Opinion · Supreme Court of the United States

Adams v. Mills

Adams v. Mills, 286 U.S. 397 (1932)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1932-05-23
Topic
general

How later courts describe this case

  • “In contemplation of law the claim for damages arose at the time the extra charge was paid.”
  • reparations ordered constituted difference between one filed rate and another
  • “Neither the fact of subsequent reimbursement by the plaintiffs from funds of the shippers, nor the disposition which may hereafter be made of the damages recovered, is of any concern to the wrongdoers.”

Citator

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Cited by
81 opinions

Headnotes

  1. General — Interstate Commerce — Reparation — Parties in Interest Commission merchants who, as factors for shippers, were consignees of livestock shipments and were obliged to pay unlawful unloading charges, reimbursing themselves out of the proceeds of sale in their accounts with the consignors, are persons injured within the meaning of § 8 of the Interstate Commerce Act and are proper parties to claim and sue for reparation under §§ 8 and 16(2); the wrongdoer cannot escape liability on the plea that the ultimate incidence of the injury fell on others. 286 U.S. at 406–408
  2. General — Interstate Commerce — Commission Findings — Scope of Review Whether a terminal service is, under the particular facts and circumstances, reasonably to be treated as additional to or as part of the service covered by the line-haul rate is a question upon which the findings of the Interstate Commerce Commission, if supported by evidence, are conclusive. 286 U.S. at 407
  3. General — Interstate Commerce — Unloading as Transportation Service The evidence supported the Commission's findings that the unloading of livestock at the Chicago Stockyards is a transportation service, in virtue of long practice and the special conditions there, even though unloading is ordinarily a duty of the consignee. 286 U.S. at 410
  4. General — Interstate Commerce — Carrier's Agent The evidence sustained the Commission's finding that the Chicago Stockyards Company, in unloading livestock into its pens, acts as agent of the line-haul carriers. 286 U.S. at 410
  5. General — Interstate Commerce — Unlawful Practice Line-haul carriers that had long absorbed in their tariffs the Stockyards Company's per-car charge for unloading, together with the Stockyards Company, were guilty of an unfair practice in forcing consignees to pay an increase in that charge which the company added to its tariff and which the carriers, though refusing to join in or absorb it, added to their freight bills, whereby it was collected for the company. 286 U.S. at 414
  6. General — Interstate Commerce — Common Carrier Acting as Agent The fact that the Stockyards Company is itself a common carrier and published the increased unloading charge in its tariff "as a carrier's agent" does not affect the conclusion that the practice was unlawful, since the question concerned the lawfulness of the practice rather than the reasonableness of the charge, and one carrier may act as agent for another. 286 U.S. at 415
  7. Transportation Law — Director General — Participation in Unlawful Practice Evidence that while the line-haul railroads were under federal control the extra charge was added to their freight bills, that the Stockyards Company collected the bills and paid the entire proceeds over to the railroads, and that the railroads subsequently compensated the company, supports a finding that the Director General participated in an "unjust and unreasonable practice" within the meaning of § 206(c) of the Transportation Act. 286 U.S. at 415–416
  8. Civil Procedure — Preservation of Objections A court will not entertain an objection that was not made either to the Interstate Commerce Commission in the reparation proceedings or to the court below in the action to enforce the reparation order. 286 U.S. at 416
ADAMSv. MILLS,286 U.S. 397(1932)
52 S.Ct. 589
ADAMS ET AL.v. MILLS, DIRECTOR GENERAL, ET AL.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 581.
Argued April 15, 18, 1932.
Decided May 23, 1932.
1. Commission merchants to whom, as factors, shipments of livestock were consigned for sale and who were obliged to pay unlawful unloading charges to carriers, for which they reimbursed themselvesPage 398out of the sales of the livestock in their accounts with the consignors, are proper parties to claim and sue for reparation, under §§ 8 and 16(2) of the Interstate Commerce Act. P. 406. 2. The question whether a terminal service, in the particular facts and circumstances, is reasonably to be treated as additional to or as part of the service covered by the line-haul rate, is a question upon which the findings of the Interstate Commerce Commission, if supported by evidence, are conclusive. P. 407. 3. The evidence supports the findings of the Interstate Commerce Commission that the unloading of livestock at the Chicago Stockyards is, in virtue of long practice and because of the special conditions there, a transportation service, though, ordinarily, unloading is a duty of the consignee. P. 410. 4. The evidence also sustains the Commission's finding that the Chicago Stockyards Company, in unloading livestock into its pens, acts as agent of the line-haul carriers.Id. 5. The Commission was justified by the facts in its conclusion that line-haul carriers, which long had absorbed in their tariffs the Stockyards Company's charge per car for unloading, and the Stockyards Company, were guilty of an unfair practice in forcing consignees to pay an increase of that charge, which the Stockyards Company added to its tariff and which the line-haul carriers, though refusing to join in or absorb it, added to their freight bills, whereby it was collected for the Stockyards Company. P. 414. 6. The fact that the Stockyards Company is itself a common carrier and published in its tariff the increased charge for the unloading service, "as a carrier's agent," does not affect the above-stated conclusion, since the question concerned the lawfulness of the practice and not the reasonableness of the charge, and one carrier may act as agent for another. P. 415. 7. Evidence that while the line-haul railroads were under Federal Control the extra charge was added to their freight bills, and that the Stockyards Company collected the bills and paid over the entire proceeds to the railroads, and that the railroads subsequently compensated the Stockyards Company, supports the finding that the Director General participated in the "unjust and unreasonable practice," within the meaning of § 206(c) of the Transportation Act. Pp. 415-416. 8. The Court will not entertain an objection which was not made either to the Commission in the proceedings for reparation, or to the court below in the action to enforce the reparation order. P. 416.51 F.2d 620, reversed.Page 399
CERTIORARI,284 U.S. 614, to review the affirmance of a
judgment on a verdict directed for the defendants, in an action
to enforce a reparation order, brought by numerous commission
merchants against the Union Stockyard and Transit Company and the
Director General of Railroads. For opinion of District Court, see
39 F.2d 80; C.C.A.,Adamsv.Mellon,51 F.2d 620.
Mr. Franklin J. Stransky, with whomMr. Clair R. Hillyerwas on the brief, for petitioners.

