*326 $325 Second. Coming to consider the two questions just stated, the Commission held that the action of the carriers in giving notice to the public of the imposition of the $2 terminal charge and the filing of the rate sheets with the Commission as required by law, did not constitute a division of the rates so as to separate the charge for carriage to Chicago from the charge for terminal services at that point, but amounted simply to a retention of the aggregated through rate existing before the $2 terminal charge was asked, and the adding of this $2 charge to the previous rate. It was found as a matter of fact that there was no evidence tending to show that the previous through rate was either unreasonably high or unreasonably low, and therefore the presumption was that the through rate prevailing prior to the imposition of the $2 charge was just and reasonable. under their contracts to carry and deliver | mission found not to be decisive of the case cattle in Chicago, had delivered such cattle before it, since, even although the right to to the stock yards without making any divide the rate was fully recognized, the charge therefor, as in effect the rate asked question remained whether the defendant for the carriage and delivery to Chicago of carriers had in fact divided their rates, and cattle did not include any terminal charge whether the charge complained of was just whatever, and such service was hence ren- and reasonable. dered gratuitously; that owing to the imposition in 1894, by the stock yards company, of the charge for trackage the carriers had exacted the $2 per car, which was only a just and reasonable equivalent for the cost incurred and service rendered in delivering the cattle to the stock yards. It was further alleged that at the time the terminal charge was imposed the rate to Chicago for cattle from the various points referred to in the complaint was unreasonably low and the addition of the terminal charge complained of was, in any event, but a just and reasonable addition to the through rate. It was, besides, alleged that such increase had not only been notified to the public by the circular issued in the name of the various railroads previously referred to, but had also been included in the rate sheets of the various railroads filed with the Interstate Commerce Commission in accordance with law. The Atchison, Topeka, & Santa Fé Railroad, moreover, pleaded the decree rendered in the Keenan Case, and averred in effect that such decree conclusively established the right to make the terminal charge in question. The various defendants, more over, moved to dismiss the Chicago Live Stock Exchange from the proceedings for reasons not necessary to be stated. Third. Considering the cost of delivery to the stock yards over the rails of the stock yards company, including the sum paid for trackage and all other expenses, the Commission found, as a matter of fact, that $2 per car would be just and reasonable. A reference to this subject, found in the report of the Commission, is excerpted in the margin. To remove all possible doubt as to the* fact the Commission, in its opinion, on a rehearing, to which opinion we shall hereafter advert, said: "The defendants were proceeding to show by testimony in each case that the actual cost to them of transporting these carloads of live stock, including the trackage charge and the cost of unloading, was equal to or in excess of $2. Thereupon it was suggested After hearing the Commission filed its report. The motion to dismiss the interven tion of the Chicago Live Stock Exchange was denied. The stock yards company was dismissed from the cause on the ground that it was not a common carrier subject to the Act to Regulate Commerce. The facts as found by the Commission concerning the terminal charge have been in substance given in the previous statement, and, omitting for the moment reference to a finding of the Commission as to a reduction made by the carriers in the through rate after the terminal charge in controversy had been im-if, under the circumstances, the charge should posed, the conclusions reached by the Commission are embodied in the following summary: First. Although the decree of the circuit court of appeals in the Keenan Case was I held not to constitute res judicata *because of a want of identity of the parties concerned in the Keenan Case and those involved in the case before it, the Commission, nevertheless, declared that it was its duty to follow and apply to the case before it the legal principles announced in the Keenan Case. The Commission, therefore, announced that it recognized that each and all of the defendant carriers were entitled to divide their rates by making one separate and distinct charge for the carriage from the point of shipment to Chicago, and another separate and distinct charge for terminal services in Chicago beyond their own lines. This principle, however, the Com The intervener conceded upon the trial, and the complainants did not seriously question, that the amount of this charge was reasonable be imposed. Before the close of the testimony the several defendants were requested by the Commission to furnish statements showing the actual or estimated expense to them in each case of making delivery from their several tracks to the Union Stock Yards. Such statements have been filed, and they make the following showing: Illinois Central Railroad, via 75-cent trackage route.. $2 23 Via 40-cent trackage route...... 