Syllabus.

NEWS SYNDICATE COMPANY v. NEW YORK CENTRAL RAILROAD COMPANY ET AL.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 235. Argued October 5, 6, 1927-Decided November 21, 1927. 1. Where a railroad of the United States and a railroad of the Dominion of Canada unite in the publication of a joint through rate from a point within the Dominion of Canada to a point within the United States, the rate covering transportation both in Canada and in the United States, the Interstate Commerce Commission has jurisdiction, on complaint of a shipper or consignee made against the United States railroad alone, to determine the reasonableness of such joint through rate, for the ascertainment of damages. P. 186.

2. Where a shipper or consignee of freight shipped to it at a destination in the United States from such point in the Dominion of Canada has paid at destination to the United States, railroad the full published joint through freight rate thereon, the Interstate Commerce Commission, upon a finding by it that such joint through rate was unreasonable and unjust, but in the absence of a finding that the charges for the transportation in so far as it took place within the United States were unjust and unreasonable, has jurisdiction to make an order for the payment of damages to such shipper or consignee in the amount that the entire transportation charges on the basis of the joint through freight rate exceeded the charges which would have been assessed on the basis of the joint through freight rate found by the Commission to have been reasonable. P. 187.

3. When the Interstate Commerce Commission has made such an order against the United States carrier alone for the payment of damages arising from its finding of the unreasonableness of such published joint through rate, a suit thereon can be maintained solely against the United States carrier. P. 188.

4. An inquiry from the Circuit Court of Appeals (Jud. Code § 239) which is not specific or confined to any distinct question or proposition of law, need not be answered. P. 188.

Argument for the News Syndicate Co.

275 U.S.

RESPONSE to questions propounded by the Circuit Court of Appeals on review of a judgment from the District Court dismissing a suit on a reparation order.

Mr. Luther M. Walter, with whom Messrs. John S. Burchmore and Nuel D. Belnap were on the brief, for the News Syndicate Co.

Congress has power to make carriers operating in the United States and subject to its laws liable for damages resulting from the exaction of an unreasonable joint through rate maintained by the joint action of American and Canadian lines and applied to a transportation service rendered from a point in Canada to a point in the United States. Gibbons v. Ogden, 9 Wheat. 1.

The Interstate Commerce Commission has uniformly upheld its own jurisdiction to award reparation for damages resulting from the application of an unreasonable joint through rate from a point in Canada to a point in the United States. Baer Bros. Mercantile Co. v. Denver & R. G. R. R. Co., 233 U. S. 479; 15 Ruling Case Law, 124, 130; Internat. Nickel Co. v. Director General, 66 I. C. C. 627; Broedel-Donovan Lumber Mills v. Director General, 68 I. C. C. 96; American Cyanamid Co. v. Director Genenal, 69 I. C. C. 337; Arnhold Brothers v. Director General, 69 I. C. C. 685; United States Graphite Co. v. Director General, 88 I. C. C. 157; Texas & Pacific R. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Southern Pacific v. Railroad Commission, 194 Cal. 734,

The courts have repeatedly construed the Interstate Commerce Act as applying to commerce between the United States and foreign countries. United States v. Grand Trunk Ry., 225 Fed. 283; Galveston, H. & San Antonio Ry. v. Woodbury, 254 U. S. 357; Western Union v. Esteve Brothers & Co., 256 U. S. 566; Armour & Co. v. United States, 153 Fed. 1; aff'd. 209 U. S. 56.

The Commission and the courts can compel the payment of damages by carriers operating within the United

179

Argument for the Railroad Company.

States, even though the Canadian carriers can not be reached Louisville & Nashville R. Co. v. Sloss-Sheffield S. & T. Co., 269 U. S. 217; Internat. Nickel Co. v. Director General, 66 I. C. C. 627; I. C. C. v. L. & N. R. R. Co., 118 Fed. 613.

The jurisdiction of the Commission does not depend on the form of rate publication. C., N. O. & T. P. R. R. v. I. C. C., 162 U. S. 184; Illinois Central v. I. C. C., 206 U. S. 441; Minneapolis & St. Louis Ry. y. Minnesota, ex rel. Railroad & Warehouse Commission, 186 U. S. 257; Elkins Act, 32 Stat. 847; 34 Stat. 584.

The joint through rate was carried in tariffs lawfully on file with the Commission, and shippers could not lawfully pay any other or different rate. Interstate Commerce Act, § 6, Par. 7; Elkins Act, § 1, 32 Stat. 847; 34 Stat. 584; United States v. Grand Trunk Railway, 225 Fed. 283; Galveston, Harrisburg & San Antonio Ry. Co. v. Woodbury, 254 U. S. 357; Armour & Co. v. United States, 209 U. S. 56.