This is an action in tort brought against respondents as joint tort-feasors on account of the exaction from petitioners of unlawful charges by means of an unlawful practice, resorted to by respondents in order to settle a controversy between themselves with reference to the extra charge.

The practice was unreasonable and unlawful for the following reasons:

(1) The published tariffs of the line-haul carriers undertook the complete transportation of live stock to the Yards for a through rate, including the unloading. The right of the shipper could be affected only by a change in those tariffs.

(2) The extra charge was not justified either by the published tariffs of the line-haul carriers or by the published tariffs of the Stock Yard Company.

(3) It is not consistent with the spirit and intent of the Act to Regulate Commerce that the identical service of unloading live stock, undertaken and charged for in the published tariffs of the line-haul carriers, should be also made the subject matter of the independent control and charge of the agency of those carriers performing that service.Mr. Frank H. Towner, with whomMessrs. Silas H. StrawnandRalph M. Shawwere on the brief, for the Union Stock Yard Transit Co., respondent.Page 400

Under the theory of the law adopted by the Commission, the Yards Company was obliged to file with the Commission its tariff containing its charges for loading and unloading live stock. If this was so, the law required the Yards Company to assess, collect and retain those charges. The reasonableness and propriety of those charges was not in issue in any proceeding before the Commission. Notwithstanding this, the order sued on herein operated to reduce those charges and is, therefore, unlawful and void.Manufacturers Ry. Co. v.United States,246 U.S. 457;United Statesv.U.S.Y. T. Co., 192 F. 330, 226 F. 286;Pennsylvania R. Co. v.International Coal Co.,230 U.S. 184,196;Armour Co. v.United States,209 U.S. 56,72;Davisv.Portland Seed Co.,264 U.S. 403.

A finding of illegality in the charges of the Yards Company or of the Director General was a prerequisite to the Commission's order that any part of those charges should be refunded to petitioners.Pennsylvania R. Co. v.International Coal Co.,230 U.S. 184;Baltimore O.R. Co. v.United States,277 U.S. 291;Florida East Coast R. Co. v.United States,234 U.S. 167.

Condemnation must be based upon an adequate record.BaltimoreO.R. Co. v.United States,277 U.S. 291. The only effect of the order made, if complied with, would be to reduce respondents' tariff charges. This can not be done through indirection, but must result from a definite finding that those charges are unlawful. There is no such finding, nor would the record have supported one, if made. It follows that the practice of collecting those lawful charges could not have been unlawful.Interstate Commerce Comm. v.Stickney,215 U.S. 98;Interstate Commerce Comm. v.Chicago, B. Q.R. Co.,186 U.S. 320.

The tariffs constituted notice to the world that during the reparation period, the shipper would be required toPage 401pay 25 cents per car for the loading or unloading of his stock, this being the difference between the total amount of the Yards Company charge and the absorption by the Director General.Louisville N.R. Co. v.Maxwell,237 U.S. 94;Keoghv.C.N.W.R. Co.,260 U.S. 156;Louisville N.R. Co. v.CentralIron Works,265 U.S. 59;New York Central R. Co. v.YorkWhitney Co.,256 U.S. 406;Pennsylvania R. Co. v.International Coal Co.,230 U.S. 184.