1 65 Average.... $1 94 2 25 05 2 67 2 46 2 28 2 20 3 34 1 86 Chicago, Burlington & Quincy Railroad. Wabash Railroad...... Chicago, Rock Island & Pacific Railway Total via nine lines.... .... 1 65 $20 03 2 22 *328 by the Commission, admitted by the intervener, and at first partly admitted by the complainant, that the cost of service, including the trackage charge and the cost of unloading, was sufficient to justify the imposition of this terminal charge, provided, under the circumstances of the case, it could properly be imposed. We understand that the defendants are given the full benefit of this in the report and opinion already filed. To remove all doubt upon that subject, however, if it is not clearly found, we now find that, looking entirely to the cost of service, and including as a part of that cost the trackage charge paid the Union Stock Yards & Transit Company and the unloading charge paid that same company, the amount of this terminal, if, under the circumstances of this case, it is proper to impose the charge, is reasonable. If any mod ification of the present findings is necessary, they are hereby modified to that extent." The fact, however, that the terminal charge of $2 was intrinsically just and reasonable, was held by the Commission not to show that such charge was just and reasonable "under the circumstances of the case," for the following reasons: As for many years the carriers had delivered to the stock yards for the through rate prevailing from the point of shipment to the point of delivery, they could not be assumed to have gratuitously performed the service of delivery. It was therefore held that pay for such serv: ice must be presumed to have been embraced in the through rate. The through and reasonable rate previously existing having been thus found to have embraced the cost of the terminal service, the Commission decided that it was unjust and unreasonable to add to the charge for terminal services, thus previously exacted, the arbitrary sum of $2 per car, because the stock yards company had imposed for the first time, in 1894, an average charge of $1 per car. In other words, the $2 terminal charge, although it was intrinsically reasonable when considered alone, became unreasonable because it was an addition to the terminal charge necessarily embraced in the pay for terminal services which had been included in the through rate existing for so many years. the Chicago rate on May 31, 1894, included, as it had included for the last thirty years, a delivery and unloading of the stock at the Union Stock Yards, and that rate, upon the record in this case, was a just and reasonable one." Further, in calling attention to the fact that the $2 terminal charge for the service of delivery at the stock yards would be just and reasonable, "if that service was performed by some independent agency," the Commission pointed out that the charge was not just and reasonable when made by the defendants, "because they were already receiving compensation for this service, they ought not to charge for it the second time." Further, it was said: "It is unreasonable to impose this terminal charge for the reason that the rate to Chicago already includes that charge;" and the conclusion is pointedly summed up by the observation: "Surely the fact that the railroad company is already receiving pay for this service is good ground for holding that a second charge is unreasonable." The finding of the Commission was that the $2 additional terminal charge was unjust and unreasonable, in so far as that charge exceeded the sum which the carriers were actually obliged to pay in consequence of the trackage charge imposed by the stock yards company. In other words, the Commission held that the average sum which the defendants were obliged to pay for the trackage charge was $1, and that this sum might be added without causing the existing rate to become unreasonable. The Commission adhered to its original conA reargument of the case was permitted. clusions, and in addition held that, as the it was unreasonable, it therefore operated a terminal charge violated the statute, because discrimination against Chicago, and hence was repugnant to the Act to Regulate Commerce in this additional respect. The reasons by which the Commission was controlled were reiterated in an opinion which so clearly expresses the views entertained by it, which we have previously summarized, that an extract from the report of the Commission on the rehearing is excerpted in the margin.t "The Commission itself did, however, state upon the hearing at various times in terms upon which the defendants were justified in relying, that no question could be successfully made as to the reasonableness of this charge (the termi nal charge in question) in certain aspects Just exactly the scope of that intimation can under which