Davison Gulfport F. Co. v. Gulf & Ship Island R. Co.

• Decision Date: 20 July 1937
• Docket Number: No. 8338.,8338.
• Citation: 92 F.2d 107
• Parties: DAVISON GULFPORT FERTILIZER CO. v. GULF & SHIP ISLAND R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

92 F.2d 107 (1937)

DAVISON GULFPORT FERTILIZER CO. v. GULF & SHIP ISLAND R. CO.^*

No. 8338.

Circuit Court of Appeals, Fifth Circuit.

July 20, 1937.

B. E. Eaton, of Gulfport, Miss., for appellant.

Oscar Backstrom and Hanun Gardner, both of Gulfport, Miss., Elmer A. Smith, of Chicago, Ill., and Charles N. Burch, H. D. Minor, and Clinton H. McKay, all of Memphis, Tenn., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

On various dates, between December, 1928, and October, 1934, appellee, a common carrier, performed services, including wharfage, for appellant in regard to commodities moving coastwise interstate. For these services it exacted and received the charges provided therefor in tariffs the carrier had duly filed with the Interstate Commerce Commission. Appellant paid the charges without objection or protest, and without complaint as to their reasonableness or validity; nor does it now complain that the services rendered were not fully worth the charges made. What is claimed by appellant in this suit it brought in 1935 to recover the total of the wharfage charges, is that by contract with the United States made June 18 pursuant to a public resolution adopted June 14, 1906,¹ both attached as exhibits to the petition, appellee completely ceded to the Secretary of War all of its powers to make and publish wharfage tolls, fees, or charges; that the charges in question having been made and filed with the commission without his approval, their making and filing was a nullity; that appellant was entitled to have the carrier render it wharfage services free of charge; and that it was therefore entitled to recover back the charges it had paid. Nine special pleas were filed by defendant. To these were attached as exhibits copies of the published schedules of tariffs it had filed with the commission, and under which the wharfage services had been rendered and paid for.

By replication to the pleas plaintiff, in confession and avoidance, pleaded the joint resolution and contract set out in the margin below; that in 1911, at the request of defendant, the Secretary of War had established rates and charges for wharfage, except as to commerce coastwise; and that, thereafter, until the filing of the tariffs involved in this suit, defendant had neither promulgated nor exacted wharfage charges for coastwise movements. It alleged that in 1927 defendant, purportedly under the authority of the tariffs its pleas describe, began to assess and did thereafter assess and collect of plaintiff, as charged in the declaration, wharfage charges on commerce moving coastwise, the same in amount as those the Secretary had approved for shipments other than coastwise.

By way of estoppel by conduct and claim it was further charged against defendant, that not only before the Secretary of War in the 1911 proceedings, but before the commission in 1931 and again in 1934, defendant railway company had consistently taken the position that the Secretary of War, and not the commission had sole jurisdiction over its wharfage charges, and that there was no authority in the commission to make or prescribe, oversee, or interfere with, such charges.

Finally, plaintiff insisted that the making and filing of the tariff schedules had furnished no authority for the imposition of the charges, because by its contract defendant had divested itself of, and vested in, the Secretary of War the initial authority to prescribe them, and that unless at least first approved by him, the filing of schedules with the commission would be wholly unauthorized, and without effect in law.

To this replication to its pleas defendant filed demurrers, in effect asserting that the Hepburn Amendment to the Interstate Commerce Act enacted June 29, 1906, 34 Stat. 584, and the later amendments to the act, 49 U.S.C.A. ? 1 et seq., had vested the commission with complete and comprehensive jurisdiction over commerce moving interstate. That it had superseded and made unnecessary, as to interstate rates and charges, including those for wharfage, the protective provisions of the Resolution and contract upon which plaintiff relies; that the rates were therefore properly charged and exacted; and that in this action for moneys had and received plaintiff could not recover them. The demurrers challenged too, as immaterial the allegations in the replication as to the defendant's course of conduct in asserting that the Secretary of War, and not the commission, had jurisdiction over these rates.

