The right of a shipper of goods over a railway, who pays to the
railroad company reasonable rates for the transportation of the
goods to the place of destination, to recover from such company the
excess of such payment over the rates charged to shippers of
similar goods to the same destination from another place of
shipment of the same or greater distance from it is a right growing
out of the Interstate Commerce Act, and, being in the nature of a
penalty, can be enforced only by strict proof, showing clearly and
directly the violations complained of.
The portion of a through rate received by one of several railway
companies transporting the goods as interstate commerce may be less
than its local rate.
The only right of recovery given by the Interstate Commerce Act
to the individual is to the "person or persons injured thereby for
the full amount of damages sustained in consequence of any of the
violations of the provisions of this act," and before any party can
recover under the act, he must show not merely the wrong of the
carrier, but that that wrong has operated to his injury.
This was an action commenced by the plaintiff in error,
plaintiff below, in the Circuit Court of the United States for the
Southern District of Iowa to recover of the defendant fifteen
hundred and fifty dollars on account of alleged violations
Page 167 U. S. 448
of the Interstate Commerce Act. An amended and substituted
petition was filed which in five counts stated plaintiff's causes
of action. To this the defendant demurred, and, the demurrer having
been sustained, judgment was entered in its favor. The plaintiff
took the case to the Court of Appeals of the Eighth Circuit, by
which court the judgment was affirmed. 63 F. 903. Thereupon the
case was brought here on writ of error.
The first count alleged facts which, as claimed, show that the
defendant had such relations to the Fremont, Elkhorn & Missouri
Valley Railroad Company and the Sioux City & Pacific Railroad
Company that the lines of those railroads, together with that of
the defendant, were under a common control and management, and
therefore that the defendant was to be treated for all practical
purposes as the owner of a single line from the points in Nebraska
hereinafter mentioned to Chicago. It stated the distances from
those points to Chicago, and also from the places in Iowa along the
line of defendant's road from which the plaintiff made his
shipments, these latter distances being substantially less than the
former. Then, after a general averment that the Nebraska rates to
Chicago had always theretofore been greater than the Iowa rates, it
alleged that on December 30, 1887, the defendant, for the purpose
of giving unlawful preference to the shippers of corn and oats in
Nebraska and to unlawfully discriminate against the plaintiff and
other shippers of corn and oats in Iowa, put in force from Nebraska
points, a certain freight tariff upon corn and oats, in words and
figures following:
"C. & N.W., G.F.D. No. 2,927, superseding G.F.D. No. 2,724,
F.E. & M.V. and S.C. & P., G.F.D. 949, and G.F.D. No. 859
of 1887."
"Chicago and Northwestern Railway, Fremont, Elkhorn, and
Missouri Valley and Sioux City and Pacific Railway."
"Joint tariff on corn and oats in car loads, taking effect
December 30, 1887, to Rochelle, Ill., when destined to New York,
Boston, Philadelphia, Baltimore. "
Page 167 U. S. 449
From Per 100 lbs.
Blair, Neb. . . . . . . . . . . . . . . . 11
Kennard, Neb. . . . . . . . . . . . . . . 11
"[Here follow rates from many other Nebraska points, which are
omitted as immaterial in the case.]"
"Prepaid. Way bill through to Rochelle, Ill., via Missouri
Valley at rates given above. For rates from Rochelle to Baltimore,
Philadelphia, New York, and Boston, see C. & N.W. G.F.D. No.
2,604, November 25, 1878, amendments or subsequent issues."
"H. R. McCullough"
"
G.F.A., C. & N.W. R."
"K. C. Morehouse"
"
G.F.A., S.C. & P. and F.E. & M. R.'s"
After this it continued:
"Plaintiff avers that said freight tariff was never printed in
type, and was never circulated or published at any of the stations
on defendant's road in the State of Iowa, and no copy thereof was
ever filed with the Interstate Commerce Commission, as required by
law, and the existence of the same was concealed from the knowledge
of plaintiff and of shippers in the State of Iowa upon the line of
defendant's road, and the benefits and advantages of the rates
specified in such tariff were denied to plaintiff and shippers on
the line of defendant's road in the State of Iowa."
