Interstate Commerce Commission v. United States Campbell

• Decision Date: 08 May 1933
• Docket Number: No. 748,748
• Citation: 77 L.Ed. 1273,53 S.Ct. 607,289 U.S. 385
• Parties: INTERSTATE COMMERCE COMMISSION v. UNITED STATES ex rel. CAMPBELL et al
• Court: U.S. Supreme Court

289 U.S. 385

53 S.Ct. 607

77 L.Ed. 1273

INTERSTATE COMMERCE COMMISSION

v UNITED STATES ex rel. CAMPBELL et al.

No. 748.

Argued April 21, 1933.

Decided May 8, 1933.

Messrs. Daniel W. Knowlton and Edward M. Reidy, both of Washington, D.C., for petitioner.

Messrs. A. Henry Walter and Johnston B. Campbell, both of Washington, D.C., for respondents.

Mr. Justice CARDOZO, delivered the opinion of the Court.

Upon a complaint filed by the Birch Valley Lumber Company against carriers by rail engaged in interstate commerce, the Interstate Commerce Commission determined that rates maintained by the carriers were unduly prejudicial to the complainant and unduly preferential to its competitors, but that the record would not support an award of damages. Thereupon the complainant sued in the Supreme Court of the District of Columbia for a writ of mandamus commanding the Commission to make an award of damages in accordance with stated formula. The Court of Appeals, reversing the determination of the lower court, held that the writ should issue. 61 App.D.C. 382, 63 F.(2d) 358. The case is here on certiorari. 289 U.S. 714, 53 S.Ct. 524, 77 L.Ed. —-.

The complainant before the Commission, the respondent in this court, is a lumber company engaged in business at Tioga, West Virginia. Transportation service to and from Tioga is supplied by the Strouds Creek & Muddlety Railroad Company (the S.C. & M.), a short line railroad running from Delphi, West Virginia, to Allingdale in that state, a distance of nine and a half miles. The terminus of this road at Allingdale is a junction point with the Baltimore & Ohio Railroad (the B. & O.), and through it with connecting lines beyond. Lumber dealers on the route of the B. & O. have had the benefit of blanket or group rates established by that road and others jointly. The complainant has had to pay the group rate, and in addition a charge for carriage on the S.C. & M., the short line connection. The result has been to put it at a disadvantage as compared with competitors in the same producing territory. 'Complainant,' it is found, 'does not question the reasonableness per se of the blanket or group rates for Allingdale or the other points in the group, but assails only what it terms the relatively high through rates from Tioga and Delphi. It also admits that the charge of the S.C. & M. is not unreasonably high.' The controversy hinges upon the effect of an unlawful preference.

For rate-making purposes the producing territory tributary to the B. & O. in Pennsylvania, Maryland, and West Virginia is divided into several groups. One of these groups known as the Richwood group has its terminus at Allingdale. So also has another group known as No. 9. Lumber dealers competing with the complainant do business within this territory, and pay the group or blanket rate, which takes no heed of distances within the group area. Cf. United States v. Ill. Central R. Co., 263 U.S. 515, 522, 44 S.Ct. 189, 68 L.Ed. 417. In some instances the blanket rate has been extended to short line connections, but this has been exceptional, and has not included any points on the S.C. & M. The additional charge paid by the complainant for the short line connection between Allingdale and Tioga (7.1 miles) is $15 per car. Another lumber company, engaged is business at Delphi, intervened in the proceedings and joined in the complaint. Both the complainant and the intervening shipper were 'forced to base their prices on the group rates and absorb the charges of the S.C. & M.'

The Commission found that the failure of the carriers to establish joint or group rates over the short line connections had the effect of an undue preference to lumber companies doing business within the group territory though apart from the preference the rates were not unreasonable. Accordingly it made an order directed to the B. & O. and other connecting railroads to 'cease and desist' from the unlawful practice. There was no award of damages. 'The record,' the Commission held, 'will not support an award of reparation based on the undue prejudice found to exist

