Campbell River Mills Co. v. CHICAGO, M., ST. P. & PR CO., 42 F.2d 775 (W.D. Wash. 1930)

*776 *777 Walter B. Whitcomb, of Bellingham, Wash., for plaintiffs.

F. M. Dudley and A. J. Laughon, both of Seattle, Wash., for defendant.

NETERER, District Judge.

The state court admittedly had jurisdiction of the parties, but defendant challenges its jurisdiction of the subject-matter. Regulation of interstate commerce is exclusive in the federal courts only in exceptional cases where the jurisdiction is restricted by Congress. Grubb v. Public Utilities of Ohio, etc., 281 U.S. 470, 50 S. Ct. 374, 74 L. Ed. 972, decided May 19, 1930. There is no restriction here. This identical issue, the validity of the order of the Public Service Commission, was presented to and determined by the state court. The computation as to the amount of recovery in the supplemental order is not questioned. Every available ground to challenge the order was necessarily presented. The judgment was upon the merits, and, unless judicial infirmity appears, the judgment of the state court is res adjudicata. Grubb v. Public Utilities of Ohio, etc., supra.

The federal court will not disregard the construction placed upon a state statute by the highest court of the state, especially if it involves giving the statute one meaning for the purpose of determining whether the acts in question are within its terms, and another meaning for the purpose of escaping the federal question. Baccus v. Louisiana, 232 U.S. 334, 34 S. Ct. 439, 58 L. Ed. 627.

The Interstate Commerce Act, as amended Acts of Cong. June 29, 1906 (34 Stat. 584), April 13, 1908 (35 Stat. 60); June 18, 1910 (36 Stat. 539), May 29, 1917 (40 Stat. 101), August 10, 1917 (40 Stat. 272), and February 28, 1920 (41 Stat. 456) applies to common carriers engaged in transportation of property under a common control for continuous shipment, but does not apply to goods of foreign origin but not shipped from a foreign country.

"Shipment" is the act of dispatching or delivery on board of the carrier. Fisher v. Minot, 76 Mass. (10 Gray) 260; Ledon v. Havemeyer, 121 N.Y. 179, 24 N.E. 297, 8 L. R. A. 245; Schmertz v. Dwyer, 53 Pa. 335; State v. Carson, 147 Iowa, 561, 126 N.W. 698, 140 Am. St. Rep. 330. A common carrier is one who undertakes to transport for hire from one place to another goods for such as employ him. Bay v. Merrill & Ring Lbr. Co. (D. C.) 211 F. 717, 720. A concern is not a common carrier carrying only its own products. Bay v. Merrill & Ring Lbr. Co., supra. See, also, Nordgard v. Marysville & N. R. Co. (D. C.) 211 F. 721, affirmed (C. C. A.) 218 F. 737; Id., 243 U.S. 36, 37 S. Ct. 374, 61 L. Ed. 578.

The logs in issue had not entered commerce until committed for shipment. Commerce is a practical legal conception drawn from the course of business. Savage v. Jones, etc., 225 U.S. 501, 32 S. Ct. 715, 56 L. Ed. 1182. There is a distinction between interstate commerce and interstate transportation. *778 One is governed by the nature of the business; the other by the nature of the particular transportation. "Commerce" is within inhibitions of the Sherman Act (15 USCA §§ 1-7, 15), but "transportation" may have no relation to interstate rates on shipment of the same goods within the same state. Atl. Coast Line R. Co. v. Standard Oil (C. C. A.) 12 F.(2d) 541, 547, 60 A. L. R. 1456; Atl. C. L. R. Co. v. R. R. Com. of Georgia (D. C.) 281 F. 321, See, also, C., M. & St. P. R. R. Co. v. Iowa, 233 U.S. 334, 34 S. Ct. 592, 58 L. Ed. 988; Gulf, C. & S. F. R. Co. v. Texas, 204 U.S. 403, 27 S. Ct. 360, 51 L. Ed. 540.

