
    ST. LOUIS SOUTHWESTERN RY. CO. v. GOLDSTEIN.
    (No. 365-3315.)
    (Commission of Appeals of Texas, Section A.
    Nov. 29, 1922.)
    1. Commerce <3=>89 — Actions for overcharge on interstate shipments not maintained without first referring question of classification to Interstate Commerce Commission.
    In view of U. S. Comp. St. § 8569, subd. 7, and U. S. Comp. St. § 8573, providing for the publication of freight tariffs and suits for recovery of damages against carriers, an action against a railroad company for alleged overcharges on interstate shipment of lead may not be maintained in the state courts, where there is a question of fact as to its classification as pig or scrap lead, without referring the claim in the first instance to the Interstate Commerce Commission for its action and award.
    2. Commerce <®^>89 — Interstate Commerce Commission has exclusive jurisdiction in questions of the reasonableness of freight rates.
    The Interstate Commerce Commission has exclusive original jurisdiction in all administrative matters affecting the reasonableness and uniformity of rates.
    ©xoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by A. Z. Goldstein against .the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals to the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    E. B. Perkins, of Dallas, Thompson,_ Bar-wise, Wharton & Hiner, George Thompson, Jr., Alfred MdKnight, and Phillips, Trammel & Caldwell, all of Fort Worth, for plaintiff.
    Slay, Simon & Smith and A. W. Christian, all of Fort Worth, for defendant.
   SPENCER, P. J.

This suit was instituted in the county court of Tarrant county, for civil cases, by plaintiff against defendant to recover alleged overcharges on freight, on a shipment of lead from Corsicana,-Tex., to Granite, Ill.

We take from the certificate the facts essential to a clear understanding of the question at issue.

Plaintiff alleged that the shipment was “scrap” lead for which'the published tariff rate filed with and approved by the Interstate Commerce Commission, was S3 cents per hundredweight, at which rate the railway company agreed to transport the commodity, but that upon arrival at destination the railway company claimed the commodity was “pig” or bar lead, and charged and required the plaintiff to pay the rate of pig lead, to wit, 75 cents per hundredweight. The rate on pig lead was also filed with and approved by the Interstate Commerce Commission.

The defendant railway interposed its plea to the jurisdiction of the state court upon the ground that the question of whether the commodity came under the classification bar or pig lead, or whether it came within the tariff fixed for scrap lead, involves a construction of the interstate tariffs, and that the suit is, under the act of Congress to regulate commerce, necessarily one to regulate commerce and is a question upon which there is a 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.

The essential character of the commodity shipped and the form in which it was shipped are questions about which there was no serious conflict in the testimony.

Plaintiff's testimony was to the effect that though the commodity was 100 per, cent, lead and contained no tin or antimony or other ingredient than lead, and though it was melted in the form of “pigs” or bars, that such commodity could not be properly termed “pig” lead, if in fact it had been melted from scrap or used lead, and that pig lead is virgin lead from the mines, and “scrap” lead is lead that has been used. Defendant’s witnesses, who qualified as experts, testified that in the trade and among dealers in lead the character of pig lead is determined by the form in which it is melted; that when used lead has been melted into bar or pig form it is known to the trade as pig lead, but that pig lead does not necessarily have to come directly from the mines, and that scrap lead is lead that has been used and discarded.

There is no controversy as to the published rate for scrap lead from the point of origin to the point of destination.

The jury found, in answer to the only special issue submitted, that the commodity was scrap lead, and judgment was rendered for the difference between the charge that was collected and the charge that would have been, collectible under the rate for scrap lead.

