Mogis v. Lyman-Richey Sand & Gravel Corp.

• Citation: 189 F.2d 130
• Decision Date: 18 May 1951
• Docket Number: No. 14182.,14182.
• Parties: MOGIS v. LYMAN-RICHEY SAND & GRAVEL CORP.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

189 F.2d 130 (1951)

MOGIS v. LYMAN-RICHEY SAND & GRAVEL CORP.

No. 14182.

United States Court of Appeals Eighth Circuit.

May 18, 1951.

Einar Viren, Omaha, Neb. (Swenson, Viren & Turner, Omaha, Neb., on the brief), for appellant.

Leo Eisenstatt and Yale C. Holland, Omaha, Neb. (Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., on the brief), for appellee.

Before COLLET and STONE, Circuit Judges, and DELEHANT, District Judge.

DELEHANT, District Judge.

This action is before the court on an agreed statement of the case as provided by Rule 76 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

Appellant, plaintiff (who will hereinafter be referred to as plaintiff), brought the action in the district court both for himself, in respect of operations by him, as a motor carrier, and as the assignee of eight other motor carriers of certain commodities to collect undercharges allegedly due from appellee, defendant (which will hereinafter be referred to as defendant), for the transportation of sand and gravel. Plaintiff and each of his assignors are citizens of the State of Nebraska, and defendant is a corporation organized under the laws of Delaware. The matters in controversy between plaintiff and defendant, and, prior to the assignments, between each of plaintiff's assignors and defendant, severally exceed the sum of $3,000.00, exclusive of interest and costs. Jurisdiction, therefore, was properly found, and is conceded, to exist. Title 28 U.S. C.A. § 1332(a) (1).

Plaintiff's petition, with respect to his individual claim, to the extent of its present relevancy, alleges (and comparable allegations are made in each of the several counts resting on assigned claims) that plaintiff is a common carrier by motor vehicle engaged in the business of transportation for hire of sand, gravel, crushed stone, and other similar materials in commerce within the State of Nebraska and is authorized by virtue of a Certificate of Public Convenience and Necessity issued by the Nebraska State Railway Commission so to operate over certain designated routes within the state; that the rates to be charged for the transportation of the designated materials in commerce by motor carriers within the state are subject to and governed by the regulations of the Nebraska State Railway Commission in pursuance of authority derived by that body from the provisions of Article IV, Section 20, of the Constitution of the State of Nebraska and statutes enacted in furtherance thereof; that the rates which were applicable to the transportation here involved and in effect on the dates significant in this action were set forth in what, for our purposes, may be referred to simply as Official Motor Vehicle Tariff No. 3, together with the several amendments thereto as effective August 15, 1945 having the total consequence of increasing authorized rates thirty per-cent above the rates prescribed in original tariff No. 3; that the defendant is engaged in the business of quarrying, producing and processing sand, gravel and crushed stone within the State of Nebraska and selling those materials to users within the state; that during the period from September 15, 1945, to April 5, 1949, the defendant hired plaintiff to transport sand, gravel and crushed stone from various sand and gravel pits of defendant located in the valley of the Platte River in Nebraska to sundry locations in Douglas and Sarpy Counties, in Nebraska, as ordered and directed by defendant, all of which transportation was duly performed by plaintiff; and, finally, that defendant has refused, after demand, to pay for such transportation at the rates prescribed in Official Motor Vehicle Tariff No. 3, as amended, but, instead, has paid plaintiff specified sums less than the rates promulgated by that tariff. Plaintiff's complaint then prays for judgment based upon the amounts by which the rates allegedly prescribed by the commission exceed the amounts actually paid by defendant.

The total sum thus prayed for under all of the counts is $138,000.00, together with costs of suit, including a reasonable attorney's fee. That figure represents treble damages in respect of the several alleged undercharges allowable under Section 59-821, R.S.Neb.1943, as amended, if the payment by defendant of sums less than the rate set forth in the tariff constitutes a rebate under Section 59-817, R.S.Neb. 1943, as amended, which fact plaintiff also alleges. Upon that contention, plaintiff's right to a reasonable attorney's fee also depends.

