Central Transfer Co. v. Terminal R. Ass'n of St. Louis

• Decision Date: 19 October 1932
• Docket Number: No. 9366.,9366.
• Citation: 61 F.2d 546
• Parties: CENTRAL TRANSFER CO. v. TERMINAL R. ASS'N OF ST. LOUIS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F.2d 546 (1932)

CENTRAL TRANSFER CO. v. TERMINAL R. ASS'N OF ST. LOUIS et al.

No. 9366.

Circuit Court of Appeals, Eighth Circuit.

October 19, 1932.

Glendy B. Arnold, of St. Louis, Mo. (Roy M. Eilers, of St. Louis, Mo., on the brief), for appellant.

C. S. Burg and H. H. Larimore, both of St. Louis, Mo. (D. P. Connell, of Chicago, Ill., and W. N. Davis, A. H. Kiskaddon, M. G. Roberts, Harold R. Small, L. H. Strasser, Guy A. Thompson, Thomas W. White, Edward J. White, J. M. Bryson, E. T. Miller, N. S. Brown, and T. M. Pierce, all of St. Louis, Mo., on the brief), for appellees.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

The appellant (plaintiff in the court below) filed its complaint on August 24, 1931, against the appellees (defendants) in the United States District Court for the Eastern District of Missouri, praying for injunctive relief under section 26, title 15, U. S. Code (15 USCA § 26). The cause of action stated in the complaint was that the defendants had entered into and were about to carry out an unlawful agreement, the effect of which would be to destroy the interstate transfer business of the plaintiff within the St. Louis and East St. Louis switching district and to restrain unduly interstate transportation of freight in less than carload lots by motortrucks within and between these cities, and to create an illegal monopoly of such business, in violation of sections 1 and 2, title 15, U. S. Code (15 USCA §§ 1, 2). The defendants in their answer asserted that the plaintiff was without legal capacity to sue, and that the agreement complained of was not unlawful. The case was tried, and the court made findings of fact and declarations of law, determining both issues in the defendants' favor. A decree of dismissal was entered, from which this appeal was taken.

The only dispute so far as the facts are concerned seems to be with respect to the purity or impurity of the motives of the carrier defendants in contracting with the defendant Columbia Terminals Company (hereinafter called the Columbia) to act as their sole agent in the transfer of less than carload freight between their off-track and on-track stations, and between their respective on-track stations, and in the maintenance of their off-track stations in the cities of St. Louis and East St. Louis.

The essential facts are not in dispute, and the first question for determination is whether the facts justify the court's conclusion that the plaintiff was without right to sue.

The plaintiff is a transfer or trucking company hauling freight, for hire, by motor-truck within the St. Louis, Mo., and East St. Louis, Ill., district. With the exception of the Columbia, the defendants are common carriers by railroad of freight and passengers, and are subject to the Interstate Commerce Act (49 USCA § 1 et seq.). They constitute virtually all of the steam railroad lines having terminals in St. Louis or East St. Louis. The Columbia is, like the plaintiff, a transfer and trucking company engaged in the business of hauling freight between the off-track and on-track stations of the carriers and in interchange between their on-track stations in this same district. For many years before the complaint was filed, the carriers had designated off-track stations in St. Louis and East St. Louis where less than carload freight could be received and delivered. The rails of the carriers operating east of the Mississippi ended in East St. Louis, but their tariffs provided rates to and from St. Louis, and the service of transporting less than carload freight from the ends of their rails in East St. Louis to their off-track stations in St. Louis was performed by transfer companies severally employed by them. The carriers operating west of the Mississippi, whose terminals were in St. Louis, maintained off-track stations in certain sections of that city, and also employed transfer companies to transport less than carload freight between their off-track and on-track stations. The interchange of less than carload freight between the on-track station of one carrier and the on-track station of another carrier was also provided by transfer companies employed by the several carriers. The off-track stations were the places of business of the transfer companies, and were designated and named in tariffs on file with the Interstate Commerce Commission as points at which the carriers would receive and deliver less than carload freight. In 1918 there were four transfer companies performing services for the various carriers in the handling of less than carload freight billed to and from off-track stations and also in handling the interchange of such freight between on-track stations. By the time this complaint was filed, there were left only the plaintiff and the Columbia, the latter having acquired either the ownership or control of the other competitors at a time (1926) when the carrier defendants were contemplating entering into a joint arrangement with it for the purpose of having it act as their sole agent for the handling of their less than carload freight to and from off-track stations and for their interchange business in the St. Louis-East St. Louis district.