The Interstate Commerce Act makes it unlawful for a carrier to give any undue or unreasonable preference to a person or locality, or to subject any person or locality to an undue disadvantage (24 Stat. 380, § 3, and 41 Stat. 479, § 408, 49 U.S.C., § 3 (49 USCA § 3)), and charges the offender with liability for the full amount of damages resulting from the unlawful act. Section 8 (49 USCA § 8). Upon the hearing of a complaint, the Commission is empowered to ascertain the damages and award them. Section 16(1), 49 USCA § 16(1). The respondent by its complaint to the Commission invoked this dual jurisdiction, the administrative jurisdiction to prescribe a rule for the future (Great Northern Railway Co. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943; Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888, March 13, 1933), and the judicial or quasi-judicial jurisdiction to give reparation for the past. Baltimore & Ohio R. Co. v. Brady, supra. In dismissing such a complaint, the Commission speaks with finality. Its orders purely negative—negative in form and substance—are not subject to review by this court or any other. Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999; Alton R. Co. v. United States, 287 U.S. 229, 53 S.Ct. 124, 77 L.Ed. 275; Procter & Gamble Co. v. United States, 225 U.S. 282, 32 S.Ct. 761, 56 L.Ed. 1091; Baltimore & O.R. Co. v. Brady, supra. Damages for discrimination denied by the Commission are not recoverable somewhere else.

The respondent, conceding these restrictions upon the remedies available in the courts, professes to abide by them. The argument is that damages were found by the Commission, and after being found were arbitrarily withheld. Damages were found, it is said, because the evidentiary facts set forth in the findings lead to a conclusion of damage in a determinate amount, and lead to that conclusion as an inference of law. Damages, being found, were arbitrarily withheld, because discretion is excluded when the loss is ascertained. In that view, the denial of an award is the breach of a ministerial duty to be corrected by mandamus, as if a court after determining in favor of a suitor the amount of his recovery were to refuse him execution.

1. 'The record will not support an award of reparation based on the undue prejudice found to exist.' This is not a finding that damages in the sum of $15 per car or in any other sum have been suffered by the complainant, but will not be awarded. This is a finding that upon the evidence before the Commission, which is not before us, there is not a sufficient basis for a finding of any damage whatever. Nothing in the recital of evidentiary facts is inconsistent as a matter of law with this negation of loss. The Commission does not find, and the complainant does not assert, that the rate was unreasonable in the sense that it would be subject to condemnation if a like rate had been charged to others similarly situated. What is unlawful in the action of the carriers inheres in its discriminatory quality, and not in anything else. When discrimination and that alone is the gist of the offense, the difference between one rate and another is not the measure of the damages suffered by the shipper. Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446, Ann.Cas. 1915A, 315; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 258, 33 S.Ct. 916, 57 L.Ed. 1472; Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 534, 38 S.Ct. 186, 62 L.Ed. 451; Keogh v. C. & N.W.R. Co., 260 U.S. 156, 165, 43 S.Ct. 47, 67 L.Ed. 183; Cf. Postal Tel.-Cable Co. v. Associated Press, 228 N.Y. 370, 379, 380, 127 N.E. 256. It is evidentiary circumstance to be viewed along with others in the setting of the occasion. It is not the measure without more. Pennsylvania R. Co. v. International Coal Mining Co., supra; Keogh v. C. & N.W.R. Co., supra.

Overcharge and discrimination have very different consequences, and must be kept distinct in thought. When the rate exacted of a shipper is excessive or unreasonable in and of itself, irrespective of the rate exacted of competitors, there may be recovery of the overcharge without other evidence of loss. 'The carrier ought not to be allowed to retain his illegal profit, and the only one who can take it from him is the one that alone was in relation with him, and from whom the carrier took the sum.' Southern Pac. Co. v. Darnell-Taenzer Lumber Co., supra, page 534 of 245 U.S., 38 S.Ct. 186. But a different measure of recovery is applicable 'where a party that has paid only the reasonable rate sues upon a discrimination because some other has paid less.' Southern Pac. Co. v. Darnell-Taenzer Lumber Co., supra. Such a one is not to recover as of course a payment reasonable in amount for a service given and accepted. He is to recover the damages that he has suffered, which may be more than the preference or less (Pennsylvania R. Co. v. International Coal Mining Co., supra, pages 206, 207 of 230 U.S., 33 S.Ct. 893), but which, whether more or less, is something to be proved and not presumed. Ibid, page 204 of 230 U.S., 33 S.Ct. 893. 'Recovery cannot be had unless it is shown, that as a result of defendants' acts, damages in some amount susceptible of expression in figures resulted.' Keogh v. C. & N.W.R. Co., supra, page 165 of 260 U.S., 43 S.Ct. 47, 50. The question is not how much better off the complainant would be today if it had paid a lower rate. The question is how much worse off it is because others have paid less.

The answer to that question is not independent of time and place and circumstance. It calls for something more than the use of a mathematical formula. If by reason of the discrimination, the preferred producers have been able to divert business that would otherwise...