243 F. 149 | 6th Cir. | 1917
This was an action to recover $682.34 with interest, as damages resulting from the exaction of an alleged unreasonable and unjustly discriminatory joint through rate for the transportation of certain shipments of scrap iron in carloads from Houston, Tex., to Chicago, Ill. An order of reparation for payment of this sum and interest had previously been made by the Interstate Commerce Commission on complaint of the present defendant in error, herein called the Iron Company, against the plaintiffs in error, here called the Railroads. The complaint was filed with the Commission May 14, 1914, and the report and order of the Commission finding such through rate to be unreasonable were entered November 2, 1915. The ground of this finding was that the rate charged exceeded the sum of the intermediate rates concurrently charged over the same lines between Houston and Chicago. An application made to- the Commission on behalf of the Railroads for authority to continue higher through rates on scrap iron between the points mentioned than the sum of the intermediate rates was heard with the complaint of the Iron Company and was denied at the time the finding and award of reparation were made. The amount embraced in the Commission’s order of reparation was the difference between the through rate exacted and a combination rate based on the intermediate rates. The petition alleges that the Railroads did not comply with the order of the Commission and that they refuse to pay the sum awarded. The answer of the Railroads is confined to an allegation that on March 16, 1916, the Interstate Commerce Commission set aside the order mentioned in the petition, and to a prayer for dismissal, with costs. The Iron Company demurred to the answer on the ground that it does not constitute a defense ; and, upon the familiar rule that a demurrer searches the record, the Railroads insisted that the petition fails to state a cause of action. The demurrer was in terms overruled as to the petition and sustained as to the' answer; and, the Railroads not desiring to amend the answer, judgment was entered for the Iron Company, with interest and costs, including an attorney’s fee. The Railroads bring the questions here upon the writ of error.
The Railroads base their contention upon two grounds. One concerns a rate from) Houston to New Orleans which was employed in making up the sum of the intermediate rates, and the other-relates to the effect of the alleged setting aside of the reparation order. The contention in respect of the rate so employed grows out of this state of fact: A proportional rate of 9% cents per 100 pounds in carloads
•‘We hold that the 9% cents proportional rate was not so restricted or limited as to make it inapplicable as a factor in constructing a through rate to Chicago had there been no joint rate in effect. We find upon consideration of all the facts that joint through rate of SO cents per 100 pounds was unreasonable to the extent that it exceeded the combination of intermediate [rates] concurrently in effect, i. e., S5.21 per ton.”
This was in harmony with the holding of the Commission in Windsor Turned Goods Co. v. C. & O. Ry. Co. (1910) 18 Interst. Com. Com’n Rep. 162, 164, where it was said:
'•* * * The fair measure of til© reasonableness of a joint through rate that exceeds the combination between the same points via the same route is, and will hereafter be held to be, the lowest combination that would lawfully apply if tlie joint rate were canceled.”
It remains to consider whether we are bound to conclude that the order of reparation was intended permanently to be set aside. It is true, as we have seen, that the answer alleges that on March 16, 1916, the Commission set aside the order, and that according to the transcript this was met simply by demurrer. We assume that if the Commission had intended to rescind its order permanently, for instance, as an improvident order, the demurrer to the answer should have been overruled;
Turning then to a consideration of the Commission’s action’ as it is reported in 40 Interst. Com. Com’n Rep. 525, 526, it appears that the report of June 29th was a “supplemental report,” the Commission with one dissent stating (page 525):
“This case was reopened upon defendants’ petition for further consideration upon brief. The original report appears in 37 Interst. Com. Com’n Rep. 591. * * * Orders were entered for reparation and denying relief from the aggregate of intermediates rule of the fourth section. When the case was reopened, the order for reparation was vacated and set aside, but the fourth section order' was continued in full force and effect.”
And further (page 526) :
“We adhere to our previous decision, and will accordingly re-enter the order for reparation. The petition for rehearing was filed because certain*153 carriers construed our decision as a ruling that all restridod proportional rates were to l)e considered in determining whether or not the through rate exceeds the aggregate of the intermediate rates. It is to be understood that we are dealing only with the facts in this case, including the fact that the proportional rate in question was not so properly restricted or limited as to make its application definite, clear, or ascertainable, and what we have here held is not to be construed as applicable in cases where the use of proportional rates is properly defined.”
The judgment will be affirmed.
The question thus assumed, and not intended to be decided, pertains broadly to the rate-making power of the Commission, since the order so set aside involves, not merely reparation in the form of damages, but also the Commission’s finding that the through rate in issue was unreasonable to the extent stated in the Commission’s report and incorporated by reference into its reparation order; in other words, would permanent rescission of such