Carson Lumber Co. v. St. Louis & S.F.R. Co.

• Decision Date: 14 November 1913
• Docket Number: 3,930.
• Citation: 209 F. 191
• Parties: CARSON LUMBER CO. v. ST. LOUIS & S.F.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

209 F. 191

CARSON LUMBER CO. v. ST. LOUIS & S.F.R. CO.

No. 3,930.

United States Court of Appeals, Eighth Circuit.

November 14, 1913

June 26, 1 1907, defendant in error filed and made effective amendment No. 11 to said tariff 25-- D, which made the following modification of that tariff: 'The rates named herein unless otherwise specified, will only apply on shipments of forest products, car loads, which move into milling, resawing, reconsigning or concentrating points, and when the manufactured products or shipments that have received concentrating privilege are reshipped via the St Louis & San Francisco Railroad from such milling, resawing reconsigning or concentrating points to destinations named in and under rates covered by tariffs Nos. 186, 200, 368, 546 599, 900 and 904 Series, but will not apply on shipments moving between points within the state of Arkansas or between points within the state of Missouri.'

It will be seen that this amendment was in effect when plaintiff in error made its inbound shipments as aforesaid. The local rates paid by plaintiff in error were those established by defendant's tariff known as 856-- B, I.C.C. 5130. Reference to Frisco Tariff 904-- A, which is the only tariff mentioned in the numbers set out in amendment No. 11, above quoted, that is applicable to these shipments, discloses the following provision: 'Rates named herein for any given point from stations located in any particular group are to be the maximum rates which will apply from points in the group figuring to such point of destination and are not intended to be maximum rates to apply from point named within such group where rates from point of origin can be made lower than that named in the tariff by use of the Local Distance Tariff 856 Series, I.C.C. Series 5130.'

The effect of these various provisions of the tariffs and amendments thereto, which were in force at the time plaintiff in error made its inbound shipments, was that the shipper was permitted to avail himself of the milling in transit privilege accorded, provided he shipped into Hugo at local tariff rates and reshipped to the extent required via the Frisco under rates named in Tariff 904 Series or 856-- B at his option.

November 16, 1907, Oklahoma and the Indian Territory were admitted as the present state of Oklahoma. The tariffs to which reference has been made remained in force until March 2, 1908. Up to this time plaintiff in error had made no outbound shipments from Hugo, and on that day the Corporation Commission of the State of Oklahoma promulgated and put in force a schedule of rates known as Leland's Lumber Tariff No. 1, Frisco 557-- D. These rates were lower than such outbound rates would have been under the tariffs in force when the inbound shipments were made, to wit: 904 Series and 856-- B. In obedience to an order of the oklahoma Corporation Commission, by which it was required to enforce the rates named in said Leland's Lumber Tariff, defendant in error published a certain tariff known as Oklahoma Lumber Tariff No. 1, effective March 2 1908, and canceled all previous milling in transit privileges applicable to shipments within the state of Oklahoma. Plaintiff in error did not begin the reshipments involved in this controversy until March 4, 1908. It paid on such outbound shipments the rates fixed by said Oklahoma Corporation Commission, and did not pay the rates in force on such outbound shipments at the time the inbound shipments were made. With the specific rates named in these various tariffs we are not concerned. The following clause in the agreed statement of facts, upon which the case was tried, furnishes a sufficient basis for our discussion in that respect: 'It is further agreed that the Corporation Commission rates paid by the plaintiff on said outbound shipments were lower than the outbound rates that were in force when inbound shipments were made into Hugo prior to the taking effect of the said inbound shipments were made into Hugo prior to the taking effect of the Corporation Commission rates, and that all of the said outbound shipments were made after the taking effect of said Corporation Commission rates.'

The local tariff rates paid by plaintiff in error on said inbound shipments amounted to $6,193.14. The flat rate named in item 17 on such shipments amounts to $1,700.78, making a difference of $4,449.19, which is the amount of refund claimed. Of this, $386.61 arose upon eight interstate shipments; the balance, $4,062.48, concerned shipments wholly within the state of Oklahoma. In the fifth paragraph of the agreed statement of facts 'defendant recognizes its liability upon those cars mentioned in plaintiff's petition, and which moved to interstate points, there being eight of such shipments. ' The court below...