Inghram v. Union Stock Yards Co. of Omaha
| Decision Date | 28 October 1933 |
| Docket Number | No. 1283.,1283. |
| Parties | INGHRAM v. UNION STOCK YARDS CO. OF OMAHA, Limited, et al. |
| Court | U.S. District Court — District of Nebraska |
E. D. O'Sullivan, of Omaha, Neb., for plaintiff.
Brown, Fitch & West, of Omaha, Neb., for defendant Union Stock Yards Co.
Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., for defendant Secretary of Agriculture.
Before GARDNER and WOODROUGH, Circuit Judges, and DONOHOE, District Judge.
This is a suit in equity brought pursuant to section 316 of the Packers and Stockyards Act of 1921 (7 USCA § 217), in which the plaintiff, a market agency dealing in live stock, seeks to enjoin the Union Stock Yards Company of Omaha (Limited), a corporation, the United States of America, and the Secretary of Agriculture, from enforcing certain charges for the service of reweighing live stock sold and delivered at the yards of the Stock Yards Company, and to enjoin and restrain that company from collecting a judgment obtained by it against plaintiff for similar charges exacted by the Stock Yards Company, which judgment was affirmed by the Circuit Court of Appeals of the Eighth Circuit on appeal taken by the plaintiff. Inghram v. Union Stock Yards Co. of Omaha, 64 F.(2d) 390.
The defendant Union Stock Yards Company has filed its separate motion to dismiss the suit on three grounds: (1) Insufficiency of the allegations of the bill of complaint as a basis for the relief asked; (2) plaintiff has an adequate remedy at law; (3) this court is without jurisdiction of the subject-matter. The defendants United States of America and the Secretary of Agriculture have also filed motion to dismiss on the grounds: (1) That the court is without jurisdiction of the subject-matter; (2) the allegations of the bill of complaint are insufficient to justify the relief sought.
The facts admitted by these motions may be summarized as follows: The plaintiff is a market agency registered with the Secretary of Agriculture, dealing in live stock, as defined in the Packers and Stockyards Act (), and is engaged in buying and selling live stock in the commission division of the defendant Union Stock Yards Company of Omaha, Neb. The defendant Union Stock Yards Company of Omaha (Limited) has its principal office and place of business at Omaha, Neb., where it owns, maintains, and operates a stockyards designated as a public stockyards by the Secretary of Agriculture under the Packers and Stockyards Act (42 Stat. 159, U. S. Code title 7, §§ 181-229 7 USCA §§ 181-229).
At the time the defendant Union Stock Yards Company was opened as a public market by the Secretary of Agriculture, it filed its tariff of rates and charges for its services as required by the act. This tariff contained, among other provisions, a charge of one-half of the regular yardage charge on all live stock planted and resold in the commission division. This yardage charge was, on the Secretary's own motion, investigated for the purpose of determining whether it was just, reasonable, and nondiscriminatory. As a result of such investigation the Secretary determined, by his order of June 22, 1923, that the charge was discriminatory, and by an order directed the Stock Yards Company to cease and desist from collecting same. This order did not prescribe rates which would be nondiscriminatory, and was silent as to the method which the Stock Yards Company might use in removing the discrimination.
Following the issuance of this order, the Stock Yards Company filed a tariff effective August 1, 1923, in the nature of an amendment, which substituted for the half-yardage charge certain charges for the reweighing of live stock, except live stock going to the country. This provision was then carried into subsequent schedules filed by the Stock Yards Company. Among these schedules was supplement No. 2 to schedule No. 2, which contained the following exception: "Except on live stock going to the country, no re-weigh charge will be made." Schedule No. 3 became effective May 10, 1928, and schedule No. 4 became effective September 10, 1931. All these subsequent schedules contained yardage charges and also charges for reweighing, and contained the same exception as embraced in supplement No. 2 to schedule No. 2 above noted.
Plaintiff in this suit filed with the Secretary of Agriculture complaint against the so-called reweigh charge, and this complaint, on hearing by the Secretary of Agriculture, was on August 29, 1928, dismissed, the Secretary holding that the reweigh was not unlawfully discriminatory. The plaintiff herein, however, refused to pay such charges, and as a result the Stock Yards Company brought suit in this court and obtained a judgment against it. This judgment was affirmed by the Circuit Court of Appeals in Inghram v. Union Stock Yards Co., 64 F.(2d) 390. This judgment remains unpaid, and the Stock Yards Company threatens to levy execution against plaintiff's property to satisfy it, and other charges against plaintiff have accumulated, amounting in all to $875.83, and further action to collect same is threatened by the Stock Yards Company.
