Old Colony Furniture Co. v. United States

• Decision Date: 31 January 1951
• Docket Number: Civil No. 50-304.
• Citation: 95 F. Supp. 507
• Parties: OLD COLONY FURNITURE CO. et al. v. UNITED STATES et al.
• Court: U.S. District Court — District of Massachusetts

95 F. Supp. 507

OLD COLONY FURNITURE CO. et al. v. UNITED STATES et al.

Civil No. 50-304.

United States District Court, D. Massachusetts.

January 31, 1951.

Gould H. Coleman, Gardner, Mass., for plaintiff.

Daniel W. Knowlton, Chief Counsel, Edward M. Reidy, Associate Chief Counsel, for Interstate Commerce Commission, Washington, D. C., Gerald L. Phelps, Sp. Asst. to the Atty. Gen., for defendant.

Harold E. Spencer, Chicago, Ill., Prime F. Osborn, III, Mobile, Ala., Neal J. Holland, Boston, Mass., for Illinois Central Railroad Co. et al., Intervening Defendants.

FORD, District Judge.

This an action under 28 U.S.C.A. § 1336 to set aside an order of the Interstate Commerce Commission dismissing complaints brought before that Commission under 49 U.S.C.A. § 9 in which petitioners here sought reparation for alleged overcharges by certain railroads which have been allowed to intervene as defendants in the present action.

Between 1942 and 1946 petitioners paid freight on various shipments, by rail, of wooden automobile parts. Before shipment these parts had been treated with a coat of sealer material, a coat of primer material, and a coat of olive drab lusterless enamel. The dispute is as to which of two commodity descriptions is applicable to these shipments. Item 425 of the tariff known as Agent Hoke's I.C.C. No. 546 (and corresponding items in other tariffs) is for "Freight automobile body parts, * * * painted, i.e., further advanced in the stage of manufacture than in the white, or creosoted or otherwise preservatively treated." Item 310 of that tariff (and corresponding items of other tariffs) is for "Automobile * * * boards * * * made wholly of wood, in the white or creosoted or otherwise preservatively treated." Freight was paid on the basis of Item 425. The shippers contend that Item 310 should have been applied since the coat of enamel applied to the wooden parts was merely a preservative. The Interstate Commerce Commission held that paint was not a preservative, within the meaning of the tariff descriptions, but only a protective coating; that the wooden parts were painted; and that, therefore, Item 425 was properly applied.

Defendant railroads have raised a question as to the jurisdiction of the court. They rely upon § 9 of the Interstate Commerce Act, 49 U.S.C.A. § 9, which grants to persons in the position of petitioners here the right to proceed either by way of an action for damages in the District Court or by way of a complaint to the Commission, and then provides that "such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt." It is contended that this section as interpreted in Standard Oil Company of Indiana v. United States et al., 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999, makes the decision of the Commission final and subject to no judicial review whatsoever. Petitioner, the Interstate Commerce Commission, and the United States, through a representative of the Attorney General, argue that under 28 U.S.C.A. § 1336, this court does have jurisdiction over the present action.

The recent case of United States v. Interstate Commerce Commission et al., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, supports the petitioners" contention. The railroads here contend, however, that under that case a distinction can still be made between those cases in which the shipper is free to bring his action either in the courts or before the Commission and those in which he must first resort to the Commission because the questions raised fall within the primary jurisdiction of the agency. Texas & Pacific Railway Company v. American Tie & Timber Co., Ltd., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255; Texas & Pacific Railway Company v. Abilene Cotton Oil Company, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. It is argued that in cases of the former class, court review of the Commission's order is still barred. It is true that in the Supreme Court in 337 U.S. at page 436, 69 S.Ct. 1410, 93 L.Ed. 1451, discusses this distinction. But this appears to be brought forward only as an additional ground for holding that even under the Standard Oil Company decision, supra, the case then before the court would have been open to review. And the discussion of § 9 makes no distinction between the various types of cases under § 9 but holds that all are subject to review. The Supreme Court's holding was specifically, 337 U.S. at page 440, 69 S.Ct. at page 1418, that "a Commission order dismissing a shipper's claim for damages under 49 U.S.C. § 9, 49 U.S.C.A. § 9, is an `order' subject to challenge under 28 U.S.C. (1946 ed.) § 41(28)."¹

Moreover, even if the distinction urged by defendant carriers were still valid, the present case is one in which review would be allowed. The American Tie & Timber Co., case, supra, is a leading instance of the type of case in which the doctrine of primary jurisdiction is applicable. In that case the question was whether the words "lumber, all kinds" 234 U.S. 138, 34 S.Ct. 886 as used in the applicable tariffs included oak railway crossties. The question here is a similar one, viz., whether the words "otherwise preservatively treated" apply to articles which have been given a single coat of enamel. It is a question of whether or not a peculiar or technical meaning is to be given to the words of the tariff. Cf. Great Northern Railway Co., v. Merchants Elevator Co., 259 U.S. 285, 293, 42 S.Ct. 477, 66 L.Ed. 943. The case here is one in which petitioners were obliged to have recourse to the Commission in the first instance, and thus one in which United States v. Interstate Commerce Commission et al., supra, clearly holds that judicial review is available.

Furthermore, the reasoning of the Supreme Court in the Standard...