United States v. Kansas City Southern Railway Co.

• Decision Date: 10 January 1955
• Docket Number: No. 15013.,15013.
• Parties: UNITED STATES of America, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F.2d 763 (1954)

UNITED STATES of America, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee.

No. 15013.

United States Court of Appeals, Eighth Circuit.

November 19, 1954.

Rehearing Denied January 10, 1955.

COPYRIGHT MATERIAL OMITTED

Hubert H. Margolies, Atty., Dept. of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Edward L. Scheufler, U. S. Atty., Kenneth C. West, Asst. U. S. Atty., Kansas City, Mo., and Melvin Richter, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Richard S. Righter, Kansas City, Mo. (William E. Davis, Joseph R. Brown, Kansas City, Mo., William M. Stapleton, Albany, and Lathrop, Righter, Blackwell & Parker, Kansas City, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN and COLLET, Circuit Judges.

JOHNSEN, Circuit Judge.

Commodity Credit Corporation, 15 U.S.C.A. § 713 et seq., shipped, between April 20, 1945, and August 2, 1946, over Kansas City Southern Railway Co., from Kansas City, Mo.-Kan., to Port Arthur, Texas, 5915 cars of wheat, designated for export to European, Asiatic and African ports.

The rate fixed by the carrier's tariff for a line-hauling of such export grain from Kansas City to Port Arthur was 24½ cents, with a statement in the tariff that this included charges for unloading, cleaning, fanning, and turning of the grain at Port Arthur, storage of it there for 30 days, fire and explosion insurance thereon during that period, and transfer of it from the elevator to the export vessel.

Commodity Credit had in effect at the time, at all of the Gulf ports used by it for the exporting of grain, a standard terminal-elevator program of its own, for the handling, conditioning, storing, and loading of its export grain, resting upon arrangements entered into by it under the Uniform Grain Storage Agreement of the Department of Agriculture. The record contains a stipulation that no Commodity Credit grain was stored at any Gulf port, during the period involved, except under these Uniform Grain Storage Agreement relationships.

Each of the cars of wheat involved was taken over, as it arrived in Port Arthur, and handled under this existing program, without any request upon the Railway to furnish the terminal services included in its tariff rate, and without any indication, so far as the record shows, of a desire or willingness on the part of Commodity Credit at the time to allow the Railway to retain control of and handle the grain at Port Arthur, as an exception to or departure from Commodity Credit's establishd Gulf-port program.

The tariff contained no provision for any allowance or deduction from the rate applicable to such export grain, in the event that a shipper did not need, or chose not to avail himself of, whether in whole or part, the included terminal services at Port Arthur. Also, it might incidentally be observed that the record shows that the existing tariff rates for a line-hauling of such export grain from Kansas City to any of the other Gulf ports located on or west of the Mississippi River, used by Commodity Credit (Galveston, Houston, Texas City and New Orleans), were as high as the tariff rate to Port Arthur and had no such terminal services as were agreed to be provided at Port Arthur included in the rates to those ports, nor was there any provision in the tariffs that the carrier should absorb any part of the cost of a shipper's obtaining such services there.

The Railway billed Commodity Credit, and Commodity Credit made payment, for the shipments involved, on the basis of the tariff rate. Later, however, on July 28, 1948, the Government sued the Railway in the District Court,¹ to recover the amount of the cost to Commodity Credit of the terminal services provided by it for the wheat under its own program, on the theory that, since the carrier had not actually furnished the terminal services, Commodity Credit legally had been overcharged in the amount of the cost of its own terminal services.² To this count for the recovery of statutory overcharges as such, there was subsequently added by amendment another count, seeking alternatively to recover the amount of its terminal-program cost for the wheat as damages for breach of contract, on the theory that the carrier had failed and neglected to perform the service obligations resting on it under the tariff.

