Parsons v. Chicago N. W. Railway Company

This was an action commenced by the plaintiff in error, plaintiff below, in the circuit court of the United States for the Southern district of Iowa, to recover of the defendant $1,550 on account of alleged violations of the interstate commerce act. An amended and substituted petition was filed, which, in five counts, stated plaintiff's causes of action. To this the defendant demurred, and, the demurrer having been sustained, judgment was entered in its favor. The plaintiff took the case to the court of appeals of the Eighth circuit, by which court the judgment was affirmed. 27 U.S. App. 394, 11 C. C. A. 489, and 63 Fed. 903. Thereupon the case was brought here on writ of error.

The first count alleged facts which, as claimed, show that the defendant had such relations to the Fremont, Elkhorn & Missouri Valley Railroad Company and the Sioux City & Pacific Railroad Company that the lines of those railroads, together with that of the defendant, were under a common control and management; and therefore that the defendant was to be treated for all practical purposes as the owner of a single line from the points in Nebraska, hereinafter mentioned, to Chicago. It stated the distances from those points to Chicago, and also from the places in Iowa along the line of defendant's road from which the plaintiff made his shipments, these latter distances being substantially less than the former. Then, after a general averment that the Nebraska rates to Chicago had always theretofore been greater than the Iowa rates, it alleged that on December 30, 1887, the defendant, for the purpose of giving unlawful preference to the shippers of corn and oats in Nebraska, and to unlawfully discriminate against the plaintiff and other shippers of corn and oats in Iowa, put in force from Nebraska points, a certain freight tariff upon corn and oats, in words and figures following:

'C. & N. W., G. F. D. No. 2,927, superseding G. F. D. No. 2,724, F., E. & M. V. and S.C.. & P., G. F. D. 949, and G. F. D. No. 859 of 1887.

'Chicago and Northwestern Railway, Fremont, Elkhorn and Missouri Valley and Sioux City and Pacific Railway.

'Joint tariff on corn and oats in car loads, taking effect December 30, 1887, to Rochelle, Ill., when destined to New York, Boston, Philadelphia, Baltimore.

From..................... Per 100 lbs.

Blair, Neb.......................... 11

Kennard, Neb........................ 11 '[Here follow rates from many other Nebraska points, which are omitted as immaterial in the case.]

'Prepaid. Way bill through to Rochelle, Ill., via Missouri Valley, at rates given above. For rates from Rochelle to Baltimore, Philadelphia, New York, and Boston, see C. & N. W., G. F. D. No. 2,604, November 25, 1878, amendments or subsequent issues.

'H. R. McCullough, G. F. A., C. & N. W. R.

'K. C. Morehouse, G. F. A., S.C.. & P. and F., E. & M. V. R.'s.'

After this it continued:

'Plaintiff avers that said freight tariff was never printed in type, and was never circulated or published at any of the stations on defendant's road in the state of Iowa, and no copy thereof was ever filed with the interstate commerce commission, as required by law, and the existence of the same was concealed from the knowledge of plaintiff and of shippers in the state of Iowa upon the line of defendant's road, and the benefits and advantages of the rates specified in such tariff were denied to plaintiff and shippers on the line of defendant's road in the state of Iowa.

'Plaintiff avers that said special tariff remained in force at the several stations named therein upon the line of the Fremont, Elkhorn and Missouri Valley Railroad in the state of Nebraska from December 30, 1887, up to the 1st of February, 1888, and large quantities of corn and oats were shipped during said time upon and over the several roads aforesaid, to Turner and Rochelle, and thence to Chicago, Ill., at the rates therein specified, to wit, the sum of 11 cents per 100 pounds from the stations of Blair and Kennard, Neb.

'Plaintiff avers that between the 30th day of December, A. D. 1887, and the first day of February, A. D. 1888, and at the several dates named in the Schedule No. 2 attached to original petition and made a part of this petition, plaintiff had for shipment at Correctionville, Iowa, aforesaid, the number of pounds of corn and oats in said schedule specified, and plaintiff was prevented and deprived, by reason of the matters herein alleged, of the right to ship the same upon the terms and at the rate given, as aforesaid, to the shippers in the state of Nebraska; and plaintiff then and there was compelled to ship, and did ship, said corn and oats on and over the road of defendant from said station of Correctionville to Chicago, Ill., and defendant then and there demanded and received for said service the sum of 21 cents per 100 pounds for the transportation of said corn and oats a distance of only 475 miles, the same being a less distance, and for a like and contemporaneous service over the same line in the same direction, under substantially similar circumstances, as the transportation of corn and oats, as aforesaid, from Blair and Kennard and other points in Nebraska to Chicago, Ill.

'Plaintiff avers that the fixing of said points of Turner and Rochelle as the pretended terminus of the shipment of corn and oats under said special tariff of December 30, 1887, was a mere device to evade the law; that Turner and Rochelle were not grain markets, and had no elevators or facilities for handling grain, and said grain was intended to be, and was in fact, transported by defendant to Chicago, Ill., and was then sold on the market or delivered to connecting roads for Eastern seaboard points.

