Mobile & Ohio Railroad Company, a Corp. v. Southern Saw Mill Company, a Corp.

• Decision Date: 08 May 1923
• Citation: 251 S.W. 434,212 Mo.App. 117
• Parties: MOBILE & OHIO RAILROAD COMPANY, a Corporation, Appellant, v. SOUTHERN SAW MILL COMPANY, a Corporation, Respondent
• Court: Missouri Court of Appeals

251 S.W. 434

212 Mo.App. 117

MOBILE & OHIO RAILROAD COMPANY, a Corporation, Appellant, v. SOUTHERN SAW MILL COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, St. Louis

May 8, 1923

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.

REVERSED AND REMANDED (with directions.)

Judgment reversed and cause remanded.

R. P. & C. B. Williams for appellant. C. T. Prince, of Counsel.

(1) The legal rate is the filed rate, and it is the duty of the carrier to charge and actually collect the rate on file, even though such rate be excessive, unreasonable and unlawful. Pittsburg v. Fink, 250 U.S. 577; L. & N Railroad Co. v. Maxwell, 237 U.S. 94; Dayton Coal Co. v. C. N. & T. P. Railroad Co., 239 U.S. 446; Pennsylvania R. R. Co. v. International Coal Mining Co., 230 U.S. 185; Armour Packing Co. v. U.S. 209 U.S. 56; Mitchell Coal Co. v. Pennsylvania R. R Co., 230 U.S. 247; Morrisdale Coal Co. v. Pennsylvania R. R. Co., 230 U.S. 304; Interstate Commerce Commission v. L. & N. R. R. Co., 227 U.S. 88; Boston v. Hooker, 233 U.S. 97, 58 L.Ed. 868; Kansas City v. Carl, 227 U.S. 638; Gulf R. R. Co. v. Hefley, 158 U.S. 99; Kansas City Southern v. Albers Com. Co., 223 U.S. 573; Arkansas Fuel Co. v. C. M. & St. P. R. R. Co., 16 Interstate Commerce Commission 95; Crescent v. Clear R. R. Co., 24 I. C. C. 149; Mobile & Ohio R. R. Co. v. Laclede Lumber Co., 202 Mo.App. 630; Cicardi Bros. v. Pennsylvania R. R. Co., 201 Mo.App. 609; Busch v. Driller Co., 199 Mo.App. 152; Yazoo & Mississippi R. R. Co. v. Picher Lead Co., 190 S.W. 387; Chicago R. R. Co. v. Lightfoot, 232 S.W. 176; Ill. Central v. Henderson, 226 U.S. 441, 57 L.Ed. 290. (2) It was the absolute duty of the plaintiff, the delivering carrier, to collect the rate on file with the interstate Commerce Commission, else it would have been liable to a penalty and prosecution under the act. Robinson v. Baltimore, 222 U.S. 504; 4 Fed. Stat. Ann. (2 Ed.), sec. 1 (B), p. 558; U. S. v. New York Central, 212 U.S. 514. (3) The carrier, the Mobile & Ohio Railroad Company, was the delivering line and had nothing to do with filing or putting into effect the rate of sixteen cents on cypress lumber and its duty, in making the charge and collecting the freight was simply to examine the schedule of rates on file and to apply such filed rate irrespective of whether it was reasonable or unreasonable, and the remedy of the shipper, if he paid an unreasonable rate, was to seek reparation before the Commission in the manner prescribed by section 15 of the Interstate Commerce Acts. Pennsylvania R. R. Co. v. International Coal Co., 230 U.S. 185; Pennsylvania R. R. Co. v. Clark Coal Co., 238 U.S. 456; Loomis v. Lehigh, 240 U.S. 43; Robinson v. Baltimore, 222 U.S. 504. Rates once established in the manner provided by the statute by filing and publication shall not be changed except in the manner provided by the statute. Section 6 of the act provides that such rates shall be changed "by printing new schedules or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection." 4 Fed. Statutes Ann. (2 Ed.), sec. 6 (C); U. S. v. Miller, 223 U.S. 602; Robinson v. Baltimore, 222 U.S. 504. (4) An order of the Interstate Commerce Commission directing a carrier to cancel a rate does not have the effect of annuling such rate. The Interstate Commerce Act simply giving the Commission power to make orders, and if such orders are not obeyed the remedy for compelling obedience is specifically prescribed in section 16 of the act. The filed rate must be chargd and actually collected. It shall be conclusively deemed to be the legal rate, and any departure therefrom "shall be an offense." 4 Fed. Stat. Ann. (2 Ed.), sec. 16 (K), p. 488; 4 Fed. Stat. Ann. (2 Ed.), 1 (B), p. 558; Western Ry. Co. v. Penn. Ry. Co., 137 F. 343, affirmed 208 U.S. 208. (5) The court erred in excluding plaintiff's Exhibits B and C; Exhibit B being a letter written by the carrier to the Interstate Commerce Commission requesting a ruling as to what rate should be applied to the shipments in question, and Exhibit C being the reply of the secretary of the Commission, stating that the rate of sixteen cents was the proper rate. These exhibits were admissible in evidence as an investigation and an informal ruling of the Interstate Commerce Commission under the rules of said Commission, and the law applicable thereto. See Daish on Procedure in Interstate Commerce cases, section 73; Texas & Pacific R. R. Co. v. American Tie Co., 234 U.S. 138. (6) Under the United States Statutes the carrier has the primary right to fix rates, and so long as they are acquiesced in by the Commission, the carrier and the shipper are alike bound to treat them as lawful. Morrisdale Coal Co. v. Pennsylvania R. R. Co., 230 U.S. 304; Interstate Commerce Commission v. L. & N. R. R. Co., 227 U.S. 88; Baltimore v. Pitcairn, 215 U.S. 481; Pittsburgh Ry. Co. v. Fink, 250 U.S. 577. (7) The carriers distinctly refer to I. & S. Docket No. 184 as authority for filing the schedule containing the sixteen-cent rate. If the order of the Commission, in I. & S. Docket No. 184, condemned a rate of sixteen cents on cypress lumber, why did the carrier specifically cite this order in filing the rate as a re-issue, and why did the Commission, with full knowledge in the premises, permit the schedule to be filed and to remain on file, carrying the sixteen-cent tariff? (8) The trial court was not possessed of jurisdiction to consider or determine that the duly filed rate was void, or for any reason should not be applied. Texas Ry. Co. v. Oberline Co., 204 U.S. 426; Baltimore v. U.S. 215 U.S. 481; Robinson v. Baltimore, 222 U.S. 506; Mitchell Coal Co v. Penn. Ry., 230 U.S. 247; Loomis v. Lehigh Valley Ry., 240 U.S. 42, 43; Director General v. Viscose Co., 254 U.S. 498. (9) Penn. Ry. Co. v. International Coal Co., 230 U.S. 185, says: "The statutes require the carrier to abide absolutely by the tariff. If, as a fact, the rates were unreasonable, the shipper was nevertheless bound to pay and the carrier to retain what had been paid, leaving, however, to the former the right to apply to the Commission for reparation."

