Chicago Great W. R. Co. v. Farmers' Shipping

Full title: CHICAGO GREAT WESTERN R. CO. v. FARMERS' SHIPPING ASS'N

Court: Circuit Court of Appeals, Tenth Circuit

Date published: Jun 28, 1932

59 F.2d 657 (10th Cir. 1932)

Opinion

No. 603.

June 28, 1932.

Appeal from the District Court of the United States for the District of Kansas, First Division; Richard J. Hopkins, Judge.

Action by the Farmers' Shipping Association against the Chicago Great Western Railroad Company. Judgment for the plaintiff, and the defendant appeals.

Reversed, and cause remanded, with instructions.

Guy A. Gladson, of Chicago, Ill., and A.L. Berger, of Kansas City, Kan. (Walter H. Jacobs and Ralph M. Shaw, both of Chicago, Ill., on the briefs), for appellant.

Grant W. Harrington, of Kansas City, Kan., for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

The Farmers' Shipping Association brought this action against the Chicago Great Western Railroad Company to recover an alleged freight overcharge. Trial by jury was duly waived and the case submitted to the court upon an agreed statement of facts and certain documentary evidence. From a judgment for the Association, the Railroad Company has appealed.

The material facts are as follows: The Association delivered to the Railroad Company 80,220 pounds of corn for transportation from Bondurant, Iowa, to Chicago, Illinois. The Railroad Company transported such corn and charged and collected from the Association freight therefor at the rate of 18.5 cents per hundred, amounting to $148.41.

At the time such shipment moved, the Railroad Company's Tariff 36-E, I.C.C. 5104, and Supplement 26 thereto were in full force and effect.

The material portions of Section 1 of such tariff are set out in Note 1.

--------------------------------------------------- Note 1. --------------------------------------------------- Section 1 — Continued --------------------------------------------------- | | And | |----------------------- | | Chicago | | Green Bay | |----------------------- Index | Between | Rates in Cents per 100 | (Except as noted) | pounds | |----------------------- | | Corn and Meal |-------------------|----------------------- | Chicago Great | | Western R.R. | | Continued | -------|-------------------|----------------------- 6460 | Bondurant | 18.5 ---------------------------------------------------

The material portions of Supp. 26, thereto, being Item 735-A, are set out in Note 2.