"Plaintiff avers that said special tariff remained in force at
the several stations named therein upon the line of the Fremont,
Elkhorn, and Missouri Valley Railroad in the State of Nebraska from
December 30, 1887, up to the 1st of February, 1888, and large
quantities of corn and oats were shipped during said time upon and
over the several roads aforesaid, to Turner and Rochelle, and
thence to Chicago, Ill. at the rates therein specified, to-wit, the
sum of 11 cents per 100 pounds from the stations of Blair and
Kennard, Neb."
"Plaintiff avers that, between the 30th day of December,
Page 167 U. S. 450
A.D. 1887, and the 1st day of February, A.D. 1888, and at the
several dates named in the Schedule No. 2 attached to original
petition and made a part of this petition, plaintiff had for
shipment at Correctionville, Iowa, aforesaid, the number of pounds
of corn and oats in said schedule specified, and plaintiff was
prevented and deprived, by reason of the matters herein alleged, of
the right to ship the same upon the terms and at the rate given, as
aforesaid, to the shippers in the State of Nebraska, and plaintiff
then and there was compelled to ship, and did ship, said corn and
oats on and over the road of defendant from said station of
Correctionville to Chicago, Ill., and defendant then and there
demanded and received for said service the sum of 21 cents per 100
pounds for the transportation of said corn and oats a distance of
only 475 miles, the same being a less distance, and for a like and
contemporaneous service over the same line in the same direction,
under substantially similar circumstances, as the transportation of
corn and oats, as aforesaid, from Blair and Kennard and other
points in Nebraska to Chicago, Ill."
"Plaintiff avers that the fixing of said points of Turner and
Rochelle as the pretended terminus of the shipment of corn and oats
under said special tariff of December 30, 1887, was a mere device
to evade the law; that Turner and Rochelle were not grain markets,
and had no elevators or facilities for handling grain, and said
grain was intended to be, and was in fact transported by defendant
to Chicago, Ill., and was then sold on the market or delivered to
connecting roads for Eastern seaboard points."
"Plaintiff avers that the charges so made, demanded, received,
and collected from plaintiff as aforesaid were unlawful,
unreasonable, and unjust, and contrary to the provisions of an act
of Congress entitled 'An Act to Regulate Commerce,' approved
February 4, 1887, in that an unlawful preference and discrimination
was practiced by defendant in favor of shippers of grain in the
State of Nebraska and against this plaintiff, a shipper of grain in
the State of Iowa, and in that defendant charged, demanded, and
received a greater compensation for a short than for a longer haul
in the same direction, over the
Page 167 U. S. 451
same line, the shorter being included in the longer haul, and
being for a like and contemporaneous service in the transportation
of a like traffic, under substantially similar circumstances."
"Plaintiff avers that the price and value of corn and oats at
the dates of said shipment was at Chicago, the price at New York
and other seaboard points, less the freight, and the price at
_____, in Iowa, was the Chicago price, less the freight, and that
plaintiff was damaged, by reason of the premises, in a sum equal to
the difference in the price charged and received by the defendant
and the rate given from Kennard and Blair, Neb., to-wit, the sum of
10 cents per hundred pounds upon 241,710 pounds of corn and oats,
to-wit, the sum of 241.71 dollars, for which sum he asks judgment
on this count of his petition, with 6 percent interest per annum
from February 1, 1888."
The next three counts were, so far as any question is involved
in this case, substantially like the first.
The fifth count alleged that the defendant was a common carrier,
engaged in the business of transporting freight over its line of
road in Iowa, Illinois, and Nebraska, "and in connection with other
railroads in Chicago, east to New York, Philadelphia, Boston,
Baltimore, and other seaboard points." Then, after stating facts
showing plaintiff's interest in the matter, it averred that the
defendant,
"on the 17th day of February, 1888, at all the stations on the
said Fremont, Elkhorn, and Missouri Valley Railroad in Nebraska
between Blair and Skull Creek, and each of said points, a certain
tariff on corn and oats destined for New York and other seaboard
points, whereby it proposed to transport, and did on and between
said 17th day of February and the first day of March, A.D. 1888,
transport corn and oats from Blair and other points in Nebraska, on
the line of said road, to New York for 36 1/2 cents per 100 pounds,
and to Boston for __ cents per 100 pounds, and to Philadelphia for
34 1/2 cents per 100 pounds, and to Baltimore for 33 1/2 cents per
100 pounds. Plaintiff avers that all of said points on the Fremont,
Elkhorn, and Missouri Valley road were a greater distance from
Page 167 U. S. 452
Chicago and from New York and other seaboard points aforesaid
than the stations on the defendant's road in the State of
Iowa."
