Davison Gulfport Fertilizer Co. v. Gulf & Ship Island R. Co. , 92 F.2d 107 ( 1937 )

HUTCHESON, Circuit Judge.

On various dates, between December, 1928, and October, 1934, appellee, a common carrier, performed services, including wharfage, for appellant in regard to commodities moving coastwise interstate. For these services it exacted and received the charges provided therefor in tariffs the carrier had duly filed with the Interstate Commerce Commission. Appellant paid the charges without objection or protest, and without complaint as to their reasonableness or validity; nor does it now complain that the services rendered were not fully worth the charges made. What is claimed by appellant in this suit it brought in 1935 to recover the total of the wharfage charges, is that by contract with the United States made June 18 pursuant to a public resolution adopted June 14, 1906,¹ both attached as exhibits to the petition, appellee completely ceded to the Secretary of War all of its powers to make and publish wharfage tolls, fees, or charges; that the charges in question having been made and filed with the commission without his approval, their making and filing was a nullity; that appellant was entitled to have the carrier render it wharfage services free of charge; and that it was therefore entitled to recover back the charges it had paid. Nine special pleas were filed by defendant. To these were attached as exhibits copies of the published schedules of tariffs it had filed with the commission, and under which the wharfage services had been rendered and paid for.

By replication to the pleas plaintiff, in confession and avoidance, pleaded the joint resolution and contract set out in the margin below; that in 1911, at the request of defendant, the Secretary of War had established rates and charges for wharfage, except as to commerce coastwise; and that, thereafter, until the filing of the tariffs involved in this suit, defendant had neither promulgated nor exacted wharfage charges for coastwise movements. It alleged that in 1927 defendant, purportedly under the authority of the tariffs its pleas describe, began to assess and did thereafter assess and collect of plaintiff, as charged in the declaration, wharfage charges on commerce moving coastwise, the same in amount as those the Secretary had approved for shipments other than coastwise.

By way of estoppel by conduct and claim it was further charged against defendant, that not only before the Secretary of War in the 1911 proceedings, but before the commission in 1931 and again in 1934, de- . fendant railway company had consistently taken the position that the Secretary of War, and not the commission had sole jurisdiction over its wharfage charges, and that there was no authority in the commission to make or prescribe, oversee, or interfere with, such charges.

Finally, plaintiff insisted that the making and filing of the tariff schedules had furnished no authority for the imposition of the charges, because by its contract defendant had divested itself of, and vested in, the Secretary of War the initial authority to prescribe them, and that unless at least first approved by him, the filing of schedules with the commission would be wholly unauthorized, and without effect in law.

To this replication to its pleas defendant filed demurrers, in effect asserting that the Hepburn Amendment to the Interstate Commerce Act enacted June 29, 1906, 34 Stat. 584, and the later amendments to the act, 49 U.S.C.A. § 1 et seq., had vested the commission with complete and comprehensive jurisdiction over commerce moving interstate. That it had superseded and made unnecessary, as to interstate rates and charges, including those for wharfage, the protective provisions of the Resolution and contract upon which plaintiff relies; that the rates were therefore properly charged and exacted ; and that in this action for moneys had and received plaintiff could not recover them. The demurrers challenged too, as immaterial the allegations in the replication as to the defendant’s course of conduct in asserting that the Secretary of War, and not the commission, had jurisdiction over these rates.

The District Judge sustained the demurrers and, plaintiff declining to plead further, dismissed its bill.

Here the controlling question arising on the pleadings whether the public resolution and contract plaintiff relies on deprive the commission of jurisdiction over the wharf-age rates in question, is made more sharp and clear by a stipulation; that “the tariffs on which the charges were collected were published and filed with the Commission in strict accordance with the terms and conditions of the Act to regulate commerce, and amendments thereto, and the rules and regulations of the Commission”; and that “unless authority to supervise and regulate the wharfage rates in question in this suit was at the time of their making and filing, and of the payment under them, vested in the Secretary of War under the joint resolution and contract, the said schedules of tariffs were'lawful schedules and the charges for which plaintiff seeks restitution as being unlawful, were lawful charges, which the defendant had the right to collect and retain.” Thus by the stipulation, the parties make stand out the controlling question in the case, whether the existence of the resolution and contract destroyed defendant’s power to initiate- rates under the Interstate Commerce Act (49 U.S.C.A. § 1 et seq.), and nullified the schedules it filed with the commission unless and until it first presented its proposed schedules to the Secretary of War and received his approval. Thus they make stand out plaintiff’s contention that the charges asked and received, though reasonable in themselves, and the same charges the Secretary had approved for commerce other than coastwise, were unlawful charges and uncollectible, and ex aequo et bono in an action for money had and received, defendant was bound to return them.

