If a party relies upon a federal right, he must specially set it
up. The mere denial of a carrier, sued for damages to merchandise,
that it was bound by contracts of the initial carrier or that it
was the connecting and ultimate carrier of the merchandise and
bound "by the law " to receive and forward the merchandise does
not, in the absence of any other reference thereto, raise a federal
question under the Interstate Commerce Act which gives this Court
jurisdiction to review the judgment under § 709, Rev.Stat.
While the certificate of the presiding judge of a state court
can make more certain and specific what is too general and
indefinite in the record, it cannot give jurisdiction to this Court
under § 709, Rev.Stat., where there is nothing in the record in the
way of a federal question to specialize and make definite and
certain.
This suit was brought in the Chancery Court for the County of
Jefferson, State of Tennessee, by defendant in error against the
plaintiff in error and the Southern Railway Company, for damages
alleged to have been received by the defendant in error to certain
carloads of corn shipped over the Southern Railway Company from
certain points in Tennessee, to be delivered to defendant in error
or its order at Birmingham, Alabama.
The bill alleged that, at the time of the shipments, the two
Page 204 U. S. 552
railway companies were common carriers of goods and chattels,
the Southern Railway being the receiving and initial carrier, and
the one with which the contracts were made, and the plaintiff in
error being the connecting and ultimate carrier, and, as such,
bound by said contracts and the law relative to common carriers to
receive said cars of corn and to forward and deliver them to
destination whereunto consigned in good order and in a reasonable
time. It was alleged that one of said companies "breached the said
several contracts," whereby the damage complained of accrued.
The companies filed separate answers. That of the Southern
Railway Company we need not set out. Plaintiff in error, in its
answer, neither admitted nor denied certain of the allegations of
the bill, and expressed want of knowledge as to others. Touching
the allegation of the bill that it was a common carrier, it
admitted that it was such in certain states and portions of the
country where it operated lines of roads, but denied "that it was
the connecting and ultimate carrier of the carloads of corn alleged
to have been delivered to the Southern Railway Company," denied
that it made the contracts or was liable under them, or
"that it was bound by law to receive said alleged carloads of
corn and forward and deliver them to their ultimate destination in
good order and in reasonable time."
The chancellor adjudged that there was no liability on the part
of plaintiff in error, and dismissed the bill as to it. He held the
Southern Railway Company liable for not delivering the cars,
according to its contracts, within a reasonable time, and, after
report by a master, to whom the cause was referred, decreed that
complainant have and recover the sum of $1,015.69. The case was
taken to the Court of Chancery Appeals both by defendant in error
and the Southern Railway Company. And that court adjudged that the
court of chancery erred (1) in adjudging that the Southern Railway
Company was liable for any part of the damages to the corn which
accrued after its arrival upon the delivery tracks of the company
in
Page 204 U. S. 553
Birmingham and after notice to the consignees of its arrival;
(2) in adjudging that plaintiff in error was not liable for the
damages suffered by the corn after its arrival in Birmingham and
while it was in the yards prior to being unloaded. The court
said:
"This court is of the opinion that the Southern Railway Company
is only liable for such portion of the damages as accrued by reason
of the delay in transition of the cars shipped, which is fixed by
the concurrent finding of the master and chancellor at 40 percent
of the entire damages."
"This court is further of the opinion and decrees that the
Louisville & Nashville Railroad Company is liable for sixty
percent of the damages reported by the master, being the percent of
damages which accrued while the corn remained undelivered in the
yards at Birmingham."
It was accordingly adjudged and decreed that the complainant
recover of the Southern Railway Company $415.84, and of the
Louisville & Nashville Railroad Company $609.42, being sixty
percent of the recovery awarded by the chancellor, together with
interest from May 8, 1905, making a total of $623.73. The plaintiff
in error took an appeal to the supreme court of the state. It
assigned as error the action of the Court of Chancery Appeals (1)
"In refusing to find certain uncontradicted facts when specially
requested to so find." The facts were set out. (2) That the court
erred in holding the company liable for any portion of the alleged
damage "because, under the facts of the case, it was not a
connecting carrier, and was not bound to handle these shipments."
The other errors assigned we are not concerned with. The decree of
the Chancery Court of Appeals was affirmed without an opinion by
the supreme court. The order of affirmance recites that the cause
came
"on to be heard upon the transcript of the record from the
Chancery Court of Jefferson County, the opinion and findings of
fact of the Court of Chancery Appeals, and the assignment of errors
filed to the decree of said Court of Chancery Appeals by the
defendant, Louisville & Nashville
Page 204 U. S. 554
Railroad Company, and the reply brief of complainants."
