Vicksburg Ry Co v. Anderson 8212 Tully Co, 270

Decision Date16 May 1921
Docket NumberNo. 270,270
Citation65 L.Ed. 1020,41 S.Ct. 524,256 U.S. 408
PartiesVICKSBURG, S. & P. RY. CO. et al. v. ANDERSON—TULLY CO
CourtU.S. Supreme Court

Messrs. S. W. Moore, of New York City, and J. Blanc Monroe, of New Orleans, La., for plaintiffs in error.

Mr. Harry B. Anderson, of Memphis, Tenn., for defendant in error.

[Argument of Counsel from page 409 intentionally omitted] Mr. Justice CLARKE delivered the opinion of the court.

This is an action instituted by a shipper under the provisions of section 16 of the Interstate Commerce Act, as amended June 18, 1910 (36 Stat. 539, 554, § 13 [Comp. St. § 8584]), against various carriers, based upon an order of the Interstate Commerce Commission for the payment of money found due as reparation for the exacting of an unreasonable rate for the transportation of 'box shooks' in carload lots from Vicksburg, Miss., to Port Arthur, Tex., which the carriers refused to pay.

It will be necessary to consider only the liability of the defendant, the Vickburg, Shreveport & Pacific Railway Company, hereinafter referred to as the Vicksburg Company.

The petition in the case was filed in the United Stated District Court for the Western Division of the Southern District of Mississippi, and the plaintiff therein, defendant in error, for the purpose of showing the venue, allowed in section 16 of the Interstate Commerce Act, supra, alleged that the defendant, the Vicksburg Company, was operating a part of its road within that district. The Vicksburg Company challenged the jurisdiction of the District Court by a plea in abatement, denying that it owned or operated a railroad in the district at the time or for many months before the petition was filed, and averred that the person on whom summons was served was not at the time its agent.

The shipper prevailed in both lower courts.

The venue provision of the Interstate Commerce Act allows such an action as we have here to be commenced in any district 'through which the road of the carrier runs,' and it is contended, first, that the Vicksburg Company did not have a road running through the district of suit, and that, therefore, the court did not have jurisdiction over the case.

It is stipulated that the Vicksburg Company is a Louisiana corporation and that at the times involved it owned a railroad extending through Louisiana to Delta Point, a station on the west bank of the Mississippi river, opposite Vicksburg. Its cars were ferried to and fro across the river and were hauled by the Alabama & Vicksburg Railroad Company, hereinafter called the Alabama Company, over its rails to freight and passenger stations in Vicksburg. The Vicksburg and the Alabama Companies shared the expense of freight and ticket offices in Vicksburg, at which tickets were sold and bills of lading issued by the Vicksburg Company from Vicksburg to various points on its line. The Vicksburg Company filed passenger and freight tariffs with the Interstate Commerce Commission without any division of rates with the Alabama Company, that company being paid on a mileage basis for the service which it rendered east of the river. It is also stipulated 'that exactly the same arrangement is now in force between' the Vicksburg and Alabama Companies 'as was in effect before the United States government took control of these two roads.'

Thus the mileage, passenger, freight and tariff publication arrangements which the Vicksburg Company had with the Alabama Company plainly were equivalent in practice to a lease of the road of that company to the Vicksburg Company for its transportation purposes, and the dealings of the Vicksburg Company with the public and with the Interstate Commerce Commission with respect to traffic to and from Vicksburg were precisely the same as if it had owned or had leased the Alabama Company's tracks. The applicable venue provision of the Interstate Commerce Act does not require that the carrier shall be the owner of a railroad in the district, but only that its road must run through it, and we agree with the Circuit Court of Appeals in concluding that the tracks of the Alabama Company east of the river, in the district of suit, under the circumstances of operation as the parties stipulated them to be, constituted them the road of the Vicksburg Company within the meaning of the act.

It is next contended that the person on whom summons was served was not, at the time, an agent of the Vicksburg Company.

The return of the marshal is that he executed the writ 'by handing a true copy of this summons and petition for judgment to Austin King, freight agent for the Vicksburg, Shreveport & Pacific Railway Company.' The plea in abatement denied on 'information, knowledge and belief' of counsel that King was at the time of service an agent of either of the defendants. No evidence whatever was introduced to sustain this plea and in support of it sole reliance is placed upon the stipulation that the government was in control of the lines of the Vicksburg Company at the time the petition was filed.

The unreasonable rate for which the reparation order was made was exacted on shipments moving long prior to the taking over of the railroads by the government in December, 1917, and there being no evidence that King was not the agent of the Vicksburg Company, the return of the marshal was properly accepted by both lower courts as conclusive. He may not have been in the employ of the Director General of Railroads at all and it was entirely possible for him to have been serving as agent for both the Director and the company.

Since the shipment for which reparation was allowed moved prior to the taking over of the railroads by the United States government, as against the objection of government control, we think the provision of section 10 of the Federal Railroad Control Act (40 Stat. 451, 456 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 3/4 j]) is applicable and ample to support the jurisdiction, viz., that 'actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government.'

It is further claimed that the act of Congress abolishing the Commerce Court (38 Stat. 208, 219 [Comp. St. §§ 992, 994]), repealed by implication the provisions of section 16, supra, permitting such reparation suits as we have here to be filed in the District Court for any district 'through which the road of the carrier runs' and that for this reason the District Court was without jurisdiction.

The plaintiff was a Michigan corporation and if the provisions of section 16 referred to had been repealed at the...

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