R. J. Darnell, Inc. v. Illinois Cent. R. Co.

• Decision Date: 23 June 1911
• Citation: 190 F. 656
• Parties: R. J. DARNELL, INC., v. ILLINOIS CENT. R. CO. et al.
• Court: U.S. District Court — Western District of Tennessee

190 F. 656

R. J. DARNELL, INC., v. ILLINOIS CENT. R. CO. et al.

United States Circuit Court, W.D. Tennessee, Western Division.

June 23, 1911

Percy &amp Hughes, for plaintiff.

Chas N. Burch, H. D. Minor, and Lamar Ross, for defendants.

McCALL District Judge.

This case is before me upon a demurrer to the declaration.

At the very threshold and independent of any of the grounds assigned in the demurrer, a question of the jurisdiction of this court over the subject-matter of the litigation arises, owing to the circumstances under which the case has been brought here. Upon this jurisdictional question depends the authority of this court to make any valid order herein, affecting the rights or interest of either party to the litigation, and must be disposed of 'in limine.'

This suit was brought in the circuit court of Shelby county Tenn., by R. J. darnell, Incorporated, against the Illinois Central and the Yazoo & Mississippi Valley Railroad Companies to recover the difference between a freight rate of 10 cents per 100 pounds and 12 cents per 100 pounds on 35,424,949 pounds of lumber shipped from Memphis to New Orleans, amounting to $7,084.89, which was charged by the defendants and paid to them by the plaintiff.

The first count in the declaration alleges that the rate of 12 cents per 100 pounds charged and collected by the railroad companies was excessive and unlawful to the extent of 2 cents per 100 pounds. The second count alleges that on January 1, 1908, in the case of J. W. Thompson Lumber Company and others against the Illinois Central and the Yazoo & Mississippi Valley Railway Companies, then pending before the Interstate Commerce Commission, an order was made and entered by the commission, directing the railroad companies to desist from enforcing a rate of 12 cents per 100 pounds on hardwood lumber in car load lots from Memphis to New Orleans, and fixed the rate at 10 cents per 100 pounds. In obedience to this order, the railway companies made a rate of 10 cents per 100 pounds on hardwood lumber in car load lots from Memphis to New Orleans, effective August 1, 1908. The plaintiff herein was not a party to the proceedings before the Interstate Commerce Commission, but was a large manufacturer and shipper of hardwood lumber, located at Memphis, Tenn., and shipped large quantities of such lumber over said railroads from Memphis to New Orleans. On the 22d day of February, 1911, plaintiff brought this suit against the defendant, as has been stated, in the circuit court of Shelby county, Tenn., which was subsequently removed to this court on the petition of defendants upon the ground of diversity of citizenship; the necessary jurisdictional amount appearing.

The wrongs of which complaint is made arise out of interstate shipments of lumber, and must be considered under the provisions of the act of Congress to regulate commerce. 24 U.S.St.L.c. 104, p. 379. It is provided by section 9 of said act:

'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.'

It appears from this section that, had this suit been originally brought in this court, no question could have arisen as to the jurisdiction of the court to hear and determine the questions now raised by the demurrer. The case, however, is here upon a removal; it having been brought in the state circuit court. Under such circumstance. this court has only such jurisdiction as the state court had, and, if that court was without jurisdiction to entertain the case, so also is this one. The interstate commerce act, as amended June 18 1910, confers jurisdiction on state courts to hear and determine certain cases arising under the act. Section 16 is as follows: '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...