Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
The defendant appeals from a decree of the District Court entered on March 11, 1942. That decree merely confirmed its prior decree of December 6, 1941, which permanently enjoined the defendant from in any manner charging, demanding, collecting or receiving a less or greater charge for transportation of property by motor vehicle in interstate or foreign commerce over its lines between places in any one state, through another state, than the charge provided for in the defendant's effective tariffs which it had filed with the Interstate Commerce Commission.
The action was instituted by the Interstate Commerce Commission under the provisions of Part II of the Interstate Commerce Act, section 222(b), 49 U.S.C.A. § 322(b). It alleged violations of §§ 217 and 222 of the Act.
Part of the controversy here presented involves the amendment of the complaint, to conform to the evidence which resulted upon a rehearing on the first decree. For this reason we think a better understanding of the issues involved may be gained by setting forth the charonology of the various proceedings.
The complaint was filed on June 25, 1941, and answered on September 6, 1941. On November 17, 1941, a stipulation was filed, and the cause seems to have been submitted upon this stipulation together with the pleadings. On December 6, 1941, the court filed its findings of fact and conclusions of law, and upon the same date it rendered its decree upon its conclusions of law, perpetulally and permanently enjoining and restraining defendant and its agrents and employees from in any manner charging, demanding, collecting or receiving a less or a greater charge for the transportation of property by motor vehicle in interstate or foreign commerce over its lines between places in any one state through another state, than the charge provided for in the effective tariff on file with the Interstate Commerce Commission. On that same date the Commission, by permission of the court, filed its amended complaint.
It is not clear from the record as to the relative order of the various actions on December 6, but we infer from the argument of counsel that the findings and conclusions were first filed and the decree was rendered. Thereupon there was a controversy between counsel as to the scope of the decree. Appellant contended, in effect, that the decree should not extend to any traffic except that between East St. Louis, Illinois, and other points in that State, moving through St. Louis, Missouri. On the other hand, plaintiff contended that the decree properly covered similar instances, if ny, in all the territory in which defendant conducted its business.
On December 11, 1941, defendant filed its motion to vacate the decree of December 6; for leave to file its answer to the amended complaint; and for a further hearing on all motions embraced in the amended complaint which were not embraced in the original complaint. On that date the court denied this motion, but permitted the defendant to file its answer to the amended complaint, which was done.It then permitted a further hearing to be had upon the modification of the decree of December 6, but further announced that that decree would remain in full force and effect until modified by the court.
On January 27, 1942, plaintiff filed its motion to strike portions of the defendant's answer to the amended complaint, and for judgment on the pleadings. This motion was denied, and on March 11, 1942, the court "ordered that the decree entered on December 6, 1941, be and the same is hereby affirmed."
Appellant contends that the issuance of the permanent injunction was based upon a showing of relatively few infractions of the Statute; that they were completely inadvertent; and that corrective measures were immediately instituted by the defendant when its attention was called to them by the Commission.
The record discloses that appellant is a common carrier of property by motor vehicle in interstate commerce. It operates in twelve states, and as such it comes within the purview of the Interstate Commerce Act, Part II, and as requred by that Act had filed with the Commission appropriate tariffs for the transportation services here involved.
During the period from October 8, 1940, to February 20, 1941, 796 shipments were transported by appellant from or to points in Illinois, to or from points in the East St. Louis district in Illinois, all of which shipments were in interstate commerce, because operating reasons required all of appellant's traffic to or from the East St. Louis district to be cleared through St. Louis, Missouri.On 438 of these shipments incorrect charges were assessed.
On being advised by its manager in St. Louis, Missouri, that representatives of the Commission were investigating the errors above referred to, appellant by its freight traffic manager, issued a bulletin addressed to all Illinois terminals calling attention to the fact that the shipments herein referred to were interstate in character, and he ordered that corrections be made in billings to ...