Petition of Southern Lumber & Mfg. Co.

• Decision Date: 20 January 1919
• Citation: 210 S.W. 639,141 Tenn. 325
• Parties: PETITION OF SOUTHERN LUMBER & MFG. CO. v. TENNESSEE RY. CO. ET AL. NEW RIVER LUMBER CO. TENNESSEE RY. CO. v. STANDARD TRUST CO. ET AL.
• Court: Tennessee Supreme Court

210 S.W. 639

141 Tenn. 325

PETITION OF SOUTHERN LUMBER & MFG. CO.

NEW RIVER LUMBER CO. v. TENNESSEE RY. CO. ET AL.

TENNESSEE RY. CO. v. STANDARD TRUST CO. ET AL.

Supreme Court of Tennessee.

January 20, 1919

Appeal from Chancery Court, Scott County; Hugh G. Kyle, Chancellor.

In the matter of the petition of the Southern Lumber & Manufacturing Company. Suit by the New River Lumber Company against the Tennessee Railway Company and another, and proceeding by the Tennessee Railway Company against the Standard Trust Company. From a decree dismissing the petition, complainant appeals. Affirmed.

A. W Akers and Perkins Baxter, both of Nashville, for petitioner.

H. M Carr, of Harriman, for receiver.

McKINNEY J.

The complainant is a corporation engaged in the lumber and stave business, and for several years has operated a sawmill at Nick's Creek, Tenn.

The defendant Tennessee Railway Company owns 60 miles of railroad in Tennessee, and connects with the Cincinnati, New Orleans & Texas Pacific Railway Company at Oneida, Tenn. Under an agreement with the Cincinnati, New Orleans & Texas Pacific Railway Company, the Tennessee Railway Company received freight on its line for interstate shipment, and it is conceded that it was engaged in interstate transportation.

Nick's Creek and Norma are two stations on the road of the Tennessee Railway Company--the former being 30 miles from Oneida and 240 miles from Cincinnati; the latter being 22 miles from Oneida and 232 miles from Cincinnati.

Since 1906 the published tariff on lumber from Norma to Cincinnati has been 15 cents per 100 pounds, while the rate from March 1, 1914, has been 17 1/2 cents per 100 pounds from Nick's Creek to Cincinnati.

On December 9, 1915, the complainant filed a complaint before the Interstate Commerce Commission against the Tennessee Railway Company and the Cincinnati, New Orleans & Texas Pacific Railway Company, charging that the rate of 17 1/2 cents from Nick's Creek to Cincinnati was unreasonable and that said rate, when compared with the rate of 15 cents from Norma to Cincinnati, was unduly prejudicial to complainant and Nick's Creek, and unduly preferential to Norma and those doing business at that point.

Answers were filed, proof taken, and a hearing had, and it was decreed by said Interstate Commerce Commission that said rate of 17 1/2 cents from Nick's Creek to Cincinnati was not unreasonable, but that same was prejudicial and discriminatory, and it was decreed that defendant should in the future only charge 1 cent per 100 pounds more from Nick's Creek to Cincinnati than it charged from Norma to Cincinnati, which, on the then tariff, would make the rate from Nick's Creek to Cincinnati 16 cents per 100 pounds. This order was made on October 12, 1917.

The defendant Tennessee Railroad Company was being administered in the chancery court of Scott county, Tenn., as an insolvent corporation, in the above-styled causes; Byrd M. Robinson being its receiver.

On January 31, 1918, this suit was instituted by a petition being filed in the above causes, in which the New River Lumber Company set forth the foregoing facts, and further charged that said discrimination, as found by the Interstate Commerce Commission, was in violation of the Interstate Commerce Act (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379), and that it was damaged in the sum of $6,000 on account thereof, and prayed for a decree for that amount.

After the cause was put at issue, the matter was referred to the master to report as to damages. It is not necessary to go into detail as to this matter, further than to say that the master filed his report, to which both parties filed exceptions, and after hearing the whole matter the chancellor dismissed the petition of the complainant, on the ground that it had not sufficiently shown itself entitled to any damages.

The period during which the complainant shipped lumber from Nick's Creek to Cincinnati and points beyond, and upon which it paid a rate of 17 1/2 cents, was from September 1, 1915, to November 1, 1917, and the difference in freight on this lumber, had a charge of only 16 cents been made, as was found to be proper by the Interstate Commerce Commission, would have amounted to $2,844.71, and the complainant insists it is damaged in this sum.

The complainant has brought the case to this court by appeal and has assigned errors.

The defendant, for the first time in this court, raises a question of jurisdiction, and says that under the federal act to regulate commerce the state court is without jurisdiction in a case of this character.

It is well settled that, when the court has no jurisdiction of the subject-matter, it cannot be conferred either by waiver or consent, and all of its orders and decrees are a nullity, and may be collaterally attacked. Gibson's Suits in Chancery (New) par. 290; Agee v. Dement, 1 Humph. 332; White v. Buchanan, 6 Cold. 32; Noel v. Scoby, 2 Heisk. 20; Ferris v. Fort, 2 Tenn. Ch. 150; Board v. Bodkin Bros., 108 Tenn. 700, 69 S.W. 270; Baker v. Mitchell, 105 Tenn. 610, 59 S.W. 137.

In Penn. R. R. Co. v. International Coal Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446, Ann. Cas. 1915A, 315, the question of jurisdiction was raised for the first time in the Supreme Court of the United States, and the court considered the question and held that it had jurisdiction. The question of jurisdiction of the subject-matter can be raised at any time in any court, and we think it proper for this court to consider that question here, and the case of Southern Railway Co. v. Tift, 206 U.S. 428, 27 S.Ct. 709, 51 L.Ed. 1124, 11 Ann. Cas. 846, relied on by the complainant, is not in conflict with this holding.

In order to a proper understanding of this question of jurisdiction it becomes necessary to consider certain parts of the federal act to regulate commerce, together with its amendments, as well as some of the decisions of the Supreme Court of the United States construing the same. The provisions of the Interstate Commerce Act bearing upon this question are as follows:

"Sec. 8. That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.

Sec. 9 [in so far as here material]. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any District or Circuit Court of the United States of competent jurisdiction; but 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."

"Sec. 16 [in so far as here material]. That if, after hearing on a complaint made as provided in section thirteen of this act, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this act for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.

If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the Circuit Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any state court of general jurisdiction having jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the Circuit Court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the circuit court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court or state court within one year from the date of the order, and not after.

Sec. 22 [in so far as here material]. Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." U.S. Comp. St. §§ 8572, 8573, 8584, 8595.

Without a careful analysis of these provisions it may appear that the state courts have jurisdiction of every character of a case that may arise with reference to transportation of commerce under either the common law or...