Johnston Seed Co. v. United States, 4181.

• Decision Date: 18 August 1951
• Docket Number: No. 4181.,4181.
• Citation: 191 F.2d 228
• Parties: JOHNSTON SEED CO. et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

191 F.2d 228 (1951)

JOHNSTON SEED CO. et al. v. UNITED STATES et al.

No. 4181.

United States Court of Appeals Tenth Circuit.

August 18, 1951.

H. Russell Bishop, Washington, D. C. (R. C. Jopling, Jr., Oklahoma City, Okl., C. J. Harris, Enid, Okl. and H. D. Driscoll, Washington, D. C., on the brief), for appellants.

Samuel R. Howell, Asst. Chief Counsel, Washington, D. C. (Daniel W. Knowlton, Chief Counsel, Washington, D. C., on the brief), for appellee Interstate Commerce Commission.

Hodges, Vidal & Goree, Denver, Colo. and Harry E. Boe, Chicago, Ill., on the brief, for appellees Atchison, & S. F. Ry. Co. et al.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Johnston Seed Company, acting in its own behalf and as successor in interest to Goodholm-Maund Grain Company, and Palacek Mills, brought this action against the United States to annul and set aside an order of the Interstate Commerce Commission fixing for the future rates to be charged for the transportation of mung beans; providing transit arrangements and charges on such beans; denying reparation; and authorizing waiver of collection of outstanding undercharges. A copy of the order of the Commission was attached to and made part of the complaint. The United States answered. The Commission, and the railway companies who were parties to the proceeding before the Commission, or their successors in interest, intervened. Trial was had at which a transcript of the hearing in the proceeding before the Commission was introduced in evidence. Judgment was entered dismissing the action, 90 F.Supp. 358; and plaintiffs appealed.

The order presently challenged was entered in a proceeding pending before the Commission in which Johnston Seed Company and Goodholm-Maund Grain Company charged that they were engaged in business at Enid, Oklahoma; that among other things they purchased, stored, processed, sold, and shipped mung beans by rail from points of origin in Oklahoma, Kansas, and Missouri, to points of destination in various parts of the United States, except the southern territory; that the rates charged for transportation, including transit, of mung beans had been and would in the future continue to be unreasonable and inapplicable. The complainants prayed that the Commission fix rates for the future on the basis of 112 per cent of the rates on grain; prescribe reasonable transit arrangements and charges; and grant reparation. Palacek Mills intervened and sought like relief. After a full hearing and other intermediate procedure, the Commission entered the order in which it fixed for the future rates on mung beans not to exceed 112 per cent of the rates on grain; provided that transit arrangements and charges on dried beans, lentils, and peas should be applicable to mung beans; determined that the rates previously charged on mung beans were not shown to be unreasonable; denied reparation; and authorized waiver of collection of any outstanding undercharges.

Appellants do not challenge that part of the order fixing rates for transportation of mung beans in the future. Neither do they attack that part relating to transit arrangements and charges. They complain only of the part denying reparation on the ground that the rates previously charged were not shown to have been unreasonable. It is contended in respect to such part of the order that the Commission failed to make essential findings of fact which would rationally support it. The argument is that in a case involving reparation the Commission must find what rate was charged, whether the rate charged was the applicable rate, whether the applicable rate was reasonable, if the applicable rate was not reasonable what was a reasonble rate, whether the rate charged was higher than the applicable rate or the reasonable rate if the applicable rate was not reasonable, and whether the action is barred by the statute of limitations; and that having determined all of such subsidiary questions, decide whether reparation should be awarded. It is said that the Commission stopped half-way in this case; that it found the rates which had been charged were those applicable to dried beans, edible, not otherwise indexed by name; that it further found the rates assailed were inapplicable; that logically and legally the next finding required was a finding as to what rate was applicable; and that the Commission failed to make such finding. It may be said generally that basic findings appropriate to support an order granting or denying reparation are essential. State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; United States v. Baltimore & Ohio Railroad Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587; United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co....