Davis v. Parrington

• Decision Date: 05 June 1922
• Docket Number: 3828.,3799,3800
• Citation: 281 F. 10
• Parties: DAVIS, Agent, v. PARRINGTON. SAN FRANCISCO & P.S.S. CO. v. SAME. DAVIS, Agent, v. PORTLAND SEED CO.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F. 10

DAVIS, Agent, v. PARRINGTON. SAN FRANCISCO & P.S.S. CO. v. SAME. DAVIS, Agent, v. PORTLAND SEED CO.

Nos. 3799, 3800, 3828.

United States Court of Appeals, Ninth Circuit.

June 5, 1922

[Copyrighted Material Omitted]

Arthur C. Spencer, John F. Reilly, and Charles E. Cochran, all of Portland, Or., for plaintiffs in error.

Wilson & Guthrie, of Portland, Or., for defendants in error.

Ben C Day, of Portland, Or., amicus curiae.

Before ROSS, MORROW, and HUNT, Circuit Judges.

Parrington's Cases.

HUNT Circuit Judge.

These cases involve rates on sugar from San Francisco, Cal., to Portland, Or. The San Francisco & Portland Steamship Company called the Steamship Company, operates a line of steamers between San Francisco and Portland, via Pacific Ocean and Columbia and Willamette rivers, with a regular landing place at Ainsworth dock, in Portland, where connection is had with the Oregon-Washington Railroad & Navigation Company, called the Railroad Company, extending from Portland to North Portland. From December 28, 1917, to February 29, 1920, the Director General exercised control of the steamships. On February 17, 1916, the Steamship Company, in connection with the Railroad Company, put into effect a tariff on sugar in carload lots of a minimum of 30,000 pounds of 12 1/2 cents per cwt. The rate was applicable via the line of the Steamship Company to Portland, thence via the Railroad Company to North Portland, and was in effect until June 25, 1918. On June 25, 1918, the rate to North Portland was raised to 15 1/2 cents per cwt., and continued in effect until August 26, 1920. From August 26, 1920, the rate from San Francisco to North Portland was 19 1/2 cents per cwt. During the several periods mentioned the rate, as per the Steamship Company's tariff, from San Francisco to Portland and Astoria, from December 28, 1917, to June 25, 1918, was 15 cents per cwt.; from June 25, 1918, to February 29, 1920, 19 cents per cwt.

Thus the situation became one where before June 24, 1918, the local rate from San Francisco to Portland was higher than the joint rate to North Portland, and after June 24, 1918, the local rate from San Francisco was higher to Portland than the joint rate to North Portland. Astoria carried the same rate as Portland. The contention of Parrington is that the route from San Francisco to Portland is shorter than the route from San Francisco to North Portland, and that the route from San Francisco to Astoria is shorter than the route from San Francisco to North Portland. The Railroad Company admits the latter claim, but does not concede that the distance from San Francisco to Portland is shorter than from San Francisco to North Portland.

The Seed Company Case.

The Seed Company claims that during December, 1918, and January, 1919, at Roswell, N.M., one Mitchell delivered to the Director General of Railroads two carloads of alfalfa seed, consigned to the shipper's order, one car for Yakima, Wash., the other to Walla Walla, Wash., moving over the lines of the Atchison, Topeka & Santa Fe Railway to Denver, thence via Union Pacific lines to Granger, Wyo., thence via Oregon Short Line to Huntington, Or., thence by Oregon-Washington Railroad & Navigation lines to Yakima and Walla Walla, Wash. The Director General delivered the cars to the Portland Seed Company upon surrender of the bill of lading indorsed, and thereafter after demanded $1,311.75 for the car going to Yakima, and $715.79 for the car moving to Walla Walla.

The published rate on alfalfa seed in carload lots from Roswell, N.M., to Yakima and Walla Walla, Wash., was $2.44 per cwt.; that rate being a combination of local rates based upon Denver. The through rate from Pecos, Tex., to Yakima and Walla Walla, was $1.51 1/2 per cwt. The excess of the Roswell rate over the Pecos rate would produce, for the respective cars, certain sums, which, with fees and costs, the Seed Company sued for. The contention is that Pecos, Tex., being a point more distant than Roswell, N.M., on the same line or route over which shipments moved, any sum collected in excess of the Pecos rate was in violation of section 4, the long and short haul clause of the Interstate Commerce Act.