it was given. The defendants were be understood by referring to the circumstances proceeding to show by testimony in each case that the actual cost to them of transporting these carloads of live stock, including the trackage charge and the cost of unloading, was equal to or in excess of $2. Thereupon it was suggested by the Commission, admitted by the intervener, and at first partly admitted by the complainant, that the cost of service, including the trackage charge and the cost of unloading, The opinion of the Commission leaves no room for doubt that such were its views on the subject. Thus stating the question which required to be decided, it was said: "Whether they (the carriers) ought to make the charge they do, or any charge, or whether the charge for delivery is already fairly included in the rate, is a proposition of fact for consideration." Again, referring to the matter, the Commission said: "We do not believe that these carriers should be allowed to add an arbitrary charge to the Chicago rate, for doing a thing which they for thirty years have said was included in that rate, and which we believe, considering the manner in which rates are made up and in which this rate has been made up, ought to be included in the rate;" and the follow-terminal charge, provided, under the circum was sufficient to justify the imposition of this ing excerpts make the same thought more stances of this case, it could be properly Imclearly manifest: "We think and find that posed. We understand that the defendants are *329 *332 331 330 1901. INTERSTATE COMMERCE COM. v. CHICAGO, B. & Q. R. CO. 829 *An order was issued by the Commission | ery thereof at the yards of the Union Stock to carry out its conclusions. In substance Yards & Transit Company in the city of the order commanded the defendants whose Chicago. Embodied in the order was the lines of railway entered the city of Chicago following recommendation: to desist, on and before a named date, from "That said defendants be, and they sevcharging, demanding, collecting, or receiv-erally are, hereby recommended not to ing, in addition to their regular published charge, demand, collect, or receive in excess transportation charges, the sum of $2 per of $1 per carload as compensation for tercarload of live stock, as compensation for minal or switching services rendered in the terminal services rendered in making deliv-delivery of live stock at the yards of the of this kind of delivery created the present stock yards. given the full benefits of this in the report and opinion already filed. To remove all doubt upon that subject, however, if it is not clearly found we now find that, looking entirely to the cost of service, and including as a part of that cost the trackage charge paid the Union Stock Yards & Transit Company, and the unloading charge paid that same company, the amount of this terminal, if, under the circumstances of this case, it is proper to impose the charge, is reasonable. If any modification of the present findings is necessary they are hereby modified to that extent. That finding must, however, be carefully read in connection with the other facts in the case, and the conclusion of the Commission that the imposition of this terminal charge is reasonable. The defendants say it was admitted that this charge was reasonable, 'provided any charge could be legally made for the terminal service.' The intimation of the Commission was as indicated in the above extract from the record, 'that if this charge was proper to be imposed, it was a reasonable charge.' The reason for the conclusion of the Commission is to be found in the distinction between these two statements. What the Commission passed upon finally was, not whether a terminal charge of this sort could be legally made,-that had been already determined by the courts,-but whether this particular charge could be properly imposed under the circumstances of this case. To avoid misapprehension, we will restate here the grounds for our decision, and for that purpose we confine attention to this rate as it existed on May the 31st and June the 1st, 1894. On May the 31st there was in effect a certain rate on live stock from various points to Chicago, and that rate, upon the record in this case, must be taken to be a just and reasonable one. The defendants Intimate in their answer that this rate has been forced down until it was too low, and something was said in the proof looking in the same direction. Upon the other hand, the complainants started in to prove that the rate at that time was too high, but, as is found by the case, both these claims were virtually abandoned. There is nothing in the record before us to show that the rate was other than a right one, and we assume that on May the 31st the rate in effect was just and reasonable. Now, just what did this live stock rate to Chicago include? The defendants insisted on the reargument of this case that it covered the transportation of that live stock to the point where, on its way to the Union Stock Yards, It left the tracks of these several defendants, and nothing more. The complainants insisted that that rate covered a delivery of the