W.L. Shepherd Lumber Co. v. Atlantic Coast Line R. Co., 3 Div. 770

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 216 Ala. 89,112 So. 323
• Decision Date: 24 March 1927
• Docket Number: 3 Div. 770
• Parties: W.L. SHEPHERD LUMBER CO. v. ATLANTIC COAST LINE R. CO.

112 So. 323

216 Ala. 89

W.L. SHEPHERD LUMBER CO.
v.
ATLANTIC COAST LINE R. CO.

3 Div. 770

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.

Action by the W.L. Shepherd Lumber Company against the Atlantic Coast Line Railroad Company to recover an overcharge on freight shipment. From a judgment for defendant, plaintiff appeals. Reversed and remanded. [112 So. 324]

Chilton & McCoy, Hill, Hill, Whiting, Thomas & Rives, and James S. Parrish, all of Montgomery, for appellant.

Arrington & Arrington, of Montgomery, for appellee.

THOMAS, J.

The question of jurisdiction of the circuit court in the instant controversy was recognized by this court in Central of Ga. R. Co. v. Southern Ferro Concrete Co., 193 Ala. 108, 68 So. 981, Ann.Cas.1916E, 376; N.C. & St. L. v. Gilliam, 212 Ala. 120, 101 So. 889; Ex parte L. & N.R. Co. (Oden-Elliott Lumber Co.), 201 Ala. 667, 79 So. 139; Oden-Elliott Lumber Co. v. L. & N.R. Co., 201 Ala. 700, 78 So. 989, and by the Court of Appeals in Hurt v. A., B. & A. Ry. Co., 17 Ala.App. 241, 84 So. 631.

For decisions in other state and federal courts, see, also, Pine Tree Lumber Co. v. Chicago, R.I. & P. Ry. Co., 123 La. 583, 49 So. 202; Tex. & Pa. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075; Pennsylvania R. Co. v. Clark Bros. Coal Min. Co., 238 U.S. 456, 35 S.Ct. 896, 59 L.Ed. 1406, 1412; Sullivan v. Minn. & R.R. Ry. Co., 121 Minn. 488, 142 N.W. 3, 45 L.R.A. (N.S.) 612; Cent. R. Co. v. Mauser, 241 Pa. 603, 88 A. 791, 49 L.R.A. (N.S.) 92; Swift & Co. v. Hocking Valley Ry. Co., 93 Ohio St. 143, 112 N.E. 212, L.R.A.1917E, 916. Where an administrative question for the Commission was involved, under the act of Congress, would affect the jurisdiction of the state court. Penn. R. Co. v. Puritan Coal Min. Co., 237 U.S. 121, 35 S.Ct. 484, 59 L.Ed. 867; Loomis v. Lehigh Valley Ry. Co., 240 U.S. 43, 36 S.Ct. 228, 60 L.Ed. 517; Texas & Pac. Ry. Co. v. Amer. Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255; Central of Georgia R. Co. v. Southern Ferro Concrete Co., 193 Ala. 108, 68 So. 981, Ann.Cas.1916E, 376.

The question for decision is not a legislative or administrative function, but merely that of the determination of the fact of whether the reasonable rate prescribed by the Commission had been exacted of the shipper. If an unreasonable or discriminatory rate was collected, the question of fact is to determine what the lawful and prescribed commission rate was, as the basis of admeasurement of the amount of recovery for the overcharge. These questions of fact may be the subject of consideration in state courts as in the courts of the general government. The just distinction, or test for jurisdiction in such matters, was made or declared in Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 479, 66 L.Ed. 943, 948, where it is held:

"Whenever a rate, rule or practice is attacked as unreasonable or as unjustly discriminatory, there must be preliminary resort to the Commission. Sometimes this is required because the function being exercised is in its nature administrative in contradistinction to judicial. But ordinarily the determining factor is not the character of the function, but the character of the controverted question and the nature of the inquiry necessary for its solution. To determine what rate, rule or practice shall be deemed reasonable for the future is a legislative or administrative function. To determine whether a shipper has in the past been wronged by the exaction of an unreasonable or discriminatory rate is a judicial function. Preliminary resort to the Commission is required alike in the two classes of cases. It is required because the inquiry is essentially one of fact and of discretion in technical matters, and uniformity can be secured only if its determination is left to the Commission Moreover, that determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable; and such acquaintance is commonly to be found only in a body of experts. But what construction shall be given to a railroad tariff presents ordinarily a question of law which does not differ in character from those presented when the construction of any other document is in dispute."

That is to say, the jurisdiction of the state court was sustained. The opinion concludes with the observation:

"In the brief and argument on the merits, it was also asserted that some recent decisions of this court are in conflict with the rule declared and applied in the American Tie & Timber Co. Case, supra, and the Loomis [295] Case supra. If in examining the cases referred to there is borne in mind the distinction above discussed between [296] controversies which involve only questions of law and those which involve issues essentially of fact or call for the exercise of administrative discretion, it will be found that the conflict described does not exist and that the decisions referred to are in harmony also with reason."