It alleged a failure to publish such rates, substantially as in
the first count, and
"that the only rate on corn and oats made known during February,
1888, to shippers at Iowa points on defendants road was a local
rate to Chicago, and a rate of 27 1/2 from Chicago to New York, and
a correspondingly high rate from Chicago to other seaboard points;
that said local rate from Carroll to Chicago was 19 cents per 100
pounds."
And concluded as follows:
"Plaintiff avers that, between the 17th day of February and the
1st day of March, A.D. 1888, and at the several dates named in
Schedule No. 4 attached to original petition and made a part of
this petition, plaintiff had for shipment at Carroll, Iowa,
aforesaid, the number of pounds of corn and oats in the said
schedule described, and plaintiff was prevented and deprived, by
reason of the matters herein alleged, of the right to ship the same
upon the terms and at the rates given to shippers in the State of
Nebraska, and plaintiff then and there was compelled to ship and
did ship said corn and oats on and over the road of defendant from
said station of Carroll to Chicago, Ill., and defendant then and
there demanded and received for said service the sum of 19 cents
per hundred pounds for the transportation of said corn and oats to
Chicago, and subjected said plaintiff to a further charge of 27 1/2
cents per 100 pounds to transport the same to New York, and a like
local charge to other seaboard points, or dispose of the same at
Chicago at 27 1/2 less per hundred than the price at New York."
"Plaintiff avers that the charges so made, demanded, and
received and collected as aforesaid were unlawful, unreasonable,
and unjust, and contrary to the provisions of an act of Congress
entitled 'An Act to Regulate Commerce,' approved February 4, 1887,
in that an unlawful preference and discrimination was practiced by
defendant in favor of shippers of grain in the State of Nebraska,
and against this plaintiff, a shipper of grain in the State of
Iowa, and in that defendant charged and demanded a greater
compensation for short
Page 167 U. S. 453
than for a longer haul in the same direction over the same line,
the shorter being included in the longer haul and being for a like
and contemporaneous service in the transportation of a like traffic
under substantially similar circumstances."
"Plaintiff avers that the price and value of corn and oats at
the dates of said shipments was at Chicago, the New York, or other
seaboard price, less the freight, and the price at Carroll, Iowa,
was the Chicago price, less the freight, and that plaintiff was
damaged by reason of the premises in a sum equal to the difference
between the aggregate of the two local rates from Carroll to
Chicago and from Chicago to New York, to-wit, 46 1/2 cents, and the
said sum of 36 1/2 cents, the rate given from said Nebraska points
to New York, which difference was the sum of 10 per 100 pounds on
107,750 pounds of corn and oats named in Schedule No. 4 aforesaid,
for which the plaintiff asks judgment on this second count of his
petition."
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Some preliminary matters deserve notice. The wrongs charged
against the defendant took place in the winter of 1887-88, and
affected other Iowa shippers than the plaintiff. Several actions
were brought by such shippers on account thereof, and brought by
the counsel for this plaintiff. Two of such actions were tried
before juries, and resulted in judgments for the plaintiffs.
Osborne v. Chicago & Northwestern Railway 48 F. 49.
These judgments were taken to the court of appeals, and in October,
1892, were reversed, and the cases remanded for new trials. 52 F.
912. The plaintiffs then applied to this Court for a
Page 167 U. S. 454
certiorari,
146 U. S. 354,
which, on December 5, 1892, was denied on the ground that there had
been no final judgment.
