Argument for Plaintiff in Error. 234 U.S. TEXAS & PACIFIC RAILWAY COMPANY v. AMERICAN TIE & TIMBER CO., LTD. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 180. Argued January 20, 21, 1914.-Decided June 8, 1914. Whether a class tariff includes a particular commodity is a controversy primarily to be determined by the Interstate Commerce Commission in the exercise of its power concerning tariffs and the authority to regulate conferred upon it by the Act to Regulate Commerce. The courts may not, as an original question, exert authority over subjects which primarily come within the jurisdiction of the Interstate Commerce Commission. Whether crossties are or are not lumber and therefore within the tariffs filed for the latter is a question on which there is 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. 190 Fed. Rep. 1022, reversed. THE facts, which involve the jurisdiction of the Federal courts of cases to recover damages against a railway company for refusing to accept interstate shipments without action first taken thereon by the Interstate Commerce Commission, are stated in the opinion. Mr. Hiram Glass, with whom Mr. W. L. Hall was on the brief, for plaintiff in error: The Circuit Court did not have power to determine the issues and grant the relief prayed for under the facts disclosed by the record. The trial court should have instructed a verdict for the plaintiff in error. The damages of defendant in error caused by its consent 234 U. S. Argument for Defendant in Error. to the wrongful cancellation of the contract by the Union Pacific Railway Company are not recoverable. The verdict of the jury and the judgment of the court awarded greater damages than sued for. In support of these contentions, see § 6, Interstate Commerce Act, June 29, 1906; Balt. & Ohio R. R. v. Pitcairn Coal Co., 215 U. S. 481; Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Int. Com. Comm. v. Illinois Cent. Ry. Co., 215 U. S. 452; Morrisdale Coal Co. v. Penn. R. R. Co., 230 U. S. 304; Mitchell Coal Co. v. Penn. R. R., 230 U. S. 247; Southern Railway v. Reid, 222 U. S. 424; Atl. Coast Line v. Macon Grocery Co., 166 Fed. Rep. 206; Smith v. Detroit &c. Ry., 175 Fed. Rep. 506; C. I. & S. Co. v. K. & M. Ry., 178 Fed. Rep. 261; Franklin v. Penn. R. R. Co., 203 Fed. Rep. 134; Pacific Coast B. Co. v. Railroad, 20 I. C. C. 546; United States v. Ill. Terminal Ry. Co., 168 Fed. Rep. 548; So. Pac. Ry. Co. v. Int. Com. Comm., 200 U. S. 552; Howard Supply Co. v. C. & O. R. R., 162 Fed. Rep. 188; Greason v. St. L., I. M. & S. Ry. Co., 86 S. W. Rep. 722; Armour Packing Co. v. United States, 209 U. S. 56; Mugg v. T. & P. Ry. Co., 202 U. S. 242; McDonald v. K. C. B. & N. Co., 149 Fed. Rep. 360; Beck v. Pauli, 52 Fed. Rep. 700; Shouse v. Doane, 21 So. Rep. 807; Lapsley v. Howard, 119 Missouri, 489. Mr. Rollin W. Rodgers, with whom Mr. R. P. Dorough was on the brief, for defendant in error: Having in effect a joint through lumber tariff, covering "lumber, all kinds," a carrier must transport all articles offered embraced in the broad meaning of the term lumber. The competent evidence required on which to base an instruction to the jury that plaintiff in error had a lawful rate in effect to transport ties was offered by defendant in error. The tariff in effect when filed was intended to cover ties and the contention now set up is a subterfuge. Opinion of the Court. 234 U. S. The defendant in error is entitled to recover in this cause under § 1 of the Act to Regulate Commerce. The charge of the court on cancellation of contract was proper under the evidence. Sections 1, 3, 6, 8, and 9, of the Act to Regulate Commerce, 24 Stat. 379, 34 Stat. 584, apply to this case. In support of these contentions, see Am. T. & T. Co. v. K. C. S. Ry. Co., 175 Fed. Rep. 28; Balt. & Ohio Ry. Co. v. Pitcairn Coal Co., 215 U. S. 481; C., B. & Q. Ry. v. Feintuch, 191 Fed. Rep. 488; Int. Com. Comm. v. D., L. & W. Ry., 220 U. S. 235; Int. Com. Comm. v. I. C. R. R. Co., 215 U. S. 426; Lyne v. D., L. & W. Ry., 170 Fed. Rep. 847; Montague v. Lowry, 193 U. S. 38; Norrington v. Wright, 115 U. S. 188; N. Y., N. H. & H. Ry. Co. v. Int. Com. Comm., 200 U. S. 361; Penn. R. R. Co. v. Int. Coal Co., 230 U. S. 184; 1 Beach Modern Law of Contracts, § 122. See also the following cases decided by the Interstate Commerce Commission. Blume v. Wells-Fargo & Co., 15 I. C. C. 53; Enterprise Trans. Co. v. Penn. R. R., 12 I. C. C. 326; Foster Bros. v. Duluth S. S. & A. Ry., 14 I. C. C. 232; Hurlburt v. L. S. & M. S. Ry., 2 I. C. C. 122; S. C., 22 Id. 81; Ind. Frt. Bureau v. C., C., C. & St. L. Ry., 15 I. C. C. 367; Joynes v. Penn. R. R. Co., 17 I. C. C. 361; Lanning-Harris Co. v. St. L. & S. F. Ry., 