----------------------------------------------------------------------------------------------------------- Note 2. ----------------------------------------------------------------------------------------------------------- Section 4 — Continued =========================================================================================================== | | | Wheat and Flour, | Corn and Meal, | | | Carloads | Carloads | | | | Item | Between | And |-------------------------------------------- | | | And articles taking same rates as provided | | | in Item 45 or reissue | | |-------------------------------------------- | | | Rates in Cents per 100 Pounds -----------|----------------------|---------------------------|-------------------------------------------- | | Chicago North Western | | | | Railway | | | | Amasa ............. Mich. | 36.5 | 33.5 | | Antigo ............ Wis. | 25.5 | 23.5 | | Appleton .......... Wis. | 25.5 | 23.5 | | Ashland ........... Wis. | 36.5 | 33.5 | | Bear Trap ......... Wis. | 36.5 | 33.5 | | Bessemer .......... Mich. | 36 | 33.5 | | Bolton ............ Wis. | 36.5 | 33.5 | | Cecil ............. Wis. | 33 | 30.5 | | Choat ............. Mich. | 36 | 33.5 | | Clintonville ...... Wis. | 25.5 | 23.5 | | Clyman Jct. ....... Wis. | 25.5 | 23.5 | | Conover ........... Wis. | 36 | 33.5 | | Crandon ........... Wis. | 29 | 26.5 | | Drexel ............ Wis. | 29 | 26.5 | | Duck Creek ........ Wis. | 25.5 | 23.5 | | Eagle River ....... Wis. | 29 | 26.5 | | Elmhurst .......... Wis. | 25.5 | 23.5 | | Escanaba .......... Mich. | 36.5 | 33.5 | | Flat Rock ......... Mich. | 36.5 | 33.5 | | Fond du Lac ....... Wis. | 25.5 | 23.5 | | Gibbs City ........ Mich. | 36.5 | 33.5 | | (Formerly Atkinson) | | | | Granville ......... Wis. | 17.5 | 16 | | Green Bay ......... Wis. | 25.5 | 23.5 | | Hiles ............. Wis. | 29 | 26.5 735-A | | Hortonville ....... Wis. | 25.5 | 23.5 Cancels | | Hurley ............ Wis. | 36 | 33.5 735 | | Ironwood .......... Mich. | 36 | 33.5 Reissue | Kansas City ... Kan. | Krakow ............ Wis. | 33 | 30.5 Effective | Kansas City ... Mo. | Ladoga ............ Mich. | 36.5 | 33.5 April | Leavenworth ... Kan. | Lindwerm .......... Wis. | 25.5 | 23.5 1, | St. Joseph .... Mo. | Manitowoc ......... Wis. | 25.5 | 23.5 1923, | (And intermediate | Marshfield ........ Wis. | 25.5 | 23.5 in | Stations) | Mendota ........... Wis. | 25.5 | 23.5 Supplement | | Menominee ......... Mich. | 33 | 30.5 4 | | Michigamme ........ Mich. | 36.5 | 33.5 | | Nekoosa ........... Wis. | 25.5 | 23.5 | | Oconto ............ Wis. | 33 | 30.5 | | Osborne ........... Wis. | 36.5 | 33.5 | | Oshkosh ........... Wis. | 25.5 | 23.5 | | Powers ............ Mich. | 36.5 | 33.5 | | Pratt Jct. ........ Wis. | 29 | 26.5 | | Radford ........... Mich. | 36.5 | 33.5 | | Republic .......... Mich. | 36.5 | 33.5 | | Robbins ........... Mich. | 36 | 33.5 | | Saranac ........... Wis. | 33 | 30.5 | | Saxon ............. Wis. | 36.5 | 33.5 | | Shawano ........... Wis. | 25.5 | 23.5 | | Sheboygan ......... Wis. | 25.5 | 23.5 | | Siding No. 83 ..... Wis. | 33 | 30.5 | | Sparta ............ Wis. | 25.5 | 23.5 | | Tamarack .......... Mich. | 36.5 | 33.5 | | Two Rivers ........ Wis. | 25.5 | 23.5 | | Van Buskirk ....... Wis. | 36.5 | 33.5 | | Wakefield ......... Mich. | 36 | 33.5 | | Watersmeet ........ Mich. | 36.5 | 33.5 | | Wausau ............ Wis. | 25.5 | 23.5 | | West Salem ........ Wis. | 25.5 | 23.5 | | White Lake ........ Wis. | 29 | 26.5 | | (Formerly Van Ostrand) | | | | Woodruff .......... Wis. | 29 | 26.5 | | (And Intermediate | | | | Stations) | =============================================================================================================

The rate charged by the Railroad Company and paid by the Association was that provided in Section 1, Tariff 36-E.

Bondurant and Chicago are stations on the line of the Railroad Company. They are intermediate to Kansas City, Kansas, and Granville, Wisconsin, and are also intermediate to Kansas City, Missouri, and Lindwerm, Wisconsin.

In the agreed statement it was stipulated that in Supplement 26, Item 735-A, the Railroad Company published a rate on corn "between Kansas City, and other Missouri River points, and points on the Chicago and North Western Railroad, north and west of Chicago. Only the important Missouri River points were specifically set out. At the other end, only the points on the North Western at the ends of branch lines, and the more important intermediate points were specifically mentioned. To provide rates at intermediate stations, which were not named, the two columns listing these stations were followed by the clause — `And Intermediate Stations.'"

In the group of stations north and west of Chicago, Lindwerm is the nearest to, and Ashland the most distant from the Missouri River points.

The question presented is whether the 18.5 cent rate in Section 1 or the 16 cent rate in Item 735-A is applicable to the shipment in question. This is a judicial question which the courts may pass on in the first instance without requiring preliminary resort to the Interstate Commerce Commission. American Ry. Express Co. v. Price Bros. (C.C.A. 5) 54 F.2d 67; Great N. Ry. Co. v. Merchants' Elev. Co., 259 U.S. 285, 290, 291, 42 S. Ct. 477, 66 L. Ed. 943.

