Pillsbury Flour Mills Co. v. Great Northern Ry. Co.

• Decision Date: 12 March 1928
• Docket Number: No. 7605.,7605.
• Citation: 25 F.2d 66
• Parties: PILLSBURY FLOUR MILLS CO. v. GREAT NORTHERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

25 F.2d 66 (1928)

PILLSBURY FLOUR MILLS CO. v. GREAT NORTHERN RY. CO.

No. 7605.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1928.

Clark Hempstead, of Minneapolis, Minn., for plaintiff in error.

R. J. Hagman, of St. Paul, Minn. (J. B. Faegre, of Minneapolis, Minn., on the brief), for defendant in error.

Before KENYON and BOOTH, Circuit Judges, and MUNGER, District Judge.

BOOTH, Circuit Judge.

This is a writ of error to a judgment obtained by defendant in error, hereafter called plaintiff, in an action brought by it against plaintiff in error to recover a balance of freight charges claimed to be due and unpaid on certain shipments of freight from Minneapolis, Minnesota, to various points in Montana. Jurisdiction exists under section 24 (8), Judicial Code (USCA tit. 28, § 41 8). The action was tried to the court without a jury, stipulation waiving a jury having been signed and filed. Facts were stipulated, among them the following:

"That defendant, on the various dates indicated in the first column of Exhibit A attached to the complaint herein, delivered to plaintiff at Minneapolis, Minnesota, for transportation to the various stations in Montana indicated on said exhibit in the column headed `Destination,' eight carloads of bran; that plaintiff accepted said shipments and duly transported them over its lines of railway to the said destinations, and delivered them on the dates indicated on said exhibit in accordance with the provisions of the bills of lading executed by plaintiff and defendant covering said shipments; and that the dates on which the bills of lading were executed, the names of the consignor and consignee, and the weights of the shipments are as shown in said exhibit."

"That prior to the acceptance and transportation by plaintiff of said shipments plaintiff filed with the Interstate Commerce Commission, printed and kept open to public inspection and posted in the manner required by law, a tariff or schedule known as Countiss' I. C. C. No. 1086, and various supplements thereto, which tariff and supplements named the lawful rate for the transportation of said shipments referred to in Exhibit A attached to the complaint, and that one of said supplements (special supplement effective March 6, 1922) is hereto attached, marked `Exhibit 1' and made a part hereof; that said special supplement named `Exhibit 1' was the tariff in effect during the time the shipments mentioned in said complaint were made."

"That if the court shall determine that the said shipments should be charged for at the rate on `Bran, except flax bran,' or in any of the other articles contained in `List No. 2' on page 3 of the special supplement attached hereto as Exhibit 1, the lawful charges for the transportation of said shipments amounted to two thousand eight hundred seventy-four and 40/100 ($2,874.40) dollars, and defendant is indebted to plaintiff in the sum of two hundred seventy-eight and 5/100 ($278.05) dollars, together with interest thereon from July 10, 1922, and plaintiff is entitled to judgment for the said amount, together with its costs and disbursements herein."

"That if the court shall determine that the said shipments should be charged for at the rate on `Feed (manufactured from grain or flax straw)' or `Feed, mill,' or on any of the other articles contained in `List No. 3' shown on page 3 of said special supplement attached hereto as Exhibit 1, the lawful charges for the transportation of said shipments amounted to two thousand five hundred ninety-six and 35/100 ($2,596.35) dollars, which charges have been fully paid, and defendant is entitled to judgment dismissing the complaint herein and for its costs and disbursements."

"That the said shipments consisted of bran, which said bran was not manufactured from flax, and the said bran was a feed manufactured from grain and was a mill feed."

"* * * The term `mill feed' includes the following commodities: Bran, middlings, chops, and shorts."

The special supplement designated as Exhibit 1, being the tariff in force at the time of the shipments, contained several lists of commodities. Included in List No. 2 was "Bran, except flax bran." Included in List No. 3 were "Feed, mill," and "Feed (manufactured from grain or flax straw)." By the stipulation of facts, if the rate on "Bran, except flax bran," as shown in the table of rates, was applicable to the shipments by defendants, then plaintiff was entitled to recover the amount claimed; but if the rate on "Feed (manufactured from grain or flax straw)," or on "Feed, mill," shown in the table of rates, was applicable, then plaintiff was entitled to no recovery. The court held that the commodity shipped was included in more than one tariff designation, but that the designation "Bran, except flax bran," was the most specific, and therefore that the rate applicable to the commodity shipped was that named for "Bran, except flax bran." Judgment accordingly went for plaintiff.

The sole question before this court is whether the court erred in reaching this conclusion. In determining the question, it may be helpful to bear in mind some of the general principles of law relating to railroad tariffs on interstate shipments:

The rights of the shipper against the carrier are determined by law through the provisions of the tariff which are embodied in the applicable published rate. B. & O. S. W. R. Co. v. Settle, 260 U. S. 166, 170, 43 S. Ct. 28, 67 L. Ed. 189.

