248 F. 547 | S.D. Cal. | 1918
Review is sought of an order of the referee, disallowing in full a claim of the Southern Pacific Company against the bankrupt in the sum of $1,749.09, representing alleged unpaid freight charges upon a certain commodity transported over claimant’s lines from lone, Amador county, to Trópico, Los Angeles county, and also for the transportation of a similar commodity from Alber-hill and Prado, Riverside county, to Tropico.
California has a Public Utility Act (Stats. Cal. 1915, p. 115 et seq.) modeled, at least with respect to railroad companies, after, and therefore to be construed similarly to, the federal Interstate Commerce Act. Section 14 of the act (p. 122) provides that the carrier shall file with the Railroad Commission and keep open for public inspection schedules showing the rates, fares, charges, and 'classifications for the transportation between, termini within this state of persons and property from each point upon, its route to all other points thereon, etc. Section 15, p. 124, provides that, unless otherwise, permitted 'by the Railroad Commission, no change shall be made by any public utility in any rate, fare, charge, or classification, except after 30 days’ notice, etc. Section 17a (2), p. 124, provides that:
“No common carrier shall charge, demand, collect or receive a greater or less or different compensation for the transportation of persons or property, or for any service in connection therewith, than the rates, fares and charges applicable to such transportation as specified in its schedules filed and in effect at the time; nor shall any such carrier refund or remit in any manner or by any device, any portion of the rates, fares, or charges so specified, except upon order of the Commission,” etc.
The same inhibition is reiterated as to public utilities generally in section 17b, p. 127. Appropriate penalties (sections 76 and 77, p. 167), being not less than $500 nor more than $2,000 fine for each violation of the provisions of the act, .as against the public utility guilty thereof, and by both fine and imprisonment against any officer, agent, or employé thereof, are provided.
The question in the case is whether the substance actually transported by claimant was sand or clay. If sand, at least with respect to the lone shipments, the carriage charges have been fully paid. If clay, under the law as repeatedly determined, the carriage charges with respect to such shipments having been paid anly in part, it is not only claimant’s right, but its duty, to present its claim, and, if possible, effect a recovery as for the balance due. Loath as I am to disagree with a referee upon a question of fact presented upon review, I am constrained to believe that in this case the referee has arrived at erroneous conclusions with respect both to the fact and the law involved, and that in consequence his order should be annulled. The referee in his certificate, inter alia, says:
“It also appears from uncontradicted evidence adduced that the commodity, the character and proper classification of which is at issue here, had been shipped over claimant’s lines for a number of years prior to the shipments in question, and had been received by the claimant for shipment, under the classification of sand and at the sand rate. The commodity is, and at all times has been, used commercially as what is called a grog or filler in the malting of clay products, and is commonly and usually designated as what is known as Tone sand.’ ”
He then refers to the testimony of an expert geologist, offered by claimant, and, after admitting some inability thoroughly to understand just exactly what the expert intended to testify to — an inability which is shared by the court after reading his testimony carefully — ■ the referee proceeds to quote the definitions of clay and sand as given in Webster’s Dictionary, and then says:
“An examination and inspection of the samples offered in evidence brings the substance within the definition of sand, rather than within the definition of clay. Taking all the evidence into consideration, the referee finds that this substance, viz. the commodity involved in this controversy, is geologically as well as commercially to be classified as sand.”
Some attention is then paid by the referee to a suggestion that had been made that the Railroad Commission had never classified this commodity either as clay or sand, and that in a proceeding had before the Commission, intended, as it is said, to effectuate that purpose, no action was taken. The referee then proceeds:
*550 “The referee finds that it was at the time of the shipments in question, and for a long time prior thereto had been, the practice of the claimant to carry the commodity in question at the sand rate, and that the claimant has not obtained from the Railroad Commission of the state of California permission to change the classification, so as to increase the rate on the commodity in question; nor has the claimant obtained permission to change its practice of carrying this commodity at the sand rate. The referee finds that the Railroad Commission of the state of California has made no findings or order permitting the claimant to change its said practice or classification, nor has said Commission made any findings that the increase in the rate is justified.”
So, the question, in the case, irrespective of what the parties may have thought, done, or said in the matter of transporting this com
“The material of the specimen is a sandy white clay or kaolin. * * * This clay, like all other clays, is a mixture of decomposed rock materials. In this clay the substance appears to bo almost entirely kaolin, the essential substance of the high-grade clays. A considerable part of the material is granular decomposed feldspar, which is clay and can be pulverized between the Angers. Some of the granules are fine quartz sand.”
