdiction to enforce the asserted: claim.

With this. concession in mind-the sole legal “ques |

tion here “involved can readily be- determined by re--

| course alone to the provisions of Section 16 (including

3(a) of the Commerce Act). The language of this sec-

_ tion is all-inclusive; it makes no distinction between: |

actions based upon or created by the act and other

actions, just so long as the action is an action: at law.

Jt relates to and completely envelops every action at

law including those instituted by a carrier for the

,recovery of all freight charges or any part thereof.

The only attribute that the action must possess to

subordinate it to the terms of Section 16 is that it is

an action at law. Section 16 3(a) reads:

eS 39

“AU actions at law by carrier under the subject

. of this chapter for the recovery of freight charges, _

. or any part thereof, shall be begun within three —

years from the time the cause of action accrues,

ant not after. 2 ,

That this is an action at law is unquestioned. That

it is an action for the recovery of freight charges is

conceded. That the section in question applies to such

an action, whether it is instituted to recover all

“freight charges or only a part thereof is obvious from

the language of the section. The language .in which

Section 16 is couched is clear and definite. It possesses

no latent ambiguity... Its purpose-is made known to all

‘who can read. Its understanding: and interpretation -

- are entirely outside of the realm of speculation or con-

jecture. ‘‘All actions at law by a carrier subject to

this chapter’’ means exactly what it states and in-

cludes all actions at law,.whether in the form of com-

mon Jaw actions or‘actions at law instituted for the

‘purpose of enforcing any of the rights mentioned in

each subdivision.of such Section 16. To hold other-

- wise would be to render innocuous and of no avail an |

express congressional mandate. Y

To arbitrarily divide actions at law into classifica-

tions and to construe Section 16 as to one of these

~ elassifications in one fashion and in another manner -.

as to other classifications is a’ procedure heretofore —

unknown to legal jurisprudence.

That it, was the intention of Congress to destroy the

eause of action upon the expiration of the limitation _

31

ae

period is held in every case (except the so-called —

Susquehanna case) in which its construction was in--

volved.

7

ALLEGED WAIVER OF LIMITATION STATUTE VOID BECAUSE

PROHIBITED BY INTERSTATE COMMERCE ACT AS A DIS-

CRIMINATION. ; ;

. In’ concluding, contrary tothe: decisions of this

_ ,Court, that the waiver of the statute of limitations was

' valid, the Supreme Court of California’ said: —

‘‘However, as we have noted, a contract to pre-

serve the carrier’s right and duty to collect lawful

freight charges as against the running of the

statute of limitations when reasonably exercised,

serves to prevent, rather than create, discrimina-

tion among shippers, and in our opinion, should

not he deemed violative of the language or pur-

pose of the Interstate Commerce Act. es

This: is in clear. disregard of the decisions of this

and other Federal Courts above cited. Preliminarily,

it may be stated that it is not the result to either of

_the parties of the prohibited act which determines

whether the Commerce Act has or has not been vio-

‘lated, but the possibilities which may follow. in the

event the act engaged in is given legal recognition. An

extension of the statutory period within which: suit

is- required to be instituted necessarily involves joint

action by both carrier and shipper. ‘The consideration

-for.a waiver signed by the shipper is the agreement on

the part of the carrier to’ forbear the institution of

an action for some appreciable period of time beyond

32

the statute of limitations. In the absence of an exten-

sion or an agreement to extend by the carrier, -the -

. Waiver would be legally ineffective... And if the carrier

is legally empowered to” extend for even a day the

period fixed in the statute, it possesses equal authority

to extend it for a much longer period, or for years

should tt so desire.

The question then arises: Could such waiver, signed

by the shipper, and such extension granted, or agreed

to be granted, by the carrier, operate as a discrimina-

tion or preference denounced by the Commerce Act?

The answer to this question, which must be in the

affirmative, conclusively brings such waiver and ¢x-

tension agreement within the prohibition of the act

as well as of the decisions declaring void as against

publie policy any such waiver. © .