The whole amount by which the joint through rate was unreasonable accrued to the carriers operating within the United States in excess of the amount which would have accrued to said carriers if the rate found reasonable by the Commission had been in effect.

Mr. Parker McCollester, with whom Mr. F. D. Mc-. Kenney was on the brief, for The New York Central Railroad Company.

Section 13 of Interstate Commerce Act provides for complaint only "of anything done

vention of the provisions" of the Act.

in contra

Sections 15 and 16 of Interstate Commerce Act authorize Commission to make findings and orders only with respect to violations of provisions of the Act.

A statute cannot ordinarily have extraterritorial effect. Gal., H. & S. A. Ry. v. Wallace, 223 U. S. 481; N. Y. Cent. R. R. v. Chisholm, 268 U. S. 29.

Argument for the Railroad Company.

275 U.S.

Application of the Act's provisions with respect to transportation between United States and a foreign country is limited to transportation "only in so far as such transportation takes places within the United States." § 1.

That the rate for through transportation from a point in Canada to a point in the United States is published as a joint through rate, rather than as separate charges for the portions of the transportation on both sides of the international boundary, does not operate to extend the Commission's jurisdiction. The Commission would not have jurisdiction of through rate if portion for Canadian part of transportation were separately published.

That the portion of joint rate covering transportation in the United States is not separately shown in tariffs, does not prevent Commission from determining reasonableness thereof when facts as to such portion of the charge are presented to it. The Commission exercises similar authority in determining reasonableness of divisions under Section 15 of Interstate Commerce Act. New England Divisions Case, 261 U. S. 184.

The Commission has itself recognized this limitation of the application of the Act and of its jurisdiction, except in recent réparation cases. Payment of Charges, 59 I. C. C. 263; Int. Paper Co. v. D. & H. Co., 33 I. C. C. 270; Carey Co. v. G. T. W. Ry. Co., 36 I. C. C. 203; Carlowitz & Co. v. C. P. Ry. Co., 46 I. C. C. 290; Good v. G. N. Ry. Co., 48 I. C. C. 435; Eastern Car Co. v. C. G. Ry., 51 I. C. C. 627; Booth Fisheries Co. v. Am. Exp. Co., 53 I. C. C. 735; American Cyanamid Co. v. Director General, 69 I. C. C. 337; Southern Acid etc. Co. v. A. & N. M. Ry. Co., 74 I. C. C. 641; Elimination from Certain Routes, 115 I. C. C. 609; Rates on Petroleum, I. & S. Docket No. 2871.

179

Argument for the Railroad Company.

The only two classes of cases in which the Commission has attempted to deal with joint through rates to or from a foreign country are, first, cases in which it has ordered American carriers to cease from joining in rates believed by it to be unreasonable (Publishers' Assoc. v. B. & O. R. R. Co., 98 I. C. C. 339; Pulp & Paper Mills, Ltd. v. A. & W. Ry. Co., 120 I. C. C. 251), and second, cases in which it has awarded reparation to basis of lower joint through rates. Int. Nickel Co. v. Director General, 66 I. C. C. 627.

The Commission's authority to make a reparation order depends upon a determination by it of a violation of the Interstate Commerce Act, and only to the extent of the damages caused by such violation.

Section 8 of the Act imposes liability on a carrier only for damages caused by violation of its provisions. Louisville & Nashville R. R. v. Sloss-Sheffield Company, 269 U. S. 217; Atlantic Coast Line v. Riverside Mills, 219 U. S. 186.

The Commission has held itself without jurisdiction to award damages where conduct complained of did not violate the act. Rosser & Fitch v. A. C. L. R. R. Co., 91 I. C. C. 611; National Traffic League v. A. & R. R. R. Co., 61 I. C. C. 120; Guyton & Harrington Co. v. L. & N. R. R. Co., 50 I. C. C. 546; Bus Co. v. N. Y. C. R. R. Co., 45 I. C. C. 161; Atlas Portland Cement Co. v. L. V. R. R. Co., 32 I. C. C. 487.

Since Section 1 of the Interstate Commerce Act limits the application of the provisions of the Act to transportation from Canada in so far as such transportation takes place within the United States, a determination that joint through rate covering the entire transportation is unreasonable is not a determination of a violation of the Act.

The difference between the functions of the Commission in awarding reparation and in prescribing rates for