Oregon-Washington R. & Nav. Co. v. Strauss & Co.
Decision Date | 19 November 1934 |
Docket Number | No. 7498.,7498. |
Citation | 73 F.2d 912 |
Parties | OREGON-WASHINGTON R. & NAV. CO. v. STRAUSS & CO., Inc. |
Court | U.S. Court of Appeals — Ninth Circuit |
Arthur C. Spencer and Roy F. Shields, both of Portland, Or., for appellant.
Wm. P. Ellis, of Salem, Or., and Walter B. Whitcomb, of Bellingham, Wash., for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
The court below having sustained a demurrer to the appellant's complaint, the sole question presented on this appeal is whether or not the complaint states facts sufficient to constitute a cause of action.
The suit was instituted by the appellant to recover freight charges on shipments of grain originating at interior points in eastern Oregon and moving thence by the appellant's railroad to the appellee's dock at Portland, Or. The appellant contends that its complaint sufficiently alleges that the shipments in question were to be transshipped by vessel to other states and to foreign countries.
The freight charges sought to be collected were computed on the basis of the carrier's tariffs on file with the Interstate Commerce Commission. The controversy arose from the appellee shipper's contention that those tariffs were not applicable because the rail movement of the grain was intrastate and subject to local intrastate rates prescribed by the Oregon Public Service Commission.
On the other hand, the appellant carrier maintains that the rail transportation within the state was in reality a part of an intended movement to destinations beyond the state, and that therefore the essential character of the commerce was foreign or interstate, with jurisdiction of the rail rate vested in the Interstate Commerce Commission.
These conflicting positions present the issue to be determined here.
Briefly summarized, the complaint alleges that the appellee, through a subsidiary, owns a dock at Portland; that it is in the business of buying, selling, shipping, and exporting wheat; that "at all times" it "had a substantial number of outstanding and unfulfilled contracts" for sale and delivery of wheat to foreign and California destinations; and "that at the time of the movement by rail of each of the shipments mentioned in this complaint" it "had outstanding contracts for the sale of that wheat and all other wheat it then had on hand or which it was then in the course of purchasing." The complaint continues:
Regarding the continuity of the transportation herein involved, the complaint contained the following allegations:
The complaint contains 248 causes of action; each covering a different carload shipment. Only the first and second of these are set out in the transcript; the others being summarized in a single paragraph, in pursuance to a stipulation. The complaint prays for judgment in the sum of $10,099.01, representing the difference between the interstate rates claimed by the appellant and the intrastate rates actually paid by the appellee.
Holding that the complaint did not sufficiently allege either the intention of the parties that the shipments should move in interstate or foreign commerce or the fact that the transportation was continuous, the court below sustained the demurrer. The appellant electing to stand on its complaint, the court gave judgment for the appellee.
In its brief, the appellant explains that its decision to stand on its original pleading was based upon its unwillingness "to verify an amended pleading stating more than the known facts alleged in the original pleading."
As to the shipments that might have been destined for foreign countries, we may remark in passing that it is well established that the power of the Interstate Commerce Commission to prescribe or regulate rates for such commerce is authorized "only in so far as the transportation takes place within the United States." Lewis, etc., Co. v. Southern Pac. Co., 283 U. S. 654, 660, 51 S. Ct. 592, 595, 75 L. Ed. 1333; Texas & Pacific Ry. Co. v. U. S., 289 U. S. 627, 636, 53 S. Ct. 768, 77 L. Ed. 1410; Great Northern Ry. Co. v. Sullivan (C. C. A. 8) 72 F.(2d) 587, 588. Accordingly, in the instant case we are concerned, as we have seen, only with the rates that should have been charged on those portions of the shipments that took place within the state of Oregon. We are called upon to determine whether the complaint sufficiently alleges facts showing that such transportation, although between points within the state, was in reality a part of an interstate or foreign movement, to which the interstate rates would be applicable.
Under the decisions, it is clear that two elements are indispensable to constitute an interstate or foreign shipment:
(1) There must be a through and continuous movement from one state to another, or to a foreign country.
(2) There must be, at the time that the movement is started, an intention that the shipments shall be interstate or foreign, and this intention must be carried out. In a word, there must be the intent and the event.
As to the first ingredient the court below said:
In view of our holding upon the sufficiency of the complaint as to the allegation of the shipper's intent, it is unnecessary for us to pass upon the correctness of the...
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