John F. Gillespie for respondent.

(1) These being interstate shipments, the Federal statutes and decisions of the Federal courts control. Adams v Croninger, 226 U.S. 491. (2) Unreasonable charges for carriage of freight are prohibited, unlawful and void (par. 3, sec. 1, Interstate Commerce Act [sec. 8563, p. 9065, West's Ann. U. S. St. 1916]). (3) The Interstate Commerce Commission is the proper tribunal to determine reasonableness of rates and its findings are prima facie correct. Ill. Cent. R. R. Co. v. I. C. C., 206 U.S. 441; I. C. C. v. U. P. R. R., 222 U.S. 541; I. C. C. v. L. & N. R. R. Co., 235 U.S. 314; L. & N. R. R. Co. v. U.S. 245 U.S. 463; Morgan's L. & T. R. R. & S. S. Co. v. Isaac Joseph Iron Co., 243 F. 149; Pars. 1 and 2, sec. 15, Interstate Commerce Act; Sec. 8583, p. 9198, West's Ann. U. S. St. 1916. (4) The finding by the Interstate Commerce Commission that a rate or proposed rate is unreasonable cancels the rate and makes it unlawful and void. Southern Cotton Oil Co. v. Central of Georgia Ry. Co., 228 F. 335; American Sugar Ref. Co. v. D. L. & W. Ry. Co., 200 F. 652, 207 F. 733; L. & N. R. R. Co. v. Maxwell, 237 U.S. 94; I. C. C. v. U. P. R. R. Co., 222 U.S. 541; I. C. C. v. C. R. I. & P. Ry. Co., 218 U.S. 88; I. C. C. v. L. & N. R. R. Co., 227 U.S. 88; Morgan Co. v. G. N. R. R. Co., 263 F. 611; Par. 1, 2, Sec. 15, Interstate Commerce Act (Sec. 8583, p. 9198, West's Ann. U. S. St. 1916); Secs. 12, 16, Interstate Commerce Act; O'Keefe v. United States, 240 U.S. 294; Daish on Procedure in Interstate Commerce cases, p. 235. (5) The plaintiff concurred in the publication of the tariffs and supplements, by filing a concurrence with the Interstate Commerce Commission and is responsible for it. But its concurrence or lack of it cannot affect the validity or invalidity of the rates (6) The plaintiff acquiesced in the ruling of the Commission that the sixteen-cent rate was unreasonable, by publishing a new tariff (No. 610C, I. C. C. 2746), naming a fourteen-cent rate. (7) Supplement No. 1 to Tariff No. 610C, I. C. C. 2746, naming a sixteen-cent rate, did not purport to be issued in contravention of the Commission's order, but in compliance with it, and was called a "reissue," not a new rate (Plaintiff's Points and Authorities, Point 7). There could not be a "reissue" of a rate that had never been in effect, and which the Commission held was unreasonable and therefore could not take effect. (8) Neither Supplement No. 1 nor Supplement No. 5, to Tariff No. 610, could take effect as new rates, because they purported to be effective retroactively to February 1, 1915, were not issued until February 23, 1915, and April 17, 1915, respectively, and were not published thirty days before the named effective date as required by section 6 of the Interstate Commerce Act. Par. 3, sec. 6, Interstate Commerce Act (Sec. 8569, p. 9127, West's Ann. U. S. St. 1916). (9) Supplements Nos. 1 and 5 could not take effect as "reissues" because they were not in accordance with the Commission's order, which held the sixteen-cent rate void and ordered it canceled. The order of the Commission permitting the filing of new schedules within less than the statutory time of thirty days only authorized schedules in compliance with its order to continue the fourteen-cent rate in effect. Par. 3, sec. 6, Interstate Commerce Act (Sec. 8569, p. 9127, West's Ann. U. S. St. 1916). (10) The order of the Commission left the prior fourteen-cent rate in effect, and the attempted "reissues" did not change it. Pars. 1 and 2, sec. 15, Interstate Commerce Act (Sec. 8583, p. 9198,...