255 F. 12 | 5th Cir. | 1919
The Washington & Choctaw Railway Company has a point of junction with the Mobile & Ohio Railroad Company at Yellow Pine, Ala. Both railroads are comtnon carriers, under the jurisdiction of the Interstate Commerce Commission. Joint tariffs were published, covering shipments originating on the Washington & Choctaw and transported over the line of the Mobile & Ohio. The latter company instituted suit against the former for sums paid upon ^statements of the defendant of amounts claimed as due as its division of the through rate from points on its line. It was alleged and proved that the course of business was for the Washington & Choctaw to transport lumber from points on its line to Yellow Pine, where it was remilled or redressed, and that thereafter further shipment was made on through bills of lading from the original shipping point. The contention is made that these were not through shipments, but that the initial shipment was concluded at Yellow Pine, and that another shipment was begun at that place over the Mobile & Ohio. It is alleged and proved that the Washington & Choctaw collected a local rate from the shipper to Yellow Pine.
The circumstance that the Choctaw received its local rate, and thereafter received a part of the through rate from the Mobile & Ohio, cannot affect the case. The Choctaw is not, of course, entitled to both a local rate and a division of the through rate. But this case is concerned alone with the right of the Mobile & Ohio to recover that part of the rate improperly collected from it by the Washington & Choctaw.
The general rule with reference to recovery by one person against another in a transaction involving illegal acts upon the part of both is well settled. No general rule of this kind can apply to a case in which the rights of the parties are governed by the unequivocal terms of the law. It is a part of the duty of the Mobile & Ohio Railroad to collect from all shippers and from all railroads all that is due to it under any tariff under which it is operating. If it should collect less than it is entitled to, or pay out too much on a joint rate, it is under obligations to collect the balance, or the amount erroneously paid, as definitely as it is under obligations to return any excess charged, or any amount improperly retained.
The method used by the Washington & Choctaw was clearly in violation of the law. Its illegality was not dependent upon the fact that it secured a double rate. No tariff promulgated by it, or by it and connecting lines, provided for stoppage of the lumber in transit for remilling or redressing. It had the right to collect a legal rate from points on its road to Yellow Pine. As to shipments originating at Yellow Pine on the Mobile & Ohio, it had no rights of any sort, and was not entitled to any part of any rate received by the Mobile & Ohio. If by deceit or misstatements, or by any understanding with the Mobile & Ohio, or otherwise, it secured a part of the rate to which the latter was exclusively entitled, it violated the law, and was under obligations to return to the Mobile & Ohio that which it had unlawfully received.
If the Mobile &-Ohio and the Washington & Choctaw both had cognizance of the fact that shipments were being made and divisions being effected under a tariff not promulgated in accordance with law, or not promulgated at all, both concerns became liable for violation of the Interstate Commerce Act (Comp. St. § 8563 ©t seq.) ; and it would be the duty of both to see to the restoration of that which had been unlawfully exacted or paid.
It is the right and the duty of railroad companies which have improperly paid out money to connecting lines under a mistake of fact, or with knowledge of the unlawful character of payment, to recover such payments. The conclusions reached, and so well stated, by the trial judge, are concurred in entirely.
Reversed.