*1 SOUTH- CO. v. ARMOUR & LOUISIANA RY. CO. ERN 13418. Appeals States Fifth Circuit.
Aug.
Borah, Judge, Circuit dissented.
Harry McCall, Jr., Orleans, La., New Blanchard, Chaffe, Paul E. Ill., Chicago, McCall, Phillips, Orleans, Toler & New La., appellant. Curtis, Orleans, La., Henry New B. appellee. HUTCHESON, Judge, and
Before Chief RUSSELL, Judges. Circuit BORAH RUSSELL, Judge. appeal defendant from This is summary judgment entered in favor of brought action was plaintiff. The company appellee railway to collect Company, appellant, Armour and charges at the rate stated and Interstate Commerce prescribed by the in its Service No. 775. *2 prescribed by Suspensión” nouncement of as follows: The railroad, agent, publish, set “Each greater than those or its shall Commission were the rail- file up post supplement the tariff of and each of its published in a and up- appellant ac- way company. thereby, The defended tariffs affected substantial urged provisions is likewise cordance with the Rule 9 ground, on the which of (k) here, demurrage rates as set forth of Circular Commission’s Tariff ** company’s published No. 20 railway announcing the operation schedule, any conflicting Interstate Com- of the file of on conclusively provisions Commission, therein, evidenced establishing merce and re- permissible provisions of substituted herein.” the extent and amount set forth pub- covery had failed to Provision since was also for made service of supplement to upon a order changed agent lish rates as of the railroad and railway company filing contends for public by general The to the its tariff. must, to, Director, recover and with the that entitled Division of the Federal not, Ser- prescribed by Register. demurrage railway company at The did prior issued period which had to the during vice No. which the de- been murrage accrued, which demur- prior during charges to the time with the charges publica- accrued. rage requiring of supplement tion and posting a its Inter- By Service Order tariff schedule. Commission, purporting state Commerce the Interstate The judgment trial Court awarded act under the (10) (17), plaintiff favor of $5,- U.S.C.A. Commerce Act 49 sum of § — thereof, 801.40, computed particularly sub-section charges and —the being freight were cars accordance with that railroad Service Order No. 775. found unloading, Appellant loading plaintiff here delayed unduly in insists that the car- so equip- rier shortage may lawfully a cetera, assess collect et as to cause movement, use, spec- et charges impede greater than those ment and to thereby duly published create ified in its cetera, filed and tariff. such cars specification in In action requiring immediate of errors insists that the emergency trial country. failing The Commis- Court erred in to hold as all sections of period matter charges of free of law: that (1) prescribed sion a shorter transportation increasing at charges, higher within defini- time and “demurrage tion that on railroad term as used in daily for step rate appellee provision ordered Commerce Act2 was for could freight cars.” The 1947, charge specified on the amounts in its effective October to become duly 1st, tariff; unless May filed expire on but to effective (2) appellee’s Com- that changed by tariff could .not be or otherwise modified pro- amended the mere of the order issuance an order (f) mission. Sub-section ** directing suspended the carriers vided: “Tariff it; rules, regulations to amend that (3) or said order of operation of all face, amend, on they with the its did not conflict charges, insofar as attempt amend, section, appellee’s and made no hereby sus- provisions of this effective tariff. “An- pended.” (g) directed Sub-section pleading other formal “par. (15) the interested of commission Powers carriers, or emergency. carrier and with or without Whenever the com case notice, hearing, making filing or the opinion shortage mission is report, according of a commission congestion traffic, equipment, or other may (a) op- determine: emergency requiring immediate action ex any rules, regulations, eration of or all country, section ists practices respect then established with have, given, shall and it commission may to car service such time as authority, upon complaint either commission; determined complaint, initiative without at its own seq. orders, once, it so without 2. 