It is alleged in the bill of complaint that: "Your petitioner believes that said schedules of re-weigh charges aforementioned and the order of said C. F. Marvin are illegal, null and void in that they are not based upon any legal or proper schedule of charges which said Union Stock Yards Company could lawfully make and that the pretended schedules of charges which are sought to be enforced in this instance by said Union Stock Yards Company is discriminatory, null and void for the following reasons and each of them:"
There is then set out various alleged reasons, the substance of which may be summarized as follows: (a) Discrimination between plaintiff and other dealers who resell at the market and those who obtain a like service at the market, but do not resell their live stock there, but ship it to the country; (b) that there is no substantial distinction between a reweigh on stock sent to the country and a reweigh on stock resold at the stockyards; (c) that the schedules or charges for reweigh are in direct conflict with the opinion of the Secretary of Agriculture rendered June 22, 1923; (d) that no services are rendered which would justify a reweigh charge; (e) that the imposing of the reweigh charge is an unfair burden on those who are compelled to pay for it; (f) that the reweigh charge is not made in good faith; (g) that its enforcement is in violation of the Constitution; (h) that the reweigh charge is paid for once in the original yardage charge; (i) that it represents a charge for a "fake privilege of the market."
The motions to dismiss, of course, admit every well-pleaded allegation of fact. Clark v. Pigeon River Improvement Slide & Boom Co. (C. C. A. 8) 52 F.(2d) 550; United States Navigation Co. v. Cunard S. S. Co., 284 U. S. 474, 52 S. Ct. 247, 76 L. Ed. 408. They do not admit, however, matters of argument, conclusions of law, nor mere inferences or conclusions as to matters of fact. Missouri Pacific R. Co. v. Norwood, 283 U. S. 249, 51 S. Ct. 458, 75 L. Ed. 1010.
Section 316 of the Packers and Stockyards Act (section 217, title 7, U. S. Code 7 USCA § 217) makes the provisions of all laws relating to suspending or restraining the enforcement, operation, or execution of, or the setting aside, in whole or in part, of orders of the Interstate Commerce Commission, applicable to the proceedings taken by the Secretary of Agriculture. Stafford v. Wallace, 258 U. S. 495, 42 S. Ct. 397, 66 L. Ed. 735, 23 A. L. R. 229; Tagg Bros. v. United States, 280 U. S. 420, 50 S. Ct. 220, 74 L. Ed. 524. Even where a judicial review of an order of the Secretary is proper, it does not involve a trial de novo. Tagg Bros. v. United States, 280 U. S. 420, 50 S. Ct. 220, 74 L. Ed. 524. Except as to issues presenting the claim of confiscation or other invasion of constitutional rights, the validity of an order of the Secretary, like that of an order of the Interstate Commerce Commission, must be determined upon the record of the proceedings had before him.
At the very threshold of this inquiry, we are met with the challenge that the court is without jurisdiction, and that the suit should, therefore, be dismissed for want of jurisdiction. In support of this contention it is pointed out that the order of the Secretary complained of directed no affirmative relief, but was negative in character. The order dismissed plaintiff's complaint because the Secretary concluded, after hearing, that the reweigh charge assailed was not unjustly discriminatory. No new rates were prescribed by the Secretary. Procter & Gamble Co. v. United States, 225 U. S. 282, 32 S. Ct. 761, 56 L. Ed. 1091, and Piedmont & No. Ry. Co. v. United States, 280 U. S. 469, 50 S. Ct. 192, 74 L. Ed. 551, are strongly relied upon as sustaining this contention.
In Procter & Gamble Co. v. United States, supra, a shipper which owned tank cars used in transporting its products, complained to the Interstate Commerce Commission of a rule of the carriers which subjected such cars to demurrage charges. The complaint charged that the challenged ruling was unjust and oppressive, and to enforce it would create preferences forbidden by the Interstate Commerce Act (49 USCA § 1 et seq.). After hearing, the Interstate Commerce Commission denied the relief sought and dismissed the complaint. 19 I. C. C. 556. The shipper then filed a petition in the Commerce Court of the United States (188 F. 221) against the United States, the Interstate Commerce Commission, and the carriers concerned, charging that the order of the Commission dismissing its complaint was null and void and beyond the power of the Commission. The United States and the Interstate Commerce Commission interposed a motion to dismiss because...
To continue reading
Request your trial