195 F. 12 | 6th Cir. | 1912
(after stating the facts as above). The contention of plaintiff is that two questions are involved—one of jurisdiction and the other upon the merits of the action; while the contention of defendants is that the only question arising is that of jurisdiction. The ultimate theory of defendants is (a) that as to all the companies the issues concern only the jurisdiction of the Circuit Court as a federal court; and (b) that since the Illinois Central is a foreign corporation having no line of road or station in Michigan the additional point arises whether Sweat is an agent upon whom service of process could properly be made, and it is urged that he is not.
In the view we take of the case, we may for the present pass the question whether the court obtained jurisdiction of the person of the Illinois Central Company; for, since due service of process was admittedly made upon the remaining companies, we shall as to those companies have to determine the issue concerning the jurisdiction of the Circuit Court as a federal court.
“It does not appear and is not alleged in said declaration that the Interstate Commerce Commission of the United States has ever passed upon the reasonableness, legality, justice, propriety or otherwise <Jf the said rates of freight, nor has it made any order of reparation or payment in the premises.”
It. is manifest that it was intended in this way to raiSe the question whether it was not necessary as a condition precedent to the jurisdiction of the Circuit Court to allege that an order had previously been
“The court has liad frequent occasion to determine what is meant in the statute providing for review of cases in which the jurisdiction of the court is in issue, and it has been held that the statute means to give a review, not of the jurisdiction of the court upon general grounds of law or procedure, hut the jurisdiction of the court as a federal court.”
See, also, Boston & Maine Railroad Co. v. Gokey, 210 U. S. 155, 166, 28 Sup. Ct. 657, 52 L. Ed. 1002; Louisville Trust Co. v. Knott, 191 U. S. 225, 24 Sup. Ct. 119, 48 L. Ed. 159; Bache v. Hunt, 193 U. S. 523, 525, 24 Sup. Ct. 547, 48 L. Ed. 774.
“It is well settled that, where the only question properly raised by the assignments of error is that of the jurisdiction of the trial court, this court cannot review, but such writ of error must be taken directly to the Supreme Court (Remington v. Cent. Pac. R. R., 198 U. S. 95, 97 [25 Sup. Ct. 577, 49 L. Ed. 959]; Coler v. Grainger Co. [C. C. A. 6th Cir.] 74 Fed. 16, 21 [20 C. C. A. 267]; Kentucky State Board v. Lewis [C. C. A. 6th Cir.] 176 Fed. 556 [100 C. C. A. 208]); and also that if the trial court did decide and if the assignments of error do fairly raise an independent question of general law as well as the question of jurisdiction, then this court has power to hear and decide all the questions (Boston & Maine R. R. Co. v. Gokey, 210 U. S. 155 [28 Sup. Ct. 657, 52 L. Ed. 1002], and cases cited. See, also, review of decisions in Morisdale Co. v. Pennsylvania Co. [C. C. A. 3d Cir.] 183 Fed. 929, 938 [106 C. C. A. 209]).”
See rule 2 and decisions commented on in its support in Morisdale Coal Co. v. Pennsylvania R. Co., supra, 183 Fed. 942, 106 C. C. A. 269 et seq.; Loveland, Appellate Jur. § 105, and decisions there cited.
It is alleged in the declaration that plaintiff was charged 30 cents per 100 pounds for shipments from .Mobile to Fenton, and that this was 2 cents in excess of a reasonable rate. Plainly, during the period that the 16-cent rate south of the river was in force, the sum of the local rates, charged by the roads for service north of the Ohio river was 14 cents. It must be presumed, in the absence of allegation to the contrary, that the rate charged and paid north of the river was published and filed and also reasonable; and on demurrer to the present declaration the 16-cent rate- south of the river must be regarded as unreasonable to the extent of 2 cents per 100 pounds.
Can the plaintiff then make the order of the Interstate Commerce Commission, respecting the rate south of the river, the basis for recovery of its alleged damages? Aside from other.obvious questions, this must depend upon whether the Interstate Commerce Act furnishes an exclusive remedy for recovering such damages. In one sense it would seem unnecessary for plaintiff to present its complaint to the commission before instituting an action like this. One of the potent reasons stated in the decisions for requiring claimants to present such matters to the commission is that the rate question in all respects is administrative in its nature; and that the commission is a special tribunal created by act of Congress to determine such questions. Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075; Robinson v. B. & O. Railroad Co., supra.
“may eitlier make complaint to the commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must, in each case, elect which one of the two methods of procedure herein provided for he or they will adopt.”
The policy and intent of Congress, however, in creating the commission as a special tribunal to pass upon rate questions, cannot be fully described, without stating its further intent respecting the time within which complaints for the recovery of damages shall be filed with the commission. Section 16 of the same act as amended provides that if after complaint and hearing, as provided in section 13, the commission shall determine that complainant is entitled to an award of damages, it shall make an order directing the carrier to pay the sum fixed by a day named; and that, if the carrier does not comply with the order, the complainant dr any person for whose benefit the order is made may enforce it in the Circuit Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier or through which the road of the carrier runs. And the section further provides:
“All complaints for the recovery of damages shall be filed with the commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court within one year from the date of the order, and not after: Provided, that claims accrued prior to the passage of this act may be presented within one year.”