Here, as it did below, appellee insists that the authority of the commission under the Hepburn, and the various other amendments to the Commerce Act, is comprehensive, universal, and all-embracing; that it extends to wharf and other terminal charges; to Gulfport as to all other ports; that the charges it collected upon tariffs filed with the commission constitute the only lawful charges under which the shipments in question could have moved; and that, once fixed by filing, defendant could neither forego them before collection, nor rebate nor return them after collection. It insists that the sole purpose and intent of the resolution and contract by which plaintiff sets such store, its only effect, was to make provision, where, before the passage of the Hepbu-rn Amendment² none existed, against the exaction of exorbitant and unreasonable charges for the use of defendant’s wharves, not to prevent the making of any charge for that use. It urges upon us that the act of the Secretary of War, in approving wharfage charges except as to coastwise commerce, and disapproving those solely because that commerce was negligible, is a definite affirmation that the resolution and contract were designed not to prohibit, but to regulate such .charges, to require the defendant to furnish not free, but reasonable service. It argues, too, thát if there is anything in plaintiff’s contention that before filing its tariffs with the commission, defendant ought to have submitted them to and obtained the approval of the Secretary of War, it is not substantial but only formal. It insists that, since it is admitted that the charges are reasonable, indeed, are the same in amount as those the Secretary has already approved for a like service, the claim may not prevail in an action of substance like this for money had and received where only matters of substance may be availed of. Plaintiff, in short, may not recover here upon the mere showing that the charges exacted were informally initiated by tariffs filed by defendant with the commission before the formal step of submitting them to the Secretary of War had been complied with. It must show that in themselves they were unreasonable exactions for the services rendered, and having by pleading and stipulation admitted that they were reasonable, it may not recover.

We agree with appellee. ,We think it may not be doubted that nothing in the circumstances of, the making of the resolution and contract, nothing in them, supports the claim that the Congress intended them forever to create, and forever maintain, an anomalous situation at Gulfport, by taking wharfage charges there out of the comprehensive general powers conferred upon the commission by the act. We are particularly sure that nothing in the resolution, the contract, or any-of the acts lends color to the idea that a shipper can avail itself of services rendered under regularly published tariffs fixing reasonable charges, and having for years voluntarily paid those charges, recover them back upon a mere showing that they were not first submitted to the Secretary of War for his approval. The history of the long pending controversy, of which the pleadings and the briefs are full, over whether the power over wharfage rates at Gulf-port is lodged with the Secretary, or with the commission shows that at times shippers have, and at times the railroad company has insisted that it is lodged with the commission, rather than the Secretary, while at times the shippers have and at times the railroad has put the Secretary forward rather than the commission. It shows that the first rates established by the Secretary of War were established and accepted in the nature ■ of a compromise. It shows that wharfage charges on coastwise shipping were not then established merely because coastwise commerce at. Gulfport was so small as to be negligible. It shows, too, that the War Department, while insisting upon the observance of its supervisory authority over the rates, has recognized the commission as the proper body to investigate and determine what those rates should be, and it shows that the commission, while recognizing the interest of the War Department in the rates, has always maintained its full and complete jurisdiction over them.

At one of the many hearings involving charges at Gulfport, the examiner stated that the commission was dealing with the case with the full acquiescence of the Secretary of War. It was stated in the record and established by the letter of the Department that it wanted the Interstate Commerce Commission to deal with the charges and would approve its action regarding them.

American Warehousemen’s Association v. St. Louis-San Francisco Ry. Co., 179 I.C.C. 531, involved wharfage rates at Mobile and Pensacola.

In its report the commission referred to the joint resolution and contract, saying, “Prior to the hearing, the Secretary of War stated in a letter to this Commission that he is prepared to revise the charges at Gulfport, if we find that they are unreasonably low and prejudicial to interstate commerce. None of the parties question our jurisdiction over the charges at Gulfport.”