15 I. C. C. 37; Newton Gum Co. v. C., B. & Q. Ry., 16 I. C. C. 341; N. Y. Board of Trade v. Pa. R. R., 3 I. C. C. 417; Pitts v. St. L. & S. F. Ry., 10 I. C. C. 684; Pac. Coast Biscuit Co. v. O. R. & N. Co., 20 I. C. C. 178; Pueblo Trans. Assn. v. So. Pac. Ry., 14 I. C. C. 82; Reynolds v. Railway Co., 1 I. C. C. 685; Woodward v. Louis. & Nash. Ry. Co., 15 I. C. C. 170; Washer Grain Co. v. Mo. Pac. Ry., 15 I. C. C. 147. MR. CHIEF JUSTICE WHITE delivered the opinion of the court. Basing its cause of action on the Act to Regulate Commerce the American Tie & Timber Company, defendant 234 U. S. Opinion of the Court. in error, hereafter called the Tie Company, commenced suits in the Circuit Court of the United States for the Northern District of Texas against the Texas & Pacific Railway Company, plaintiff in error, and the Kansas City Southern Railway Company to recover damages alleged to have resulted from the refusal of the railway companies to furnish, in September, October and November, 1907, cars for the loading of oak railway crossties at various points on the line of the railways in Arkansas and Louisiana for shipment to Linwood, Kansas, beyond the lines of the companies. The cases were consolidated for trial, subject to a plea to the jurisdiction filed by the Kansas City Southern Railway Company, which plea was afterward sustained and the suit as to that company dismissed. There was a trial, however, as to the Texas & Pacific Railway Company, resulting in a verdict and judgment thereon for $17,112.33, and the writ of error now before us is prosecuted by the Railway Company to a judgment of the court below affirming the trial court. (190 Fed. Rep. 1022.) At the close of the evidence a motion was made to dismiss "because under the facts and circumstances now disclosed by the record, and compatibly with the act of Congress of the United States to regulate interstate commerce, this court has no power to consider and decide the subject matters which are complained of, or to award the relief prayed for by plaintiff." The denial of this motion is assigned as error and we come at once to consider it and state only so much of the pleadings and evidence as is necessary to adequately present the issue to be decided. The amended petition after averring that the Tie Company was a Louisiana corporation and that the Railway Company was a corporation organized under the laws of the United States, alleged in substance that in 1901 the Railway Company issued and filed with the Interstate Commerce Commission "its joint through lumber tariff, T. & P. No. 8500-H, applying on lumber, all kinds (except Opinion of the Court. 234 U. S. Walnut and Cherry), lath and shingles and articles taking same rates from points on the Texas & Pacific Railway Co. to points in Kansas," by which a joint through rate of twenty-four cents per hundred pounds was put into effect from points on the Railway Company's line in Arkansas and Louisiana to Linwood, Kansas, "on, amongst other things, oak lumber," which rate it was averred had been continuously in effect from the date of the filing of the said tariff up to the happening of the events complained of. It was averred that on July 23, 1907, the Tie Company entered into a contract with the Union Pacific Railway Company to deliver to said company f. o. b. cars Linwood, Kansas, 150,000 oak railway crossties of specified dimensions at the rate of fifteen thousand per month, beginning on or before October 1, 1907, at the price of 86 cents per tie, which contract was by its terms based on the rate of 24 cents per hundredweight fixed in the tariff filed as above stated in 1901. That for the purpose of performing said contract the Tie Company accumulated at stations on the Railway Company's line in Arkansas and Louisiana 44,541 oak crossties for shipment to Linwood, Kansas, and on October 10, 1907, requested the railway to furnish cars for the loading of the crossties at such points. It was alleged that after furnishing three cars, which were loaded by the Railway Company and shipped at the rate of 24 cents per hundred pounds, the Railway Company refused to provide further cars or to receive the crossties for shipment upon the ground, as stated by it, that it had no through rate applicable to oak railway crossties from the several points on its line to Linwood, Kansas. The petition charged, however, that the joint through lumber tariff above referred to and the rate of 24 cents thereby established included oak ties and that the railway's refusal to provide cars and to carry the ties at its published rate was an unjust and unreasonable discrimination against the Tie Company, against the several places on the Railway |