Defendant's answer sets forth, in general, four grounds of defense, namely, that plaintiff and his assignors were not common carriers by truck, that they did not come into court with clean hands, that the Nebraska State Railway Commission never enforced the rates urged by the plaintiff and that the plaintiff's claims are barred by applicable statutes of limitations. In partial amplification of the issues thus joined by the pleadings, but without direct significance in determining the narrow question presented by this appeal, it may be noted that in the oral arguments of counsel in this court, it was made to appear, without any apparent contention to the contrary, that plaintiff did not request payment in accordance with the rates set forth in Motor Vehicle Tariff No. 3, as amended, at the times defendant paid for the transportation services, but rather was content at the times of the shipments to receive the amounts actually paid by defendant.

The following disposition of this action in the district court leads to this appeal. After the filing of the complaint, plaintiff served upon defendant and filed written interrogatories under Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A. Defendant thereafter served and filed objections to interrogatories and plaintiff subsequently served and filed a motion for an order overruling defendant's objections to interrogatories. At the time set for hearing on those several motions, defendant contended that the Nebraska State Railway Commission was required by Section 84-901 et seq., R.S. Neb.1943, Cum.Supp.1949, Reissue of 1950, to file the regulations and rates promulgated and published by it in Motor Vehicle Tariff No. 3, as amended, with the Secretary of State; and that, in default of such filing, the rates purportedly established in and by Motor Vehicle Tariff No. 3, as amended, were void and of no force, thereby necessitating the dismissal of plaintiff's complaint. Upon defendant's request, the district court postponed ruling upon the interrogatories, objections and motion then pending in order to determine, first, the applicability of Sections 84-901 to 84-906, R. S.Neb.1943, Cum.Supp.1949, Reissue of 1950, to the allegations of plaintiff's complaint and, particularly, to those portions of the complaint relating to the rates promulgated by the Nebraska State Railway Commission. The question was submitted to the district court upon argument and briefs. That court, in a memorandum opinion, Mogis v. Lyman-Richey Sand & Gravel Corporation, D.C.Neb., 90 F.Supp. 251 and accompanying order, found that rate tariffs prescribed by the Commission were to be included within the meaning of "rules" as that term appears and is defined in Sections 84-901 to 84-906, R.S.Neb.1943, Cum. Supp.1949, Reissue of 1950, and that the failure of the Nebraska State Railway Commission to file the rate tariffs set forth in Motor Vehicle Tariff No. 3, as amended, with the Secretary of State of Nebraska rendered the rate tariffs invalid, and dismissed the complaint of plaintiff.

It is from the determination of this single question adversely to the plaintiff that this appeal is taken. Although the agreed statement of the case preserves for the plaintiff other possible bases for appeal, only the question just stated has been urged by counsel on behalf of the plaintiff, either in briefs or upon oral argument, and all others will be considered to have been abandoned for the purposes of this appeal. General Finance Loan Co. v. General Loan Co., 8 Cir., 163 F.2d 709.

Without unnecessary quotation, Sections 84-901 to 84-906, R.S.Neb.1943, Cum.Supp. 1949, Reissue of 1950, enacted in 1945, amended without presently material change in 1947, in effect at the times of all shipments in suit, provided, generally, that each agency, theretofore defined as "each board, commission, department, officer, division or other administrative office or unit of the state government authorized by law to make rules, except the courts and the Legislature", shall file in the office of the Secretary of State a certified copy of the rules of the agency in force when the Act was passed and any rule subsequently adopted by the agency. The agency is required to publish its rules in such a manner as will best bring the existence and scope of the rules to the attention of persons affected thereby. Provision is also made for the filing by the agency before each regular legislative session of a complete certified compilation of all rules then in force and effect, which shall supersede all rules previously filed. A certified copy of each rule is to be submitted to the Attorney General whose approval or disapproval of the rule shall be attached to the filing. And, finally, it is provided that "no rule required under this act to be filed with the Secretary of State shall be valid as against any person until the certified copy of the rule shall have been so filed".

The statute in question was originally enacted as Chapter 255 of the Laws of Nebraska for 1945. It was completely rewritten and as amended reenacted as Chapter 350 of the Laws of Nebraska for 1947. But, except for a provision, now reflected in Section 84-905 R.S.Neb.1943, Reissue of 1950, imposing upon the Attorney General certain advisory duties respecting the legality of agency rules (vide infra), the amendments involved no essential change in the statute. Its amended form, from which all citations herein are made, is somewhat more detailed...