We set this history out not because we find it controlling, for we think it clear that we must determine the right of the contention made here not from the acts and conduct of the parties, but by the controlling law. We set it out because it makes crystal clear that no one has ever regarded the resolution and contract as conferring arbitrary power on the Secretary, or as requiring free service of defendant. We set it out because it leaves in no doubt that none has ever claimed for them that they were created or exerted as more than means to a desired end, the end that the charges for wharfage services should be reasonable. None has ever claimed, until in this suit, that'they exist as ends making invalid and ineffective rates which have the commission’s approval, and are admitted to be reasonable, merely because though the end desired by them has been obtained, the means devised in them have not been followed.

It stands admitted here that plaintiff, a common carrier, obligated by law to serve without discrimination, has rendered plaintiff valuable service and for a reasonable charge. It stands admitted here that these, charges were exacted upon tariffs filed with the commission as the laW requires of carriers. It stands admitted that no proceeding has been brought before the commission challenging the reasonableness of the charges, indeed, that their reasonableness is admitted. It stands admitted here that upon the sole ground that certain means for determining reasonableness in advance were not resorted to, plaintiff is seeking to recover back what it admits was reasonably exacted.

In order to sustain the judgment it is not necessary to decide that the Hepburn Amendment to the Commerce Act, and the later amendments to it, which have followed, have superseded the resolution and contract as to these rates, for to recover in this suit plaintiff must show not merely breaches of formalities by defendant in obtaining the money it sues for, nor merely a failure to comply with some positive provision of law. It must show that in equity and good conscience the money defendant has is really plaintiff’s, and defendant ought not to keep it. Plaintiff has not done this. Atlantic Coast Line R. Co. v. Florida, 295 U.S. 301, 55 S.Ct. 713, 716, 79 L.Ed. 1451. As that case strongly puts it, “The question no longer is whether the law would put [defendant] in possession of the money if the transaction were a new one. The question is whether the law will take it out of his possession after he has been able to collect it.” “In such cases the simple but comprehensive question is whether the circumstances are such that equitably the defendant should restore to the plaintiff what he has received.” Johnston v. Miller, 31 Gel. & Russ. 83. C/f Rose v. McEachern (C.C.A.) 86 F.(2d) 231.

But these considerations aside, we think it quite plain that the wharfage charges at Gulfport are within the scope of the Commerce Act, that the tariff schedules embracing such charges filed with the commission were duly and properly filed; that for the services rendered the charges thus fixed were in law the proper and only charges for those services, and being such, they could not be foregone, nor, having been collected, could they be rebated or recovered.

The Commerce Act itself, section 1, title 49 U.S.C.A., under the heading “Carriers Subject to Regulation,” in terms extends its powers and jurisdiction over all carriers alike. At no place in it is there any exception or exemption, either in terms or by implication, excluding a carrier such as defendant, because of its having made a contract. The Hepburn Amendment (34 Stat. 595, § 10) provides that all laws and parts of laws in conflict with its provisions, were thereby repealed. When the comprehensive purpose of the act, to bring about uniformity in rates and practices, as that purpose has been emphatically declared and given effect to by the Supreme Court,³ is kept in mind, the conclusion is compelled, we think, that the wharfage charges in question fell under the jurisdiction and supervision of the commission; that the schedules were lawfully published and the charges they fixed were lawfully exacted.

Appellee urges upon us as conclusive of the qúestion, Interstate Commerce Comm. v. United States ex rel. Humboldt Steamship Co., 224 U.S. 474, 32 S.Ct. 556, 56 L.Ed. 849, where the court held that the passage of the Hepburn Amendment had made the act completely comprehensive of the whole subj ect, and had entirely superseded the authority over railroad rates in Alaska theretofore conferred upon the Secretary of the Interior. Appellant, stressing the contract here as a grant or cession, and as depriving appellee of its powers as a carrier to initiate and fix rates, argues that the Humboldt Case is without bearing. It insists that there was merely an incidental and temporary conference of authority on the Secretary, while here, for a consideration, there was a grant ceding forever defendant’s right to initiate rates.