This act was passed June 29, 1906, and it took effect August 28th. 34 Stat. D. 584, 590; Act June 30, 1906, Rev. No. 47 (34 Stat. 838). The last shipment now in dispute was made August 15, 1904, and this action was commenced May 11, 1909. It is apparent, indeed it is conceded, that, if plaintiff’s claim is affected by section 16, it is barred by lapse of time. The burden is therefore upon plaintiff to show that the suit can be maintained under section 9. It was decided in the Abilene Case that money exacted by a carrier which was claimed to be in excess of a reasonable rate could not be recovered, in the absence of a showing that the alleged unreasonableness of the rate had been determined by the Interstate Commerce Commission. In the Robinson Case, the same conclusion was reached concerning a rate (as to cost of loading cars) that was alleged to be unjustly discriminatory. Damages arising from the exaction of such a rate are so related to it in character and circumstance as to present considerations kindred to those involved in the inquiry as to complaints of the rate itself. The reasons entering into the conclusion of the commission that a rate is unreasonable or discriminatory might not be convincing that all persons paying the rate were entitled to reparation. The new rate fixed by the commission is
'"■ The claim in the Robinson Case was for an exaction made of 50 cents more per ton when coal was loaded into cars from wagons than when loaded from a tipple. It was contended that recovery was warranted by section 22 of the act which provides that:
“Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this •act are in addition to such remedies.”
Of this Mr. Justice Van Devanter said (222 U. S. 511, 32 Sup. Ct. 116, 56 L. Ed. —):
“Of course, the provision in section 22, as also the provision in section 9, must be read in connection with other parts of the act and be interpreted with due regard to its manifest purpose, and, when 'that is done, it is apparent that neither provision recognizes or implies that an action for reparation, ■such as is here sought, may be maintained in any court, federal or state, in the absence of an appropriate finding and order of the commission.”
True, the learned justice was there speaking of the necessity for a, 'previous finding and order of the commission as to the reasonableness of a distinction made between loading from wagons and loading from a tipple; but, apart from what was there said of reparation, the rule of interpretation laid down is suggestive of a rule that should be applied here. Section 16 provides, as before pointed out, that, if, after hearing on a complaint made as provided in section 13 of the act, the commission shall determine that any person complaining is entitled to an award of damages, the commission shall make an order directing the carrier to pay. Section 13 provides generally that persons complaining of anything done by a carrier in contravention of the act may apply to the commission by petition, and; in case the carrier shall fail after notice from the commission to make reparation, the commission shall investigate the matters complained of. As illustrative of the simplicity and dispatch intended by the act for the benefit of shippers, we may refer .to a decision of this court holding that the filing of a letter of complaint is sufficient to warrant action on the part of the commission. Louisville & N. R. Co. v. Dickerson (C. C. A.) 191 Fed. 705, 711.
■ It is clear that all complaints respecting unreasonable or discriminatory rates must be made in pursuance of. section 13. That section is by reference incorporated into section 16, which distinctly limits the time within which such complaints shall be filed. It results, we think, that ,the remedy thus provided is exclusive as respects alike complaints
“And it was in effect held that reparation after such action for the excess above a reasonable rate must be by a proceeding before the commission, ‘because of a wrong endured during the period when the unreasonable schedule was enforced by the carrier and before its change and the establishment of a new one.’ ”
The language thus quoted was in part derived from the opinion of the present Chief Justice in the Abilene Case, in which he was analyzing the power vested in the commission “to compel the establishment of a new schedule of rates applicable to all” and also to grant reparation; the learned justice saying (204 U. S. 446, 27 Sup. Ct. 357, 51 L. Ed. 553, 9 Ann. Cas. 1075):
“And like reasoning would be applicable to the granting of reparation to an individual after the establishment of a new schedule because of a wrong endured during the period when the unreasonable schedule was enforced by the carrier and before its change and the establishment of a new one.”
Further, it is to he observed that the limitations prescribed by section 16 apply as stated to “all complaints for the recovery of damages,” and it requires that “they shall be filed with the commission, within two years from the time the cause of action accrues, and not after.” This is certainly very comprehensive. As the section existed at the dale of the shipment in question (July 15, 1904), it did not contain this limitation or any other in point of time. But as the section was amended June 29, 1906 (and took effect in 60 days after approval, 34 U. S. Stat. L. 838), the limitation in time was imposed as before pointed out. It required that the petition for enforcement of an order to pay money shall be filed in the Circuit Court “within one year from the date of the order, and not after: Provided, That claims accrued prior to the passage of this act may be presented within one year.” This court in L. & N. R. Co. v. Dickerson, supra, held (page 711 of 191 Fed.):
“That claims accruing before August 28, 390G, may be presented within one year from that date, even though accruing more than two years previous to the date named.”
We have already stated that the present action was not commenced until May 11, 1909, a period of nearly three years (instead of one year) after the act took effect. It is urged that under section °9 the plaintiff was entitled to bring suit at, any time within the limit of actions for debt. This limitation, -of course, would be determined according to the statutes of the several states. Surely, one feature of the intent of Congress in its enactment of the limitations in question was to establish uniformity in time, as well as forum, in which such damages might be enforced. It is a subject clearly within the power
It follows that the motion by the Illinois Central to dismiss the writ of error must be denied; and, while we have power to review the question whether good personal service on that railroad was had, yet it becomes unnecessary to do so because of the conclusion we have reached that plaintiff has no case on the merits.
The judgment below must be affirmed, with costs.