« ПретходнаНастави »
and not by the defendant company. It would be indeed anomalous when the parties had both relied upon the illegality of the transaction upon grounds wholly independent of any Federal right and the case had been decided upon that ground, which in and of itself is sufficient to sustain the action of the court below, to permit one of the parties because of his dissatisfaction with the application of such principles to assert the existence of jurisdiction because the case rested on a Federal issue. It becomes hence obvious that the assignments of error outside of the one referring to the repugnancy to the Fourteenth Amendment of the statute imposing damages and penalties, affords not the slightest pretext for the exercise of jurisdiction and they therefore may be put out of view.
Coming to consider the latter subject it may not be doubted that the non-repugnancy of the assailed statute to the Constitution of the United States has been directly determined by this court in the cases upon which the lower court based its ruling. (Fidelity Mut. Life Ass'n v. Mettler, 185 U. S. 308; Farmers' & Merchants' Ins. Co. v. Dobney, 189 U. S. 301.) But it is said that as previously upheld the statute as construed by the state court contemplated a liability for the penalties or damages and attorneys' fees only in case there was a wilful refusal to pay and therefore those decisions have no application here since the statute as applied in this case enforces a liability against the Company in spite of its action in the utmost good faith, taken solely for the purpose of determining to whom it must pay the sum due, liability as to which was frankly conceded. But the deduction simply disregards the basis upon which the court below rested its conclusion and invites us upon a conception of injustice to commit a wrong by reviewing a matter of purely local concern which is not within our cognizance. We say this because clearly the court below rested its conclusion as to liability for the penalty and damages not upon the construction of the
Opinion of the Court.
statute suggested, but upon the premise that the payment to Hilsman by the Insurance Company of the sum of the policies under the circumstances stated was a payment which took it out of the category of a mere stakeholder seeking to discharge his duty in good faith and placing it in the position of a person espousing the cause of one as against the other and thereby subjecting himself to the legal consequences arising from such action. And the considerations which we have stated also dispose of the contention concerning the wrong which it was insisted was done in declaring the assignment of the policies void because of the gambling nature of the contract and yet permitting the assignor to hold on to the price paid for such assignment. That question was involved in and controlled by the court's ruling concerning the illegal nature of the transaction and the principles applicable thereto, and therefore it is beyond our competency to review.
As the repugnancy of the statute concerning the damages and attorney's fee was the only semblance of ground for invoking our jurisdiction and as that ground was conclusively established to be without merit when the writ of error was sued out, it follows that there is nothing upon which to base jurisdiction and the writ of error must be dismissed.
Dismissed for want of jurisdiction.
Argument for Plaintiff in Error.
TEXAS & PACIFIC RAILWAY COMPANY v. AMER-
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
No. 180. Argued January 20, 21, 1914.—Decided June 8, 1914.
Whether a class tariff includes a particular commodity is a controversy primarily to be determined by the Interstate Commerce Commission in the exercise of its power concerning tariffs and the authority to regulate conferred upon it by the Act to Regulate Commerce. The courts may not, as an original question, exert authority over subjects which primarily come within the jurisdiction of the Interstate Commerce Commission.
Whether crossties are or are not lumber and therefore within the tariffs filed for the latter is a question on which there is great diversity of opinion even among experts upon the subject, and one that should be determined in the first instance by the Interstate Commerce Commission.
190 Fed. Rep. 1022, reversed.
THE facts, which involve the jurisdiction of the Federal courts of cases to recover damages against a railway company for refusing to accept interstate shipments without action first taken thereon by the Interstate Commerce Commission, are stated in the opinion.
Mr. Hiram Glass, with whom Mr. W. L. Hall was on the brief, for plaintiff in error:
The Circuit Court did not have power to determine the issues and grant the relief prayed for under the facts disclosed by the record.
The trial court should have instructed a verdict for the plaintiff in error.
The damages of defendant in error caused by its consent
Argument for Defendant in Error.
to the wrongful cancellation of the contract by the Union Pacific Railway Company are not recoverable.
The verdict of the jury and the judgment of the court awarded greater damages than sued for.