The duty to load and unload was an obligation of the shipper or consignee. Even if this duty rested upon the line-haul carriers or the Director General, there can still be no recovery in this case from the Yards Company. Such a holding, if proper, would have required the payment of the charges of the Yards Company by the linehaul carriers or the Director General. The Yards Company, therefore, has only received an amount which had to be paid either by the shipper, the consignee or the Director General and there can be no recovery from it.Covingtonv.Keith,139 U.S. 129, distinguished.

Claims for reparation before the Commission and in court must be brought in the names of the real parties in interest. Who may maintain a suit is a matter of law. Petitioners do not have such an interest as entitles them to maintain this suit, either in their own behalf or as factors in behalf of the shippers. They neither paid nor bore the charges sued for and were not damaged.Mackayv.Randolph Macon Coal Co., 178 F. 881;Fitkinv.Century Oil Co.,16 F.2d 22;Spillerv.Atchison, T.S.F. Ry. Co.,253 U.S. 117;Phillips Co. v.Grand Trunk W.Ry. Co.,236 U.S. 663. They are not parties in interest. Missouri Portland Cement Co. v. Director General, 88 I.C.C. 492;Southern Pacific Co. v.Darnell-Taenzer Co.,245 U.S. 531;Louisville N.R. Co. v.Sloss-Sheffield Co.,269 U.S. 217;Illinois Central R. Co. v.Vest,39 F.2d 658; General, etc., Corp.Page 402v. Southern Ry., 169 I.C.C. 83;Parsonsv.C. N.W. Ry. Co.,167 U.S. 447;Knudson Co. v.Michigan Central R. Co., 148 F. 968; Southern Pine Lumber Co. v. Southern Ry. Co., 14 I.C.C. 195;Pennsylvania R. Co. v.International Coal Co.,230 U.S. 184;Spillerv.Atchison, T. S.F. Ry. Co.,253 U.S. 117;Davisv.Portland Seed Co.,254 U.S. 403. Distinguishing:Consolidated Cut Stone Co. v.Atchison, T. S.F. Ry. Co.,39 F.2d 661;New York Central R. Co. v.York Co.,256 U.S. 406;Kansas City Sou. Ry. Co. v.United States,252 U.S. 178;Interstate Commerce Comm. v.Stickney,215 U.S. 98.

Petitioners can not recover in this case as factors or agents for the shippers.Hamiltonv.Dillon, 11 Fed. Cas. 332;Smith Sonv.Blohm,159 Iowa 592;Progress Farmsv.Chicago Horse Sales Co.,153 Wis. 249;Beardsleyv.Schmidt,120 Wis. 405;North American Co. v.St. LouisS.F.R. Co., D.C.U.S., Eastern Division, E.D. Mo., (unreported); Memphis Freight Bureau v. St. Louis S.F. Ry. Co., 57 I.C.C. 212.

The Yards Company never was under federal control. Notwithstanding, the Commission has awarded reparation in the order sued on herein against the Yards Company with respect to shipments which moved intrastate within Illinois.

The award of reparation made by the Commission herein was made in two separate proceedings before it. In one of those proceedings, the record fails to show that petitioners were parties complainant and how much reparation was awarded in each of the two proceedings. The order sued on is invalid in so far as it awards reparation in that proceeding in which the record fails to show that petitioners were complainants, and since there is no proof as to how much of the total award is thus invalid, there can be no recovery at all.Page 403

The Commission did not have before it any competent evidence upon which it could determine the amount of the reparation awarded by it and the order awarding such reparation is therefore void.

The reparation is void because the Commission, in making it, considered evidence not in the record before it.Messrs. Sidney F. AndrewsandA.A. McLaughlinfor the Director General, respondent.

The published tariffs of the line-haul carriers covered transportation to the stock yards, but did not include unloading the stock.

The Yards Company was not the agent of the linehaul carriers in performing any transportation service or in publishing and enforcing its tariffs.United Statesv.Union Stock YardsTransit Co.,226 U.S. 286.

The Yards Company was a common carrier and required to file and maintain its tariffs. In its tariff increasing its charges, it recited in parentheses that its charges were "as a carrier's agent." The alleged agency was repudiated and did not exist, and the Commission so found.

The evidence was insufficient to show the duty of loading and unloading live stock at the stock yards was that of the line-haul carriers or that the line-haul carriers should assume the expense thereof.

