246 F. 588 | 8th Cir. | 1917
The defendant in the District Court, which is also the defendant in error, is a corporation organized under the laws of Wisconsin, and was engaged in interstate commerce and maintained a system of railroads extending generally from Chicago, Ill., to the Pacific Coast. The line extends from the eastern boundary of South Dakota, south of the south line of North Dakota, to a point about 100 miles east of the Montana line, and crosses into North Dakota and proceeds west to Montana. At Andover, S. D., it has a branch which extends north into North Dakota to Harlem, about 55%
The complaint alleges that the plaintiff shipped 72 carloads of wheat, 4 of barley, 1 of oats, and 2 of flax seed from Newark, S. IX, to Duluth, Minn.; that the defendant took and carried said grain under the agreed and lawful rates for such transportation, as shown by the published tariff of the defendant; that the company’s published tariff fixed the rate for all of said shipments, except flax seed, at 14 cents per 100 pounds and upon flax seed at 15 cents for the same quantity, but the defendant compelled the plaintiff to pay 15 cents per 100 upon all said grain, except flax seed, and 19% cents per 100 upon the flax seed; that the company extorted from plaintiff upon said shipments in excess of the proper rates the sum of $601.99 on or before the 1st day of December, 1913; that plaintiff has demanded refund of said sum, which has been refused, and the plaintiff asks judgment for'$601.99 and interest, costs, and disbursements.
The answer alleges that the defendant charged plaintiff for transportation of the grain referred to its lawful tariff rates, and denies that plaintiff has ever paid more.
The parties filed a written stipulation, waiving a jury, and the cause was tried to the court, and a judgment was rendered for defendant, and the original plaintiff sued out this writ of error.
It appears the tariffs filed by the defendant, so far as material, were substantially as follows:
Attached to the tariff is the following:
“Between stations on the C., M. & St. P. By. rates to or from intermediate stations will he the same as shown to or from the next more distant station to or from which rates are named.”
The sole question is whether the last provision is applicable to the rates from Newark to Duluth, and thus its rates are fixed the same as from Brampton, notwithstanding the rates specifically fixed from Newark in the table.
Under such circumstances, we think that the 'District Court had jurisdiction to construe the tariffs,'and determine what rates were applicable under them to given shipments under section 9 of the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 382 [Comp. St. 1916, § 8573]), and section 22 of Hie same act (24 Stat. 379, 387 [Comp. St. 1916, § 8595]). Pennsylvania R. R. v. Sonman Coal Co., 242 U. S. 120, 37 Sup. Ct. 46, 61 L. Ed. 188; Penna. R. R. Co. v. Puritan Coal Co., 237 U. S. 121, 35 Sup. Ct. 484, 59 L. Ed. 867; Hite v. Central R. of New Jersey, 96 C. C. A. 326, 171 Fed. 370 (this decision was by the Circuit Court of Appeals of the Third circuit); Barrett v. Gimbel Bros., 141 C. C. A. 379, 226 Fed. 623 (this opinion was by the same Circuit Court of Appeals, and affirmed the case as reported in the District Court under the title of Gimbel Bros, v. Barrett [D. C.] 215 Fed. 1004); National Pole Co. v. Chicago & N. W. Ry. Co., 127 C. C. A. 561, 211 Fed. 65 (opinion of the Circuit Court of Appeals of the Seventh Circuit). The last two cases seem, to us to be clearly in point and decisive.
The-following state court cases are cited to sustain the same position: Hardaway v. Southern Ry. Co., 90 S. C. 477, 73 S. E. 1020, Ann. Cas. 1913D, 266; Kansas City Southern Ry. Co. v. Tonn, 102 Ark. 20, 143 S. W. 579; Southern Pacific Co. v. Fry & Bruhn, 82 Wash. 9, 143 Pac. 163; Western, etc., & Co. v. White Prov. Co., 142 Ga. 246, 82 S. E. 644; Eastern Ry. Co. v. Littlefield (Tex.) 154 S. W. 543; Mulberry Hill Coal Co. v. Illinois C. R. Co., 257 Ill. 80, 100 N. E. 151. But, inasmuch as this is a question of federal law, we rest our opinion wholly upon the federal cases cited. We do not mean to hold that the Interstate Commerce Commission did not have concurrent jurisdiction. Laning-Harris Coal & Grain Co. v. St. Louis & San Francisco Railroad Co., 13 Interst. Com. Com’n. R. 148; Chicago, B. & Q. R. Co. v. Feintuch Co., 191 Fed. 482, 112 C. C. A. 126. But we do hold that the District Court correctly ruled it had jurisdiction.
Webster’s International Dictionary defines “intermediate” as:
“Lying or being in the middle place or degree; between extremes or limits; coining or done between; intervening; interjacent; as, an intermediate space; intermediate colors. Something intermediate; a term, member, or quality intervening between others of a series. To come between; to intervene; to interpose.”
The Century Dictionary defines it as:
“Come between; act, as a mediator, that is, between; to act intermediately; intervene; interpose. I, a. Situated between two extremes: coming between; in either position or degree; intervening; interposed; generally followed by between when the extremes are mentioned, as an intermediate space; intermediate obstacles.”
The word “intermediate” is not given a legal meaning in any law lexicon, and we have found no cases which define it in approximately the same sense here used, except Davis & Hooks v. Atlantic Coast Dine R. Co., 145 N. C. 207, 59 S. E. 53; Wall-Huske Co. v. Southern Ry. Co., 147 N. C. 407, 61 S. E. 277; Brooks Manufacturing Co. v. Southern Ry. Co., 152 N. C. 665, 68 S. E. 243; Hollingworth v. State of Ohio, 29 Ohio St. 552.
There is a matter not yet stated which tends to elucidate it. Tariff Circular 18A, issued by the Interstate Commerce Commission, reissued effective March 31, 1911, provides:
“4. Tariffs in book or pamphlet form shall contain in the order named: * * * (d) An alphabetical index of points from which rates apply, and an alphabetical index of points to which rates apply, together with names of states in which located.”
“34. Tariffs shall contain, in the order named: * * * Alphabetically arranged and complete index of points from which the tariff applies, and alphabetically arranged and complete index of points to which the tariff applies, togetlier with the name of state in which located.”
“«4. * * * (Issued January 7, 1908.) Paragraph (d) of rule 4, and paragraph (c) of rule 34, provide that a tariff shall contain complete alphabetical indexes of the points from and to which it applies. This is not to be understood as prohibiting the incorporation in a tariff of a rule providing Cor the affirmative and definite application of the rates or fares named in that tariff to or from points not indexed and which are directly intermediate on the same line with points that are indexed.”
This clearly gave authority to make such rates as prescribed in the note in question to or from points not indexed; but the points here in question, Newark and Duluth, were both indexed. “Expressio unius est exclusio alterius.” In Merrill & Bro. v. I. C. R. R. Co., 36 Interst. Com. Com’n. R. 523, the Commission had before it a clause which read:
“The rate to apply from a point of origin or to a point of destination not shown herein which is directly intermediate with a point from or to which a specific rate is published will be the rate from or to the next more distant point from or to which a specific rate is published herein.”
It is notorious that the rates from the Pacific Coast to Chicago are many of them much lower than the rates over the same road from the intermountain country to Chicago. If we assume a similar note here added to the -tariff from the Pacific Coast and intermountain points to Chicago under this clause, would every point where the rates are higher than they are from the Pacific Coast to Chicago be entitled to claim the Pacific Coast rates?
Plaintiff, therefore, could not recover, and the judgment of the District Court is affirmed.