State of Florida v. United States

• Decision Date: 22 March 1929
• Docket Number: No. 514,512.,511,514
• Parties: STATE OF FLORIDA et al. v. UNITED STATES et al. BROOKS-SCANLON CORPORATION et al. v. SAME. WILSON LUMBER CO. OF FLORIDA v. SAME.
• Court: U.S. District Court — Northern District of Georgia

31 F.2d 580 (1929)

STATE OF FLORIDA et al. v. UNITED STATES et al.

BROOKS-SCANLON CORPORATION et al. v. SAME.

WILSON LUMBER CO. OF FLORIDA v. SAME.

Nos. 514, 511, 512.

District Court, N. D. Georgia.

March 22, 1929.

Chas. E. Cotterill, of Atlanta, Ga., August G. Gutheim, of Washington, D. C., Fred H. Davis, Atty. Gen., Edward P. Sanborn, of St. Paul, Minn., Norman, Quirk & Graham and J. V. Norman, all of Louisville, Ky., H. P. Adair, G. L. Rutherford, H. P. Osborne, and E. W. Mitchell, all of Jacksonville, Fla., and T. T. Turnbull, of Monticello, Fla., for complainants.

W. J. Donovan, Asst. to the Atty. Gen. and Elmer B. Collins, Sp. Asst. to the Atty. Gen., for the United States.

J. Stanley Payne, Sol., of Washington, D. C., for defendant Interstate Commerce Commission.

James A. Perry, Sol., of Atlanta, Ga., for intervener Georgia Public Service Commission.

Alston, Alston, Foster & Moise, of Atlanta, Ga., for Atlantic Coast Line R. Co.

Before WALKER, Circuit Judge, and DAWKINS and SIBLEY, District Judges.

SIBLEY, District Judge.

On February 7, 1929, subsequent to the decision in this case, the Interstate Commerce Commission ordered that its order of August 2, 1928, be "changed in language for the purpose of clarification as follows: In the fourth paragraph, substitute for `within the state of Florida' the following: `Within and throughout the entire state of Florida, without exception.'" A rehearing has been granted, and the Atlantic Coast Line Railroad Company allowed to intervene in support of the order.

The ambiguity which we formerly found in the order of the Commission is now removed, and the intent made clear that the intrastate log rate in question is to be changed over the entire Coast Line system in Florida. This clarifying order is not to be esteemed a new order, or even an amendment extending the former one, but is only a clarification of that which was found before to be uncertain, and, though made without further hearing, or evidence, is none the less effective from its date, at least. We have therefore to examine the record more closely, and see if a state-wide change of the rate is sustainable. Except as to the territorial application of the order, we find no occasion to modify what was previously ruled. The evidence does not show any actual or potential interstate commerce from South Florida in such logs as are involved in this rate. Because of their cheapness and of the geography of the state, the inherent probabilities are against it. No such case is, therefore, shown by the evidence as to justify a state-wide order altering the intrastate rate, because of undue prejudice to shippers and localities, or because of undue discrimination against the particular interstate commerce in such logs.

There is, however, another discrimination against general interstate commerce, when one state rate or the system of state rates is so low as to throw an undue burden on the revenues arising from interstate commerce, in order to sustain the carrier engaged in both kinds of commerce. The natural remedy for such a condition is a change of the state rate or rates to the full extent of their application. The present order, raising the state rate of the Atlantic Coast Line over its entire system in Florida, we think is justified on this ground. The power to prescribe the state rate on a single commodity, over a single road, is included in the language of section 13 (4) of the Commerce Act (49 USCA § 13 (4), whenever the conditions therein stated occur. If such a rate alone is put in issue and fully heard, the power is given to prescribe "the rate" to be thereafter observed. The complaint of the Georgia State Commission exhibited the Coast Line intrastate log rate, and attacked it in its entirety and as applied to all points in Florida. There was no territorial limitation in the complaint. No such limitation was put on the inquiry by any subsequent amendment, or by any order of the Commission. Besides a full attack upon the rate because of undue prejudice to and preference of persons and places in interstate commerce, under section 3 (49 USCA § 3), the complaint in paragraph 11 attacked the rate expressly under section 13 for every reason mentioned in...