Stickney v. I.C.C.

• Decision Date: 30 June 1908
• Citation: 164 F. 638
• Parties: STICKNEY et al. v. INTERSTATE COMMERCE COMMISSION.
• Court: U.S. District Court — District of Minnesota

164 F. 638

STICKNEY et al. v. INTERSTATE COMMERCE COMMISSION.

United States Circuit Court, D. Minnesota, Third Division.

June 30, 1908

William D. McHugh, for complainants.

L. A Shaver and Samuel H. Cowan, for defendant.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This is a bill in equity, brought by the railroad companies, which are complainants, against the Interstate Commerce Commission to enjoin the enforcement of an order made by the latter requiring them to desist from charging $2 per car for transporting live stock brought from outside the state of Illinois, from the ends of their roads in Chicago to the Union Stockyards, and not to exact for that service hereafter a greater sum than $1 per car. The present submission is on a motion for a temporary injunction based on the bill, answer filed thereto, and exhibits filed with both, to restrain the enforcement of that order or to suspend its operation until a final hearing can be had on the merits. The case is brought on for hearing before three Circuit Judges by virtue of a certificate of the Attorney General made pursuant to the provisions of section 5 of the amended interstate commerce act (Act June 29, 1906, c. 3591, 34 Stat.

584 (U.S. Comp. St. Supp. 1907, p. 902)), and Act Feb. 11, 1903 c. 544, 32 Stat. 823 (U.S. Comp. St. Supp. 1907, p. 951).

The pleadings and exhibits disclose that since the year 1894 the Interstate Commerce Commission has frequently had the question of the above-mentioned terminal charge before it, and has repeatedly ordered its reduction from $2 per car to $1 per car. Under the original interstate commerce act of 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154), the orders of the commission were not self-executing, but required compulsory orders to that effect by a court of competent jurisdiction. Upon the railroads declining to obey the first order to reduce the charge the commission instituted a proceeding in the Circuit Court of the United States for the Northern District of Illinois to secure its enforcement. The trial court decided in favor of the commission, but its judgment was reversed on appeal by the Circuit Court of Appeals for the Seventh Circuit. Walker v. Keenan, 19 C.C.A. 668, 73 F. 755. Afterwards, upon a new case made, the commission again entered an order reducing the terminal charge from $2 to $1 and again sought its enforcement in the Circuit Court. Both the Circuit Court and the Circuit Court of Appeals for the Seventh Circuit decided against the commission and refused to enforce it. Interstate Commerce Commission v. Chicago, B. & Q.R. Co., 43 C.C.A. 209, 103 F. 249. Upon an appeal from the judgment of the Court of Appeals in the last-mentioned case the Supreme Court of the United States, in 1902, affirmed its judgment. Inter. Com. Commission v. Chicago, etc., R. Co., 186 U.S. 320, 22 Sup.Ct. 824, 46 L.Ed. 1182.

In February, 1903, the Cattle Raisers' Association of Texas and the Chicago Live Stock Exchange filed a petition asking the commission to open up the case again to enable them to conform to certain observations made by the Supreme Court. This was done, and resulted in a third order by the commission requiring the railroads to desist from exacting the terminal charge of two dollars. This decision was rendered in August, 1905. Nothing further seems to have been done until December 3, 1906, when, after the passage of the amendment to the interstate commerce act approved June 29, 1906 (34 Stat. 584, c. 3591 (U.S. Comp. St. Supp. 1907, p. 892)), known as the 'Hepburn Act,' the Cattle Raisers' Association of Texas and the Chicago Live Stock Exchange again complained to the commission that the complaining railroad companies had violated the provisions of the interstate commerce acts in laying the charge of $2 per car for the terminal service in question in Chicago. We suppose this additional proceeding was inspired by the Hepburn act, which made the orders of the commission conclusive, subject only to a court review as provided for by the fifteenth and sixteenth sections of the interstate commerce act as amended. On October 21, 1907, the commission again decided that the terminal charge of $2 per car was unjust and unreasonable, and thereafter, to wit, on December 10, 1907, made an order that such charge should not exceed $1 per car and fixed February 1, 1908, as the date when the order should go into effect. Under the new law (Act June 29, 1906, c. 3591, Secs. 5, 6, 34 Stat. 589, 590 (U.S.