Counsel for the Association urges that the phrase, "And Intermediate Stations," in Item 735-A embraces every unnamed station on the line of the Railroad Company between Kansas City, Kansas, and Ashland, Wisconsin, and therefore Item 735-A provided a rate on corn between Bondurant and Chicago applicable to the shipment in question.

On the other hand, counsel for the Railroad Company assert that the first phrase, and intermediate stations, in Item 735-A refers to unnamed stations between Kansas City, Kansas, and St. Joseph, Missouri, and that the second phrase, and intermediate stations, in such item refers to unnamed stations between Lindwerm and Ashland. The parties virtually agreed to this in the above quoted portion of the agreed statement of facts.

A railroad company tariff has the force and effect of a statute and in determining the meaning thereof the usual rules of construction commonly applied to statutes and contracts are applicable. Pillsbury Flour Mills Co. v. Great Northern Ry. Co. (C.C.A. 8) 25 F.2d 66, 68, 69; Updike Grain Co. v. Chicago N.W. Ry. Co. (C.C.A. 8) 35 F.2d 486, 487; Chicago, I. L. Ry. Co. v. International Milling Co. (C.C.A. 8) 43 F.2d 93, 95; Great Northern Ry. Co. v. Merchants' Elev. Co., 259 U.S. 285, 291, 42 S. Ct. 477, 66 L. Ed. 943.

It is a cardinal rule, in the construction of statutes and contracts, that effect should be given, if possible, to every word, phrase, clause, and sentence. Mills Co. v. Railroad Co., supra; Grain Co. v. Railway Co., supra; Updike Grain Corp. v. St. Louis-San Francisco Ry. Co. (C.C.A. 8) 52 F.2d 94.

The material portions of Item 735-A read: "Between Kansas City, Kan. * * * St. Joseph, Mo. (And Intermediate Stations) and Lindwerm, Wis. * * * Ashland, Wis. * * * (And Intermediate Stations)."

To adopt the Association's construction would render the first phrase, and intermediate stations, superfluous.

We think the only reasonable construction of the language employed is that the first phrase applies to stations intermediate to Kansas City and St. Joseph, and the second to stations intermediate to Lindwerm and Ashland. This refers such phrases to their nearest antecedents and gives force and effect to both. The phrase, and intermediate stations, under somewhat similar tariffs, has been so construed in Western Grain Co. v. St. Louis-San Francisco Ry. Co. (C.C.A. 5) 56 F.2d 160; Nat'l Elev. Co. v. Chicago, M. St. P.R. Co. (C.C.A. 8) 246 F. 588; and Gates Marble Tile Co. v. Chicago, P. St. L.R. Co., 120 I.C.C. 275.

Counsel for the Association places strong reliance upon the decision of the Commission in Brown v. Chicago G.W. Ry. Co., 164 I.C.C. 529, where the Commission applied the 16 cent rate in Item 735-A to a shipment of grain from Bondurant to Chicago over the lines of the Railroad Company. The Commission in that case did not pass upon the question here presented. In the opinion it stated: "The sole defense is that the Kansas City-Granville rates were erroneously published."

Counsel for the Association also urges that to adopt the construction contended for by the Railroad Company will result in a violation of the long and short haul provisions of section 4 of the Interstate Commerce Act ( 24 Stat. 379, 380, § 4, as amended by 36 Stat. 539, 547, § 8, and 41 Stat. 456, 480, § 406 [49 USCA § 4]). This argument is of little force because either construction will result in a violation. It will be noted that in Item 735-A Lindwerm is nearer to the Missouri River points than is Granville, and that the rate to Lindwerm is 23.5 and the rate to Granville is 16. The tariff on its face violates section 4 and to construe it to apply to stations intermediate to the Missouri River points and the points in the group north and west of Chicago will simply increase that violation.

It is our conclusion that the general provisions of Item 735-A were inapplicable to the shipment in question, and that the specific rate provided in Section 1 of Tariff 36-E was the correct rate.

The judgment is reversed and the cause remanded, with instructions to grant the Railroad Company a new trial.