49 et § if answer' or U.S.C.A. hand, contends the In within the 6 of appellee, on the other terms supra, thus Act, the Com- terstate that the service order issued tariff schedule. properly of its includible in the mission in exercise But the de of such as set forth *3 clearly the force tention of one having freight Act a is also the is valid order cars shortage a of law, relieving effective and effect of and means of speed in charge prescribed freight by be observed. cars inducing therein must railroad loading them, of and unloading the and sup- appellant’s argument While the provisions the therefore 6 are of Section port position various of its is based with, repugnant to, not or inconsistent ultimate grounds, they all reach the one grant emergency to the Commission of charges are point that since powers (15), as 1 and charges transportation or service for contemplates supra. Furthermore, 6 section required pub- are be filed and by to law a legal definite schedule and thus makes lished, such a and since no deviation may be measure of permissible, fixed tariff rates legally is lawfully However, demanded or received. by published tariff as controlling such a are provisions is clear from other of attempt by any of and unaffected analysis that in final Interstate by the Commission Interstate Commerce controlling Commerce Commission has the promulgation to of car service order a fixing word in rates. of When prescribe other and different rates de- of spoken, Commission has thus murrage charges. argued that a tariff It is demand, is “publish, forbidden to thereafter rate, published effect can be once and in rate, fare, charge any collect by cancelled and made ineffective transportation rate, such other than the publication filing of another sched- and fare, charge prescribed3 so ule, require- that in effect the and while (Emphasis supplied). 15 49 U.S.C.A. as § ment of the rate the statute to collect ; States, superior re- State of New v. every York United is to other 284, 340, 345, 1207, quirement 343, of 331 though even in violation U.S. 67 S.Ct. rates, pre- 91 orders of the Commission. Thus L.Ed. 1492. In of is this matter ques- acts, real sented what we deem to be the when it is Commission the creator tion in the That whether case. and the tariff It is schedule the creature. is amended, Act, Interstate Commerce as this that 6 (3) (7) sense Section particularly provisions and of Section Act make fully bind thereof, provisions schedule, 1 (15) ing authorizes the discharge powers its in case of but these contem nevertheless freight shortage, emergency of plate railroad car with the orders of valid prescribe rates, to and fix Simonds, Cf. Commission. Lowden v. effect, theretofore in that those so etc., Co., 516, 521, Grain 306 U.S. 59 S.Ct. thereby such and rates become 953; 612, 83 v. L.Ed. Davis Portland Seed disobeys effective even if a carrier 403, Co., 264 U.S. 44 S.Ct. 68 L.Ed. publish order to the an- Commission’s 762; Atchison, Grocery Arizona v.Co. T. nouncement of its & F. S. S.Ct. U.S. Ry., in effect. theretofore Among purposes L.Ed. 348. prevention Act is Interstate Commerce It is true that preference. It with, by discrimination does and dealt are considered statute purpose charge comport this as a not at all constituting and decision 6, supra, transportation employ so generally as to of Section come way course, true, no weakens effect this and the It that this section contemplates cognate demonstrating of rates a sections that after hear- authority ing hearing, a final than without has rather as is the Commission rates, any printed provided by paragraph prescribing that contrary stating the Commission schedule orders emergency. However, not in case of this in effective. suspen- validity could not annul the carrier or permitting of.the a means sion of the establish- charge prescribed old' shipper to evade a lawful ment of the The existence new. the Interstate Commerce questioned. The real is hot failing relates question had whether an order such publish the rate which Commission to “rules, practices.” regulations must be authorized section or fixed. That subject principal, funda- received full consideration applied light has gov- system three-judge in Iversen statutory mental and essential 1001, in States, D.C., F.Supp. law, con- v. every enactment ernment delivering Prettyman, Judge to its which clusively assumes obedience *4 the language, opinion Court, the the reviewed considered as isolated terms light perti- demurrage nature of in with all other also connection but power the that the sec- authorities held nent So when of the law. granted fix “printed the entire to them was the Commission tion refers to schedule” In- approved, the by 1 picture terms Section presented a schedule Act, supra. The case promulgated accordance terstate in