We think this overvalues the granting words of the contract. The resolution for regulation was, the only authority for the contract. The contract is not effective beyond that authority. Rightly apprehended and construed, resolution and contract were intended to be, they were, merely means to a desired end, protection against arbitrary and unjust charges. Better means having been provided by the amendment and enlargement of the Commerce Act, resolution and contract became functus officio as to interstate commerce. As to this commerce, the Secretary’s duties were over, his occupation gone. Under appellant’s views, wharfage charges at Gulfport alone of all the ports in the United States, must have special treatment. They may be higher or lower than is asked for similar services at other ports, according to the uninformed opinion of the Secretary of War, instead of being subject to the informed discretion and administrative judgment of the commission as a part of a complete system of charges. And why should this be so? Because, as appellant says, the United States contributed $150,-000, to an enterprise which cost the railroad $1,650,000, and has since maintained the port. Is there any port in the United States which has not obtained government assistance ? Are there any wharves anywhere where government money has not' been poured out to create, improve, enlarge, or maintain the water upon which they abut? The question is rhetorical; it needs no answer. Needing no answer, it furnishes, we think, the conclusive answer to the pretensions appellant puts forward here; that the assistance rendered by the government compels the construction of resolution and contract and of Gulfport’s relations to the Commerce Act for which appellant contends; and that as to wharfage charges Gulfport stands aloof and alone “wrapt in the solitude of its own originality.”

The judgment sustaining the demurrers and dismissing the action was right It is affirmed.

1 The resolution, after reciting a contract of February, 1901, for dredging a channel at Gulfport and completion of the contract, directed to pay the contract price,

“Provided, That the said amount shall not be paid over to the said Spencer S. Bullís, or other person or' persons as aforesaid, until the person or persons, companies, or corporations owning or controlling docks, wharves, or terminals in, along, or upon said basin, or connected directly or indirectly therewith, shall execute an agreement that the charges for the use of said docks, wharves, and terminals shall be such as the Secretary of War may from time to time approve.” (34 Stat. 833.)

The contract, after reciting the joint resolution, and that the Gulf & Ship Island Railroad Company was the real person in interest under the resolution, provided :

“Now, Therefore, in consideration of the premises, of the sum of One Dollar paid to the party of the first part, the receipt of which is hereby acknowledged, and further, of the great benefit which shall accrue to the party of the first part hereafter by the operation of said Joint Resolution, there said party of the first part hereby covenants and agrees to and with the party of the second part that the charges for the use of the said docks, wharves and terminals connected therewith, either directly or indirectly, to be made by said party of the first part, its successors, lessees or assigns shall be such as the Secretary of War may from time to time, forever, approve; that no tolls, wharfage fees, or dockage fees, or fees of any kind, character or description, for commodities carried over, or for the use of, said docks, wharves and terminals, shall be placed into effect and operation until they shall have been submitted to and approved by the Secretary of War; and that these covenants shall run with the title to said premises so as to bind the successors, assignees and lessees of the party of the first part.”

2 “This Amendment amplifies the definition of ‘railroad’ and ‘transportation’ appearing in Section 1 of the Act.

“The term railroad was enlarged to include all switches, spurs, tracks and terminal facilities of every kind used or necessary in tlie transportation of persons or property designated herein, and also all freight, depots, yards and grounds used or necessary in the transportation or delivery of any such property.

“The term ‘transportation’ as used in the Act was enlarged to include all service in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported.” 49 U.S.C.A. § 1 (3). C/f Eichenberg v. Southern Pacific Co., 14 I.C.C. 250, affirmed in Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310. C/f also Re Wharfage Facilities of Pensacola, 27 I.C.C. 252; Mobile Chamber of Commerce v. M. & O. R. R., 23 I.C.C. 417; Wharfage Charges at Atlantic & Gulf Ports, 157 I.C.C. 663; United States v. Union Stock Yard & Transit Co., 226 U.S. 286, 33 S.Ct. 83, 57 L.Ed. 226.

3 Texas & P. R. Co. v. Mugg & Dryden, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011; Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075; Texas & P. R. Co. v. American Tie & Timber Co., 231 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Loomis v. Lehigh Valley R. Co., 240 U.S. 43, 36 S.Ct. 228, 60 L.Ed. 517; Cleveland, C., C. & St. L. R. Co. v. Dettlebach, 239 U.S. 588, 36 S.Ct 177, 60 L.Ed. 453; Standard Oil Co. v. U. S., 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999; Lewis-Simas-Jones Co. v. Southern P. Co., 283 U.S. 654, 51 S.Ct. 592, 75 L.Ed. 1333; United States Nav. Co. v. Cunard S. S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; Baltimore & O. R. Co. v. Brady, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888; Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 56 S.Ct. 546, 80 L.Ed. 827.