123 F. 359 | 7th Cir. | 1903
Lead Opinion
after the foregoing statement of facts, delivered the opinion of the Court.
The agreement of September 12, 1885, under which the Wisconsin Central Railroad Company, and its receivers, operated their road in the city of Ashland, made in our opinion the Bay Front track an integral part of the Wisconsin Central’s terminals. True, the Wisconsin Central had no title in fee to the roadbed west of the division point named. But the grant under the agreement was, for the purposes of a terminal, as complete as if it were in fee simple, or leasehold. The limitation on the grant was important as between the railroads individually, but, as between the railroads collectively and the public, the agreement simply gave to the roads more extended terminal facilities. The published tariffs from Ashland to outside points must be held—at least in the absence of a tariff differential applicable alike to all—to have included transportation over this, as over other parts, of the road’s lines.
Starting from this premise, then, the inquiry arises: Was the extra charge of two dollars a car, upon the shipments made by the Ohio Company, and upon no other, discriminative? Its justification as non-discriminative is placed principally upon three grounds: (a) that all things considered, two dollars was but a fair differential; (b) that it was a charge agreed upon by the Ohio Company and cannot therefore be the subject of complaint now: and (c) that it may be regarded as an agreed 'charge under the Wisconsin statute permitting the railroad company to charge the actual expenses of operating and maintaining a switch or spur track to a tributary industry.
None of these reasons is convincing. When it is borne in mind that the Bay Front track was a part of the Wisconsin Central’s terminals, and that no charges other than the schedule tariff rates were imposed upon shipments from industries along that terminal, other than the Ohio Company’s shipments, it becomes manifest that, barring any charge permissible under the Wisconsin statute referred to, the extra charge to the Ohio Company is discriminative. The aspect of the question raised by the Wisconsin statute will be referred to hereafter.
Nor can the right to make such charge be maintained as a special rate agreed upon between the parties. The correspondence out of which it rose, clearly reserved to the Ohio Company the right to challenge its legality. There was no agreement that the charge was legal, and no agreement that its supposed illegality should not be tested. The gist of the agreement—as evidenced in the telegrams—is that if the receivers would restore the service, the Ohio Company would pay, as the cars were served, the extra charge; but subject to its right to recover this portion back in any proper legal proceeding; and the action under review is such proceeding.
But had there been an agreed special charge, without reservation of right to question its legality, it is doubtful if such agreement would stand as a bar to an action, where, as in the case under review, it clearly appeared that the agreement was entered into by the Ohio Company solely to escape being left without service at all. Common carriers, bound by the law to serve all without discrimination, may not hold shippers to agreements exacted under the alternative of destruc
Nor can the extra charge be justified, in our judgment, under the Wisconsin statute. The statute in question is as follows:
“The owner of any elevator, warehouse, mill, lumber, coal or wood yard within the yard limits of any station or terminus of any railroad may, at his own expense, construct a railroad track from such elevator, warehouse, mill or yard to such railroad and connect with the same by a switch at a point within the yard limits of such station or terminus, and the railroad corporation shall allow such connection. Such side track and switch shall at all times be under the control and management of and be kept in repair and operated for the benefit of such owner or his assigns by such corporation; but the actual cost of so maintaining and operating the same shall be paid monthly by the owner thereof; and in case of his neglect to so pay the same upon demand the obligation of this section upon any such corporation shall cease until such payment be made in full.” Section 1802, Kev. St. 1898.
The statute, it is seen, requires monthly statements; no such statements were made to the Ohio Company. The statute limits the charge to actual expenses; no pretense is made that the operation of the spur line, from the Bay Front track to the Ohio Company’s dock, cost two dollars per car. Nor was there an agreement that the charge should be accepted in lieu of the actual expenses contemplated. It was never so claimed by the receivers, or so understood by the shipper. The whole contention is a manifest after thought, brought forward now to cover what, at the time, was unthought of between the parties.
The fact that the action was not brought until after the receivership had been terminated, and the property turned over to the owners pursuant to the final decree, does not in our view of the law, bar this action. The decree in the receivership suit provided that the purchaser, at the receivership sale, should satisfy and discharge any unpaid indebtedness and liability of the receivers which had been incurred in the management and operation of the mortgaged premises, on or after September 27th, 1893; and jurisdiction to carry out that part of the decree was reserved in the court. To that extent the receivership case is still pending. The purpose of the action under review is to ascertain and liquidate the claim of the Ohio Company, if it have any, against the receivers; upon such liquidation application can be made in the original receivership suit for such proceeding as shall carry the claim to execution. There need be no conflict of tribunals.
