Sullivan v. UNION STOCKYARDS CO. OF OMAHA, LIMITED
| Decision Date | 19 April 1928 |
| Docket Number | No. 7944.,7944. |
| Citation | 26 F.2d 60 |
| Parties | SULLIVAN v. UNION STOCKYARDS CO. OF OMAHA, Limited. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edward P. Smith and William A. Schall, both of Omaha, Neb., Francis S. Howell, of Lincoln, Neb., and Frank E. Sheehan, of Omaha, Neb., for plaintiff in error.
Norris Brown, David A. Fitch, and Ralph M. West, all of Omaha, Neb., for defendant in error.
Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.
The parties will be designated as in the court below, namely plaintiff and defendant.
The defendant is a stockyards owner and subject to the provisions of the Packers and Stockyards Act 1921 (7 USCA c. 9). On October 20, 1921, the defendant published and filed with the Secretary of Agriculture, as required by the act, schedules showing its rates and charges for stockyard services rendered at its stockyards in Omaha, Neb., which thereupon became and were the only charges which it could lawfully collect during the time that such schedules remained unchanged.
Its Tariff No. 1 read as follows:
"Yardage, including privilege of the market
Cattle .................... 35 cents per head
Calves (maximum 425 pounds) 25 cents per head
Hogs ...................... 12 cents per head
Sheep or goats............. 8 cents per head
Horses and mules........... 35 cents per head
"For live stock planted and resold in commission
division, one-half the above rates additional
will be charged."
The plaintiff was a trader at the stockyards and the assignee of the claims of a number of other traders upon the same market, who bought, planted, and resold a large number of animals between the 20th day of October, 1921, and the 1st day of October, 1923. The plaintiff and his assignors were charged and had paid the additional yardage or reweighing charges provided by the tariff, to the amount of $34,988.52, which amount the plaintiff sued to collect, on the ground that these charges were discriminatory and therefore unlawful.
On June 22, 1923, upon the complaint of T. G. Inghram, a similar dealer, that the additional charge referred to was discriminatory, the Secretary of Agriculture found that it was, and ordered that after July 10, 1923, the defendant desist from demanding and collecting it. No reparation was ordered by the Secretary, and no findings of the existence of any right to reparation were made.
Planting and reselling of animals is done by small traders, who place or leave the animals they buy with the commission men for the purpose of having them resold; this for the reason that the large packers do not buy from the small trader, but from the commission men. In other words, the commission men sell not only their animals, but the animals "planted" with them by the traders.
The defendant claimed that the complaint did not state a cause of action, and that the court had no jurisdiction to award any judgment for the plaintiff, because of the absence of allegation or proof that the Secretary of Agriculture had determined that any right to reparation existed, either on behalf of the plaintiff or any other person who had paid the charges.
After hearing the testimony, the court below gave judgment for the defendant on the ground that no order had been made by the Secretary fixing any right to reparation. It is the correctness of this disposition of the case which the plaintiff challenges by these proceedings in error.
The Packers and Stockyards Act is patterned upon the Act to Regulate Commerce, and the plaintiff concedes the applicability to this case of the rule recognized by this court in Chicago, B. & Q. R. Co. v. Merriam & Millard Co., 297 F. 1, and Famechon Co. v. Northern Pacific R. Co., 23 F.(2d) 307, to the effect that, in cases arising under that act, preliminary resort must first be had to the Interstate Commerce Commission, and the right to reparation fixed, before suit may be successfully maintained in the courts.
It is claimed, however, that such an interpretation of the Packers and Stockyards Act and of the Act to Regulate Commerce renders them unconstitutional, because it gives to the Secretary of Agriculture, in the one instance, and to the Interstate Commerce Commission, in the other, judicial powers. No case is cited in the plaintiff's brief which has any bearing on the specific question. He refers to the general proposition that executive, legislative, and judicial functions shall be kept separate, and that persons intrusted with power in any one of these three branches shall not be permitted to encroach upon the powers confided to others. About this, of course, there is no dispute. He cites Interstate Commerce Comm. v. Brimson, 154 U. S. 447, 14 S. Ct. 1125, 38 L. Ed. 1047, in which it was held that the Commission could not be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment, on the ground that "the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States, can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises." There is a vast and obvious distinction between the power to order a man to jail and the power to determine from evidence whether a right to reparation exists because of a discriminatory charge.
That the Interstate Commerce Commission possesses certain quasi judicial powers has long been recognized by the Supreme Court, without perturbation. In Interstate Commerce Comm. v. Louis. & Nash. R. R., 227 U. S. 88, 91, 33 S. Ct. 185, 186 (57 L. Ed. 431), Mr. Justice Lamar, in discussing the question as to whether an order reducing rates could be sustained without substantial evidence to support it, said:
"In the comparatively few cases in which such questions have arisen it has been distinctly recognized that administrative orders, quasi judicial in character, are void if a hearing was denied; if that granted was inadequate or manifestly unfair; if the finding was contrary to the `indisputable character of the evidence.'"
In Interstate Commerce Comm. v. Cincinnati, etc., Ry. Co., 167 U. S. 479, 501,...
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