stated, "In the examiner's opinion, the instant situation
comes within the principle set forth in Brown and Brown v.
Boston & M. R., 266 I.C.C. 310, and Coastal Bag & Bagging
Corp. v. Texas & N. O. R. Co., 277 I.C.C. 789. There it was
held that the restrictive phrase, having value only for,
should not be construed literally because a product having
value for one purpose ordinarily has some other value, and a
rate applicable on the commodity only for the purpose stated
applies, regardless of the use of the commodity for some other
Plaintiffs cite other cases in support of their contention
that the words "having value only for" have not been given a
literal interpretation. Sonken-Galamba Corp. v. Union Pacific
R. Co., 10 Cir., 145 F.2d 808, 812, and Hyman-Michaels Co. v.
Chicago, R. I. and P. R. Co., 308 I.C.C. 339, 341.
It is well to keep in mind the precise description of the
commodity involved, its characteristics and the purposes for
which it may be used. In an appendix to the Commission report
it is stated, "The commodity involved here is ground
limestone. * * * The complainant sells only ground
limestone. * * * The complainant's price for each grade is
standard for all users. Only the volume connected with a sale
and the effort required in the sale determines the price
variations to different users of the same grade. * * * Ground
limestone has many uses. It can be used in feed manufacturing,
rice milling, coal mine dusting, roofing, roadmaking, paving,
and building construction. But during the period involved in
this proceeding, the complainant has shipped only C-4 for
roofing, roadmaking, paving, and building uses. This grade has
also been sold to feed manufacturers, rice millers, refineries,
and others outside the construction industry."
The Commission in its report, concerning the commodity in
issue, states, "Its transportation characteristics, including
value, are similar regardless of its use." Defendants on brief
apparently attempt to leave the inference, contrary to the
record, that there is a difference in the commodity shipped
for one of the uses designated in Section 4 and that shipped
for the use of feed mills. Time and again on brief they refer
to "feed-grade limestone." On this record there is no such
The decision that Section 4 is inapplicable produces an
absurd result and strips the section of all meaning. As the
Examiner stated in his order, "There is no limestone which can
be used solely for certain specific purposes and nothing else.
For example, as mentioned above, this same limestone moves in
large percentages to feed manufacturers as well as to those
consignees engaged in construction. Section 4 uses the word
only as follows: `having value only for building, paving,
road-making or roofing purposes' (emphasis supplied). Since
there is no limestone useable for the named purposes to the
exclusion of all others, section 4 rates cannot be applied
exclusively to construction purposes except by the end-use
test, which has been above discredited."
The Commission in its decision does not take issue with this
reasoning; in fact, referring to Section 4 it states (page
694): "And as found by the examiner, for all that appears, no
other limestone may fall within the restriction." Thus,
neither plaintiffs nor any other shipper of ground limestone
could in fact comply with the literal language of Section 4.
A certification that ground limestone has value "only for
building, paving, road-making or roofing purposes" would be
false. This would be so whether the limestone has value for
one or all of the purposes designated in Section 4 and is
shipped to be used by a consignee for such purpose or for some
It must be remembered that the railroads are the drafters of
the tariffs which, the same as any other written instruments,
should be construed strictly against them and in favor of the
shipping public. Atlantic Coast Line R. Co. et al. v. Atlantic
Bridge Co., Inc., 57 F.2d 654,
655; Union Wire Rope Corp. v. Atchison, T. & S. F. Ry. Co., 8
Cir., 66 F.2d 965, 966; United States v. Missouri Pacific
Railroad Co., 5 Cir., 250 F.2d 805, 808.
In A. E. West Petroleum Co. v. Atchison, T. & S. F. Ry. Co.
et al., 212 F.2d 812, the Court stated (page 816):
"Therefore, a tariff is to be construed as having
the meaning which it would reasonably have to
such shippers. Where words in a contract, if
construed literally, would produce an unfair,
unusual or improbable result, such construction
is to be avoided if possible."
The Court further stated (page 821):