
    Swift & Co. v. The Hocking Valley Railway Co.
    
      Railroads — Demurrage mies — Findings by interstate commerce commission final, when.
    
    Where a demurrage rule, named in the tariff filed by an interstate railroad with the interstate commerce commission and published according to law, has been passed upon and approved by the commission, acting within the scope of its authority, the decision of that tribunal is binding upon the state courts, and the question of the validity of the rule is not open for consideration in an action brought by the railroad company to recover the charges assessed under the rule as to cars engaged in interstate commerce.
    (No. 14901
    Decided December 7, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    The action out of which this error proceeding arises was brought by defendant in error against plaintiff in error in the court of common pleas of Cuyahoga county to recover demurrage. The amended petition was challenged by demurrer for the reason that it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and plaintiff in error not desiring to plead further, judgment was rendered in favor of defendant in error in the amount claimed in the amended petition, and this judgment was affirmed by the court of appeals.
    The averments of the amended petition are in substance as follows:
    Plaintiff is a railroad company, engaged in interstate commerce,.and is subject to and is obliged to comply with what is known as the interstate commerce act of the United States. In compliance with this act, on February 26, 1910, it issued and filed with the interstate commerce commission and duly posted as required by law its local freight tariff containing car-demurrage rules and charges. These demurrage rules and charges had theretofore been prepared and adopted by the National Association of Railway Commissioners and were approved by the interstate commerce commission on November 14, 1910, in the case of Procter & Gamble Co. v. The C., IT. & D. Ry. Co., in the 19th volume of the interstate commerce- commission’s report, page 556. According to the terms and provisions of the tariff filed by plaintiff, the car-demurrage rules and charges were applicable at all stations and sidings, public and private, on its line of railway and to all interstate traffic on its line.
    These demurrage rules provided in part as follows :
    “Forty-eight hours’ (two days) free time will be allowed for loading or unloading on all commodities.
    “After all the expiration of the free time allowed, a charge of one dollar per car per day, or fraction of a day, will be made until car is released.
    “Private cars in railroad service, whether on carrier’s or private tracks, are subject to these demurrage rules to the same extent as cars of railroad ownership.
    “Empty private cars are in railroad service from the time they are placed by the carrier for loading, or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong to an industry performing its own switching service, are in railroad service from the time they are placed by the industry upon designated interchange tracks, and thereby tendered to the carrier for movement. If such cars are subsequently returned empty, they are out of service when withdrawn 'by the industry from the interchange; if returned under load, railroad service is not at end until the lading is duly removed.”
    The above rules were binding upon all shippers who delivered to plaintiff, for transportation, goods consigned from points outside of the state to points within the state. Defendant occupied a certain railroad switch or track at Athens, Ohio, under and by virtue of an agreement entered into by plaintiff and defendant March 22, 1911. During the period beginning April 1, 1910, and until August 21, 191.2, defendant entered into certain contracts to carry with plaintiff, whereby the latter agreed to receive, transport and deliver to the defendant at Athens certain consignments of defendant’s products, in consideration of which the defendant agreed to pay to plaintiff the charges arising out of and connected with the transportation by plaintiff of said consignments, as provided in its lawful published tariff and lawful car-demurrage rules and charges. During the period referred to, and according to and in pursuance of said contracts of carriage, plaintiff received from the defendant from time to time a large number of loaded cars consigned from points outside of the state to the defendant at Athens. All of these cars were received by plaintiff and transported and delivered to the defendant on the track occupied by the defendant under the agreement of March 22, 1911. Defendant at all said times was the owner of all the cars so transported by plaintiff and delivered by it to the defendant at Athens. Defendant paid to plaintiff the lawful tariff rate of freight for transportation of the commodities with which said cars were loaded, and plaintiff, in accordance with its lawful published tariff, paid defendant for the use of its refrigerator and tank cars the sum of three-fourths cent per car per mile and for the use of its other equipment the sum of three-fifths cent per mile.
    Plaintiff placed upon the sidetrack referred to various cars at the times shown by a statement marked Exhibit C. The lading was not removed from these, cars by the defendant within the free time allowed for unloading according to said demurrage rules, but it allowed and permitted the cars to remain upon the sidetrack under lading for the time shown by said statement. The demurrage charges assessed under said rules aggregated the sum of $656, which defendant has neglected and refused to pay.
    A copy of the local freight tariff, naming the demurrage rules and charges, is attached to the amended petition, as are also Exhibit C and the agreement of March 22, 1911.
    
      For the purpose of reviewing the judgment of the court of common pleas on defendant’s demurrer to the amended petition,- it was stipulated by the parties that the track on which the cars in question were placed was the private track of the defendant, Swift & Company.
    
      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    
      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Mr. W. D. Wilkin and Mr. C. M. Horn, for defendant in error.
   Newman, J.