See Forsyth v. Hammond,
166 U. S. 506,
166 U. S. 514.
Thereafter, and on December 28, 1892, this amended and substituted
petition was filed. Now it is contended that the court of appeals
read into this petition the facts disclosed by the records in the
former cases, and so decided some other case than the one
presented. This is a mistake, though it may be that that court
construed the allegations of this petition in the light of those
facts. And it is not strange that it did so, for while, this being
an action in behalf of different plaintiff, he is not concluded by
the evidence introduced on those trials, can state other and
different facts, and recover on other and distinct grounds, yet the
same acts on the part of the defendant are made in all the cases
the basis of relief. Hence, allegations in this petition which are
doubtful in their meaning and susceptible of two constructions may
not unfairly be taken as intended to mean that which the testimony
in the former cases showed were the facts. The course of the
litigation makes it apparent that the purpose was not simply to
present a new case to the same court, but to obtain from a higher
court a construction of the law applicable to the facts. The brief
of counsel, while it points out what is alleged are differences
between the case made in this petition and that established in the
prior cases, also discloses that, in his judgment, the views
expressed by the court of appeals in those cases were wrong, and
that he is seeking the judgment of this Court thereon. It was easy,
if counsel intended to present an entirely different case, to make
the averments so positive and distinct as to clearly distinguish
it.
We remark again that there is no averment in this petition that
the rates charged to and paid by the plaintiff were, in themselves,
unreasonable -- that is, it is not claimed that the rates charged
for shipping corn from points in Iowa to Chicago were not fair and
reasonable charges for the services rendered. The burden of the
complaint is the partiality and favoritism shown to places and
shippers in Nebraska. The plaintiff is not seeking to recover money
which, inequitably
Page 167 U. S. 455
and without full value given, has been taken from him. He is
only seeking to recover money which he alleges is due not because
of any unreasonable charge, but on account of the wrongful conduct
of the defendant.
Again, his cause of action is based entirely on a statute, and
to enforce what is in its nature a penalty. Suppose that the
officials of the defendant company had charged the plaintiff only a
reasonable rate for his personal transportation from his home in
Iowa to Chicago, and at the same time had, without any just
occasion therefor, given to his neighbor across the street free
transportation, thus being guilty of an act of favoritism and
partiality -- an act which tended to diminish the receipts of the
railroad company, and to that extent, the dividends to its
stockholders -- such partiality on their part would not, in the
absence of a statute, have entitled the plaintiff to maintain an
action for the recovery of the fare which he had paid, and thus to
reduce still further the dividends to the stockholders. So, but for
the provisions of the Interstate Commerce Act, the plaintiff could
not recover on account of his shipments to Chicago if only a
reasonable rate was charged therefor, no matter though it appeared
that, through any misconduct or partiality on the part of the
railway officials, shippers in Nebraska had been given a less
rate.
It was, among other reasons, in order to avoid the public injury
which had sprung from such conduct on the part of railway officials
that the Interstate Commerce Act was passed, and violations of its
provisions were subjected to penalties of one kind or another. But
it is familiar law that one who is seeking to recover a penalty is
bound by the rule of strict proof. Before, therefore, the plaintiff
can recover of this defendant for alleged violations of the
Interstate Commerce Act, he must make a case showing, not by way of
inference, but clearly and directly, such violations. No violation
of statute is to be presumed. Now the tariff set out in the first
four counts appears on its face to have been a joint tariff, and
stated the rates to be charged from points of shipment to Rochelle
or Turner on corn shipped to the four cities of New York, Boston,
Philadelphia, and Baltimore. It does not purport
Page 167 U. S. 456
to be the local rate on grain shipped to Rochelle or Turner, or
even to Chicago, the eastern limit of the defendant's road. Nowhere
in these counts is there an allegation as to the through rates from
Nebraska or Iowa points to the four above-named Eastern cities, or
to any other place beyond the eastern terminus of defendant's road.
There is nothing, therefore, to show that the local rate charged
plaintiff from the Iowa place of shipment to Chicago was greater
than the through rate charged from Nebraska to the four places on
the seaboard, or greater than that charged for like shipments from
his place of shipment to the same four places. No figures as to the
through rate are given; no averments as to its relation to the
local rates on the defendant's road, whether from Nebraska or Iowa
to Chicago. So that, if we regard this tariff as being (what on its
face it purports to be) a joint tariff, there is no violation of
the fourth section of the Interstate Commerce Act, the one
containing the long- and short-haul clause.