In neither cause of action was it claimed that the Railway had been requested or had refused to furnish the terminal services covered by the tariff, but the allegation made was simply that the carrier had "failed and neglected" to furnish such services.³

The case was tried to the court, sitting without a jury, on the merits of all the issues raised by the pleadings. The court's consideration, however, did not reach to the merits generally of the controversy, for it concluded that the action was properly entitled to be dismissed as a matter of law, on the grounds (1) that, since the carrier admittedly had charged Commodity Credit the fixed tariff rate, there was no basis for claiming that any "overcharges" as such had been made, within the meaning of that term under the statute;⁴ and (2) that, since the tariff rate was in legal form a unitary charge, the attempt to recover the value of the terminal services not furnished by the carrier amounted simply, under either count of the complaint, to a question of resolving what allowance or deduction, if any, should be made from the tariff rate, on the basis of stripping down the componency of the carrier service covered by the tariff and the general charge provided therefor, and placing a separable value on a part of the elements involved — which the court felt that under the statute only the Interstate Commerce Commission, and not a court, had the power and competence to do.⁵

After the court's dismissal of the suit on these grounds, 116 F.Supp. 484, the Government filed a motion for reconsideration, or alternatively, if that motion should be denied, a motion to set aside the order of dismissal and hold the case in abeyance until a resolution of the administrative question regarded by the court as being excludingly involved could be obtained from the Interstate Commerce Commission. The court denied both of these motions.

On appeal here, the Government first contends that the trial court erred in not granting it a recovery on the basis of overcharges having in fact been made by the carrier under the tariff itself. It says that, while the tariff in form purported to provide an integrated or unitary rate of 24½ cents for the line-hauling of such export grain from Kansas City and the furnishing of terminal services therefor at Port Arthur, 1½ cents of this composite amount actually represented a separable charge made by the carrier for the furnishing of the terminal services and was entitled to be so regarded in relation to the tariff rate.

It argues that this necessarily is demonstrated by the explanatory statement contained in the tariff that "Port Arthur, Texas elevator charges, as shown in Items Nos. 110, 115, and 125 of K.C.S. Lines Circular No. 32-H, I.C.C. No. 5132, for the handling of export grain from cars through the elevator to shipside, are included in the rate." Circular No. 32-H, referred to, purported to make available at Port Arthur, to the public generally, elevator facilities for the storage of grain and for the transfer of grain from railroad cars to ships, on the implied condition, however, of space being available in the carrier's elevator at the time, and with an express reservation also of the right by the carrier to permit owners or exporters, having grain already in the elevator and providing "ship room" therefor, to use the space so emptied by them for other grain which they at the time had standing in cars on port or inspection tracks, "in preference to grain belonging to other persons." Items Nos. 110, 115 and 125 of the Circular set out general public charges for these elevator facilities, respectively, of ¼ cent per bushel for cleaning and fanning, ¼ cent for turning, and 1 cent for unloading and loading, including storage for not exceeding 20 days. In relation to the storage of line-hauled export grain, however, such as was here involved, there was a provision that "free time allowance will be thirty days."

We think that there was ample basis for the trial court to view the situation as constituting legally, on its face, one in which (1) the 24½-cent rate represented an integrated or unitary charge for both transportation and terminal services on such export grain as was here involved; in which (2) the tariff could not from its language and context be said to have been intended to grant any deduction right or to fix any allowance amount, in the event that some shipper did not need or chose not to avail himself of all the included services, or in case all of the incidents of such services might not for other reason have been in fact rendered by the carrier; in which (3) the general declaration in the tariff that elevator charges, as shown in Circular No. 32-H, "are included in the rate" did not facially or contextually compel the conclusion as a matter of law that the terminal services constituted a mere mathematical factor or were included on a wholly separable value basis, in the componency of the total services provided for and normally required by such export grain, and as to which the tariff had fixed an integrated rate — this being particularly true as a matter of relationship to other facial aspects of the tariff such as that the carrier, in agreeing to provide terminal services as part of the transportational facilities for such export grain, was obligating itself to provide the services absolutely, and not on the contingent basis of the facilities being then available, to which the offer made of such services under Circular No. 32-H to other shippers or to the public generally was subject, and that other indication of the reference in the tariff to the...