for interstate shipments from Jacksonville, Fla., to points in Georgia can not be looked to as giving the bill equity, because the district court had no jurisdiction to pass on the question of rates till the Interstate Commerce Commission had passed on them. CONSIGNEE'S LIABILITY FOR UNDERCHARGES. In Union Pacific Railroad Co. v. American Smelting & Refining Co., 202 Fed., 720, decided December 19, 1912, it appears that the railway carrier sued for an unpaid balance of the legal freight charges on certain shipments of ore, the circuit court of appeals for the eighth circuit held that an implied contract by the consignee to pay the freight charges, in the absence of a bill of lading, arises where the consignee knows that the carrier looks to him for their payment and waives its lien therefor and delivers the goods in the faith that the consignee will pay them. ALLOWANCES TO AN ELEVATOR. In Elwood Grain Co. v. St. Joseph & Grand Island Railway Co., 202 Fed., 845, decided January 10, 1913, the circuit court of appeals for the eighth circuit held that a contract by an interstate railroad company to pay an elevator company $1.75 per car on all grain received from stations on its line of railroad and passing through the elevator, not allowed to all elevators in general, nor covered by a published and filed rate schedule, was void. DEMURRAGE CHARGES. In Missouri Pacific Railway Co. v. Union Stockyards Co., 204 Fed., 757, decided April 21, 1913, it appears that the railway's demurrage rules provided that cars held for or by consignors or consignees for loading, unloading, forwarding directions, or for any other purpose, are subject to the rules, and that when cars are interchanged with minor railroads or industrial plants performing their own switching services, handling cars for themselves or for others, an allowance of 24 hours will be made for switching, in addition to the regular time for loading and unloading, and if returned loaded an additional 48 hours will be allowed. The circuit court of appeals for the eighth circuit held that where a stockyards company operated a terminal railroad, switching cars from plaintiff and other connecting carriers consigned to itself for its own use, and to other industrial plants reached by switches from its terminal road, it was liable for demurrage on cars consigned to it, but not on cars delivered to it as a connecting carrier for transportation to consignees. The court in this case said: "The imposition of demurrage implies delay through negligence or inattention, or a retention for personal uses, whereby the proper office of the cars in transportation is impaired." PLAINTIFFS MUST PROVE ACTUAL DAMAGES. In Lehigh Valley Railroad Co. v. Clark, 207 Fed., 717, decided August 25, 1913, the circuit court of appeals for the third circuit held that it does not follow from a finding by the Commission that a given tariff rate established by an interstate carrier is unreasonable and that a lower rate fixed by the Com mission is reasonable, that plaintiff has suffered pecuniary damages by reason of the exaction of the former rate, nor, if so, that the measure of such damage is the difference between the two rates; nor is an order of the Commission awarding plaintiff damages to the extent of the difference in rates by way of reparation prima facie evidence of the defendant's liability in the subsequent action, which is a private suit for damages and not for a penalty. PUBLISHED RATE A CONTRACT. In American Sugar Refining Co. v. Delaware, Lackawanna & Western Railroad Co., 207 Fed., 733, decided August 19, 1913, the circuit court of appeals for the third circuit held that a shipper has a contract right to the rates named in the schedule at the time on file and published, and to the benefit of all privileges and facilities therein which enter into such published rates. 3. In the District Courts. ILLINOIS PASSENGER-RATE CASE. In Trust Co. of America v. Chicago, Peoria & St. Louis Railway Co. of 21% nois, 199 Fed., 593, decided September 27, 1912, the District Court for the Southern District of Illinois held that the Illinois passenger-rate act xing maximum fares at 2 cents per mile, was confiscatory and unconstitutional as applied to the Chicago, Peoria & St. Louis Railway Co. of Illinois, as the evidence showed that during the enforcement of such fares its net earnings on its intrastate passenger business were only about 1 per cent on the value of the property employed therein, whereas it was entitled to earn 6 per cent. EFFECT OF INTRASTATE RATES ON INTERSTATE RATES. In Northern Pacific Railway Co. v. Lee, 199 Fed., 621, decided September 9, 1912, the District Court for the Western District of Washington held that the fact that the enforcement of intrastate freight rates established by a State commission between points within the State will make it necessary for a carrier, for the protection of its business, voluntarily to reduce certain of its interstate rates does not render the order of the Commission invalid as affecting interstate commerce, its effect thereon being indirect and merely incidental. PRIOR ACTION BY THE INTERSTATE COMMERCE COMMISSION. In National Pole Co. v. Chicago & North Western Railway Co., 200 Fed., 185, decided November 14, 1912, the District Court of the Eastern District of Wisconsin held that where a shipper claimed a right to recover aggregate excess freights alleged to have been paid on various interstate shipments, alleging that the rate charged consisted of the sum of local rates through a point of concentration, and that the rule that a shipper should only be entitled to the benefit of a lower through rate when the original bill did not state the ultimate destination, was unreasonable, a complaint charging that such condition had been previously submitted to the Interstate Commerce Commission in another proceeding by different shippers against the defendant carrier, and had been found unreasonable and invalid, was insufficient to relieve plaintiff from the duty of submitting its claim to the Commission before beginning suit in a Federal court thereon. In American Sugar Refining Co. v. Delaware, Lackawanna & Western Railway Co., 200 Fed., 652, decided November 21, 1912, the district court for the district of New Jersey held that since the act to regulate commerce required shippers seeking reparation predicated on the unreasonableness of a published rate primarily to invoke redress through the Commission, which alone was vested with power to entertain original proceedings for the alteration of an established schedule, a filed rate on sugar, providing for allowance for carting from refinery to cars, did not constitute a contract between the carriers and the shippers which would survive a determination by the Commission, in other