St. Louis Southwestern Ry. Co. v. S. Samuels & Co.

PARDEE, Circuit Judge (after stating the facts as above). The assignments of error are 63 in number, but counsel for plaintiff in error submit some 8 called “main propositions” as relied upon, and we reduce them to 2, to wit: Had the United States Court jurisdiction? And, Was the reparation order of the Interstate Commerce Commission valid? [1] The District Court had jurisdiction because of the residence in the Southern district of S. Samuels under section 16 of the amended act to regulate commerce approved June 18, 1910, c. 309, 36 Stat. 554, unless the said section was repealed by the Judicial Code of 1912. Section 51 of the Judicial Code reads as follows: “Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant ; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” 36 Stat. 1101. The five succeeding sections do not cover a case like the present. Section 297 of the Judicial Code specifically repeals certain sections of the Revised Statutes, and certain acts and parts of the acts, and concludes as follows: “Also all other acts and parts of acts, in so far as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed.” Among the parts of the acts repealed are: . “Sections one, two, three, four, five, the first paragraph of section six, and section seventeen of an act entitled ‘An a'ct to create a commerce court, and to amend an act entitled “An act to regulate commerce,” approved February [591] fourth, eighteen hundred and eighty-seven, as heretofore amended, and for other purposes,’ approved June eighteenth, nineteen hundred and ten.” From which it is seen that Congress particularly considered the said act approved June 18, 1910, for repealing purposes, and as section 16 was not included in the repealed sections, there arises a very strong presumption that other parts of the act were to be left in force. “Inclusio unius est exchisio alterius.” Repeals by implication are not favored. The adjudged cases cited by plaintiff in error settle that; and all of them are to the effect that to hold a law repealed by implication, the intention to repeal must be clear and manifest, and it is'clear that an intention to repeal said section 16 in the matter of venue is not manifest. . Section 51 of the Judicial Code deals generally with venue in the District Courts in the cases in which jurisdiction is given by the Code, and it is not to be presumed that it was intended to restrict jurisdiction or affect the venue in other acts of Congress not enumerated, wherein jurisdiction is specially granted and the venue fixed. Counsel for defendant in error well says in his brief: • “Clearly the Legislature did not intend to cover this legislation upon a particular subject by the enactment of the general law. The real reason which doubtless actuated Congress to confer jurisdiction upon the Circuit Court of the district in which the complainants reside was to provide a means for a shipper to enforce the reparation order for a small amount, as in this case, without having to go 1,000 miles and incur an expense in excess of the amount of the award. “The legislative body must have known that, in the great majority of cases, orders of reparation would not be for large sums, and that in each instance shippers would start in with a handicap in that the transportation company with its regularly retained corps of attorneys, its free transportation facilities for them, and its witnesses, together with its vast wealth and power, would be able, by declining to pay an order of the Commission, practically to defeat such order, unless the shipper could be brought near enough to a forum where he could enforce such order without being compelled to expend more than the reparation allowed.” The intention of Congress in regard to venue in cases of this kind is shown by the following from the late act of Congress abolishing the Commerce Court, and transferring jurisdiction to the District Court, approved October 22, 1913: “The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or ih part, any order of the Interstate Commerce Commission shall' be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order-does not relate to transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition before the Commission arises, and except that where the order does ■not relate either to transportation or to a matter so complained of before the Commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. In ease such transportation relates to a through shipment the term ‘destination’ shall be construed as meaning final destina,tion of such shipment.” For these reasons we will hold that section 16 of the act of June 18, 1910, was not repealed by the Judicial Code. This conclusion renders it unnecessary to decide whether because [592] the i-njurj complained of occurred in 1909, and the order of reparation sued on was issued by the Interstate Commerce Commission in May, 1911, this case comes under the saving clause in section 300 of the Judicial Code, providing as follows: “All offenses committed, and all penalties, forfeitures, or liabilities incurred prior to the taking effect hereof, under any law embraced in, or repealed by, this act, may be prosecuted and punished, or sued-for and recovered, in the district courts, in the same manner and with the same effect as if this act had not been passed” —and the Judicial Code, though passed in March, 1911, did not go into effect until January 1, 1912. The reparation order issued by the Interstate Commerce Commission was rendered on a petition by Samuels & Co. against the plaintiff in error herein and several other railroad companies, complaining that the rate collected for transportation of certain cotton linters was excessive and unreasonable, and praying for an order establishing a reasonable through route and joint rate for the carriage of'cotton linters from England, Ark., to Houston, Tex., and asking that reparation be awarded. And the Commission, finding that, pending the order, a satisfactory through route and joint rate for cotton linters had been established between the points named passed only upon the reparation to be awarded; and as to that the Commission- found and -ordered as follows: “The testimony indicates that the initial carrier held the linters at England three or four