Interstate Commerce Commission v. Texas & P. Ry. Co.

• Decision Date: 04 October 1892
• Parties: INTERSTATE COMMERCE COMMISSION v. TEXAS & P. RY. CO.
• Court: U.S. District Court — Southern District of New York

52 F. 187

INTERSTATE COMMERCE COMMISSION v. TEXAS & P. RY. CO.

United States Circuit Court, S.D. New York.

October 4, 1892

Edward Mitchell, (Simon Sterne and John D. Kernan, of counsel,) for complainant.

Winslow S. Pierce, (John F. Dillon, of counsel,) for defendant.

WALLACE Circuit Judge.

This is an application to enforce an order of the interstate commerce commission, made January 29, 1891, in a proceeding instituted by the New York Board of Trade & Transportation. The petition in that proceeding complained of unjust discrimination made by various railway carriers. The defendant was duly notified of the complaint, and appeared in the proceeding, and submitted its rights. It was shown to the commission, as appears by the findings of fact in their report, that the defendant, in conjunction with the Southern Pacific Company made joint rates from New Orleans to San Francisco covering carriage of traffic by the rails of the defendant from New Orleans to El Paso, and thence by the rails of the Southern Pacific Company to San Francisco, and also made joint rates with vessel owners in London and Liverpool covering carriage of traffic from those places to San Francisco via New Orleans. It was also shown that the ordinary tariff rates charged by the two companies upon traffic delivered to the defendant at New Orleans, and shipped at New York, Chicago and other places in this country, for carriage from New Orleans to San Francisco, were somewhat more than double the rates charged for carriage of similar traffic sent from Liverpool or London by through bill of lading to San Francisco via New Orleans. To illustrate, it was shown that the rates made by the two companies in conjunction with Liverpool vessel owners, by through bill of lading from Liverpool to San Francisco via the rails of the defendant from New Orleans to El Paso, were, per 100 pounds, on books on carpets, and on cutlery, $1.07 while the regular tariff rates of the two companies upon the articles when sent to New Orleans from other places in this country were, per 100 pounds, on books, $2.64, on carpets, $2.88, and on cutlery, $3.26; and that the rates on these articles, when shipped from Liverpool, were 80 cents per 100 pounds for carriage from New Orleans to San Francisco.

The defendant contended that it was justified in making the discrimination between the foreign and domestic traffic, because, owing to the competition of sailing vessels and foreign carriers between Liverpool and San Francisco, it could not get any appreciable amount of foreign traffic without meeting the competitive rates by making the rates given. The commission, while conceding the facts to be as asserted by the defendant, ruled against the validity of the excuse, and made an order which, in substance, required the defendant to desist from carrying any article of imported traffic, shipped from any foreign port upon through bills of lading, destined to any place within the United States, at any other than the same rates established by the inland tariff of the defendant for the carriage of other like kind of traffic. It is admitted by the answer of the defendant that since the order of the commission was made it has maintained a substantially similar disparity in its transportation rates for these articles, as well as in those for the transportation of numerous other articles, depending upon the foreign or domestic origin of the shipment. The defendant insists that its action in this regard is not prohibited by the provisions of the interstate commerce act, and that, as it has not been guilty of any unjust discrimination, within the meaning of that act, the order of the commission ought not to be enforced. It also insists that the proceeding is defective, because the Southern Pacific Company is not made a party to the defense.

If the order made by the commission was a lawful one, I see no reason why the defendant should not be compelled to obey it notwithstanding the Southern Pacific Company is not at present pursued. If the defendant is violating a proper order of the commission, it should be restrained from doing so; and it cannot escape upon the objection that another wrongdoer is also violating...