In support of these contentions, see § 6, Interstate Commerce Act, June 29, 1906; Balt. & Ohio R. R. v. Pitcairn Coal Co., 215 U. S. 481; Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Int. Com. Comm. v. Illinois Cent. Ry. Co., 215 U. S. 452; Morrisdale Coal Co. v. Penn. R. R. Co., 230 U. S. 304; Mitchell Coal Co. v. Penn. R. R., 230 U. S. 247; Southern Railway v. Reid, 222 U. S. 424; Atl. Coast Line v. Macon Grocery Co., 166 Fed. Rep. 206; Smith v. Detroit &c. Ry., 175 Fed. Rep. 506; C. I. & S. Co. v. K. & M. Ry., 178 Fed. Rep. 261; Franklin v. Penn. R. R. Co., 203 Fed. Rep. 134; Pacific Coast B. Co. v. Railroad, 20 I. C. C. 546; United States v. Ill. Terminal Ry. Co., 168 Fed. Rep. 548; So. Pac. Ry. Co. v. Int. Com. Comm., 200 U. S. 552; Howard Supply Co. v. C. & O. R. R., 162 Fed. Rep. 188; Greason v. St. L., I. M. & S. Ry. Co., 86 S. W. Rep. 722; Armour Packing Co. v. United States, 209 U. S. 56; Mugg v. T. & P. Ry. Co., 202 U. S. 242; McDonald v. K. C. B. & N. Co., 149 Fed. Rep. 360; Beck v. Pauli, 52 Fed. Rep. 700; Shouse v. Doane, 21 So. Rep. 807; Lapsley v. Howard, 119 Missouri, 489.
234 U. S.
Mr. Rollin W. Rodgers, with whom Mr. R. P. Dorough was on the brief, for defendant in error:
Having in effect a joint through lumber tariff, covering "lumber, all kinds," a carrier must transport all articles offered embraced in the broad meaning of the term lumber.
The competent evidence required on which to base an instruction to the jury that plaintiff in error had a lawful rate in effect to transport ties was offered by defendant in
The tariff in effect when filed was intended to cover ties and the contention now set up is a subterfuge.
Opinion of the Court.
The defendant in error is entitled to recover in this cause under § 1 of the Act to Regulate Commerce.
The charge of the court on cancellation of contract was proper under the evidence.
234 U. S.
Sections 1, 3, 6, 8, and 9, of the Act to Regulate Commerce, 24 Stat. 379, 34 Stat. 584, apply to this case.
In support of these contentions, see Am. T. & T. Co. v. K. C. S. Ry. Co., 175 Fed. Rep. 28; Balt. & Ohio Ry. Co. v. Pitcairn Coal Co., 215 U. S. 481; C., B. & Q. Ry. v. Feintuch, 191 Fed. Rep. 488; Int. Com. Comm. v. D., L. & W. Ry., 220 U. S. 235; Int. Com. Comm. v. I. C. R. R. Co., 215 U. S. 426; Lyne v. D., L. & W. Ry., 170 Fed. Rep. 847; Montague v. Lowry, 193 U. S. 38; Norrington v. Wright, 115 U. S. 188; N. Y., N. H. & H. Ry. Co. v. Int. Com. Comm., 200 U. S. 361; Penn. R. R. Co. v. Int. Coal Co., 230 U. S. 184; 1 Beach Modern Law of Contracts, § 122. See also the following cases decided by the Interstate Commerce Commission. Blume v. Wells-Fargo & Co., 15 I. C. C. 53; Enterprise Trans. Co. v. Penn. R. R., 12 I. C. C. 326; Foster Bros. v. Duluth S. S. & A. Ry., 14 I. C. C. 232; Hurlburt v. L. S. & M. S. Ry., 2 I. C. C. 122; S. C., 22 Id. 81; Ind. Frt. Bureau v. C., C., C. & St. L. Ry., 15 I. C. C. 367; Joynes v. Penn. R. R. Co., 17 I. C. C. 361; Lanning-Harris Co. v. St. L. & S. F. Ry., 15 I. C. C. 37; Newton Gum Co. v. C., B. & Q. Ry., 16 I. C. C. 341; N. Y. Board of Trade v. Pa. R. R., 3 I. C. C. 417; Pitts v. St. L. & S. F. Ry., 10 I. C. C. 684; Pac. Coast Biscuit Co. v. O. R. & N. Co., 20 I. C. C. 178; Pueblo Trans. Assn. v. So. Pac. Ry., 14 I. C. C. 82; Reynolds v. Railway Co., 1 I. C. C. 685; Woodward v. Louis. & Nash. Ry. Co., 15 I. C. C. 170; Washer Grain Co. v. Mo. Pac. Ry., 15 I. C. C. 147.
MR. CHIEF JUSTICE WHITE delivered the opinion of the
Basing its cause of action on the Act to Regulate Commerce the American Tie & Timber Company, defendant