Davis v. Prairie Pipe Line Co.

• Decision Date: 07 April 1924
• Docket Number: 6412.
• Citation: 298 F. 393
• Parties: DAVIS, Director General of Railroads, v. PRAIRIE PIPE LINE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

298 F. 393

DAVIS, Director General of Railroads, v. PRAIRIE PIPE LINE CO.

No. 6412.

United States Court of Appeals, Eighth Circuit.

April 7, 1924

Alexander M. Bull, of Washington, D.C. (John F. Finerty, of Washington, D.C., W. W. Brown, of Parsons, Kan., and W. F Lilleston, of Wichita, Kan., on the brief), for plaintiff in error.

E. H Hogueland, of Topeka, Kan. (T. J. Flannelly and Paul B Mason, both of Independence, Kan., on the brief), for defendant in error.

Before STONE and KENYON, Circuit Judges, and PHILLIPS, District Judge.

KENYON Circuit Judge.

The Prairie Pipe Line Company, defendant in error, brought suit in the District Court of the United States for the District of Kansas, Third Division, against James C. Davis, Director General of Railroads, plaintiff in error here, seeking recovery for alleged overcharges on shipments in 1918 of secondhand wrought iron pipe from Cleveland and Kiefer, Okl., to Tiffin, Tex. The shipment from Cleveland to Tiffin comprised two cars, upon which plaintiff in error collected for transportation 56 cents per 100 pounds. On the shipment of the car from Kiefer to Tiffin the freight rate charged was 54 cents per 100 pounds. These rates were the regularly published fifth-class distance rates per hundredweight under Southwestern Lines' Tariff 26-T, Leland's I.C.C. No. 1048.

Defendant in error claims that these charges were excessive, and that the proper rate from both points to Tiffin, Tex., under one of plaintiff in error's tariffs, was 35 cents per 100 pounds, and that the overcharge amounted to $911.68 on the shipment of the three cars. Defendant in error filed complaint with the Interstate Commerce Commission, asking recovery of this alleged excess charge, and the Interstate Commerce Commission sustained its claim. Plaintiff in error filed with the Interstate Commerce Commission petition for rehearing, which was denied on the 9th day of May, 1921. A further petition for rehearing was also denied October 3, 1921. Again, on March 30, 1922, the Commission further considered the matter, and made an order directing plaintiff in error to pay defendant in error, on or before May 15, 1922, the said sum of $911.68, with interest, which plaintiff in error failed to do.

The case was tried in the District Court on an agreed statement of facts, and the court found that defendant in error was entitled to judgment for the said sum of $911.68, together with interest and costs. The question in the case is: What were the tariff rates applicable to these shipments?

There is no dispute that the rates collected, except an admitted excess on one of the cars, where $1.26 per 100 pounds was collected, were the fifth-class distance rates of 56 cents per 100 pounds from Cleveland and 54 cents per 100 pounds from Kiefer, the same being the rates published in Southwestern Lines' Tariff No. 26-T, Leland's I.C.C. No. 1048. These rates would govern unless there were applicable commodity rates. Defendant in error claims, and the Interstate Commerce Commission found, that the correct rate was a commodity rate of 35 cents per 100 pounds, and the same is based on the following situation: At the time of the shipments in question there was in effect by virtue of one of plaintiff in error's tariffs a rate of 35 cents per 100 pounds on wrought iron pipe in carloads from points in the Kansas City territory to points in the Dallas-Fort Worth group in Texas. Tiffin is in this Dallas-Fort Worth group. The Kansas City territory was described in this tariff, which was known as Southwestern Lines' Tariff No. 42-N, Leland's I.C.C. No. 1173. This tariff stated on its title-page as follows:

''Local, joint and proportional tariff applying on classes and commodities from points in the following traffic territories, including points basing thereon, a complete list of which will be found in Southwestern Lines' Territorial Directory No. 1-D, F.A. Leland's I.C.C. No. 1053, or reissues thereof; Kansas City Territory, Kansas Group No. 1, Kansas Group No. 2, Kansas Group No. 3, to Texas points specified on pages 39 to 63, inclusive,' of tariff.'

The 35-cent rate was published in item 1728 of the Southwestern Lines' Freight Tariff No. 42-N, Leland's I.C.C. No. 1173. This tariff therefore refers on its title page to Southwestern Lines' Territorial Directory No. 1-D, F.A. Leland's I.C.C. No. 1053, or reissues thereof. At the time of the shipments there was in effect, lawfully published and filed with the Interstate Commerce Commission, Southwestern Lines' Territorial Directory No. 1-E, Leland's I.C.C. No. 1205, which was a reissue of Southwestern Lines' Territorial Directory No. 1-D, Leland's I.C.C. No. 1053, and this showed list of stations in various states, including Oklahoma, their railroad and territorial location; also special class and commodity rate bases applicable on traffic to and from Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Item No. 20 of this Southwestern Lines' Territorial Directory No. 1-E, Leland's I.C.C. No. 1206, is as follows:

'Exhibit F.

'General Application of Bases.

'Application of Bases at Points Not Specifically Provided for.

'Item No. 20.

'This Territorial Directory contains (with few exceptions) only the names of stations having a population of 500 or more. From or to stations not indexed (see notes A, B, and C), in this directory, the rate will be the same as from or to the next more distant station on the same line which is indexed, except that this provision will not apply from or to points west of the Kansas-Colorado state line, or from points west of a line beginning at Omaha, Neb., and extending via the Union Pacific R.R., through Fremont, thence via the C. & N.W. Ry., through Linwood, Brainerd, Seward, Nora, Neb., thence via the C., R.I. & P. Ry. to Nelson, Neb., thence via the C., B. & Q.R.R. to and including Superior, Neb.'

This is the item which defendant in error claimed authorized the application of the 35-cent rate on the material shipped from Cleveland and Kiefer to Tiffin, Tex., and is the item on which the Interstate Commerce Commission based its opinion granting reparation. This Southwestern Lines' Territorial Directory does not contain the names of Cleveland and Kiefer. Consequently, if the tariff referred to was applicable, the rates, under item 20, would be those from the next more distant station on the same line which is indexed. As to Cleveland, the next more distant station indexed is Coffeyville, Kan., on the Missouri, Kansas & Texas Railway, 81 miles north of Cleveland. The next more distant station to Kiefer, Okl., indexed in the Directory as located in the Kansas City territory, is Baxter, Kan., a station on the St. Louis & San Francisco Railway, 122 miles north of Kiefer. Hence it is claimed the rates from Coffeyville and Baxter to Tiffin, Tex., should apply to Cleveland and Kiefer, and the Commission and the court so found.

It is earnestly contended that the Southwestern Lines' Tariff No. 42-N, Leland's I.C.C. No. 1173, and Southwestern Lines' Territorial Directory do not apply to points south of the Oklahoma-Kansas line; that Cleveland and Kiefer are specifically provided for in the Oklahoma Tariff, and that the holding of the Commission and of the trial court moves the southern boundary of the Kansas City Group, as defined in the tariff, 100 miles south of where the tariff places it. The Southwestern...