'Plaintiff avers that the charges so made, demanded, received, and collected from plaintiff as aforesaid were unlawful, unreasonable, and unjust, and contrary to the provisions of an act of congress entitled 'An act to regulate commerce,' approved February 4, 1887, in that an unlawful preference and discrimination was practiced by defendant in favor of shippers of grain in the state of Nebraska and against this plaintiff, a shipper of grain in the state of Iowa, and in that defendant charged, demanded, and received a greater compensation for a short than for a longer haul in the same direction, over the same line, the shorter being included in the longer haul, and being for a like and contemporaneous service in the transportation of a like traffic, under substantially similar circumstances.

'Plaintiff avers that the price and value of corn and oats at the dates of said shipment was, at Chicago, the price at New York and other seaboard points, less the freight, and the price at _____, in Iowa, was the Chicago price, less the freight, and that plaintiff was damaged, by reason of the premises, in a sum equal to the difference in the price charged and received by the defendant and the rate given from Kennard and Blair, Neb., to wit, the sum of 10 cents per hundred pounds upon 241,710 pounds of corn and oats, to wit, the sum of 241.71 dollars, for which sum he asks judgment on this count of his petition, with 6 per cent. interest per annum from February 1, 1888.'

The next three counts were, so far as any question is involved in this case, substantially like the first.

The fifth count alleged that the defendant was a common carrier, engaged in the business of transporting freight over its line of road in Iowa, Illinois, and Nebraska, 'and in connection with other railroads in Chicago, east to New York, Philadelphia, Boston, Baltimore, and other seaboard points.' Then, after stating facts showing plaintiff's interest in the matter, it averred that the defendant 'on the 17th day of February, 1888, at all the stations on the said Fremont, Elkhorn and Missouri Valley Railroad in Nebraska between Blair and Skull Creek, and each of said points, a certain tariff on corn and oats destined for New York and other seaboard points, whereby it proposed to transport, and id, on and between said 17th day of February and the first day of March, A. D. 1888, transport corn and oats from Blair and other points in Nebraska, on the line of said road, to New York for 36 1/2 cents per 100 pounds, and to Boston for _____ cents per 100 pounds, and to Philadelphia for 34 1/2 cents per 100 pounds, and to Baltimore for 33 1/2 cents per 100 pounds. Plaintiff avers that all of said points on the Fremont, Elkhorn and Missouri Valley read were a greater distance from Chicago and from New York and other seaboard points aforesaid than the stations on the defendant's road in the state of Iowa.' It alleged a failure to publish such rates, substantially as in the first count, and 'that the only rate on corn and oats made known during February, 1888, to shippers at Iowa points on defendants road, was a local rate to Chicago, and a rate of 27 1/2 from Chicago to New York, and a correspondingly hish rate from Chicago to other seaboard points; that said local rate from Carroll to Chicago was 19 cents per 100 pounds.' And concluded as follows:

'Plaintiff avers that between the 17th day of February and the 1st day of March, A. D. 1888, and at the several dates named in Schedule No. 4 attached to original petition and made a part of this petition, plaintiff had for shipment at Carroll, Iowa, aforesaid, the number of pounds of corn and oats in the said schedule described, and plaintiff was prevented and deprived, by reason of the matters herein alleged, of the right to ship the same upon the terms and at the rates given to shippers in the state of Nebraska, and plaintiff then and there was compelled to ship and did ship said corn and oats on and over the road of defendant from said station of Carroll to Chicago, Ill., and defendant then and there demanded and received for said service the sum of 19 cents per hundred pounds for the transportation of said corn and oats to Chicago, and subjected said plaintiff to a further charge of 27 1/2 cents per 100 pounds to transport the same to New York, and a like local charge to other seaboard points, or dispose of the same at Chicago at 27 1/2 less per hundred than the price at New York.

'Plaintiff avers that the charges so made, demanded, and received and collected as aforesaid were unlawful, unreasonable, and unjust, and contrary to the provisions of an act of congress entitled 'An act to regulate commerce,' approved February 4, 1887, in that an unlawful preference and discrimination was practiced by defendant in favor of shippers of grain in the state of Nebraska, and against this plaintiff, a shipper of grain in the state of Iowa, and in that defendant charged and demanded a greater compensation for short than for a longer haul in the same direction over the same line, the shorter being included in the longer haul and being for a like and contemporaneous service in the transportation of a like traffic under substantially similar circumstances.

'Plaintiff avers that the price and value of corn and oats at the dates of said shipments was, at Chicago, the New York or other seaboard price, less the freight, and the price at Carroll, Iowa, was the Chicago price, less the freight, and that plaintiff was damaged by reason of the premises in a sum equal to the difference between the aggregate of the two local rates from Carroll to Chicago and from Chicago to New York, to wit, 46 1/2 cents, and the said sum of 36 1/2 cents, the rate given from said Nebraska points to New York, which difference was the sum of 10 per 100 pounds on 107,750 pounds of corn and oats named in Schedule No. 4 aforesaid, for which the plaintiff asks judgment on this second count of his petition.'



C. C. Nourse, for plaintiff in error.

Lloyd W. Bowers, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.