One of the witnesses offered by the trustee, an employe of the bankrupt at its sewer pipe factory, testified that the commodity in question was used as “grog.” He also said that he had never seen a sample of the commodity tested, to see whether it was plastic or not, and he did not think that it was plastic. The eleventh edition of the En-cyclopaedia Britannica, sub nom. “Clay,” says that clay is:
“A fine-grained, almost impalpable substance, soft, more or less coherent when dry, plastic and retentive of water when wet. * * * It consists essentially of hydrous aluminum silicate, with various impurities. * * * Sands are more coarse-grained than clays. * * * A little clay, stirred up with water in a glass, takes hours to settle, and even after two or three days some remains in suspension. * * * Their [pure clays] silica ranges from about 60 to 45 per cent., varying in accordance with the amount of quartz and feldspar present. Alumina is high in the finer clays (18 to 30 per cent.). Magnesia is never absent.”
Under the title “Sand” the same authority says:
“When rocks or minerals are pulverized by any agencies, natural or artificial, the products may be classed as gravels, sands, and muds or clays, according to the size of the individual particles. If the grains are so fine as to be impalpable (about 1/1000 in. in diameter), the deposit may be regarded as mud or clay.”
“A common earth of various colors, compact and brittle when dry. but plastic and tenacious when wet. * * * A hydrous aluminum, silicate.”
It defines sand as:
“A grain or particle of rock material large enough to be easily, visible to the naked eye, but not so large as to be regarded as a stone or pebble, forming an incoherent aggregate.”
The Century Dictionary says of clay:
“The material resulting from the decomposition and consequent hydration of the feldspathic rocks. * * * As thus formed it almost always contains more or less sand, or silicious material, mechanically intermixed. After this has been separated, the clay itself is found to consist of a hydrated silicate of aluminum; but it is not yet positively made out that there is one definite combination of this kind, constituting the essential basis of all the substances to which the name clay is applied. All clays contain hygroscopic water which may be expelled by heating to 212° F.; but they also contain water in chemical combination, and when this is driven off by ignition the clay loses its plasticity, which cannot be restored. Ordinary clay contains more or less lime and other impurities, which render it to a certain extent fusible. The purer varieties are refractory, and are known as fire clay. The plasticity of clay is of great importance, as without this quality it could not be easily worked into the various shapes for which it is used.”
Geikie, a world-accepted authority on Geology, says of clay (volume 2, New Science Library, p. 158, J. A. Hill & Co., 1904):
“When wet, it can be kneaded between the fingers; when dry, it is soft and friable” (easily pulverized).
Dana, in his text-book on Geology, p. 34, says:
“Pure clay, or kaolin, is white and feels greasy.”
I find the term “grog” defined by Webster as:
“The refractory materials, such as pulverized pottery and fire bricks, fire clay, etc., which are used in the manufacture of crucibles, fire bricks and the like.”
By the Century Dictionary it is defined, and this is the only definition I find therein:
“The vitrifying ingredients usually added to the terra cotta clays are pure white sand, old pottery and fire bricks finely pulverized, and clay previously burned, termed ‘grog.’ C. T. Davis, Bricks & Tiles, p. 313.”
“Clay and Pottery Industries,” Lippincott, 1914, p. 385, note, says:
“Grog is a technical term applied to a granular mass of fired clay which is used for tempering clays. The grog may be prepared either by firing and ‘subsequently grinding raw clay, or by simply grinding fire clay goods.’ ”
From these authorities, as I read them, clay is frequently used as a refractory material, and seems to be the only material which is used as “grog.” I find no suggestion anywhere that sand is ever used as a “grog,” and if it be that a material has been used as grog, seemingly, according to the definitions obtaining in the art, it must have been a clay — no instance of sand being used as a grog being given or considered.
The commodity entered only into the manufacture of sewer pipe. No suggestion is made anywhere that it is true “china clay or kaolin.” Its want of purity, together with its marked discoloration (bluish in color when fractured), due to impurities, renders it apparently unfit for the manufacture of porcelain, and therefore takes it out of the excepting clause found in the published schedules and noted herein-above. Geikie, supra, p. 158; Dana, supra, 1, 84; Americana, title “Kaolin.” The “crude clay” rate, therefore, controls.
Due to the disputed construction of a stipulation in the record, there seems to be some question presented as to whether or not the transportation • charge of the material shipped from Alberhill to Tropico was entirely paid for, or paid for as “sand,” when it should have been paid for as “clay.” As suggested hereinabove, the waybills show it was shipped as “clay.” Presumably, therefore, it could hardly have been paid for as sand, and I am rather led to the belief, as contended for by claimant, that the stipulation entered into by it was not intended
For this reason, the matter will be re-referred to the referee, with directions to take evidence on this last-mentioned feature of the case, and then take such action respecting the allowance of the entire claim as may not be inconsistent with the views hereinabove announced.
The order of the referee is annulled, and the matter is re-referred to him, with directions to proceed as indicated hereinabove.