proceedings, that it constituted a rebate, and requiring the carriers to desist from making the same. In Jacoby v. Pennsylvania Railroad Co., 200 Fed., 989, decided November 12, 1912, the district court for the eastern district of Pennsylvania held that the power conferred on the Interstate Commerce Commission by the statute to award damages to a shipper for violation of the act by an interstate carrier is not limited to cases where the damages arise from an excessive rate or charge, but extends to all cases where the shipper's common-law remedy is abrogated, and he is required. to apply for redress in the first instance to the Commission, and such damages may be awarded on a finding of unjust and discriminatory regulations and practices in the distribution of coal cars in times of shortage. In Franklin v. Philadelphia & Reading Railway Co., 203 Fed., 134, decided January 27, 1913, the district court for the eastern district of Pennsylvania held that a consignee of property shipped in interstate commerce can not maintain an action in the courts to recover because of excessive freight charges exacted on such shipments, except for the enforcement of an award of damages made by the Commission, and a court is not given primary jurisdiction of such an action by the fact that the Commission, on complaint of shippers, to which proceeding plaintiff was not a party, has made a finding that the rate was ressive, and awarded damages to such shippers. In Williams v. Western Union Telegraph Co., 203 Fed., 140, decided February 6, 1913, the district court for the eastern district of Pennsylvania held that in an action against a telegraph company for alleged negligence in transmission of a telegram, the unreasonableness of a rule as to repetition of messages can not be first considered in the district court, but must be first raised before the Interstate Commerce Commission. In Southern Cotton Oil Co. v. Central of Georgia Railway Co., 204 Fed., 476, decided April 22, 1913, the district court for the eastern district of Georgia held that since the Interstate Commerce Commission is primarily charged with the duty of passing on the validity of a contract between a railroad company and a corporation operating a wharf for transferring freight from cars to vessel, the Federal courts would not take jurisdiction of a friendly suit by the corporation against the railroad company to recover compensation under its contract which involved no actual controversy and was brought merely to obtain a judgment which might be pleaded in defense of a disapproval of the railway company's allowance by the Commission. ALLOWANCE TO SHIPPERS. In the American Sugar Refining Co. case, supra, it was also held that cartage of sugar from refinery to cars did not constitute "transportation ", nor a "service connected with transportation", within the statute, for which the carrier was justified in making an allowance under section 15, and that such allowance constituted an illegal rebate. The Southern Cotton Oil case, supra, involved the amount of allowance a railway company should pay a corporation for transferring freight from cars to vessels. The court declined to take jurisdiction. LOCOMOTIVE BOILER INSPECTION. In Louisville & Nashville Railroad Co. v. Hughes, 201 Fed., 727, decided October 18, 1912, the District Court for the Southern District of Ohio held that while the Ohio locomotive boiler inspection law was valid and enforceable prior to the enactment of the Federal law, it was superseded by the latter as applied to a railroad company whose engines only entered the State from Kentucky to a terminal in Cincinnati and when being used in interstate commerce, and that such company was governed by the Federal law from the time of its enactment as to the things required and the time of their completion. REASONABLE RATE IS A NONCONFISCATORY RATE. In Detroit & Mackinac Railway Co. v. Michigan Railroad Commission, 203 Fed., 864, decided March 22, 1913, the District Court for the Eastern District of Michigan held that the word "reasonable" as used in connection with railroad rates in the Michigan statute means nonconfiscatory; that from a judicial standpoint a rate is unreasonable only when it yields less than the minimum return which invested capital has a right to demand-that increment which is so inherently incidental to the investment that destroying the increment is a confiscation of the property-while from the legislative standpoint a rate may be reasonable which is not unfair to the shipper and at the same time is large enough to meet the demands of the legislative policy in encouraging railroad investments, contemplating a return much beyond the legal rate of interest on the money invested. ATTACHMENT OF INTERSTATE SLEEPING CARS. 66 In Pullman Co. v. Linke, 203 Fed., 1017, decided April 12, 1913, the District Court for the Southern District of Ohio held that as the act to regulate commerce includes in the term common carrier sleeping car companies, an attachment from a State court can not be made upon such an instrumentality of interstate commerce, because to allow it would directly interfere with the operation of such commerce. REMOVAL TO FEDERAL COURTS OF ACTIONS AGAINST INTERSTATE CARRIERS. In McGoon v. Northern Pacific Railway Co., 204 Fed., 998, decided May 14, 1913, the District Court for the District of Dakota held that six separate actions 16641°-14-16 in the State court against an interstate carrier, all based upon shipments of live stock from western States to Chicago, claiming damages for injuries from failure of defendant in its duty as a common carrier, none of the cases involving as much as $3,000, are suits arising under the interstate commerce act, and for that reason are removable to the Federal court. PRIVATE CARRIERS. In The Pawnee, 205 Fed., 333, decided February 18, 1913, the District Court for the Eastern District of Michigan held that a vessel under charter, which carried such cargoes as the charterer might engage by private contract, and making no profession to carry for all, and under no obligation to take whatever goods might be tendered, and running on no particular schedule of time, nor between any particuar places or terminals, is not a common carrier in the legal sense of the term, but in fact and in law a private carrier only. UNDERCHARGES. In Illinois Central Railroad Co. v. Segari & Co., 205 Fed., 998, decided May 29, 1913, the District Court for the Eastern District of Louisiana held that the making of a contract for the transportation of freight in interstate commerce at a rate less than that prescribed by the schedules on file with the Commission does not prevent a recovery of the undercharge by the carrier, since both parties to the contract of shipment are bound by the tariff so filed. |