The stock yards were not the terminals of the line-haul carriers.

The Yards Company was a common carrier subject to the jurisdiction of the Interstate Commerce Commission, and its tariffs prescribing charges for its transportation services furnish the legal rate therefor, which it was bound to collect.United Statesv.Union Stock Yards Transit Co.,226 U.S. 286; Chicago Livestock Exchange v. Atchison, T. S.F. Ry. Co., 52 I.C.C. 209; s.c.,Page 40458 I.C.C. 164;Louisville N. Ry. Co. v.Maxwell,237 U.S. 94;Keoghv.C. N.W. Ry. Co.,260 U.S. 156;Louisville N. Ry. Co. v.Central Iron Works,265 U.S. 59.

Loading and unloading was a transportation service for which the carrier performing the service was entitled to compensation and for which the shipper was bound to pay.Covington StockYardsv.Keith,139 U.S. 128;United Statesv.Union StockYards Transit Co.,226 U.S. 286; Act to Regulate Commerce, § 1, par. 3;Chicago, M. St. P. Ry. Co. v.Wisconsin,238 U.S. 491.

The increased charge of 25 cents per car was collected from the shipper by the Yards Company and the Circuit Court of Appeals correctly so held.

The making and collecting of the separate charge for unloading was not an unlawful or unreasonable practice.InterstateCommerce Comm. v.Chicago, B. Q.R. Co.,186 U.S. 320;Interstate Commerce Comm. v.Stickney,215 U.S. 98; Act to Regulate Commerce, § 6, pars. 1, 7.

Congress did not consent that the agent appointed by the President might be proceeded against before the Interstate Commerce Commission for a tort, but only for damage resulting from the "collection or enforcement by or through the President during the period of federal control of rates, fares, charges, regulations and practices."Davisv.Donovan,265 U.S. 257; Transportation Act, 1920, § 206-c.

The absorption tariffs of the line-haul carriers furnish the measure of their obligation and legal right to contribute to the payment of the Yards Company's charges. Act to Regulate Commerce, § 1, par. 6; § 6, par. 7.

The decision of the District Court that these petitioners had no right to maintain this action was correct.Adamsv.Mellon,51 F.2d 620.

The only party entitled to recover reparation is the one who paid and bore the charges on account of which recovery is sought.Pennsylvania R. Co. v.InternationalPage 405Coal Co.,230 U.S. 184;Spillerv.Atchison, T. S.F. Ry.Co.,253 U.S. 117;Parsonsv.C. N.W. Ry. Co.,167 U.S. 447;Meekerv.Lehigh Valley R. Co.,236 U.S. 412.Messrs. Daniel W. KnowltonandJ. Stanley Payne, by leave of Court, filed a brief on behalf of the Interstate Commerce Commission asamicus curiae.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This action was brought, on December 10, 1928, in the federal court for northern Illinois to enforce an order of the Interstate Commerce Commission for reparations in the sum of $140,001.25, and interest. The plaintiffs, 103 in number,1members of the Chicago Live Stock Exchange, are commission merchants engaged in the business of buying and selling livestock at the Union Stock Yards, Chicago. The defendants are the Union Stock Yard and Transit Company, owner of the yards, and the Director General of Railroads, as agent of the President, being the officer against whom suit may be brought, under § 206 of the Transportation Act, 1920,41 Stat. 461, on causes of action arising out of Federal control. The award was made on account of an extra charge of 25 cents a car for unloading livestock received at the yards from about 174,000 different shippers, during the period of Federal control, December 28, 1917 to February 29, 1920. The Commission held that the charge had been exacted under an unlawful practice; and awarded reparation to the plaintiffs, who as consignees had paid the charge found unlawful. See Chicago Live Stock Exchangev. Atchison,Page 406T. S.F. Ry. Co., 52 I.C.C. 209; 58 I.C.C. 164; 100 I.C.C. 266; 144 I.C.C. 175.