Comp. St. Supp. 1907, pp. 900, 902)) this order became effective proprio vigore at the time fixed by the commission therefor, and required obedience under heavy penalties, unless upon review by the courts at the instance of the railroads it should be enjoined, set aside, annulled, or suspended.

Availing themselves of the right accorded by the act, the railroad companies now appeal to this court for relief against that last order.

In view of the protracted history of this case we find it unnecessary to restate many of the facts. By referring to the opinions of the courts already cited, and particularly to that of the Supreme Court of the United States in Interstate Com. Comm'n v. Chicago, etc., R. Co., supra, all essential detail can be found. For our present purposes it is sufficient to say that it stands conceded by the pleadings that the actual cost to complainants of carrying live stock from their respective terminal yards at the ends of their lines or roads in Chicago to the Union Stockyards exceeds the sum of $2 per car. This expenditure is for trackage from the ends of their rails over the track of the Union Stockyards & Transit Company and making deliveries of the stock at the stockyards and is for a service totally distinct and separate from that involved in the transportation over their own lines to the ends of their rails. As such terminal service it was required by the original interstate commerce act (Act Feb. 4, 1887, c. 104, Sec. 6, 24 Stat. 380 (U.S. Comp. St. 1901, p. 3156)), and by the amended act (Act June 29, 1906, c. 3591, Sec. 2, 34 Stat. 586 (U.S. Comp. St. Supp 1907, p. 895)), that it should be separately scheduled by the carriers. The original act provided that the published schedules of rates, fares and charges, 'shall also state separately the terminal charges,' and the amended act emphasized this requirement by the use of the following language:

'The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers shall be carried and shall contain the classification of freight in force and shall also state separately all terminal charges, storage charges, icing charges and all other charges which the commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect or determine any part or the aggregate of such aforesaid rates, fares and charges or the value of the service rendered the passenger, shipper or consignee.'

Prior to 1894 the railroad companies made no additional charge for transporting live stock from their own terminals in the city of Chicago and delivering the same to the Union Stockyards. The rate fixed and charged for transportation from the points of origin of the freight to the ends of their own rails in Chicago included all the compensation they received for the service of delivery at the stockyards; but in that year the Union Stockyard & Transit Company made a trackage charge for the use of its tracks for that service ranging from 80 cents to $1.50 per car according to the extent of the track used by the different roads respectively. This additional burden and the enhanced complexity and general cost of the special service, according to the averments of the bill, 'made it impracticable to continue to make deliveries beyond the lines of their respective railroad tracks without any charge or compensation therefor. ' For these reasons, as averred, the railroad companies laid a charge for it of one uniform price of $2 per car and undertook to conform their published schedule of rates and charges thereto.

This was the condition of things as the case stood when heard by the Court of Appeals for the Seventh Circuit and the Supreme Court. The Court of Appeals twice justified the imposition of the extra charge on the ground, generally speaking, that the carriers had a right to segregate the terminal charge in question from the other rates over their main lines, and had done so, and that they had a right to make an additional charge, not exceeding the cost thereof, for that service, and that the charge of $2 a car as laid was just and reasonable and should be sustained. See cases supra. The Supreme Court held that the carriers had the right to divide their rates, so as to make a distinct charge for service from the point of shipment to Chicago and a separate charge for service in transporting and delivering live stock from their own terminals to the Union Stockyards, but held that they had not made such a division by any such clear and plain statement as is required by the interstate commerce law. After referring to the provision of law requiring the separate statement of terminal charges, the court said:

'The purpose of this provision was to compel the schedules to be so drawn as

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