But it said that there is an averment that the fixing or naming
of Turner an Rochelle as the pretended termini of the shipments of
corn and oats under the special tariff was a mere device to evade
the law, that they were not grain markets, and had no elevators or
facilities for handling grain, and that the grain was intended to
be, and was in fact, transported by the defendant to Chicago, and
there sold on the market or delivered to connecting roads for
Eastern points. It is this averment which introduces some
uncertainty into the case. For if there had been no agreement
between the defendant and Eastern companies, and no through rates
established thereby from Nebraska to the four places named, and
this putting forth of the so-called joint tariff was a mere device
under color of which the defendant was shipping grain over its own
lines from Nebraska to Chicago only at less rates than were charged
to the nearer points in Iowa, there would have been a violation of
the long- and short-haul clause. But the trouble is, the pleader
does not distinctly make such a case. He does not allege that there
was not such an agreement between the defendant and Eastern roads,
that there was
Page 167 U. S. 457
not such a joint tariff established, that the grain shipped from
Nebraska was not shipped on such tariff, or that the tariff was
itself a pretense. He does say that the naming of the points Turner
and Rochelle as termini of the shipment was a mere device to evade
the law, but what evasion, or how it operated to make the evasion,
is not indicated. It is true, he says that the grain was intended
to be, and was in fact, transported by the defendant to Chicago.
But it must have been so transported if it was shipped to the
termini named in the joint tariff. It is true also that he alleges
that when transported to Chicago, the grain was sold on the market
or delivered to connecting roads for Eastern seaboard points. But
which, he does not advise us. If the former, that might happen by
the shipper's intercepting at Chicago a shipment made under the
joint tariff through to one of the four Eastern points; if the
latter, it would necessarily occur if the shipment was under such
tariff. So the former is consistent with, and the latter implies,
the joint tariff. Neither makes certain any violation of the long-
and short-haul clause. On the contrary, the plain implication of
the averments of these counts is that there was such a joint tariff
(indeed, it is alleged that it was never printed in type, was not
circulated or published at any of the stations on defendant's road
in Iowa, and no copy thereof filed with the Interstate Commerce
Commission, as required by law, and also that it remained in force
up to February 1, 1888, and that the corn shipped from Nebraska was
shipped on that tariff); and, further, that the ground of complaint
is not that it did not exist, but that it was not published in
Iowa; that plaintiff was not informed and did not know of its
existence, and therefore did not get the benefit of it, but shipped
his corn at local rates to Chicago instead of at through rates to
the Eastern points. That the portion of a through rate received by
one of the companies party thereto may be less than its local rate
is not questioned. The Interstate Commerce Commission, which has
filed a brief in this case and which has criticized some of the
views expressed in the opinion of the court of appeals in the
Osborne case, concedes this, and also that the judgment in
that case was
Page 167 U. S. 458
right. All that it contends for is that the total through rate
shall be greater than the local rate, so as not to violate in this
respect the long- and short-haul clause.
We pass, therefore, to consider the allegations as to the
nonpublication of this tariff. It is alleged that it was never
printed in type, was never circulated or published at any of these
stations on defendant's road in Iowa, that no copy thereof was ever
filed with the Interstate Commerce Commission, and that the
existence of the same was concealed from the knowledge of the
plaintiff and other shippers in Iowa, and the benefits and
advantages of the rates therein specified were denied to plaintiff
and such other shippers. The burden of this is the ignorance of the
plaintiff through failure to publish this tariff at Iowa stations.
The Interstate Commerce Act, in section 6, requires the railroad
company to post in every station along the line of its road its
local tariffs. It also requires such carrier to file with the
commission copies of all contracts, agreements, or arrangements
with other common carriers, and also copies of any joint tariffs
made with such common carriers, and adds that
"such joint rates, fares, and charges on such continuous lines
so filed as aforesaid shall be made public by such common carriers
when directed by said commission, insofar as may, in the judgment
of the commission, be deemed practicable, and said commission shall
from time to time prescribe the measure of publicity which shall be
given to such rates, fares, and charges, or to such part of them as
it may deem practicable for such common carriers to publish, and
the places in which they shall be published."
