Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Charles E. Woodward, Judge.
Before ALSCHULER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
ALSCHULER, Circuit Judge.
The appeal is from a judgment of the District Court given in an action there brought to enforce an order for reparation awarded by the Interstate Commerce Commission against the Director General of Railroads and the union Stock Yard & Transit Company in the sum of $140,001.25, with interest and attorneys' fees. The order for reparation was based on the collection of a charge of 25 cents per car for loading and unloading live stock at the Union Stock Yard in Chicago during the period of federal control of the railroads. At the close of all the evidence the court, upon motions of defendants, directed the jury to return a verdict for defendants.
The Stock Yard Company was organized in 1865 to construct and operate stockyards, and railway tracks connecting the yards with the several railroads entering Chicago. Its capital stock was then held by or in the interest of the line-haul railroads. In 1867 the Stock Yard Company established a charge of 50 cents for loading and 25 cents for unloading each car of live stock, which charge was assumed and paid by the several line-haul railroads. The railroads moved the cars with their own power over the tracks of the Stock Yard Company to its unloading platforms, and the stock was unloaded by the stockyard employees.
In 1894 the Stock Yard Company's tracks were transferred to the Chicago Junction Railway Company. A through tariff was then published by the railroads, which included a switching charge of $2 for each car moved between the termini of the railroads and the stockyard. Out of this charge grew a controversy as to whether the Stock Yard Company was a common carrier engaged in interstate commerce, and subject to the provisions of the act to regulate commerce. The Commission determined that it was such a common carrier. The controversy reached the Supreme Court on an appeal from the United States Commerce Court, and in 1912 the Supreme Court decided that the Stock Yard Company was a common carrier engaged in interstate commerce, and subject to the provisions of the act. United States v. Union stock Yard & Transit Co., 226 U.S. 286, 33 S. Ct. 83, 57 L. Ed. 226.
The Stock Yard Company thereupon duly published its tariff, fixing the charge of 50 cents for loading and 25 cents for unloading each car, and the line-haul railways, in their published tariffs, absorbed these charges in the stated amount of 50 cents for loading and 25 cents for unloading each car, the absorbing words of the tariffs being:
"Carriers as Shown Will Pay the Union Stock Yards & Transit Co.'s Charges as Follows:
In Cents Per Car -- Loading Charges 50
The Stock Yard Company filed with the Interstate Commerce Commission, effective May 21, 1917, a tariff increasing these loading and unloading charges by 25 cents per car, which increase the line-haul carriers declined to absorb. The railroads did not amend their tariffs, but the charge of 25 cents increase per car was indorsed on the freight bills, and paid by the yards commission merchants -- to whom the shipments were consigned -- and ultimately received by the Stock Yard Company. When the railroads passed into federal control (December 28, 1917), the Director General of Railroads likewise declined to absorb the 25 cents per car increase, and without publication of any further tariff the additional 25 cents per car continued to be collected and paid as before.
The Stock Yard Company, contending that by reason of certain changes in its relation with the Chicago Junction Railway Company it was no longer a common carrier of interstate commerce, filed with the Interstate Commerce Commission its tariff, effective September 1, 1917, canceling its previously filed loading and unloading tariff charge. The Commission suspended the effectiveness of the notice of cancellation from time to time until the expiration of government control, so that it never became effective. The suspension of the cancellation left in force the last previously published tariff, which had increased the loading and unloading charge by 25 cents per car.
November 17, 1917, the Chicago Live Stock Exchange, composed of commission merchants at the Chicago stockyard, filed complaint with the Interstate Commerce Commission against the Stock Yard Company and the line-haul carriers, against the 25 cents loading and unloading increase, and charged that its collection violated sections 1 and 3 of the Interstate Commerce Act (49 USCA §§ 1, 3). This complaint was consolidated with the controversy respecting cancellation of the 25 cents per car increase, and the matters were heard by the Commission.
Respecting the complaint of the Chicago Live Stock Exchange, its demand for cessation of the increased unloading charge and for reparation involved the question of whose duty it was to load and unload the live stock at the Chicago yard. The proposition was discussed in the Commission's report and opinion (52 I.C.C. 209, February 11, 1919), and the conclusion was announced that: "3. The loading and unloading of live stock, in carloads, at the Chicago stockyards is a duty of the shipper."
March 31, 1919, the Exchange filed a petition for rehearing, and the Commission reopened the case, then, for the first time, naming the Director General of Railroads as a respondent. There was further hearing, and on July 15, 1920, the Commission filed an opinion, wherein it is stated, inter alia:
"For the reasons stated we are of opinion that our finding that it is the duty of the shipper to load and unload live stock in the stockyards at Chicago was error, and it is therefore reversed. And we now find that it was the duty ...