Empire Refining Co. v. Davis

• Decision Date: 31 March 1925
• Docket Number: No. 4049.,4049.
• Citation: 6 F.2d 305
• Parties: EMPIRE REFINING CO. v. DAVIS, Director General.
• Court: U.S. District Court — Eastern District of Oklahoma

6 F.2d 305 (1925)

EMPIRE REFINING CO. v. DAVIS, Director General.

No. 4049.

District Court, E. D. Oklahoma.

March, 1925.

Warren T. Spies, of Bartlesville, Okl., for plaintiff.

W. L. Curtis, of Ft. Smith, Ark., for defendant.

KENNAMER, District Judge.

This action is upon a reparation award made by the Interstate Commerce Commission in the sum of $64.32, covering an overcharge in freight rates. The shipment was a car of gasoline shipped on September 9, 1918 (during federal control) from Independence, Kan., to Lincolnton, N. C. It moved over the Missouri Pacific Railroad to Memphis, Tenn., over the St. Louis & San Francisco to Birmingham, Ala., and thence by the Seaboard Air Line to Lincolnton, N. C. The Director General collected on the shipment a total rate of 83 cents per 100 pounds, which was made up of two factors, viz. a rate of 23? cents from Independence to Memphis, and a rate of 59? cents from Memphis to Lincolnton. On June 24, 1918, the published rates in effect between said points on gasoline were, between Independence and Memphis, 19 cents, and between Memphis and Lincolnton, 47? cents, which in combination made a total of 66? cents. On June 25, 1918, by a general order the Director General advanced the freight rate on gasoline 25 per cent. This advance made the rate from Independence to Memphis 19 cents, and that from Memphis to Lincolnton 59? cents. Shortly after the promulgation of the said order advancing rates, the Director General, by his Freight Rate Authority No. 96, instructed the carriers to change the advance of 25 per cent. to a flat advance of 4? cents. By a supplement to Boyd's Tariff, which published the rate from Independence to Memphis, the change was made in that rate, which made the rate 23? cents. At the time this shipment moved, Washburn's Tariff, which published the rate from Memphis to Lincolnton, had not been corrected to comply with the last order of the Director General, and the published rate remained 59? cents.

The Interstate Commerce Commission found that the Director General overcharged on this shipment, and that the proper rate to be charged and collected was 71 cents, made up of 19 cents to Memphis and 47? cents thence to Lincolnton (the respective rates in force on June 24, 1918), plus an increase of 4? cents. The Commission's holding was based upon a provision of Boyd's Tariff publishing the rate from Independence to Memphis, which stated that, when the total charges on a through continuous movement of petroleum and its products, including gasoline, are constructed by combination of separately established rates applying to and from junction points, first determine the through combination of rates in effect on June 24, 1918, and then increase such combination of rates 4.5 cents.

The tariff publishing the rate from Memphis to Lincolnton contained no similar provision, and no reference is made in same to Boyd's Tariff. Because said tariff does not contain a combination rule, and makes no reference to Boyd's Tariff, it is the contention of the Director General that the legal and correct through combination rate between Independence and Lincolnton on this shipment is the local rate from Independence to Memphis of 23? cents, plus the local rate from Memphis to Lincolnton of 59? cents, or a total of 83 cents, which was the rate collected. It is the theory of the Director General, as stated in his brief, that in constructing a through rate, by combining the local rates contained in one tariff with the local rates contained in another, such through combination rate cannot be changed in any way by any rule or regulation not actually contained in both tariffs, or made a part of both tariffs by cross-reference, in view of Tariff Circular No. 18-A of the Commission, promulgating certain rules with respect to the publication of tariffs.

No authority, either by decision of the Commission or the courts, is cited in support of this position by the Director General. On the other hand, many decisions of the Commission are cited by plaintiff which uphold the decision made by the Commission in making this award; the ruling case apparently being that of Sligo Iron Store Co. v. Western Maryland R. Co., 62 Interst. Com. Com'n R. 643, on rehearing 73 Interst. Com. Com'n R. 551. In that case, as in the present award, the Commission held that the publication of the combination rule in the tariff of the carrier on whose line the shipment originated was a holding out of a manner of making combination rates on through shipments which that carrier must protect.

The technical subject of tariff construction is one which ordinarily the Commission, because of its composition of members with special experience, knowledge, and training in that subject, is better able to correctly solve than the courts, and its decisions are a helpful guidance to the courts in arriving at correct conclusions in such matters. Davis v. Prairie Pipe Line Co. (C. C. A.) 298 F. 393. Apparently the decision of the Commission in this award is correct, and unless some authority or good reason is offered to the contrary it should be sustained.

It would seem that the Commission found that the correct published through combination rate between Independence and Lincolnton was 71 cents, by reason of the provision in Boyd's Tariff, which published the rates for the initial carrier, that in fixing such through combination rate, composed of separately established rates as factors, the through combination of rates in effect on June 24, 1918, should be determined, and then a flat increase of 4? cents added to their total. As a matter of fair legal construction, this appeals as a correct rule. In other words, when the shipper consulted the tariffs to determine the rates, he found that the initial carrier held out and published to him that the total rate from Independence to Lincolnton would be a combination of the local rates in effect between Independence and Memphis, of 19 cents, and between Memphis and Lincolnton, of 47? cents, with an addition of the flat increase of 4? cents. As a matter of justice, this construction is also appealing, for the Director General admits the effect of his Freight Rate Authority No. 96 was to place such total rate between...