In the former cases, it was shown that the commission had made a
general order requiring the publication of joint tariffs
"at every depot or station upon the line of the carriers uniting
in such joint tariff, where any business is transacted in
competition with the business of a carrier whose schedules are
required by law to be made public as aforesaid,"
and it was there held that the places of shipment in Iowa were
not competing points within the scope of this order, and that
therefore no publication of this tariff at the points named was
necessary. Counsel contends that this fact only appeared in
Page 167 U. S. 459
the evidence on the part of the defendant, and is not disclosed
or suggested in the petition in this case, and that the court of
appeals improperly based its decision upon the supposed existence
of this order. We do not so understand the scope of its opinion. No
reference is made to any such order, and the case is discussed upon
simply the averments in the petition. The allegation is that this
joint tariff was not filed with the commission, and not published
at the Iowa stations from which plaintiff made his shipment, and
that, in consequence thereof, he was ignorant of its rates. His
argument practically is that if the tariff had been filed with the
commission, it might have made an order, either general or special,
requiring that it be posted at the Iowa stations; that if it had
been so posted, he might have examined the rates and might have
determined to ship his corn not to Chicago, but to one of the four
Eastern points named in such tariff. But these "might be's"
interfere very materially with the line of sequence. He does not
show that he had not already contracts with some consignee in
Chicago, New Orleans, or someplace other than the four Eastern
points named in the tariff, for shipment to him of all grain at his
command. He does not allege that he had or would have made any
arrangement with any consignee in any of those points for the
receipt and sale of his corn, or even that the extra commissions
there would not more than make the difference in rates. In short,
he does not allege either
brk:
directly or indirectly that, if he had known of these rates, he
would have shipped his corn under this tariff to either of those
points, but rests his contention upon the suggestion that the mere
difference in the prices would naturally have caused him to ship to
one or other of them, and thus to take advantage of the joint
tariff. Every fact which he alleges might be absolutely and fully
true, and yet he, with knowledge of the joint tariff, with the
privilege of shipping under it, have never offered or sought to
forward a single pound of corn to any other place than Chicago.
Surely it needs but the statement of this to show that he comes far
short of that rule of strict proof which enables one to enforce a
penalty for wrong, for, if he would not under any circumstances
have shipped to New York -- was
Page 167 U. S. 460
compelled by his contracts or any other consideration to ship to
Chicago -- he cannot say that he was injured by his ignorance of
the rate to New York. The only right of recovery given by the
Interstate Commerce Act to the individual is to the "person or
persons injured thereby for the full amount of damages sustained in
consequence of any of the violations of the provisions of this
act." So, before any party can recover under the act, he must show,
not merely the wrong of the carrier, but that that wrong has in
fact operated to his injury. If he had shipped to New York, and
been charged local rates, he might have recovered any excess
thereon over through rates. He did not ship to New York, and yet
seeks to recover the extra sum he might have been charged if he had
shipped, Penalties are not recoverable on mere possibilities. We
think, therefore, without attempting to take judicial knowledge of
the general order made by the Interstate Commerce Commission in
reference to the publication of joint tariffs, the plaintiff has
failed in that full and clear showing of injury which is necessary
in order to justify a recovery under the Interstate Commerce
Act.
With reference to the fifth count, little need be said. In that,
it is disclosed that the through rates to the four Eastern points
were largely in excess of the local rate charged by the defendant
for shipment to Chicago. Of course, therefore, within any view of
the scope of the fourth section -- the one containing the long- and
short-haul clause -- there was no violation of its provisions.
With reference to the matter of publication, nothing more need
be said than has been in reference to such allegations in the prior
counts, and, as to the complaint of an unlawful preference and
discrimination forbidden by the third section of the act, it is
sufficient to refer to the fact heretofore noticed of the failure
of the plaintiff to show a certain injury to him.
These are all the matters that call for consideration. We see no
error in the judgment of the court of appeals, and it is
Affirmed.
MR. JUSTICE BROWN took no part in the decision of this case.