~Tt is obvious that if, in-consideration-of the -exeet-—

tion by the shipper of such waiver, the carrier is

legally possessed of authority to, extend the statutory —

time for the commencement of action by it againsta

shipper, it- necessarily possesses the power in its’ in-

controlled discretion to discriminate between different

shippers and: thereby to prolong and possibly sustain ,

the life. of ‘one shipper to whom | the extension is’

granted, and at the same time to destroy the commer- »

cial existence of another shipper to whom such exten-

sion is denied, It could likewise choose between two

shippers, each of identical financial stability, each

- requesting such an. extension of credit based ‘upon

identical considerations; each willing to accept the

‘game extension of time and each willing to execute a

| ‘

”

Zs}

waiver, and could grant the requésted extension to one

and deny it to the other. |

If such conduct can be legally countenanced as he-

tween a carrier and two shippers, the possibility of

‘comparable action on the part of the same or other

carriers in their dealings with shippers. generally ean

readily be comprehended.

‘To illustrate: If shippers knew that in the event

they were subjected to financial pressure, by executing

a waiver of the statute:‘they could obtain from certain

_earriers an extension of credit or of the time in which |

incurred transportation charges would have to be paid,

which ‘extensions other carriers were unwilling ‘to

‘ grant, discriminations of the most flagrant character

_, would undoubtedly occur. And if such practices were

indulged in, it is obvious that certain carriers would

~—be-enabled- thereby to-obtain- business that-normally_

‘would go to other cariers. Furthermore, in the event

. such’. practices were permitted, carriers themselves

could diseriminate between shippers—depending upon’

, the volume of business controlled by certain shippers

as against others—or upon the relative financial re-

sponsibility of the various: shippers.

Thus to permit waiver of the statutory period of

— limitation by a shipper would make possible the prefer-

ences and discriminations denounced by the Interstate

' Commerce Act, and serve to defeat the purpose of that

Act, just as surely as to permit waivers by the carrier’

would, as we have shown by the authorities heretofore

cited, result in such preferences and discriminatoins.

To confer authority upon the shipper to make such a

\ ss og

MW

waiver would be as-destructive of the scheme and pur-

pose of the Act as to confer it upon the carrier. The

result in the former case would be the. same as that

which the Court had in mind in |

+, American Ry. Express Co. v. Shideler, 165 N.E.:

(Ind.) 336, at 337,

in stating that:

“Under the law appellant and appellee were

bound by the terms and provisions of the contract

covering the tranSportation of this interstate

_shipment, and appellant did not and legally could

» not waive the limitation of time within which this,

action must by the terms of such contract be

begun. *.* *’’ . (Citing cases.)

Under no ilies may the statute be varied,

_ enlarged, altered or waived by the carrier, sinee to do

So would be in effect to give the person against. whoni

it-is-watved, enlarged, etc: a greater and different

right than other parties who deal with railroad car-

riers. Such a result is manifestly in contravention of _

the expressed purpose-and efféct of the Interstate Com-

merce Act.

In this connection we believe it also proper to call

. attention to the language of Mr. Chief Justice Taft.

in the case of | |

United States v. Koenig Coal Co, » 270 U. S. 512,

as follows:

“We have often declared that the purpose of -

Congress in the Elkins Law was,to cut up by the

roots ev ery form of discrimination, favor itism and

inequality.”

. 35.

CON CLUSION.

In closing we respectfully submit that the decision _

of the California Suprenie Court does violence to this

Court’s interpretation of the Interstate Commerce Act,

arid a hearing of the cause by this Court is necessary

to remove that precedent to the end that neither it nor

the District Court decision of the Susquehanna case

ean hereafter lead other Courts away from the prin- —

ciples upon which the Interstate Commerce Act is

based. : ‘

Dated, San Duele California,

'.. April 5, 1943... |

Hiram W. JOHNSON,

> HEOpoRE H: Rocue,

JAMES FARRAHER.

Attorneys for Petitioner.

&

Puro. J; Rocke,—*—

Grorce A. STOCKFLETH,

O/ Counsel.