weeks. During that time the carrier might have secured permission from the Commission to publish a rate from England to Houston on short notice; or, by holding the linters for a short additional period, it might have published the rate on full statutory notice. And while it was under no legal obligation to adopt the former method, it was certainly its duty to provide a rate via a reasonably direct route as soon as lawful- publication thereof could be made. But, assuming that the carrier was willing to take the responsibility of forwarding the shipment via a route over which no rate was-published, as it did, we are of opinion that it ought to have sent it over a direct route. Having taken that course, and a reasonable rate having subsequently been established over the route of movement, the carrier would have been in position to apply for permission to make settlement upon basis of the rate so established. The situation is 'one in which the shipper was helpless. He had directed carriage of his goods by the direct and natural route. The failure to comply with his instructions was due to the fact that the initial carrier had not provided a rate over the direct route, and did nol; make a reasonable effort to do so. “We do not find that a rate of 66 cents was unreasonable for a haul via New Orleans, but we are of the opinion that the rate of 46% cents, subsequently established, would have been a reasonable, rate via either of the direct routes, andthat the failure of the initial carrier to forward the shipment over a direct" route resulted in damage to complainant in an amount measured by the difference between the rate which should have been established and the rate which he was forced to pay. Our conclusion therefore is that the St. Louis Southwestern Railway Company should be required to make reparation to complainant as for a misrouting in the sum of $135.50, with interest from June 24, 1909. An order will be -entered accordingly.” “Order. “This case being at issue upon complaint and answers on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the Commission having, on. [593] the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof: It is ordered that defendant, St. Louis Southwestern Railway Company, be, and it is' hereby, notified and required, on or before the 15th day of July, 1911; to pay unto complainant, S. Samuels & Co., a partnership composed, of S. Samuels and H. Samuels, .the sum of $135.50, with interest thereon at the rate of 6 per cent, per annum from June 24, 1909, as reparation for an unreasonable rate charged for the transportation of four car loads of cotton linters from England, Ark., to Houston, Tex., which rate so charged has been-found by this Commission to have been unreasonable, as more fully and at large appears in -and by said report.” The plaintiff in error contends that the report and reparation order are null and void because: “(a) The order of the Interstate Commerce Commission and the report upon which said order is based and founded are on the face thereof ambiguous, contradictory, misleading, confusing, and uncertain. “(b) Said report and'order show upon their face that the order is not a final order or award, because it does not dispose of all parties and all issues involved. “(c) The report and order of the Interstate Commerce Commission fail to-show upon their face, and there is no evidence, that said order was either accompanied by or founded upon a further order of the Interstate Commerce Commission fixing, xorescribing, and establishing for the future á reasonable maximum rate for shipments of cotton linters from England, Ark., to Houston, Tex., to be observed and protected in the future, or fixing, prescribing, or establishing for the future a reasonable route for such shipments to be observed and used in the future, and prohibiting the use, protection, and observance in the future of any, rate in excess of the reasonable maximum rate so fixed, or of any route other or less reasonable or longer than the reasonable route so prescribed. “(d) The reparation order here sued upon was void because it was entered on May 1, 1911, and required the payment of the sum therein specified on- or before July 15, 1911; plaintiff in error seasonably filed its motion for a rehearing, which was not acted upon until October 9, 1911; the time limit in the original order was never at any time extended by the Commission, and therefore it was impossible for plaintiff in error to comply with the order when it finally became effective on October 9, 1911.” As to this contention, we conclude: [2] (a) The report of the Commission and the order based thereon seem to us to be clear and certain, and neither contradictory, misleading, nor confusing! (b) In the light of the report, finding that the plaintiff in error was the initial carrier and responsible for the routing resulting in the excessive charge and the only defendant liable, we find that the order practically disposes of all parties and issues involved. [3] (c) As the report shows that pending the hearing a satisfactory joint route and through rate had been established by the carriers, there was no occasion nor requirement that the Commission should enter any further order in regard to such' through rate. As to prohibiting the use thereafter of any rate in excess, the law -is sufficient for that. [4] (d) That the reparation order was void because entered ón May 1, 1911, and required the payment of the reparation on or before Jánuary 15, 1911, for the reason that plaintiff in error had seasonably filed a motion for rehearing which was not acted upon until October 9,. 1911, and the original order was never extended, etc., is too technical. [594] to merit much consideration. ' The rehearing was refused before this suit was brought, and plaintiff in error has not been prejudiced. [5] The finding of'the Commission that the rate charged Samuels & Co, was unreasonable, and fixing the excess over a reasonable rate, is, under the law, prima facie correct, if not conclusive; and, as no evidence to the contrary was offered on the trial, and both parties asked for a peremptory instruction, there was no error in directing a verdict for the plaintiff. > On the whole case, we find no reversible error, and the judgment of .the District Court is affirmed, with costs.