The case was tried in the District Court before a jury upon the evidence introduced before the Commission and additional evidence introduced by the parties at the trial. At the close of the evidence, each defendant moved, on many grounds, for a directed verdict. The District Judge granted the motions on the ground that the plaintiffs had no such interest in the claims for reparations as would entitle them to maintain an action under § 8 and § 16(2) of the Interstate Commerce Act.39 F.2d 80. The Circuit Court of Appeals affirmed the judgment; but, not being entirely satisfied that the reason assigned by the District Court was correct, rested its decision on the ground that the exaction of the extra 25-cent charge was a lawful practice.51 F.2d 620. This Court granted a writ of certiorari.284 U.S. 614.First. The defendants contend that even if the exaction of the extra 25-cent charge was unlawful, the plaintiffs are not entitled to recover. The argument is that under § 8 of the Interstate Commerce Act the liability of the common carrier is "to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation"; that before any party can recover under the Act he must show not merely the wrong of the carrier, but that the wrong has in fact operated to the plaintiff's injury; that here the award is to the plaintiffs individually, not as agents for the shippers; and that individually they suffered no pecuniary loss, since they paid the charges as commission merchants and reimbursed themselves for these, as for other, charges from the proceeds of the sale of livestock, remitting to their principals only the balance remaining. We think the argument unsound, for the reasons, among others, stated inSouthern Pacific Co. v.Darnell-TaenzerLumber Co.,245 U.S. 531, andLouisville Nashville R. Co. v.Page 407Sloss-Sheffield Co.,269 U.S. 217,234-238. See also Missouri Portland Cement Co.v. Director General, 88 I.C.C. 492, 495, 496; Doughty-McDonald Grocery Co.v. Atchison, T. S.F. Ry. Co., 155 I.C.C. 47, 49; California Fruit Exchangev. American Railway Express Co., 155 I.C.C. 105, 107.

The plaintiffs were the consignees of the shipments and entitled to possession of them upon payment of the lawful charges. If the defendants exacted from them an unlawful charge, the exaction was a tort, for which the plaintiffs were entitled, as for other torts, to compensation from the wrongdoer. Acceptance of the shipments would have rendered them personally liable to the carriers if the merchandise had been delivered without payment of the full amount lawfully due.New YorkCentral R. Co. v.York Whitney Co.,256 U.S. 406,407,408. CompareUnion Pac. R. Co. v.American Smelting Rfg. Co., 202 F. 720, 723. As they would have been liable for an undercharge, they may recover for an overcharge. In contemplation of law the claim for damages arose at the time the extra charge was paid. SeeSouthern Pacific Co. v.Darnell-Taenzer LumberCo.,245 U.S. 531,534. Neither the fact of subsequent reimbursement by the plaintiffs from funds of the shippers, nor the disposition which may hereafter be made of the damages recovered, is of any concern to the wrongdoers. This proceeding does not involve a controversy between the consignors and the consignees; and the carriers can not be allowed to import one into it. CompareLouisville Nashville R. Co. v.Sloss-Sheffield Steel Iron Co.,269 U.S. 217,238. The rights of the shippers in the proceeds of the action will not be affected by our decision. CompareJennison Bros. Co. v.Dixon,133 Minn. 268;158 N.W. 398. Those rights might have been asserted by intervention in the proceedings before the Commission. They may still be asserted independently in appropriatePage 408proceedings later. The plaintiffs have suffered injury within the meaning of § 8 of the Interstate Commerce Act; and the purpose of that section would be defeated if the tortfeasors were permitted to escape reparation by a plea that the ultimate incidence of the injury was not upon those who were compelled in the first in stance to pay the unlawful charge.

An additional reason for permitting this action is that the relation between the parties to the shipments in question was that of principal and factor, not simply that of consignor and consignee. The Commission found that, as commission merchants, the plaintiffs were empowered, by well-established usage, to pay the freight and related charges; to file claims for overcharges; and to settle with the carriers therefor. Being factors for the shippers, it was not only their right but their duty to resist illegal exactions. This duty did not, as the District Court suggested, terminate upon remission of the proceeds of the sale of the livestock, less the charges in fact paid. It persists, with the assent of the principals, until the claim for reparation shall have been prosecuted to a successful conclusion. It is urged, on behalf of the defendants, that the order of the Commission ran in favor of the plaintiffs, not as factors, but as individuals. The contention is contrary to the fact.2But the form of the order is without importance.Page 409The Commission has recognized the right of a factor to maintain in his own name an action in the interest of his principal. See Memphis Freight Bureauv. St. Louis San Francisco R. Co., 57 I.C.C. 212; Texas Livestock Shippers Protective Leaguev. Director General, 139 I.C.C. 448. No useful end would be served by requiring the joining of 174,000 shippers in this proceeding; and § 8 of the Interstate Commerce Act is not to be so construed. CompareSpillerv.Atchison, T. S.F. Ry. Co.,253 U.S. 117,134,135.Second. The defendants challenge the Commission's holding that the extra charge of 25 cents made to the shippers was an unlawful practice. The conclusion rests upon the findings that the Stock Yards are, in effect, terminals of the line-haul carriers; and that the service of unloading the livestock there is a part of transportation. That the yards are, in effect, terminals of the railroads is clear. They are in fact used as terminals; and necessarily so. Whether the unloading in the yards was a part of transportation was not a pure question of law to be determined by merely reading the tariffs. CompareGreat NorthernRy. Co. v.Merchants Elevator Co.,259 U.S. 285,294. The decision of the question was dependent upon the determination of certain facts, including the history of the Stock Yards and their relation toPage 410the line-haul carriers; the history of the unloading charge at these yards; and the action of the parties in relation thereto. If there was evidence to sustain the Commission's findings on these matters, its conclusion that the collection of the extra charge from the shippers was an unreasonable and unlawful practice must be sustained.Atchison, T. S.F. Ry. Co. v.United States,232 U.S. 199,221;Los Angeles Switching Case,234 U.S. 294,310,311.Third. There was ample evidence to sustain the findings of the Commission that the unloading of livestock at the stockyards was a part of the transportation provided for in the tariffs of the line-haul carriers.