stock at the stock yards. We are unable to see any ground whatever for the contention of the defendants. As a matter of law, the undertaking to transport live stock from one place to another includes a delivery of the stock. Originally live stock brought to Chicago by these defendants must be delivered at any one of four different points. This was necessitated by the actual competitive conditions at that market. The railway companies for the purpose of avoiding the expense and inconvenience "It was entirely at their suggestion, and entirely for their benefit at the outset. From the time the stock yards were constructed down to June 1, 1894, the various defendants had, by arrangement with the stock yards company, the right to use the tracks of that company for the delivery of this stock at the Union Stock Yards. By the action of the various carriers that became the only place in Chicago at which live stock could ordinarily be delivered. Whenever a carload of live stock was shipped to Chicago, in the absence of special directions, it was taken to the Union Stock Yards. This was understood both by the carrier and by the shipper. No defendant had any facilities previous to June 1 for delivering live stock in any quantity at any other point than at the Union Stock Yards. Now, in view of the legal liability resting upon the carrier to make a delivery some where, in view of the fact that this delivery must be made at the stock yards, and was ha bitually made there, it seems impossible that the defendants, in making this rate from the point of shipment to Chicago, did not include in that rate, and contemplate as a part of the service covered by that rate, a delivery at the Union Stock Yards. It is absurd to say that the Chicago rate paid for the transportation of that stock up to some switch in the field, or in the city where there was no facility for a delivery, and that the transportation beyond that point was a gratulty. We think and find that the Chicago rate on May 31, 1894, included, as it had included for the last thirty years, a delivery and unloading of the stock at the Union Stock Yards, and that rate, upon the record in this case, was a just and reasonable one. "June 1, 1894, these defendants, by concerted agreement among themselves, increased this rate to $2.00 per car. If the rate on May 31 was a just and reasonable one, the rate on June 1 was an unjust and unreasonable one, unless some new condition justified the imposition of that additional charge. We have found that to the extent of $1.00 a new condition did jus tify the additional charge, for the reason that then, for the first time, the stock yards company exacted this trackage charge. In other words, the cost of service to the defendants was increased by just $1.00 on that day. It must follow, therefore, as a necessary conclusion, that of the Increase which the defendants made, $1.00 was justifiable and $1.00 was unjustifi able. This is not, however, because $2.00 is an unreasonable charge for transporting a car to the stock yards, if that service was performed by some independent agency, but because, since the defendants were already receiving compensation for this service, they ought not to charge for it the second time. Of this proposition we have no doubt. Upon the assumption that the rate May 31 was a just one, we regard the imposition of anything above what the defendants were then compelled for the first time to pay as an unwarranted exaction and a violation of the 1st section of the Act to Regulate Commerce, if it is possible to violate that section." *333 Union Stock Yards & Transit Company in said city of Chicago, which said sum of $1 per carload as compensation for such terminal or switching services is found and declared in and by said report and opinion to be just, reasonable, and lawful." In its opinion on the rehearing the Commission pointed out the reasons which caused it to recommend that each railroad exact only $1 for the additional terminal charge, instead of the actual sum which the railroads were obliged to disburse for the trackage charge. The passage from the opinion referring to this subject is excerpted in the margin.t Al Before the circuit court the Commission contented itself with introducing in evi dence certified copies of the proceedings had before it, other than the evidence taken by the Commission, and with offering such evidence as competent proof in the case. though, on objection, the court excluded the evidence in question, it was subsequently stipulated that the transcript thereof need not be incorporated in the certificate of evidence signed by the district judge, and that, notwithstanding the objections interposed, the transcript might be produced to and inspected by the circuit court of appeals for any proper purpose in case such inspection was deemed allowable. The evidence intro It is to be observed that the Commission in the course of its opinion expressly recog-duced on behalf of the railroad companies Bized the right of the defendant carriers to increase their rates if they were unreasonably low. It is also to be borne in mind that by necessary implication arising from the opinion of the Commission it is also clear that that body likewise recognized the right of the defendant carriers under the circumstances of the particular case to segregate their rates by separating the charge made for carriage from the point of shipment to Chicago from the terminal services at that point. consisted only of the circulars and tariff sheets which had been issued and filed with the Commission, promulgating the charge in question. After hearing, the circuit court found that such charge was just and reasonable, and entered a decree dismissing the petition. 