The rule under which the demur-rage was charged and upon which plaintiff predicated its right of recovery provides .for the collection of demurrage for the detention of private cars while under lading on private tracks. It is averred in the petition and admitted by the demurrer that the plaintiff, engaged in interstate commerce, was obliged to and did, in compliance with the interstate commerce act, file with the interstate commerce commission its tariff or schedule, in which were published certain demurrage rules, including the one in question. It is claimed, however, that, within the meaning of the interstate commerce act, tariff is a schedule of charges “for transportation” and that transportation, as defined by the act, includes cars and services in connection with the receipt and delivery of property transported when provided and furnished by the carrier. We cannot agree with counsel that the term is used in this narrow sense. In Section 8563, U. S. Comp. Stat., 1913, which is a part of the interstate commerce act, the term “transportation” is defined. It includes cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation and transfer, in transit, ventilation, refrigeration or icing, storage and handling of property transported. It is to be observed that it includes cars and all instrumentalities and facilities of shipment or carriage, irrespective of ownership. In these schedules the carrier, under the provisions of Section 8569, is required to state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require. It was held in Lehigh Valley Ry. Co. v. United States, 188 Fed. Rep., 879, that the demur-rage charged for the detention of cars in loading or unloading is a terminal charge required to be shown by the schedule of rates filed and published by an interstate railway company.

We do not think there can be any question but that, under the plain provisions of the interstate commerce act, demurrage rules relating to private cars employed in interstate commerce and the charges assessable thereunder are matters properly included in the tariff or schedule required to be filed and published. This tariff containing the demurrage, rule having been filed and published according to law, was binding alike on carrier and shipper, and so long as it was in force was to be treated as though it were a statute. Pennsylvania Railroad Co. v. International Coal Mining Co., 230 U. S., 184. The freight rate charged for transportation by the carrier was the one fixed by the tariff, and the amount prescribed therein for the use of private cars was the 'one paid to plaintiff in error. But it is claimed that the demurrage rule in question is unlawful and therefore unenforceable. The matter under consideration has to do with interstate commerce. It was held in the Minnesota Rate Cases, 230 U. S., 352, that the authority of congress extends to every part of interstate commerce and to every instrumentality by which it is carried on, and a full control by congress over the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations.

In the case of Procter & Gamble Co. v. C., H. & D. Ry. Co., 19 I. C. C. R., 556, the identical rulé here in question was passed upon by the interstate commerce commission. The contentions made by counsel here were made by complainant there, yet that tribunal held that the railway company was within its lawful rights in establishing and maintaining the rule complained of. But it is insisted that the commission had no authority to decide the question it did decide and that it had no power to approve such a rule. We shall review briefly the proceedings had in that case.

Relief having been denied it by the commission, The Procter & Gamble Company filed a petition in the commerce court of the United States, in which it was charged that the order of the commission dismissing the complaint was null and void and beyond its powers in that it sustained the validity of the demurrage rules. The jurisdiction of the commerce court was challenged by the United States, the interstate commerce commission appearing for that purpose, and the commerce court, in disposing of the case, held that it had jurisdiction and on the merits decided that the commission had rightly refused to grant relief and that there was no foundation for the contention that the property of the company in its private cars was taken without due process of law by the demurrage regulation. The case was taken on appeal to the supreme court of the United States by The Procter & Gamble Company, and that court held that the commerce court erred in taking jurisdiction of the matter, upon the ground that the act creating the commerce court, giving it jurisdiction of cases brought to enjoin, set aside, annul or suspend orders of the interstate commerce commission, conferred on that court jurisdiction only to entertain complaints as to affirmative orders of the commission and therefore it had no jurisdiction to redress "complaints based exclusively, as in the case under consideration, on the ground that .the commission had refused the relief on the ground that it could not award it. Mr. Justice White, in the opinion, 225 U. S., 282, refers to the interstate commerce commission as an administrative body endowed with what may be in some respects qualified as quasi-judicial attributes, and he says, on page 292: “The question to be decided is this: Does the authority with which the commerce court is clothed in virtue of these provisions invest that body with jurisdiction to redress complaints based exclusively upon the conception that the interstate commerce commission, in a matter submitted to its judgment and within its competency to consider, has mistakenly refused * * * ?” It seems clear to us from the language used by the learned jurist — “in a matter submitted to its judgment and within its competency to consider” — that the question presented was one which the commission had the lawful right to decide and that it did not exceed its authority when it acted in the matter.

Counsel assert that they are making no claim that the rule complained of is unreasonable, but insist that it is unlawful and invalid. But the distinction, if there be one, is not material. The rule was assailed in The Procter & Gamble case before , the commission upon the same grounds urged against its validity here, and received the sanction and approval of the commission, and its validity was within its competency to consider. It called for the exercise of the powers and discretion conferred by congress upon the commission. Morrisdale Coal Co. v. Pennsylvania Railroad Co., 230 U. S., 304.

Under the provisions of the interstate commerce act, it was the positive duty of the carrier to collect the charges provided for in the tariff, and this is the purpose of the present action. The- demurrage rule upon which plaintiff relies relates to interstate commerce. It was passed upon by a federal tribunal having full authority to act and was approved. If the power existed in the courts of the states to question its rulings, it would result, most likely, in diverging opinions and conflicting decisions in matters of interstate commerce, and would be' destructive of the uniformity of regulation which the interstate commerce act was designed to secure. It is admitted by the demurrer that the transportation of the cars in question was subject to the demurrage rule set out in the tariff, which was binding upon the shipper. This rule having been approved by a federal tribunal, acting within the scope of its authority, its decision must be followed by the courts of this state arid be given full force and effect.

Judgment affirmed.

Johnson, Donahue, Jones and Matthias, JJ., concur.  