The many cases referred to by Mr. Justice Brandeis include that of Northern Pac. Ry. Co. v. Solum, 247 U.S. 477, 38 S.Ct. 550, 62 L.Ed. 1221, and are contained in the note to 66 L.Ed. 948.

In cases not involving the reasonableness of a rate or an administrative discretion, the jurisdiction of the courts is sustained without resort to the Commission; that is to say, where the question involved is solely one of construction of a tariff, or otherwise a question of law, and not one of administrative discretion. Louisville & N.R. Co. v. F.W. Cook Brewing Co., 223 U.S. 70, 84, 32 S.Ct. 189, 56 L.Ed. 355, 359; Pennsylvania R. Co. v. International Coal Co., 230 U.S. 184, 196, 33 S.Ct. 893, 57 L.Ed. 1446, 1451, Ann.Cas.1915A, [112 So. 325] 315; Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U.S. 121, 134, 35 S.Ct. 484, 59 L.Ed. 867, 874; Eastern R. Co. v. Littlefield, 237 U.S. 140, 35 S.Ct. 489, 59 L.Ed. 878; Illinois C.R. Co. v. Mulberry Hill Coal Co., 238 U.S. 275, 35 S.Ct. 760, 59 L.Ed. 1306; Pennsylvania R. Co. v. Sonman Shaft Coal Co., 242 U.S. 120, 37 S.Ct. 46, 61 L.Ed. 188; Pennsylvania R. Co. v. Kittanning Iron & Steel Mfg. Co., 253 U.S. 319, 40 S.Ct. 532, 64 L.Ed. 928. See, also, Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722; St. Louis, I.M. & S.R. Co. v. J.F. Hasty & Sons, 255 U.S. 252, 256, 41 S.Ct. 269, 65 L.Ed. 614, 616; Hite v. Central R. Co., 96 C.C.A. 326, 171 F. 372; Gimbel Bros. v. Barrett (C.C.A.) 215 F. 1004; Id. (D.C.) 218 F. 880; Id., 141 C.C.A. 379, 226 F. 623; National Elevator Co. v. Chicago, M. & St. P.R. Co., 158 C.C.A. 558, 246 F. 588; J.C. Francesconi & Co. v. Baltimore & O.R. Co. (D.C.) 274 F. 687, 691. Compare Empire Refineries v. Guaranty Trust Co. (C.C.A.) 271 F. 668; Kansas City Southern R. Co. v. Tonn, 102 Ark. 20, 26, 143 S.W. 577; Western & A.R. Co. v. White Provision Co., 142 Ga. 246, 82 S.E. 644; Gustafson v. Michigan C.R. Co., 296 Ill. 41, 129 N.E. 516; Wolverine Brass Works v. Southern P. Co., 187 Mich. 393, 396, 153 N.W. 778; Reliance Elevator Co. v. Chicago, M. & St. P.R. Co., 139 Minn. 69, 165 N.W. 867; St. Louis, S.F. & T.R. Co. v. Roff Oil & Cotton Co., 61 Tex.Civ.App. 190, 192, 128 S.W. 1194; Southern P. Co. v. Frye & Bruhn, 82 Wash. 9, 143 P. 163.

In Northern Pac. Co. v. Solum, 247 U.S. 477, 38 S.Ct. 550, 62 L.Ed. 1221, the decision was to the effect:

"Jurisdiction of a suit by a shipper to recover amounts paid for shipments over an interstate route between two points, both within the state, in excess of what would have been payable under the state law if the shipments had been made over an intrastate route, may not be assumed in advance of a determination by the Interstate Commerce Commission of the administrative question as to the reasonableness of the carrier's practice, because of the grades of the two lines, in routing west-bound shipments over the longer interstate route, and east-bound shipments over the shorter intrastate route."

The instant case is within the foregoing rule sustaining the jurisdiction of the circuit court; the issue presented being that not involving the exercise of administrative discretion. The trial court correctly sustained demurrers to the plea to the jurisdiction, since the case for decision is merely that calling for the construction of a contract, evidenced by the bill of lading, to determine what the true or commission rate was that should have been exacted of the shipper. This was within the test or rule of the case of G.N. Ry. Co. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943, where Mr. Justice Brandeis makes the true distinction, as we have hereinbefore indicated.

The case being tried by the court without a jury, the question recurs, was the evidence for plaintiff such as that a new trial should have been granted? Be it remembered that the questions are of misrouting, not a reasonable practice of the carrier to so route. The announcements of Northern Pac. Ry. v. Solum, supra, are without application.

We have only the determination of what was the lawful rate under the instant facts. When there is no specific routing by the shipper, the general rule is that it is the duty of the carrier to ship or carry (1) by the cheapest and most available route, (2) and to charge the lowest rate that has application to such shipment. The instructions of the shipper on the initial or original bill of lading--"of date of May 27, 1921, at La Pine, Alabama, from J.P. Felton Lumber Company, consigned by W.L. Shepherd Lumber Company. Destination Roanoke, State of Va. County of ______, Route WSSB--N & W"--being interpreted by the evidence (witness Copeland) meant "Winston-Salem...