The shipment being interstate, the carrier is required to collect and the shipper to pay the full charge named in the tariffs filed by the carrier with the Interstate Commerce Commission. Pittsburg, C. C. & St. L. Ry. Co. v. Fink, 250 U. S. 577, 581, 40 S. Ct. 27, 63 L. Ed. 1151; N. Y. C. R. Co. v. York, etc., Co., 256 U. S. 406, 408, 41 S. Ct. 509, 65 L. Ed. 1016.

The tariff, so long as it is of force, is, in respect of rates named, to be treated as though it were a statute, binding as such upon railroad and shipper alike. Penn. R. Co. v. International Coal Co., 230 U. S. 184, 197, 33 S. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315; Robinson v. B. & O. R. Co., 222 U. S. 506, 509, 35 S. Ct. 491, 56 L. Ed. 288; Gimbel Bros. Inc. v. Barrett (D. C.) 215 F. 1004, 1006; Moore v. Duncan (C. C. A.) 237 F. 780; North American Co. v. St. L. & S. F. R. Co. (D. C.) 288 F. 612, 617.

Furthermore, the construction of a railroad tariff is not a matter sui generis. It "presents ordinarily a question of law, which does not differ in character from those presented when the construction of any other document is in dispute." Great Northern Ry. v. Merchants' Elevator Co., 259 U. S. 285, 291, 42 S. Ct. 477, 479 (66 L. Ed. 943). While there may be some rules of construction peculiarly applicable to a railroad tariff, yet ordinarily the rules governing the construction of other documents have been applied by the courts to such tariffs. Cudahy Packing Co. v. Grand Trunk W. Ry. Co. (C. C. A.) 215 F. 93; National Elevator Co. v. C., M. & St. P. Ry., 246 F. 588 (C. C. A. 8); Portland Cattle Loan Co. v. Oregon Short Line R. Co. (C. C. A.) 251 F. 33; James v. Davis, Director General, 280 F. 780 (C. C. A. 8); Reliance Elevator Co. v. C., M. & St. P. Ry., 139 Minn. 69, 165 N. W. 867.

In the Portland Cattle Case the court said: "There is no ambiguity in the language itself. Whatever difficulty arises is in relating one feature or note in the tariff with another. They must all be considered, and, if a plain meaning can be gathered, of course it will control."

In the Cudahy Packing Company Case the court in its opinion said: "But, while the Commerce Act and all tariffs and doings of carriers should be strictly construed and enforced to accomplish the large purposes of fairness and uniformity, we are of opinion that the general principle in relation to statutes, wills, contracts, etc., that the illegal parts will be excised and the legal preserved unless the bad is so interwoven with the good that extrication is impossible, should be applied to the facts of this case."

Whether the tariff, being statutory in character, is to be treated as subject to the rules for the construction of statutes, or, being contractual in character, is to be treated as subject to the rules for the construction of contracts, we need not determine; for so far as the case at bar is concerned, the rules which are common both to the construction of statutes and contracts are applicable.

It is an elementary rule of statutory construction that general and specific provisions in apparent contradiction may subsist together — the specific qualifying and supplying exceptions to the general. Sutherland on Statutory Construction (2d Ed.) § 348; Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012; Kepner v. United States, 195 U. S. 100, 125, 24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655; Anchor Oil Co. v. Gray, 257 F. 277, 283 (C. C. A. 8). This same rule of construction applies to contracts. In 13 C. J. 538, § 501, the statement is made: "Where, however, both the general and special provision may be given reasonable effect, both are to be retained."

This same general rule has frequently been applied by the Interstate Commerce Commission in construing railroad tariffs, Augusta Veneer Co. v. Southern Ry., 41 I. C. C. 414; Boardman Co. v. A., T. & S. F. Ry. Co., 46 I. C. C. 352; N. W. Gas Equipment Co. v. O.-W. R. R. & N. Co., 46 I. C. C. 354; Cornell Wood Products Co. v. A., T. & S. F. Ry. Co., 49 I. C. C. 91; U. S. Industrial Alcohol Co. v. Director General, Illinois Central R. Co., 68 I. C. C. 389.

Another cardinal rule in the construction of statutes is that effect is to be given, if possible, to every word, clause, and sentence. 36 Cyc. 1128; United States v. Ninety-Nine Diamonds, 139 F. 961, 2 L. R. A. (N. S.) 185 (C. C. A. 8); United States ex rel. Harris v. Daniels (C. C. A.) 279 F. 844; Hellmich v. Hellman, 18 F.(2d) 239 (C. C. A. 8). The same rule of construction applies to contracts. 13 C. J....