The assignments of error in this Court are to the effect that
the supreme court erred in not giving full force and effect to the
Interstate Commerce Act, which, it is contended, governed the
shipments, and in not disregarding the statutes and decisions of
the state in conflict therewith, and in denying the rights claimed
by plaintiff in error under the Interstate Commerce Act. And that
the court erred in holding that it was the duty of plaintiff in
error to switch over its yards and terminals cars tendered to it by
the Southern Railway Company; in holding that it did not have the
right to discriminate as to freight arriving on its own lines, or
could not prefer its own business; in rendering judgment against it
because it would not turn over its private switch yards and
terminals to a competing road, and because of its refusal to make a
through routing with the Southern Railway Company; in holding that
it was its duty to switch cars for other roads within its terminals
to the exclusion of its own business, the effect being to cause an
obstruction to interstate commerce and an interference with the
paramount duties to which to was subjected by the Constitution and
laws of the United States.
Other facts will appear in the opinion.
Page 204 U. S. 556
MR. JUSTICE McKENNA delivered the opinion of the Court.
A motion is made to dismiss the writ of error on the ground that
no federal question was raised in the state courts or decided by
them. In opposition to the motion, plaintiff in error contends that
the allegations of the bill and its denial thereof sufficiently
raise a federal question, and that the courts of the state, in
rendering judgment against plaintiff in error, necessarily decided
that question. And it is further contended that, even if those
courts did not pass on the federal question, their failure or
refusal to do so is equivalent to a decision against the federal
rights involved. A number of cases are cited to sustain these
propositions. But is the basis of the propositions sound? In other
words, was a federal question raised, or, if raised, ignored?
First, as to the pleadings. The bill charges a breach of the
contracts of shipment
Page 204 U. S. 557
by one or the other of the railway companies who, the bill
alleges, were connecting common carriers, and, as such, bound by
the contracts and the law relative to common carriers to receive
and forward to destination the goods shipped, in good order and in
a reasonable time. Plaintiff in error admitted that it was a common
carrier in some states, but was not a connecting and ultimate
carrier of the corn in question, denied that it was bound by the
contracts, and denied that "it was bound by law" to receive the
corn and forward and deliver it to its ultimate destination. And
this denial, it is insisted, raised a federal question. We do not
think so. The denial was of a legal conclusion resulting from the
facts alleged, and added nothing to them. Besides, if a party
relies upon a federal right, he must specially set it up, and a
denial of liability under the law is not a compliance with that
requirement. For this we need not cite cases.
Was a federal question decided or ignored? To answer the
question, a review of the proceedings is necessary. The chancery
court held that, as between the complainant and plaintiff in error,
there was no liability upon the part of the latter. The rights of
the railway companies, between themselves, the court said, need not
be determined. The opinion and findings of the Chancery Court of
Appeals are very elaborate. They state the issue, the proceedings
in and the judgment of the chancery court, and recite that --
"Now it appears that the Louisville & Nashville Railway
denies any liability for its refusal to receive corn shipped over
the Southern Railway after its arrival at Birmingham and deliver it
over its terminal tracks to the American Mill & Elevator
Company, to whom the corn had been sold."
"Of course, this denial is predicated upon the idea that it was
not a connecting carrier in handling the shipments of corn involved
in this case, or that it was under any obligation respecting the
same."
Passing on these denials, the court said that, at the time of
the shipments, the Southern Railway Company was placing
Page 204 U. S. 558
shipments, as they were requested, upon the spur track of
plaintiff in error, and that the latter was accustomed to receive
them and remove them to places where they were to be delivered, and
this was its custom for years, and, until about the time or just
before the corn reached Birmingham, "it was a part of its business
and a daily occurrence to receive and remove such cars of freight."
And this was done for all persons offering them, and without
discrimination. For this service it received compensation. The
court, however, also found that plaintiff in error
"placed an embargo upon the receipt or handling of such cars,
November 13, 1902, after the complainant had contracted to sell the
carloads of corn, and after most of them were shipped."
The contention of the Louisville & Nashville Railroad
Company the court stated as follows:
"The contention of the Louisville & Nashville Railroad
Company, reduced to its simplest statement, is that it was not
bound to receive these cars of corn and place them."
"This insistence on its part rests upon the proposition that, in
the matter of handling the cars of other roads in its yards or over
its spur tracks, it was not a common carrier, but simply a private
carrier, and that, this being so, it had the right to refuse to
receive and handle these cars, and, as a corollary to this
proposition, that it had the right to discriminate between freight
arriving in Birmingham over its lines and freight arriving over
other lines, and could give preference between those that it chose
to serve in this business."
The court decided against the contention, and that the company,
by reason of its practice in handling freight, "assumed with
respect thereto the character of a common carrier, and hence
incurred the duties and liabilities of such character." The court
added:
"The result is that we are of opinion that the Louisville &
Nashville Railway Company was bound, by virtue of its previous
course of business, to accept these cars of corn and deliver them
to their destination on its terminal or spur
Page 204 U. S. 559
tracks, and that, by reason of its failure to do so, it is
liable for all damages resulting from its failure. . . ."