98 Fed. 173. On appeal, the cir cuit court of appeals for the seventh circuit affirmed the decree of the circuit court. 43 C. C. A. 209, 103 Fed. 249. The court held, as to the right of the carrier to make a terminal charge, under The defendants refusing to comply with the circumstances disclosed by the record, the order of the Commission, that body filed that the case was controlled by the ruling a petition in the circuit court of the United of the circuit court of appeals in the case States for the northern district of Illinois to which we have previously referred to compel compliance. The defendants an- (Walker v. Keenan, 19 C. C. A. 668, 34 U. nexed and made part of their answers the S. App. 691, 73 Fed. 755), and the reasoning responses which they had filed in the pro- in that case was expressly approved. Coming ceedings before the Commission. All the to consider the question of the reasonable answers in effect averred the reasonableness ness of the terminal charge, the court held of the charge of $2, denied the discrimina- as that rate, abstractly considered, was tion, and expressly alleged that the charge just and reasonable, it was in the concrete in question constituted a separate terminal also just and reasonable, because the charge, embracing compensation for all the through rate which had prevailed for thirty terminal services, and alleged that the effect years, and under which the carriers had deof the filing of the rate sheets with the In-livered to the stock yards, embraced no terstate Commerce Commission and the no- charge for terminal services, such service tice given to the public concerning the having been performed during all the years charge of $2 had been to segregate the rates so as to distinguish the entire terminal charge from the through rate. It was, moreover, expressly averred that at the time the terminal charge was imposed the rates to Chicago on cattle from the points covered by the proceedings before the Interstate Commerce Commission were unreason- "Prior to June 1, 1894, the railway comably low, and, in view of the outlay *occa-panies seem to have assumed this burden sioned at Chicago, in the rendering of the terminal services, the terminal charge of $2 was in any event a just and reasonable increase of the then existing unreasonably low rate. "The original opinion intimates that the only logical conclusion from the reasoning there stated would be to allow each carrier to retain whatever that particular carrier is obliged to pay the Union Stock Yards & Transit Company by way of this trackage charge. That would, however, result in compelling all companies to retain the smallest amount paid, since the terminal by all routes must be the same. We understood that in allowing $1 to be retained we were virtually giving to the carriers 20 cents upon each car, but in view of the fact that many of the defendants were compelled to pay $1.50 in question gratuitously. Besides, the court considered that the filing of the schedules in 1894 with a memorandum as to the terminal charge of $2 had operated the segregation of the two rates. The views of the court on this subject were thus stated in its opinion: themselves, but at this time a trackage was imposed by the stock yards of from 40 to 75 cents each way upon every car going and returning from the tracks of the railway company to the stock yards. It is insisted by way of trackage charge, this seemed, on the whole, reasonable. Upon the reargument the defendants were inquired of whether they de sired a modification of this order so that each one be allowed to retain the amount actually paid, and without exception they stated that they did not ask such a modification. Attention is called to this fact at this time for the purpose of showing that what is apparently an inconsistency in the conclusion of the Commission is really in favor of the defendants, and that the defendants do not for that reason desire to have that inconsistency removed." *336 that, as this is the only extra expense then | can it be assumed that the carriers were, occasioned, any charge beyond that was un- for the many years in question, gratuitousreasonable and improper. I do not think ly performing the terminal services? That that necessarily follows. While the imposition of this trackage charge by the Union Stock Yards was doubtless the immediate occasion for a reformation of its tariff, the railway companies were then at liberty to adopt a new schedule with relation to these terminal facilities, and charge what they actually cost them." We are thus brought to consider the issue