In Parrington's Cases it is argued that the Steamship Company could, without violating section 4 of the act, establish its local rate by water to Portland, and could also concur in a new independent route established by the joint tariffs of the railroad, whereby the route from San Francisco to North Portland was created, and that, while the Steamship Company used part of the lines of the Railroad Company, it was lawful to make a local rate via water line higher than the joint rate via the rail and water line. The accuracy of this reasoning depends upon whether the case is to be considered in recognition of the well-established rule that by the amendments to section 4 of the Interstate Commerce Act (Comp. St. Sec. 8566), providing that the carrier has no right to charge more for a shorter haul over the same line or route than it charges for a longer haul, the shorter being included within the longer distance, the carrier cannot make such charge for the shorter haul until after it shall have presented the matter to the Interstate Commerce Commission and obtained from that body an order permitting the greater charge to the shorter point.

Prior to the amendments of 1910, in the first instance, the carrier could under section 4 determine whether or not there was a dissimilarity of circumstances and conditions which authorized it to charge more for a shorter than for a longer haul over the same line. Since the Act of June 18, 1910, the right of the carrier in the first instance was taken away, leaving the prohibition of the long and short haul clause absolute until the Interstate Commerce Commission could hear the matter, and, if it might see fit, make an order consenting to the higher rate to the intermediate point. In the Intermountain Rate Cases, 234 U.S. 476, 484, 34 Sup.Ct. 986, 990 (58 L.Ed. 1408), the court speaking through the Chief Justice, after discussing the state of the law prior to and after the amendments, said:

'It is certain that the fundamental change which it makes is the omission of the substantially similar circumstances and conditions clause, thereby leaving the long and short haul clause in a sense unqualified, except in so far as the section gives the right to the carrier to apply to the Commission for authority 'to charge less for longer than for shorter distances for the transportation of persons or property,' and gives the Commission authority from time to time 'to prescribe the extent to which such designated common carrier may be relieved from the operation of this section.' ' United States v. Louisville & Nashville R. Co., 235 U.S. 314, 35 Sup.Ct. 113, 59 L.Ed. 245; Skinner & Eddy v. United States, 249 U.S. 566, 39 Sup.Ct. 375, 63 L.Ed. 772.

Inasmuch as no permission from the Interstate Commerce Commission was obtained by the carriers concerned in the present cases, the greater charge to the shorter point was prohibited by the statute referred to. It was an illegal rate, unless the effect of failing to obtain the consent of the Commission can be avoided by regarding the question as purely administrative, to be submitted first to the Interstate Commerce Commission before appeal lies to the judicial power. The later decisions of the Supreme Court (Penn. R.R. Co. v. International Coal M. Co., 230 U.S. 184, 33 Sup.Ct. 893, 57 L.Ed. 1446, Ann. Cas. 1915A, 315; Penn. R.R. Co. v. Puritan Coal Co., 237 U.S. 121, 35 Sup.Ct. 484, 59 L.Ed. 867; Penn. R. Co. v. Sonman Coal Co., 242 U.S. 120, 37 Sup.Ct. 46, 61 L.Ed. 188), however, point out the distinction between an assault against the rule of the statute and an unequal and discriminatory application of the rule. Recently, in St. Louis, I.M. & S.R. Co. v. Hasty & Sons, 255 U.S. 252, 41 Sup.Ct. 269, 65 L.Ed. 614, where it was contended that a proper interpretation of a railroad tariff called for administrative consideration, the court said that the matter was so free from doubt that it was unnecessary to apply to the Commission for construction. The present case fairly illustrates the principle, for the question here involved is clearly not administrative as to what rate is reasonable, but whether, under the circumstances already outlined, the only way provided for charging more for a short than for a long haul has been followed. If it has not, there is a remedy by action in damages in court. Section 9, Interstate Commerce Act (Comp. St. Sec. 8573).

Counsel have argued that in the carriage from San Francisco to North Portland the line to North Portland is distinct from that to Portland, and they cite C. & N.W.R. Co. v. Osborne, 52 F. 912, 3 C.C.A. 347, as authority for their view that the local rate via water line or route could be higher than the joint rate via rail and water line or route. In the case cited ...