Carload freight moving between East St. Louis and St. Louis was handled by the Terminal Railroad Association of St. Louis, over its bridges and other terminal facilities, as the agent for all of the carriers.

In furtherance of the purpose formed during the year 1926 to limit the handling of their less than carload freight between their on-track and off-track stations, and in interchange, to one transfer company and to reduce the number of their off-track stations, the carriers filed on May 21, 1927, through their joint publishing agent, their tariff I. C. C. No. 1950, effective July 1, 1927, wherein they proposed to reduce the number of off-track stations in St. Louis from twelve to seven, and to reduce those at East St. Louis from two to one. The tariff provided for the application of rates to such off-track stations. Of the five off-track stations to be eliminated at St. Louis, two were operated by the Columbia and three by the plaintiff. At East St. Louis, the off-track station eliminated was operated by a transfer company controlled by the Columbia. Protests having been filed against the tariff, the Commission suspended the schedules and entered upon an investigation as to their lawfulness. Because of the investigation, the effective date of the tariff was postponed until November 1, 1931.

The Interstate Commerce Commission on November 1, 1927, began its hearing to determine the lawfulness of the methods proposed by the carriers for reducing the number of off-track stations. On May 13, 1929, its report was filed. 155 I. C. C. 129. The Commission reached the conclusion that the proposal of the carriers to employ a single transfer company for the operation of off-track stations and the haulage between such stations and the on-track stations of the railroads and in the interchange of freight between the carriers was not violative of any provision of the Interstate Commerce Act, and that the proposals to reduce the number of off-track stations in St. Louis and East St. Louis would not be harmful to the public interest.

The Commission, in the absence of a cost study, declined to approve the allowances which the carriers proposed to pay for the services of their sole agent, and directed that a cost study be made by the carriers. A further hearing as to the reasonableness of the proposed allowances was held by the Commission, and it filed its report on July 27, 1931, approving such allowances. 177 I. C. C. 316.

The off-track stations provided for in the tariff approved by the Commission, to become effective on November 1, 1931, were located only at the places of business of the Columbia. The schedules eliminated as off-track stations the places of business of the plaintiff and provided for the application of rates to only the off-track stations named in the tariff.

The plaintiff offered to become the sole agent of the carriers, but by contract dated June 1, 1931, the Columbia was employed to perform the services. The effect of this contract, so far as the plaintiff is concerned, will be to deprive it of the business of maintaining the off-track stations which it previously maintained for the carriers, and to take away from it the business of acting as the agent of any of the defendant carriers in the transfer of less than carload freight between off-track and on-track stations, and between on-track stations, and virtually to destroy its business, which consisted almost entirely of the performance of these services for the carriers.

For the purpose of determining whether the plaintiff may maintain this suit, it is not necessary to set forth in detail the provisions of the contract in question. It constitutes the Columbia the sole agent of the carriers for the maintenance of the off-track stations designated in the tariff, and for the transfer of less than carload freight. We shall assume, for the purpose of the argument, that the agreement is what the plaintiff asserts it to be, that it was entered into by the carriers for the purpose of destroying the business of the plaintiff, and that it will constitute an undue restraint upon interstate commerce, will create a monopoly, and will cause the plaintiff irreparable loss and damage.

Section 26, title 15, U. S. Code (section 16 of the Clayton Act 15 USCA § 26) authorizes a corporation to sue for and have injunctive relief against threatened loss or damage by a violation of the anti-trust laws, "Provided, That nothing herein contained shall be construed to entitle any * * * corporation, (etc.) * * * except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of chapter 1 of Title 49, Transportation, in respect of any matter subject to the regulation, supervision, or...