Interstate Commerce Commission v. United States ex rel. Campbell

delivered-the opinion of the Court.

Upon a complaint filed by the Birch Valley Lumber Company against carriers by rail engaged in interstate commerce, the Interstate Commerce Commission' determined that rates maintained by the carriers were unduly prejudicial to the complainant and unduly preferential to its competitors, but that the record would not support an award of damages. Thereupon the complainant sued in the Supreme Court of the District of Columbia for a writ of mandamus commanding the Commission to make an award of damages in accordance with a stated formula. The4 Court, of Appeals, reversing the determination of the lower court, held that the writ should issue. 61 App.D.C. 382 ; 63 F. (2d) 358 . The case is here on certiorari.

The complainant before the Commission, the respondent in this court, is a lumber company engaged in business at Tioga, West Virginia. Transportation service to and from Tioga is supplied by the Strouds Creek and Muddlety Railroad Company (the S. C. & hi.), a short line railroad running from Delphi, West Virginia, to Ailing-dale in that state, a distance of nine and a half miles. The terminus of this road at Allingdale is a junction point with the Baltimore & Ohio Railroad (the B. & 0.), and. through it with connecting lines beyond. Lumber dealers on the route of the B. & O. have had the benefit of blanket

For rate making purposes the producing territory tributary to the B. & O. in Pennsylvania, Maryland, and West Virginia is divided into several groups. ‘ One of these grpups known as .the Richwood group has its terminus at Allingdale. So also has another group known, as number. 9. Lumber dealers competing with the complainant -do business within this territory, and pay the group or blanket rate,- which,takes no heed of distances within the group area. Cf. United States v. Illinois Central R. Co., 263 U.S. 515 , 522. In some instances the blanket rate has been extended to short line connections, but -this has been exceptional, and has not included any points on the S. C. & M. The additional charge paid by the complainant for the short line connection between Allingdale and Tioga (7.1. miles) is $15 per car. Another lumber company, engaged in business at Delphi^ intervened in the proceedings and joined in the complaint.. Both the complainant and the intervening shipper were “ forced to base their prices on the group rates and absorb the charges of the S. C. & M.”

The Commission found that, the failure of the carriers to establish joint or group rates over the short line connections had the effect of an undue preference to lumber companies doing business within the group territory,

. The Interstate Commerce Act makes it unlawful for a carrier to give any undue or unreasonable -preference to. a person or locality, or to subject ’any person or locality to an undue disadvantage ( 24 Stat. 380 , § 3; 41 Stat'. 479, § 405;' 49 U.S.C., § 3), and charges the óffender with liability for the full amount of damages resulting from the unlawful act. § 8. Upon the hearing of a complaint, the Commission is’ empowered to ascertain the damages and award them. § 16 (1). The respondent by its complaint to the Commission invoked this dual jurisdiction, the administrative jurisdiction to prescribe a rule for the future (Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285 , 291; Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448 ), and the judicial or quasi-judicial jurisdiction to give reparation for the past. Baltimore & Ohio R. Co. v. Brady, supra. In dismissing such a complaint, the Commission speaks with final? ity. Its orders purely negative — negative in form and substance — are not subject to review by this court or any other. Standard Oil Co. v. United States, 283 U.S. 235 ; Alton R. Co. v. United States, 287 U.S. 229 ; Procter & Gamble Co. v. United States, 225; U.S. 282; Baltimore & O. R. Co. v. Brady, supra. Damages for discrimination denied by the Commission are not recoverable somewhere else.

The respondent, conceding these restrictions upon the remedies, available in the courts,, professes to abide by them. The- argument is that damages were found by the