involved, that is, the reasonableness of the rate. such assumption may not be indulged in results from the ruling in Covington StockYards v. Keith, 139 Ŭ. S. 128, 35 L. ed. 73, 11 Sup. Ct. Rep. 461, where it was decided that, as for a through rate to a given point, the carrier contracted to deliver at that point, the presumption was that the through rate included adequate compensation for the services rendered at the point of delivery. Applying this principle, it results that the through rate existing prior to June the 1st, 1894, certainly in the absence of proof to the contrary, must be presumed to have provided in and of itself compensation for the services rendered in making delivery at the stock yards. Did the carriers, in June, 1894, when they imposed the alleged terminal charge of $2, separate in their schedules this charge from the through rate! That is, did they divide their charges by As the right of the defendant carriers to divide their rates and thus to make a distinct charge from the point of shipment to Chicago and a separate terminal charge for delivery to the stock yards, a point beyond the lines of the respective carriers, was conceded by the Commission, and was upheld by the circuit court of appeals, no contention on this subject arises. If, despite this concurrence of opinion, controversy was pre-setting apart the terminal charge embraced sented on the subject, we see no reason to doubt, under the facts of this case, the correctness of the rule as to the right to divide the rate, admitted by the Commission and announced by the court below. This is especially the case in view of the 6th section of the Act to Regulate Commerce, wherein it is provided that the schedules of rates to be filed by carriers shall "state separately the terminal charges and any rules or regulations which in anywise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges." [24 Stat. at L. 380, chap. 105.] Whether the rule which we approve as applied to the facts in this case would be applicable to terminal services by a carrier on his own line which he was obliged to perform as a necessary incident of his contract to carry, and the performance of which was demanded of him by the shipper, is a question which does not arise on this record, and as to which we are, therefore, called upon to express no opinion. We come, then, to consider whether there was a separation of the charge for carriage and the charge for the terminal services, and whether the rate-separated or aggre gated, as may be found to be the case was just and reasonable. To determine these questions, it is essential to fix the situation prior to June, 1894, at which time the increased terminal charge was first imposed. Undoubtedly, prior to that date the pub lished rate sheets of the defendants embraced only a rate from the point of shipmert to Chicago, the place of delivery. There is room, even, for no pretense that there was in such schedules a setting apart of the terminal charge from the through rate. There is also no room for question that during the many years these rate sheets were in force the carriers, under their contracts to carry to Chicago, delivered carloads of cattle to the stock yards without making any charge other than that which was specified in the through rate. Under these circumstances, in the absence of proof, in their previous through rate so as to segregate it from the through rate, thus making one distinct terminal charge and another distinct through rate? The mere inspection of the schedules demonstrates that such division was not made. This is the convincing result, since the schedules did not purport to draw out from the previous through rate the sum of compensation contained therein for terminal services. On the contrary, the entire previous through rate was retained, and a memorandum was placed upon the schedules to the effect that thereafter an additional charge of $2 for delivery at the stock yards would be exacted. This was a mere addition to the sum of the terminal charge embraced in the prior through rate. We think that it cannot be said that to add an additional amount to a former charge was necessarily to divide such former charge, without holding that to add one sum to another is necessarily to divide the other The Act to Regulate Commerce exacts that the schedules to be printed and filed by carriers must plainly state "the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in anywise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges." The purpose of this provision was to compel the schedules to be so drawn as to plainly inform of their import, was to exact that when the rates were changed the change should be so stated as not to mislead and confuse, all of which would be frustrated if the schedules relied upon were given the effect which the defendants now claim for them. And the reasons just given dispose of the contention that because it was found that the terminal charge of $2, abstractly considered, would be just and reasonable, therefore it should have been held to have been just and reasonable as applied to the case in hand. This obscures the fact that compensation for the terminal |
