Atchison, T. & SF Ry. Co. v. United States

• Decision Date: 30 October 1934
• Citation: 8 F. Supp. 825
• Parties: ATCHISON, T. & S. F. RY. CO. et al. v. UNITED STATES et al.
• Court: U.S. District Court — Southern District of New York

8 F. Supp. 825

ATCHISON, T. & S. F. RY. CO. et al. v. UNITED STATES et al.

District Court, S. D. New York.

October 30, 1934.

Silas H. Strawn, Ralph M. Shaw, E. A. Boyd, P. F. Gault, Walter McFarland, J. N. Davis, Wallace Hughes, D. P. Connell, and James Stillwell, all of Chicago, Ill., L. H. Strasser, of St. Louis, Mo., and Frank H. Towner, of Chicago, Ill., for petitioners.

J. Stanley Payne, Asst. Chief Counsel Interstate Commerce Commission, of Washington, D. C. (Daniel W. Knowlton, Chief Counsel, of Washington, D. C., of counsel), for defendant Interstate Commerce Commission.

Hornblower, Miller, Miller & Boston, of New York City (Nathan L. Miller, Harold J. Gallagher, and Edward M. Boyne, all of New York City, of counsel), for intervener Hygrade Food Products Corporation.

Charles E. Cotterill, of New York City, and Luther M. Walter, of Chicago, Ill. (Mark W. Potter, of New York City, of counsel), for intervener Union Stock Yard & Transit Company of Chicago.

Before MANTON, Circuit Judge, and KNOX and GODDARD, District Judges, composing a court convened pursuant to section 380, title 28, of the United States Code (28 USCA § 380).

MANTON, Circuit Judge.

The suit is brought under the Urgent Deficiencies Appropriation Act to set aside an order of the Interstate Commerce Commission which was made on application of the Hygrade Food Products Corporation, an intervener herein. The complainants were ordered to cease and desist from practices which subjected the Hygrade Food Products Corporation to the payment of yardage charges on live stock consigned to it at the Union Stockyards in Chicago, in instances where delivery is taken at unloading pens provided for such purpose. The order of the commission does not apply to live stock, delivery of which is taken at holding pens, as distinguished from unloading pens. The intervener Hygrade Food Products Corporation operates a packing plant adjacent to the Union Stockyards and purchases much of its live stock from points outside of Illinois. Shipments of this live stock are carried into the yards under an arrangement between the yards company and the railroads. The cars are placed at unloading platforms of the yards company which performs the unloading service for the railroads at the latter's expense. The animals are taken from the cars into unloading pens, and, if the consignees are not there at the time of the unloading, they are removed almost immediately into holding pens where there are facilities for feeding, watering, and otherwise caring for them. If the consignees are present at the time of unloading, they take delivery of the stock at the unloading pens. Whether the consignees take delivery of the live stock at the unloading pens or at the holding pens, they have been subjected to certain yardage charges made by the yards company, and this has been so whether the holding pens service is given to the live stock or otherwise.

The Hygrade Corporation did not object to yardage charges where delivery was taken at the holding pens since actual service was rendered, but has succeeded before the commission in avoiding such charges where delivery is taken at unloading pens.

The Interstate Commerce Commission found the yards company to be a live stock terminal for the line haul carriers bringing live stock to Chicago, and that consignees were entitled under section 15 (5) of the Interstate Commerce Act, as amended (41 Stat. 456, 484, U. S. C. title 49 § 15 (5), 49 USCA § 15 (5), to delivery at pens, suitable for proper delivery, without charge, and that the mere placement therein of live stock constituted no assessable service rendered by the yards company.

The decision of the commission also provides that a charge may rightfully be made by the yards company if delivery at the unloading pens is not taken within a reasonable time, which time, due to the peculiar nature of the business, may be but a matter of minutes. The order is directed against the line haul carriers and the yards company and it is they who ask relief in this suit.

It is argued by the complainants that the commission was without jurisdiction to make the order, but the commission has answered that sections 1 (6) and 15 (1) of the Interstate Commerce Act, as amended (41 Stat. 456, U. S. Code, title 49 49 USCA §§ 1 (6), 15 (1)), vest jurisdiction in it. Section 1 (6) declares that all common carriers subject to its provisions shall "establish, observe, and enforce * * * just and reasonable * * * practices affecting * * * rates * * * the manner and method of * * * delivering property for transportation * * * and all other matters relating to or connected with the receiving, handling, transporting, storing, and delivery of property * * * and every unjust and unreasonable * * * practice is prohibited." Section 15 (1) provides for the enforcement of the provisions of section 1 (6) and that if after a full hearing the Interstate Commerce Commission believes any practice to be unjust or unreasonable, it shall order the carrier or carriers to cease violations thereof and conform to a practice prescribed by the Interstate Commerce Commission as just and reasonable. Matters concerning rates may constitute an unjust practice. Adams v. Mills, 286 U. S. 397, 52 S. Ct. 589, 76 L. Ed. 1184.

It is also said that the order is uncertain and indefinite and therefore void because (a) it does not state what is a reasonable time within which the intervener must accept delivery in order to be relieved of the payment of the yardage charges; (b) it does not state whether the yards company is or is not a common carrier, and (c) it does not state what shall become of the yardage charges after the complainants and the yards company are required to cease the practice whereby they have imposed such charges upon the Hygrade Corporation. Also, it is argued, that the order attacked herein was not made in a practice case, as so treated by the commission, but a rate case, and that the order of the commission is therefore void in that it does not determine that the present rates on live stock carriage are adequate to enable the complainants to absorb the yardage charges of the yards company.

Lawful yardage charges, such as those involved in keeping the animals in holding pens, may well be a matter under the jurisdiction of the Secretary of Agriculture by virtue of the Packers and Stockyards Act (42 Stat. 159, U. S. C. title 7 § 181 et seq. 7 USCA § 181 et seq.), and not under the cognizance of the Interstate Commerce Commission. But section 226 (7 USCA), section 406 of the Packers Act, states that "nothing in this chapter shall affect the power or jurisdiction of the Interstate Commerce Commission, nor confer upon the Secretary (of Agriculture) concurrent power or jurisdiction over any matter within the power or jurisdiction of such commission." It is thus apparent that if the jurisdiction of the Interstate Commerce Commission is established, jurisdiction of the Secretary of Agriculture must give way thereto.

The Interstate Commerce Commission, by virtue of sections 13 (1) and 15 (1) of the Interstate Commerce Act, as amended, 49 USCA §§ 13 (1), 15 (1), has been given jurisdiction over unreasonable practices of carriers engaged in interstate transportation. This has application to the order entered herein, for the movement of live stock into unloading pens constitutes a part of their transportation; it is but the delivery of the consignee's shipment. Section 1 (3), 49 USCA § 1 (3), defines "transportation" as "all services in connection with the receipt, delivery, * * * storage, and handling of property transported."

It is said that the reasonable time within which the consignee must accept delivery of live stock consigned to it, to avoid the imposition of the yardage charges, is so indefinite as to render the order void. What constitutes a reasonable time varies with the volume of live stock received; whether the run was light or heavy. The general manager and vice president of the yards company stated that in the ordinary course of delivery animals are taken at the unloading pens, but that if this is to be done, it must be done almost simultaneously with the unloading of animals into the pens. The immediate removal of the animals from the unloading pens is absolutely necessary in order to preserve an even flow of live stock from cars into...