243 U.S. 281 (1917), 376, Swift & Company v. Hocking Valley Railway Company

Docket Nº:No. 376
Citation:243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722
Party Name:Swift & Company v. Hocking Valley Railway Company
Case Date:March 06, 1917
Court:United States Supreme Court

Page 281

243 U.S. 281 (1917)

37 S.Ct. 287, 61 L.Ed. 722

Swift & Company


Hocking Valley Railway Company

No. 376

United States Supreme Court

March 6, 1917

Argued December 5, 1916




A railroad company, under a written agreement reserving a small annual rental and terminable on 30 days' notice, allowed a packing company the use, for warehouse purposes, of land belonging to the railroad and adjacent to one of its sidings, including a switch connected

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with its main line. The agreement provided that the licensee should not interfere with the tracks of the railroad company, and that the switch track should be at all times under the railroad company's control; also, it reserved to the latter a right to enter at all times "for the purpose of repairing or maintaining the track thereon, or switching or removing cars thereover." The switch track was used by cars moving goods of the licensee in interstate commerce between the warehouse and the main line. Held that, under this arrangement, the switch track was not to be regarded as a private track, but as a track of the railroad company.

The Court cannot be controlled by an agreement of counsel on a subsidiary question of law.

The Court cannot decide fictitious cases.

A stipulation of counsel, made only for the purpose of reviewing a judgment rendered on demurrer to the petition, and declaring a proposition which, tested by the petition, is erroneous in fact and in law, will be treated by this Court as a nullity.

The fact that effect was given to such a stipulation by the state courts below does not conclude this Court.

Where the shipper lets his private cars to the carrier in consideration of mileage charged on both outgoing and return journeys, allowing the carrier to freight them on the return if the shipper does not, and the freight charged upon all goods hauled is the same as for goods hauled in cars owned by the carrier, the cars of the shipper are in the service of the carrier while standing loaded with goods consigned to the shipper on a switch track of the carrier at the shipper's warehouse.

In such case, the "transportation," within the meaning of the Act to Regulate Commerce, has not ended, and demurrage for detention of the cars by their owner may reasonably be exacted by the carrier in accordance with its rules and rates duly published and filed.

93 Ohio St. 143 affirmed.

The case is stated in the opinion.

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BRANDEIS, J., lead opinion

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

The National Convention of Railway Commissioners, an association comprising the commissioners of the several states, adopted in November, 1909, a Uniform Demurrage Code. This action was based upon extensive investigations and thorough discussion, participated in by the railroad commissioners, commercial organizations, representatives of railroads, and individual shippers from all parts of the country. On December 18, 1909, the Interstate Commerce Commission indorsed the rules so adopted, and recommended "that they be made effective on interstate transportation throughout the country." Re Demurrage Investigation, 19 I.C.C. 496.

These rules provide that, after two days' free time, "cars held for or by consignors or consignees for loading" or unloading shall (with certain exceptions not here material) pay a demurrage charge of $1 per car per day. Private cars are specifically included by the following note:

NOTE. -- Private cars, while in railroad service, whether on carrier's or private tracks, are subject to these demurrage rules to the same extent as cars of railroad ownership.

(Empty private cars are in railroad service from the time they are placed by the carrier for loading or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong to an industry performing its own switching service are in railroad service from the time they are placed by the industry upon designated interchange tracks, and thereby tendered to the carrier for movement. If such cars are subsequently returned empty, they are out of service when withdrawn by the industry from the interchange; if

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returned under load, railroad service is not at an end until the lading is duly removed.)

In 1910, the Hocking Valley Railway Company, an interstate carrier, inserted in its freight tariff duly filed and published as required by the Act to Regulate Commerce, the demurrage rules and charges, including that relating to private cars, quoted above. Thereafter, Swift & Company, Chicago meat packers, established on the line of that railroad at Athens, Ohio, a warehouse to which it made, from time to time, shipments in private cars. These cars, which were placed on the switch used in connection with the warehouse, were not unloaded within the forty-eight hours' free time allowed by the tariff, and demurrage charges were assessed by the Railway Company. Payment being refused, this action was brought in the Court of Common Pleas of Cuyahoga County, Ohio, to recover the amount. The amended petition alleged, among other things, that the demurrage rules and charges had been

approved by the Interstate Commerce Commission by a decision rendered by the Commission on the 14th day of November, 1910, in the case of Procter & G. Co. v. Cincinnati, H. & D. R. Co., which decision is reported in 19 I.C.C. 556 to 560, inclusive thereof, and which decision, approving said car demurrage rules and charges, is hereby referred to and made a part hereof, as though the same were fully written out at length herein.

Swift & Company demurred, and defended on the single ground that the cars in question were its private cars, standing on its "private track;" contended that the demurrage rule which required payment of charges under such circumstances was an arbitrary imposition; that it was unlawful and void, and that it was subject to collateral attack, even though included in a tariff duly filed and published under the Act to Regulate Commerce. Two

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days after the case had been heard on demurrer in the court of common pleas, counsel filed a stipulation as follows:

For the purpose only of reviewing the judgment of the common pleas court on defendant's demurrer to the amended petition, it is stipulated by the parties hereto that the track on which the cars in question were placed was the private track of Swift & Company.

The next day, judgment was rendered for the Railway Company. It was affirmed both by the Court of Appeals of Cuyahoga County and by the Supreme Court of Ohio. 93 Ohio St. 143.

The Supreme Court of Ohio assumed the track in question to be a "private track," as stipulated by the parties, and declared that

demurrage rules relating to private cars employed in interstate commerce and the charges assessable thereunder are matters properly included in the tariff or schedule required to be filed and published. This tariff containing the demurrage rule having been filed and published according to law was binding alike on carrier and shipper, and so long as it was in force was to be treated as though it were a statute. . . . This rule having been approved by [37 S.Ct. 289] federal tribunal acting within the scope of its authority, its decision must be followed by the courts of this state and be given full force and effect.

The case was then brought to this Court on writ of error. The errors...

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