(1) Throughout the United States, the duty of unloading carload freight rests ordinarily upon the consignee. See National Lumber Dealers' Assn.v. Atlantic Coast Line R. Co., 14 I.C.C. 154, 160. But continuously for fifty years prior to 1917, livestock had been unloaded at Chicago by the Stock Yards Company, without charge therefor to the shipper or consignee.3CompareCovington Stock-Yards Co., v.Keith,139 U.S. 128,136. For this service the company received 25 cents a car; but not from the shipper. Its charge was paid by the line-haul carriers, whose tariffs read: "Carriers as shown will pay the Union Stock Yards and Transit Company's charges as follows: Unloading (in cents per car) 25."

The history of the practice is this. The Union Stock Yard and Transit Company was organized in 1865 by thePage 411railroads then entering Chicago; and until 1894 its shares were largely held by them. The company constructed stockyards and tracks connecting with those of the linehaul carriers. After 1897 the company's railroad property was operated under lease by the Chicago Junction Railway Company, which received from the line-haul carriers compensation for the use of its tracks. The linehaul carriers, using their own locomotives and crews, brought all inbound carload shipments of livestock to the unloading chutes of the Stock Yards Company; and collected from the shippers a terminal or switching charge of $2 per car, in addition to the line-haul rate.4

From the time when the cars were placed at the chutes, the course of business was substantially as follows: Employees of the Stock Yards Company unloaded the livestock into pens located upon the company's property and leased by it to the commission merchants who handled the stock for the shippers and who were invariably the consignees of the shipments. The Yards Company notified the commissionmen of the arrival of the shipment, prepared the official record of the receipt of the livestock, the contents of the car and the condition of the animals — the record used by the line-haul carriers. After securing from the Western Weighing Association Bureau (a bureau of the line-haul carriers) data concerning the actual weight of the livestock, the company made a corrected record of the freight charged due from the commissionmen. These charges it collected for the line-haul carriers; and, in consideration of the prompt release of the livestock without surrender of the bill of lading and without payment of the charges, it guaranteed them. ThePage 412practice was for the company to make collection from the consignees of all charges twice a week; and once a week to pay the whole amount thus collected to the railroads. Once a month the railroads paid the Yards Company its charges for unloading.

(2) Prior to the decision inUnited Statesv.Union StockYard Transit Co.,226 U.S. 286(December 9, 1912), the unloading charges of the Yards Company had not been contained in any tariff filed by it with the Commission. After that decision the company filed with the Commission its Tariff No. 1, effective May 30, 1913, stating its charge to be 25 cents a car. That tariff remained in effect, without any attempt to change it, or the practice under it, until the Yards Company filed a so-called Tariff No. 2, to become effective May 21, 1917, which recited: "The charge made by this company for the service (as a carrier's agent) of . . . unloading livestock at the Union Stock Yards at Chicago, Illinois, is as follows: For unloading 50 cents (per car of any capacity)."5

The line-haul railroads did not join in the Yards Company's Tariff No. 2, or authorize it. They did not file new tariffs embodying the extra 25-cent. charge. And they refused to absorb the extra charge. Upon such refusal, the Yards Company, in order to compel payment by the carriers, adopted the practice of withholding the sum demanded from the freight charges collected for them. In retaliation, the carriers threatened to collect those charges for themselves. The result of this controversy was an arrangement arrived at between the railroads and the Yards Company, whereby the former added the disputed charge to their freight bills, and the latter collected it from the shippers, despite their protest. These bills did not indicate that the extra charge imposed was one of thePage 413Yards Company to the shipper.6As theretofore, the whole amount collected was turned over by the company to the railroads.