“The record will not support an award of repara^-, tion based on the undue prejudice found to exist.” This is not a finding that damages in the sum of $15 per car or in any other sum have been suffered by the complainant, but will not be awarded; This is a finding that upon the evidence before the Commission, which is not 'before us,. there is not a sufficient basis for a finding of any damage whatever. Nothing in the recital pf evidentiary facts is inconsistent as a matter of law with- this negation of loss. The Commission does not find, and the complainant does not assert, that the rate was unreasonable in the sense that, it would be subject to condemnation if a like rate had been charged to others similarly situated. What is unlawful in the action of the carriers inheres in its discriminatory quality, and not in anything else. When discrimination and that alone is the gist of the offense, the difference between one rate and another is not the measure of the damages suffered by the shipper. Penn. R. Co. v. International Coal Co., 230 U.S. 184 ; Mitchell Coal Co. v. Penn. R. Co., 230 U.S. 247 , 258; Southern Pacific Co. v. Darnell-Taenzer Co., 245 U.S. 531 , 534; Keogh v. C. & N. W. Ry. Co., 260 U.S. 156 , 165. Cf. Postal Tel. Cable Co. v. Associated Press, 228 N.Y. 370 , 379, 380; 127 N.E. 256 . It is an evidentiary circumstance to be viewed along

Overcharge and discrimination have very, different consequences, and must be kept -distinct in thought. When the rate exacted of a shipper is excessive or unreasonable in and of itself, irrespective of the rate exacted of competitors, there may be recovery of the overcharge without other evidence of loss./ “ The carrier ought not to be allowed to retain his illegal profit and the only one who can take it from him is the' one that alone was in relation with him, ,and from whom the carrier took the" sum.” Southern Pac. Co. v. Darnell-Taenzer Co., supra, p. 534. But a different measure of recovery is applicable “ where a party that has paid only the reasonable rate sues upon a discrimination because some other has paid less.” So. Pac. Co. v. Darnell-Taenzer Co., supra. Such a one is not to recover as of course a payment reasonable in amount for a service given and accepted. He is to recover the damages that he has suffered, which may be more than the preference or less (Penn. R. Co. v. International Coal Co., supra, pp. 206, 207), but which, whether, more or less, is something to be proved and not presumed. Ibid, p. 204. “ Recovery cannot be had unléss it is shown that, as a result of defendant’s acts, damages in some amount susceptible of expression in figures resulted.” Keogh v. C. & N. W. Ry. Co., supra, p. 165. The question is not how much better off the complainant would be today if it had paid a lower rate. The question is how much worse off it ’is because others have paid less.

The answer to that question is not independent of time and place and circumstance. It calls for something more than the use of a mathematical formula. If by reason of the discrimination, the preferred producers have been

' The truth of this is seen more clearly when we keep in mind the varying methods available to remove discrimination and restore, equality. The respondent’argues as if there were one method, and one only, and this by cutting down the Tioga and Delphi rates and thus reducing them to the level’ of the rates, within the group. But that is to ignore the other methods of adjustment open to the carriers. The discrimination might be removed either by cutting one set of charges down, or by lifting the other up, or by establishing a new rate intermediate between them. United States v. Illinois Central R. Co., supra, at p. 521; American Express Co. v. South Dakota, 244 U.S. 617 , 624. The situation comes out into clear relief if wé assume recourse to be had to the second of these methods. Rates .within the favored territory might be raised to the' same level as thosé'outside of it, and yet after the change the complainant, would be no better off, if the discrimination had not tended to hold market prices down. The profit of the favored shippers would in that event be less, just as it would be if they had been receiving a rebate from the published tariff (Penn. R. Co. v. International Coal Co., supra); but because their profit would be less, the conclusion would not be inevitable that the complainant’s would be greater. - The two would not fluctuate in any constant ratio. There would be no necessary correspondence between preference and damage. In varied situations the Interstate Commerce Commission has thus interpreted the doctrine of the International Coal case, and so given or withheld relief. The rulings of the Commission are consistent to the effect that the absorption by a complainant' of a discriminatory charge does not. avail to establish damage, or to measure its extent, in the absence of a showing that prices were affected by the differential

The policy of the law has been to give finality to, orders of the Commission negative in form and substance, and to keep them out . of the courts. Standard Oil Co. v. United States, supra; Alton R. Co. v. United States, supra; Procter & Gamble Co. v. United States, supra; B. & O. R. Co. v. Brady, supra. A dissatisfied' complainant is not permitted to escape these limitations indirectly by broadening tbie functions of "mandamus when he is barred from more direct" review. I.C.C. v. Waste Merchants Ass’n, supra, p. 35. There have been like attempts before in other branches of the law of remedies. In re Pennsylvania Co., 137 U.S. 451 , 454; Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556 , 581. They have met with no success.

The judgment of the Court of Appeals should be reversed and the petition for the writ denied.

Reversed.