The defendant railroad company had nothing to do with the transportation prior to delivery to it for shipment by the plaintiff. Atl. Coast Line R. Co. v. Standard Oil Co., supra. There was no joint arrangement or common control, even though the logging trucks were furnished for loading prior to hauling over the private logging road of plaintiff and delivery on defendant's siding, for shipment by defendant. C., M. & St. P. R. Co. v. Iowa, supra. The issue is not the relation of the logs to public policy, but relation of transportation to the logs. The logs were of foreign origin, and this inhered, irrespective of transportation, but this origin does not ipso facto attach to the initial shipping point for transportation. Hauling the logs across the boundary line over plaintiff's private logging road is not "under regulation of the Interstate Commerce Act" (Atl. Coast Line R. Co. v. Railroad Commission of Georgia, supra), and the Interstate Commerce Commission found it had not jurisdiction to consider the lawfulness of the rate assailed; and the view of the Commission was recognized by the Supreme Court in declining to review the decision of the Supreme Court of the state when the issue was directly presented as the federal question involved. The Department of Public Works and the state court had jurisdiction of the parties and subject-matter.

While denial of certiorari is not viewed in the light of final judgment upon the issue, it is in the instant case most persuasive. While the granting or refusal of the petition for the writ adds or withholds no sanction to the decision, rule 38 [former rule 35] of the Revised Rules of the Supreme Court (28 USCA § 354) says a review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are especially important reasons therefor, such as where a state court has decided a federal question not determined by the Supreme Court, or probably not in accord with the decisions of that court, or where there is a conflict of decisions of the same matter in the Courts of Appeals in the different circuits, or the Circuit Court has decided an important question of local law probably in conflict with legal decisions or the weight of authority, or a question of law which should be settled by the Supreme Court, or a federal question in conflict with applicable decisions of the Supreme Court, or departed from the usual course of judicial proceeding as to call for the exercise of the supervisory power. It is apparent that the federal question involved was before the Supreme Court upon the petition for writ, and the rule of court and the denial of the writ would appear to be conclusive. See discussion, "certiorari denied," Stamey v. U. S. (D. C.) 37 F.(2d) 188.

The state court having jurisdiction, the judgment of that court upon federal questions is res adjudicata. Mitchell v. First Nat. Bank, 180 U.S. 471, 21 S. Ct. 418, 45 L. Ed. 627. The answer raises a right and immunity under the "commerce clause" of the Constitution. The identical issue was before the state court by defendant's invitation on petition for review, and that question was considered by the state court and decided against the defendant, and the decision may not be reviewed or reversed by this court. Boston v. McGovern (C. C. A.) 292 F. 705. The transportation was of a local nature Columbia, in the United States, to Bellingham. The issue was decided, and the parties are bound by the decree. Puget Sound Elec. Ry. Co. v. Lee (D. C.) 207 F. 860; Detroit & M. R. Co. v. Mich. R. R. Comm. (D. C.) 203 F. 864, affirmed 235 U.S. 402, 35 S. Ct. 126, 59 L. Ed. 288. The conclusion is final (Lawrence v. Nelson, 143 U.S. 215, 12 S. Ct. 440, 36 L. Ed. 130; Jeter v. Hewitt, 22 How. 352, 16 L. Ed. 345), and may not be again challenged in this proceeding (Dowell v. Applegate, 152 U.S. 327, 14 S. Ct. 611, 38 S. Ct. 463).

"The foundation of the doctrine of res judicata, or estoppel by judgment, is that both parties have had their day in court. 2 Black, Judgts., secs. 500, 504. The general principle was clearly expressed by Mr. Justice Harlan, speaking for this court in Southern Pacific R. Co. v. United States, 168 U.S. 1, 48, 18 S. Ct. 18, 27, 42 L. Ed. 355, `that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between *779 the same parties or their privies.'" United States v. Sakharam Ganesh Pandit (C. C. A.) 15 F.(2d) 285, 286.

A review of the very many cases cited by the respective parties would serve no useful purpose.

Judgment for plaintiff for the sum prayed for, including $6,500 attorney's fees.