Meanwhile, the Yards Company, contending that because of certain changes made in its relation with the Chicago Junction Railway it was no longer a common carrier of interstate commerce, filed with the Commission a supplement to its tariffs, to be effective September 1, 1917, in which it undertook to cancel all its tariffs. The proposed supplement was suspended by the Commission under § 15(7) of the Interstate Commerce Act; and, before any decision had been reached in the suspension proceedings, the Chicago Live Stock Exchange filed its complaint against the Yards Company and the line-haul railroads challenging the extra 25-cent charge. The proceedings were consolidated. Soon thereafter, the railroads passed under Federal control; and the Director General, who continued the arrangement instituted by the carriers with the Yards Company, became a party to the proceedings before the Commission. That arrangement continued to the end of the period of Federal control, as the order of the Commission declaring the practice unlawful was not entered until July 15, 1920, 58 I.C.C. 164.

(3) Thus, by the unbroken usage of fifty years the payment by shippers of livestock of the line-haul rate to Chicago, plus the terminal charge of $2, had covered all services performed in connection with the shipment up toPage 414and including the placing of the stock in the pens of the commissionmen. The Commission so found; and this Court has heretofore so recognized. SeeInterstate Commerce Comm. v.Chicago, B. Q.R. Co.,186 U.S. 320,327,329,336;Interstate Commerce Comm. v.Stickney,215 U.S. 98,108. Beyond dispute, the Yards Company, in the services which it performed, regarded itself as the carriers' agent. This appears not only from the previous course of business, but from the terms of its second tariff, from its initial conduct with respect to collection of the additional charge and from its attempt to cancel all its tariffs. The carriers for years had paid the Yards Company all its charges; and there was testimony that both the $2 terminal charge and the line-haul rates were predicated upon such payment. The company's charges, moreover, which constituted its sole compensation, covered services, other than the mere unloading of cars, — services which were obviously performed for the benefit of the carriers rather than the shippers.

Whether, upon the company's demand for increased compensation, the carriers, under their tariffs, could lawfully join with it in shifting the burden of such increase to the shippers depended upon the question of fact whether the unloading of cars was the proper duty of the railroads or of the consignees. The basis of the usual practice requiring the consignee to unload carload freight is that the consignee can do it more effectively than the carrier. See National Lumber Dealers' Assn.v. Atlantic Coast Line R. Co., 14 I.C.C. 154, 160. The Commission found that, in view of the congested conditions in the Chicago stockyards and the great volume of traffic, it would have been physically impracticable, if not impossible, for the consignees themselves to unload their own shipments. Certainly the Commission could reasonably determine upon this evidence that the conditions with respect to livestock in Chicago justified a different rule there from thatPage 415obtaining in other places; that, in fact, a different practice had prevailed; and that no reason existed for permitting a departure from that practice.Fourth. It is urged by the defendants that the Stock Yards Company had been found by this Court to be a common carrier,United Statesv.Union Stock Yard Transit Co.,226 U.S. 286; that this finding was adhered to by the Commission in the present proceeding despite the claim of a change in conditions; that as a common carrier the company was compelled to publish its tariffs; that the tariff, as published, has not been found by the Commission to be unreasonable; and that its collection, therefore, was mandatory and hence could not be unlawful. But the tariff, as published, authorized only the collection of the charge as a carrier's agent. The question at issue is not the reasonableness of the charge, but the lawfulness of the practice, jointly pursued by the railroads and the company, of collecting the extra charge from the shipper. The reasonableness of the charge itself, and the complementary question whether the railroads should be required to absorb it, were in no way involved before the Commission; and that tribunal properly made no finding with respect thereto. Nor was the issue affected in any manner by the status of the Yards Company as a common carrier. It did not follow from such status that it could not act as an agent of the linehaul carriers, nor that it was entitled to collect a part of its charges from the shippers. CompareMissouri Pacific R. Co. v.Reynolds-Davis Grocery Co.,268 U.S. 366;Union Stockyards Co. v.United States, 169 F. 404, 406.Fifth. Certain additional grounds of defense, not considered by either of the courts below, are pressed here. The Director General urges that the terms of Congressional consent do not permit him to be proceeded against before the Commission for a tort, compareMissouri PacificPage 416R. Co. v.Ault,256 U.S. 554,559, but only for damage resulting from the "collection or enforcement by or through the President during the period of Federal control of rates, fares, charges, classifications, regulations or practices . . . which were unjust, unreasonable, unjustly discriminatory, or unduly or unreasonably prejudicial." Transportation Act, 1920,41 Stat. 462, c. 91, § 206(c). The contention that the acts of the Director General, found by the Commission, did not in any view constitute an "unjust or unreasonable practice" within the meaning of this provision, is manifestly untenable. The contention is really directed against the Commission's finding that the Director General participated in the practice. Ample support for this finding is furnished by the conceded fact that the extra charge was added by the railroads to their freight bills, and by the testimony that these bills were first collected by the Yards Company, that the entire proceeds were paid over to the railroads, and that the railroads subsequently compensated the company.Sixth. The Stock Yards Company urges several independent grounds of defense, not joined in by the Director General. It is argued that the order sued on includes awards of reparation against the company on purely intrastate shipments moving during the period of Federal control; that the jurisdiction conferred on the Commission by Transportation Act, 1920,41 Stat. 462, c. 91, § 206(c), to grant reparation on claims arising out of intrastate traffic during Federal control does not permit the inclusion of such elements in an award against the Yards Company, which was never taken over by the Government; and that, the petitioners not having established by proper proof to what extent the award made was valid, the order must be declared invalid as a whole. The record, however, does not show that this objection wasPage 417urged either before the Commission or in the District Court; and it accordingly will not be entertained here.