The view of the case, thus taken, makes it unnecessary to review any of the assignments of error except that taken to the direction of the court that brought about the verdict. That direction, on the facts before us, was erroneous; and for such error the judgment below is reversed, with instructions to grant a new trial.'
Dissenting Opinion
A common carrier is not under obligation to carry, except on its own line (Atchison, Topeka & Santa Fé Railroad Company v. Denver & New Orleans Railroad Company, 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291); but, contracting to go beyond, the carrier may not unjustly discriminate between shippers upon the line beyond. But what is unjust discrimina
“In short, the substance of all these decisions is that railway companies-are only bound to give the same terms to all persons alike, under the same-conditions and circumstances, and that any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge.” Interstate Commerce Commission v. Baltimore & Ohio Railroad Company, 145 U. S. 263, 283, 284, 12 Sup. Ct. 849, 36 L. Ed. 699.
The court also cited approvingly from the opinion of Judge Jackson in the court below ([C. C.] 43 Fed. 49), as follows:
“To come within the inhibition of said section [the interstate commerce act] the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traffic, under substantially the same circumstances and conditions;” and remarked, “It is not all discriminations or preferences that fall within the inhibition of the statute—only such 'as are unjust or unreasonable.”
See, also, Texas & Pacific Railway Company v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940. In Western Union Telegraph Company v. Call Publishing Company, 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765, the court ruled that where there is a dissimilarity in the service a difference in charge is proper, and no recovery can be had, unless it is shown not merely that there is a difference in the charges, but that the difference is so great as, under dissimilar conditions of service, to show an unjust discrimination, and the recovery must be limited to the amount of the unreasonable discrimination, the court remarking (page 100, 181 U. S., page 564, 21 Sup. Ct., 45 L. Ed. 765):
“All individuals have equal rights, both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different, charges based thereon. There is no cast-iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same line. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon difference of service must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrimination.”
There can be no undue preference when the conditions constitute an inequality rendering the discrimination just, nor can there be the like service under the statute when the circumstances and conditions are not alike.
The action here was originally brought to recover triple damages under, the Wisconsin statute (Sanb. & B. Ann. St. Wis. § 1798), which prohibits preference “for a like service,” and forbids an unreasonable price, and permits the person aggrieved to recover for unjust discrimination three times the actual damage sustained. The
Was the service to the tenant of the commercial dock a like service to that rendered the plaintiff? That was on the line of and directly connected with the Wisconsin Central Railroad by a spur track owned and controlled by that company. The plaintiff was located 2,000 feet or more to the west, its plant being connected with the Omaha track by a spur track owned by the proprietor of the dock, running north some 2,300 or 2,400 feet. The service required transportation beyond the line of the road, over the line of the Omaha road, and over the private spur track, necessitating the movement of an engine nearly six miles to place empty cars in position to receive a load and to haul the cars to the track of the defendant, the additional transportation of the cars, and, in addition, the payment to the Omaha Company of 50 cents a car for each loaded car. That surely ought not to be held to be a like service to that rendered to the tenant of .a dock located upon the line of the Wisconsin Central. The conditions were different. Indeed, to require the rendering of the service for the same compensation would be, in my judgment, to compel the Wisconsin Central to discriminate against its own tenant and -against its own property. The service to the plaintiff was rendered at an actual additional outlay paid to the Omaha Company of $1,-•886.00 in addition to the cost of a longer haul. I think the receivers were entitled to exact a reasonable compensation for the additional ■traffic (Walker v. Keenan, 73 Fed. 755, 19 C. C. A. 668; Interstate Commerce Commission v. Chicago, Burlington and Quincy Railroad Company, 186 U. S. 320, 22 Sup. Ct. 824, 46 L. Ed. 1182); and that under the circumstances there can be no claim for unjust discrimination. There is no evidence in this record, as I read it, tending to show- as matter of fact that the charge of $2.00 per car was unreasonable. The price was the regular switching charge at Ash-land, which one railway company exacted of another, and which the plaintiff was required to pay and did pay when it shipped over the Chicago & Northwestern Railway. The charge included the 50 ■cents per car which the Wisconsin Central Railroad paid to the Omaha road. The burden was upon the plaintiff to show that the additional sum was an unreasonable switching charge. Failing any such proof in this record, it is difficult to understand that the trial court could have ruled otherwise than it did upon this branch of the case.
With respect to the other branch, it cannot be said that there is just ground for the charge of discrimination. It is true that granting