Under this statement of facts, there was a difference of opinion among the justices of the Court of Civil Appeals for the Second District as to whether it was necessary, as a prerequisite to a recovery, to obtain an award from the Interstate Commerce Commission. The majority were of opinion that the claim was one which should have been submitted to the Commission for its action and award. In support of this view, they relied on Texas & Pacific Ry. Co. v. American Tie & Lbr. Co., 234 U. S. 138, 34 Sup. Ct. 885, 58 L. Ed. 1255. Mr. Chief Justice Conner dissented from the conclusion reached by the majority, being of opinion that the issue before the court was merely one of identity of the commodity shipped— whether it was scrap lead or pig lead — and that such issue was a question of fact properly to be passed upon by the jury without reference to action by the Commission. In justice to Mr. Chief Justice Conner, it should be stated that in his dissenting opinion, which accompanies the certificate, he states that the viewfe expressed by him are not free from doubt.

Based upon the foregoing facts, the Court of Civil Appeals certifies the following questions:

Question No. 1: “Was the issue presented in the trial court one that was properly determinable by the state court in the absence of any prior action or award by the Interstate Commerce Commission?”
Question No. 2: “Even if it is held that prior action by the Interstate Commerce Commission is not necessary in this case, still can the plaintiff maintain this suit in a state court, in view of section 7, par. 6 (U. S. Comp. Stat. of 1916, par. 8569, subd. 7) of the Interstate and Foreign Commerce Act; or does paragraph 22 preserve to plaintiff the right to have this case heard in the state court?”

United States Compiled Statutes 1916, § 8569, subd. 7, provides:

“No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers - or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time. * * * ”

United States Compiled Statutes, § 8573 (Act Feb. 4, 1887, c. 104, § 9), reads:

“Any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as. hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any District (or Circuit) Court of the United States of competent jurisdiction; but such person * * * shall not have the right tb pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. * * * ”

Section 22 (U. S. Comp. St. § 8595) is as follows:

“Nothing in this act * * * shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”

In our opinion, it was necessary under the facts stated to refer the claim in the first instance to the Interstate Commerce Commission for its action and award. An award by that body is a prerequisite-to the recovery of a judgment against ¿he defendant.

The cardinal object sought to be attained by the act of Congress to regulate commerce was the establishment and maintenance of reasonable and uniform rates. To the Interstate Commerce Commission is conferred the power of administering the act and with it rests the duty to enforce the establishment and maintenance of reasonable and uniform rates. That body has exclusive original jurisdiction in all administrative matters affecting the reasonableness and uniformity of rates. If this were not true, the very reverse of what the lawmaking body intended would result; confusion in the administration of the act would ensue and lack of uniformity in the application of rates would follow. The ease at hand furnishes a striking illustration of what would in all probability follow if the matter were not referred to the Interstate Commerce Commission, in the first instance, for its determination.

The evidence of the plaintiff tended to show that the commodity shipped was considered scrap lead; while defendant’s evidence tended to show that the commodity was pig or bar lead. It must be admitted that the evidence would support a finding by the jury for either party. If therefore, matters such as this be left to juries or courts, a jury or court in one jurisdiction would conclude that the commodity was scrap lead and in another jurisdiction, another court or jury would determine that it was pig or bar lead. This, of course, would bring about lack of uniformity in the rates of an identical commodity and would confer upon courts and juries, instead of the Interstate Commerce Commission, the power of administering the act. Thus it clearly appears that as to whether the' commodity is scrap lead, or pig lead, is more than a question of mere identity; it is a matter of tariff classification as well, and involves an administrative matter connected with the act to regulate commerce with which the Interstate Commerce Commission is primarily concerned.

' By analogy, the reasoning by Mr. Chief Justice White in Texas & Pacific Ry. Co. v. American Tie & Lbr. Co., supra, is applicable here. The commodity in that case, over which the controversy arose was railroad ties. The railway company had a published rate on lumber and it was contended by the shipper that the ties «hould take the lumber rate. In support of the shipper’s contention, evidence was introduced tending to show that it was generally regarded as lumber and the railway Introduced evidence tending to show the reverse. The court hearing the case determined in favor of the shipper and applied the lumber rate. The Supreme Court of the United States held that such a practice would destroy the uniformity in the application of the rates, and that it was therefore a question primarily for the Interstate Commerce Commission.

In view of the answer to question No. 1, the answer to question No. 2 becomes unnecessary.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals.  