There was a petition for an additional finding of fact and a
rehearing, which the court said would take in the neighborhood of
one hundred pages of typewritten information to set out and answer
in the form in which they were presented. Some, however, were
granted; some qualified. We give only those which we think are
relevant. The fifteenth request was that the court set out in full
from the evidence, which was, it was said, uncontradicted, the
conditions which caused the embargo to be laid by plaintiff in
error against switching. The evidence was set out. The court,
answering the request, said:
"The simple fact in connection with this matter is that the
Louisville & Nashville Railroad Company declined to receive
these cars of corn and deliver them to their destination on their
spur or side tracks, because it deemed it to its advantage to use
its said tracks for and in its own special business."
The twenty-fifth request was
"that the terminals and equipment of the Louisville &
Nashville Railroad Company at that time were sufficient under
ordinary circumstances and conditions."
In granting this request, the court remarked:
"The twenty-fifth request is granted, with the statement that,
in our opinion, based upon the evidence as we construe it, the
Louisville & Nashville Railroad Company could have handled this
corn and delivered it to its destination much sooner than it did
had it not preferred other business, and even with that business,
with the energetic appliance of all the means and facilities at its
command."
It will be seen from this statement of the case that there is
not a word in it which refers to the Interstate Commerce Act or the
assertion of any rights under that act. Plaintiff in error accounts
for the want of explicit statement on the ground that the action
was instituted and tried, until the decision of the chancery court,
upon the theory that the Southern Railway Company and plaintiff in
error were "connecting carriers,"
Page 204 U. S. 560
and that, this theory of the case having been disproved and the
appeal dismissed as to plaintiff in error, complainant (defendant
in error) shifted its position, and, under the broad practice and
pleading in the state court, was allowed to proceed and procure
judgment upon the theory that plaintiff in error had discriminated
against defendant in error by preferring its own business, that it
had failed to furnish equal facilities for interchange as to this
shipment, and that, on account of its previous switching
arrangements with the Southern Railway Company, it had no right to
refuse to "switch" the cars over its terminals. The record
furnishes no justification for this contention. The bill charged
the railroad companies as being connecting common carriers,
plaintiff in error being the ultimate carrier, and that both were
bound by the contracts made, and bound to carry the corn from the
points of shipment to destination. Plaintiff in error denied these
allegations, as we have seen, and on the issue thus formed proof
was taken.
The chancery court found, it is true, in favor of plaintiff in
error. The case was taken to the Court of Chancery Appeals, where
it was heard, the record recites, "upon the transcript of the
record from the chancery court of Jefferson County and upon the
assignments of error and briefs of counsel." In other words, the
Court of Chancery Appeals heard the case as made in the chancery
court. What the Chancery Court of Appeals said of the issues and
contentions of the parties we have already stated, and we need only
repeat that the assignment of error by complainant (defendant in
error) in the Chancery Court of Appeals was general, and showed no
change in the theory upon which the case was brought and conducted.
It was that the chancery court erred in holding that there was no
liability on the part of the Louisville & Nashville Railroad
Company and in refusing to hold that it was liable either alone or
jointly with the other company. And the court said that the denial
of plaintiff in error of liability was
"predicated upon the idea that it was not a
Page 204 U. S. 561
connecting carrier in handling the shipments of corn involved in
this case, or that it was under no obligations respecting the
same."
It is true the court also said that plaintiff in error
contended
"that it had the right to discriminate between freight arriving
in Birmingham over its lines and freight arriving over other lines,
and could give preference between those that it chose to serve in
this business,"
but this contention, it was also said, was "as a corollary" to
the proposition that plaintiff in error was not a common carrier,
but simply a private carrier. The court determined against this
proposition, and in consequence adjudged plaintiff in error liable.
In other words, the judgment of the court was in exact response to
the pleading. Nor was there any change on appeal to the supreme
court. The railroad company's second assignment of error was (and
it is the only one with which we can concern ourselves) that it was
not
"liable for any portion of the alleged damage to these various
shipments, because, under the facts of this case, it was not a
connecting carrier, and was not bound to handle these shipments. .
. ."
There is in the printed record a certificate of the chief
justice of the supreme court of the state, given when the writ of
error was applied for, to the effect that the supreme court of the
state was of opinion
"that the statutes and laws of Tennessee were not in conflict
with the act of Congress regulating interstate commerce, and that
the act of Congress did not control the shipments in
controversy."
Counsel concedes the rule to be that the certificate of the
presiding judge of a state court is insufficient to give us
jurisdiction, but insists that it can make more certain and
specific what is too general and indefinite in the record. There is
no doubt of the rule, but there is nothing in this record to
justify its application. There is nothing in the record to
specialize. It is less open to conjecture than the certificate. As
no federal question was raised, the motion to dismiss must be
granted.
It is so ordered.