Commerce authorized and Court, contrary 327 by Supreme was affirmed with one which is law not 767, 825, Interstate L.Ed. 998. U.S. 66 S.Ct. 90 to Valid law. orders There is here have force occasion for reiteration no Commerce Commission expressed than States, 266 U.S. views there further law. Avent v. United 202; approval 127, United to our conclusion 34, evidence 45 S.Ct. 69 L.Ed. Co., pro- quoted Cement there Michigan Portland that the and referred to States v. 713; supra, 46 70 L.Ed. visions author- (15), 270 S.Ct. of Section 1 U.S. Chicago, Turner, Lumber Co. v. Order D. & L. ized Commission to issue Service Co., Chicago, Railway in'question. & St. Paul No. 775 also Milwaukee here See M., Co., 934. Co., U.S. 46 S.Ct. L.Ed. P. & St. & McCree P. R. v. D.C., F.Supp. holding to the same scope of consider the We therefore effect with reference to Service power granted the Interstate 775. by Section Commission depends in This turn (15) of Act. aAs Com- valid upon demurrage whether superseded merce Commission effec- that now by order such as a service tively' suspended tariff thereto- consideration, in case of under effect, validly fore in and likewise estab- action, properly requiring immediate lished the new power “to sus grant included recovery sought which the and allowed rules, regulations, pend all or present computed, case was failure respect practices then established of the carrier comply with the order may time car for such de- service it'give Commission that such In the by the commission”. termined new fixing of question the issuance of order now not, charges did not annul legally could statute, supra, citing de- the Commission’s order. The trial power.4 had such If termined that judg- did not in so adjudging err and its by empowered was Commission ment is affirmed. statute to Judgment affirmed. in effect and direct new ones theretofore charged, it would follow to be BORAH, Judge (dissenting). failure of impossible agree find with this I establis- for announcement and direction authority I am charges decision. aware of no the increased ment emergency powers erasing appellee’s thus con- brief that told We are it, passage ferred has issued Oar Service of the Eseh Oar Serv- “since , during Orders.” in 1917 World War I ice nearly 900 instances ex- remotely sup- rate spelling that a need for suggests even tariff out detail effect, plemental can published in charge, or once and in were to be tariffs changed any way save be set aside or substantial with the Commis- the one the statute.1 sion’s tariff method own circular? For these rea- tariff publishing That method is new sons I respectfully dissent. rate supplement, naming
or the new charged. 6(7)
to be Under demand, may charge,
carrier
collect, less, greater, or receive or differ- compensation
ent than rates which
specified in the in effect tariffs filed and legal
at the time. The rate is the filed duty rate and it is the of the carrier INS. et v. EMPLOYERS VORIS al. TEXAS precisely charge and collect the rate et al. ASS’N same is contained in the tariffs on file with No. 13425. though and this so even *5 such rate be unreasonable and excessive, Appeals States The order of the unlawful. Fifth Circuit. publish naming and file a new tariff July 11, 1951. changed charges detention new and Rehearing Aug. 10, 1951. Denied cars, though valid, executing was not self ipso did cancel facto If, here, rate on file. order of promptly obeyed Commission is not the tariff
changing provided
6, then, authorities, the as I understand the ap-
uncancelled tariff stands and must be
plied until en- something else is done to
force the order. The has the
power compel obedience under Section persuaded
16(12) and I am not to believe executing.
that such orders are self
fact that the Commission’s was issued
pursuant granted to the 1(15)
it under Section is not material.
Furthermore, the order here involved shows recognition part on the of the Commis- change
sion that ac- rate was to be
complished by the only method Statute, publi- existing tariff and the
cation of new in a new tariff. If ipse
the Commission could its own dixit
change an established tariff rate without
complying requirements
Statute, why necessity then was there changes proposed 6(3) provides: be made “No * * * * * * change then force schedule and the shall be made the rates proposed changes published by shall be shown which have been filed printing schedules, plainly new or shall common carrier requirements except section, indicated of this schedules at force * * * * * * the time after to the ** public plainly which shall state