The District Judge sustained the demurrers and, plaintiff declining to plead further, dismissed its bill.

Here the controlling question arising on the pleadings whether the public resolution and contract plaintiff relies on deprive the commission of jurisdiction over the wharfage rates in question, is made more sharp and clear by a stipulation; that "the tariffs on which the charges were collected were published and filed with the Commission in strict accordance with the terms and conditions of the Act to regulate commerce, and amendments thereto, and the rules and regulations of the Commission"; and that "unless authority to supervise and regulate the wharfage rates in question in this suit was at the time of their making and filing, and of the payment under them, vested in the Secretary of War under the joint resolution and contract, the said schedules of tariffs were lawful schedules and the charges for which plaintiff seeks restitution as being unlawful, were lawful charges, which the defendant had the right to collect and retain." Thus by the stipulation, the parties make stand out the controlling question in the case, whether the existence of the resolution and contract destroyed defendant's power to initiate rates under the Interstate Commerce Act (49 U.S.C.A. ? 1 et seq.), and nullified the schedules it filed with the commission unless and until it first presented its proposed schedules to the Secretary of War and received his approval. Thus they make stand out plaintiff's contention that the charges asked and received, though reasonable in themselves, and the same charges the Secretary had approved for commerce other than coastwise, were unlawful charges and uncollectible, and ex aequo et bono in an action for money had and received, defendant was bound to return them.

Here, as it did below, appellee insists that the authority of the commission under the Hepburn, and the various other amendments to the Commerce Act, is comprehensive, universal, and all-embracing; that it extends to wharf and other terminal charges; to Gulfport as to all other ports; that the charges it collected upon tariffs filed with the commission constitute the only lawful charges under which the shipments in question could have moved; and that, once fixed by filing, defendant could neither forego them before collection, nor rebate nor return them after collection. It insists that the sole purpose and intent of the resolution and contract by which plaintiff sets such store, its only effect, was to make provision, where, before the passage of the Hepburn Amendment² none existed, against the exaction of exorbitant and unreasonable charges for the use of defendant's wharves, not to prevent the making of any charge for that use. It urges upon us that the act of the Secretary of War, in approving wharfage charges except as to coastwise commerce, and disapproving those solely because that commerce was negligible, is a definite affirmation that the resolution and contract were designed not to prohibit, but to regulate such charges, to require the defendant to furnish not free, but reasonable service. It argues, too, that if there is anything in plaintiff's contention that before filing its tariffs with the commission, defendant ought to have submitted them to and obtained the approval of the Secretary of War, it is not substantial but only formal. It insists that, since it is admitted that the charges are reasonable, indeed, are the same in amount as those the Secretary has already approved for a like service, the claim may not prevail in an action of substance like this for money had and received where only matters of substance may be availed of. Plaintiff, in short, may not recover here upon the mere showing that the charges exacted were informally initiated by tariffs filed by defendant with the commission before the formal step of submitting them to the Secretary of War had been complied with. It must show that in themselves they were unreasonable exactions for the services rendered, and having by pleading and stipulation admitted that they were reasonable, it may not recover.

We agree with appellee. We think it may not be doubted that nothing in the circumstances of, the making of the resolution and contract, nothing in them, supports the claim that the Congress intended them forever to create, and forever maintain, an anomalous situation at Gulfport, by taking wharfage charges there out of the comprehensive general powers conferred upon the commission by the act. We are particularly sure that nothing in the resolution, the contract, or any of the acts lends color to the idea that a shipper can avail itself of services rendered under regularly published tariffs fixing reasonable charges, and having for years voluntarily paid those charges, recover them back upon a mere showing that they were not first submitted to the Secretary of War for his approval. The history of the long pending controversy, of which the pleadings and the briefs are full, over whether the power over wharfage rates at Gulfport is lodged with the Secretary, or with the commission shows that at times shippers have, and at times the railroad company has insisted that it is lodged with the commission, rather than the Secretary, while at times the shippers have and at times the railroad has put the Secretary forward rather than the commission. It shows that the first rates established by the Secretary of...