The remaining contentions of the Yards Company relate to the sufficiency of the complaint in Docket No. 9977, to the competency of the evidence upon which the amount of the reparation awarded to each complainant was determined; and to a claim that the Commission acted upon evidence not in the record. We have considered these objections; and find them to be without merit.

The judgment of the Circuit Court of Appeals is reversed; and the case is remanded to the District Court with direction to enter judgment for the amount of reparation awarded, with interest, and for reasonable attorney's fees to be fixed by it.Reversed.

MR. JUSTICE BUTLER is of the opinion that plaintiffs are not "persons injured" within the intention of § 8 and that the assailed "practice," if it is such within the meaning of the Act, was not unreasonable and that therefore the judgment should be affirmed.
  1. Page 405 This is the figure stated in the opinions of both courts below, and in the briefs of counsel. The names of only 101 plaintiffs appear in the petition in the District Court and in the motion to amend the petition, as set out in the Transcript of Record. ↩
  2. Page 408 The finding of the Commission in its report of June 2, 1925, was that the parties of record who "paid the charges" on the shipments involved "have been damaged in the amount of such charges and are severally entitled to reparation, as factors and agents for the shippers." 100 I.C.C. 266, 270. The fact that "the charge which was paid by the commission merchant was subsequently charged back and collected from the consignors," the report said, "would not affect the right of the complainant consignees to awards of reparation. There is a direct and well established relation between the complaining members of the exchange and their shippers by which the former are fully authorized to present these claims and seek awards of reparation in their own names as factors and agents for Page 409 such shippers. . . . The right of factors in their representative capacity to recover reparation in their own names for unlawful and unreasonable charges is settled."Ibid., at 269, 270.

    That the subsequent order of the Commission, of December 12, 1927, fixing the amounts due the several complainants, made no reference to their position as factors is without significance. The order expressly incorporated the report; and in the report the Commission had already determined that the complainants, as factors, were entitled to recover in their own names. Nor is the form of the petition in the District Court material. The plaintiffs' right of recovery in this proceeding was defined by the finding and order of the Commission in their favor. ↩
  3. Page 410 Transportation Act, 1920, § 418,41 Stat. 486, enacted after the period here in question, provided that thereafter, with certain exceptions: "Transportation wholly by railroad of ordinary livestock in car-load lots destined to or received at public stockyards shall include all necessary service of unloading and reloading en route, delivery at public stockyards of inbound shipments into suitable pens, and receipt and loading at such yards of outbound shipments, without extra charge therefor to the shipper, consignee or owner. . . ." ↩
  4. Page 411 The imposition of the $2 charge was the subject of much litigation before the Commission and the courts.InterstateCommerce Comm. v.Chicago, B. Q.R. Co.,186 U.S. 320;Interstate Commerce Comm. v.Stickney,215 U.S. 98. Compare Chicago Live Stock Exchangev. Chicago Great Western Ry. Co., 10 I.C.C. 428. ↩
  5. Page 412 The tariff originally filed by the Stock Yards Company, May 30, 1913, did not contain the words in parenthesis, "as a carrier's agent." ↩
  6. Page 413 The freight bills were made out upon forms, headed "United States Railroad Administration — Director General of Railroads," together with the name of the carrier; and, so far as appears, showed only the total charges, entered in a column marked "Freight Charges." The way-bills, however, contained itemized charges, as follows: "Total charges on Original Way-bill;" "Feed Charges at . . ."; "Yardage at . . ."; and "Inspection at. . . . ." In the last column was entered the terminal charge of $2; in the column for "yardage" was the entry, "Unabsorbed Unloading — 25c." ↩