International & G. N. Ry. Co. v. Carter

• Citation: 180 S.W. 663
• Decision Date: 10 November 1915
• Docket Number: (No. 5529.)
• Parties: INTERNATIONAL & G. N. RY. CO. v. CARTER.
• Court: Court of Appeals of Texas

180 S.W. 663

INTERNATIONAL & G. N. RY. CO. v. CARTER.

(No. 5529.)

Court of Civil Appeals of Texas. San Antonio.

November 10, 1915.

On Motion for Rehearing, December 15, 1915.

Appeal from Bexar County Court for Civil Cases; Ed. H. Wickes, Special Judge.

Action by C. G. Carter against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. Randolph L. Carter, of San Antonio, for appellee.

CARL, J.

Appellee sued the appellant for possession of a Ford automobile, tendered $49.20 freight alleged to be due thereon, and sequestered the car. The railway company answered, alleging that a mistake had been made in the rate under the interstate rate as fixed by the Hepburn Act, and in a cross-action sued appellee and the sureties on the sequestration bond for freight in the sum of $131.20; also $25 for storage on the car after it arrived at San Antonio.

The trial was before the court without a jury. Judgment was in favor of appellee; that is, the railway company was given judgment for the freight which had been tendered, and against it on its cross-action. The trial court held that the interstate joint rate under which appellant claimed the right to charge $131.20 was not shown to be in force, and that therefore the rate fixed in the bill of lading — i. e., $49.20 — should prevail, because there was no proof that the interstate rate had been published in the manner required by the federal statutes.

There is no proof that this rate would have applied to a car such as appellee shipped, even if it had been in force. But the reason given by the trial court is, in our opinion, correct. We take this from the trial court's findings:

"The court finds that the Interstate Commerce rate pleaded by the defendants was not in force or effect at any time during the shipment involved in this cause, because the rate was not published, and copies of the rate were not furnished to any of the agents, freight offices, or stations of the Mallory Steamship Company, or the defendant railroad company at New York City, or elsewhere. Therefore the contract rate evidenced by the bill of lading was in force and effect, and the defendants wrongfully withheld the automobile from the plaintiff when the tender of $49.20 was made."

It was not shown that this interstate rate had been published as required, and cases construing this act hold that, in order to show a rate effective thereunder, it is necessary to show the filing of the rate with the Commission and the publication of the same. That publication seems to be to deposit copies of the rate with the carrier's agents at the stations where shipments are made. It is not probable that the Congress contemplated that a rate should become effective and the heavy penalties provided attach by the mere filing with the Commission and before any agent knew of the same or had a copy of the rate so that he might be guided thereby. Railway Co. v. Reynolds, 135 S. W. 162; Hunter v. Railway Co., 167 Mo. App. 624, 150 S. W. 733. Justice White said, in Railway Co. v. Cisco Oil Mill, 204 U. S. 449, 27 Sup. Ct. 358, 51 L. Ed. 562:

"The filing of the schedule with the Commission and the furnishing by the railroad company of copies to its freight offices incontrovertibly evidenced that the tariff of rates contained in the schedule had been established and put in force as mentioned in the first sentence of the section."

We quote this from a North Carolina case:

"The act provides that, in order to establish a lawful schedule of rates, it must not only be thus `filed with the Commission,' but also `printed and kept open to public inspection,' and the provision, further on, in regard to changes in the schedule of rates, is that they `shall not be made, except after thirty days' notice to the public, published as aforesaid.' What, then, is meant by the expression `published as aforesaid'? It is apparent that these words imply that in making an original schedule `publication' of some kind was essential to its validity and effectiveness. If we refer again to the first clause of section 6, we find that the schedule must first be filed with the Commission, and then it must be `printed and kept open to public inspection.' This requires distribution to and among the different stations or depots at which the schedule of rates must have effect, and this is the construction the highest court has placed upon it. * * * The publication intended by the act, therefore, is filing with the agents at the several stations the schedules for public inspection, and this is what has been defined by the court in the Miller Case as `promulgation and distribution.' Compliance with this requirement is made a condition precedent to the effectiveness of the schedules and the lawfulness of the rate charged thereunder." Virginia Co. v. Railway, 166 N. C. 62, 82 S. E. 1.

It seems to us that it was intended that the rate should become effective "by filing with the Interstate Commerce Commission and depositing printed copies of the filed rate at its stations." And no such publication was shown in this case.

We find nothing else that requires attention, and, since we think the correct result was reached upon the trial, the judgment is affirmed.

On Motion for Rehearing.

We must confess that we have had great difficulty in arriving at a correct understanding of the Interstate Commerce Act with reference to the requirements necessary to the establishment of interstate rates. This may arise from the fact that, as a general rule, we are only called upon to deal with our Texas statutes, which are much clearer and easier to understand. But this difficulty does not appear to be a trouble peculiar to us; for in searching the opinions of the United States Supreme Court we have not been able to find a definition of what is meant by "publication" as applied to the establishment of such rates. In some it appears...