South Carolina Asparagus G. Ass'n v. Southern Ry. Co.

• Decision Date: 04 April 1933
• Docket Number: No. 3416.,3416.
• Citation: 64 F.2d 419
• Parties: SOUTH CAROLINA ASPARAGUS GROWERS' ASS'N v. SOUTHERN RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

64 F.2d 419 (1933)

SOUTH CAROLINA ASPARAGUS GROWERS' ASS'N v. SOUTHERN RY. CO. et al.

No. 3416.

Circuit Court of Appeals, Fourth Circuit.

April 4, 1933.

Karl Knox Gartner, of Washington, D. C. (James A. Kennedy, of Williston, S. C., on the brief), for appellant.

Charles Clark, of Washington, D. C. (Nath. B. Barnwell, of Charleston, S. C., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is a suit under section 16 (2) of the Interstate Commerce Act (49 USCA § 16(2), to recover on a reparation order of the Interstate Commerce Commission. A jury trial was waived and the facts were fully found by the judge below. It appears that the reparation order amounting to $10,440.37 embraced certain refrigeration charges and alleged overcharges on shipments of asparagus amounting to $3,989.53. The defendants paid all of this amount except $1,676.70, representing alleged overcharges on shipments of asparagus, prior to April 16, 1922, as to which they denied liability, contending that the report of the commission of February 14, 1929, South Carolina Produce Ass'n v. Aberdeen & Rockfish R. Co., 152 I. C. C. 5, 13, 14, 28, shows that there was no overcharge found as to these shipments. From a judgment in favor of defendants, the plaintiff, the South Carolina Asparagus Growers' Association, has appealed.

Assuming that the plaintiff would be entitled to recover as consignor any overcharges collected by defendants upon the shipments in question (see Louisville & N. R. R. v. Sloss-Sheffield Co., 269 U. S. 217, 46 S. Ct. 73, 70 L. Ed. 242; Southern Pac. Co. v. Darnell-Taenzer Co., 245 U. S. 531, 38 S. Ct. 186, 62 L. Ed. 451), we agree with defendants that no such overcharges have been shown. It is true that the commission in its report referred to above, under the head of findings, said (152 I. C. C. 28): "In No. 14597 we find that the rates assailed from Ridge Spring, Trenton, and Williston on asparagus prior to August 15, 1923, were unreasonable to the extent that they exceeded the rates which became effective on that date; that in so far as complainants' members have made interstate shipments and paid the charges thereon at the rates found unreasonable they have been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates found reasonable and that they are entitled to reparation with interest."

And we think, nothing else appearing, that this would amount to an administrative finding which would entitle plaintiff to recover overcharges for two years prior to January 17, 1923, the date of the filing of their complaint; but something else appears, i. e., that the intention of the commission was to find the rates complained of unreasonable only to the extent that they exceeded rates contemporaneously prevailing from Charleston. With respect to this the commission said, at page 14 of 152 I. C. C.: "The complaint in No. 14597 was filed January 17, 1923, and placed in issue the rates on asparagus as far back as January 18, 1921. Since a change was made in the rates from these points on August 15, 1923, it is clear that there are two quite different bases of rates under attack in this proceeding, namely, the basis existing prior to the reduction on that date and the much lower basis thereafter in effect. This latter basis merely reflected the rates prescribed by us from Charleston in Asparagus Growers Asso. v. A. C. L. R. R. Co. 17 I. C. C. 423, supra, adjusted to the general rate changes since that decision. In arriving at our finding of reasonableness in our prior report, apparently we were considering only the rates in effect after the reduction of August 15, 1923. The report does not deal with the much higher rate structure existing prior to that date from Ridge Spring, Trenton, and Williston. The evidence indicates that the asparagus growers at these latter points should have had as favorable a basis as that contemporaneously prevailing at Charleston, and our former finding will be modified accordingly."

We think that what is said by the commission at the end of its report under the head of findings must be construed along with what is said in the body of the report. Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 428, 35 S. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691; American Express Co. v. South Dakota ex rel. Caldwell, 244 U. S. 617, 626, 37 S. Ct. 656, 61 L. Ed. 1352; Georgia Public Service Com. v. U. S., 283 U. S. 765, 771, 51 S. Ct. 619, 75 L. Ed. 1397. And when the report and finding are thus...