CUDAHY PACKING CO. v. GRAND TRUNK WESTERN RY. CO., 215 F. 93

BAKER, Circuit Judge. Defendant in error, plaintiff below, recovered judgment against defendant for $3,637.75 on account of icing charges in transporting dressed meats for defendant. A jury trial was duly waived, and the cause was submitted on an agreed statement of facts that showed: That plaintiff was a railroad corporation engaged in interstate commerce. That defendant was an interstate shipper of dressed meats. That plaintiff had duly published and filed its

schedule of carriage charges for dressed meats, exclusive of icing charges. That defendant paid plaintiff the carriage charges.

That plaintiff had duly published and filed a tariff sheet in which the following provision was made for icing charges over and above carriage charges: “Shippers desiring refrigerator service for freight in car loads must furnish at their own cost the necessary quantity of ice and salt, or this company, when requested, will obtain and furnish the same, charging therefor the actual cost including labor, but not less than $2.50 per ton of 2000 lbs., fractions of tons to be charged for pro rata.” That defendant' requested plaintiff to ice defendant’s car load shipments.

That plaintiff did so and charged therefor at the rate of $2.50 per ton of 2,000 pounds. That plaintiff procured some of the ice from Swift & Co., a competitor of defendant in the dressed meats trade, at a cost of $2.50 per ton of 2,000 pounds, and that defendant failed and refused to pay plaintiff for any of these icing charges.

In view of the Commerce Act’s definition that transportation shall include all services in connection with refrigeration or icing of property transported, and of plaintiff’s action under that definition in furnishing ice as a service in transportation, it is needless to consider plaintiff’s contention that Congress lacked constitutional power to compel carriers to furnish ice, and that plaintiff could therefore recover the value of its icing services for defendant on an express or an implied contract, without making, publishing, and filing fixed and definite rates therefor.

By holding itself out voluntarily as ready to ice car .load shipments,- plaintiff brought itself within the supervisory and regulatory provisions of the act with respect to reasonableness, certainty, and publicity of rates. Under the Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) compensation for service in transportation cannot be a matter of bargaining between carrier and shipper, and no payment can lawfully he demanded or received except in accordance with a fixed and definite

schedule of charges duly published and filed. Is plaintiff’s tariff provision, that the charge for icing shall be “the actual.cost, but not less than $2.50 per short ton,” void for uncertainty? If “cost” were published as the charge for a service in transportation, the tariff would in that respect undoubtedly be void, for cost is necessarily variant and is undeterminable with exactness until after the event, while the act contemplates that the shipper shall be informed of a fixed and definite rate in advance of his shipment.

If the icing charge were stated to be “$2.50 per short ton,” we conceive that no complaint would be made on the ground of uncertainty. If plaintiff had published that “the minimum rate for icing is $2.50 per short ton,” without stating any higher rate or giving any fixed and definite basis on which a higher rate could be calculated in advance with certainty, it seems to us that the word “minimum” might well be disregarded as superfluous and $2.50 taken as the fixed rate under all circumstances. Knudsen-Ferguson Co. v. Mich. Cent. R. Co., 148 Fed. 968, 79 C. C. A. 46.

Quite evidently plaintiff has woven the idea of cost into its icing tariff. But does that element inhere throughout the structure? If the cost is less than $2.50 per short ton, the tariff explicitly provides that nevertheless $2.50 per short ton shall be the rate. In that part of the-structure, therefore, the idea of cost as a condition to be taken into account has clearly been excluded. It is only in the part of the tariff which contemplates a charge above $2.50 per short ton that cost is made an element in the accounting. There is, consequently, we believe, a clean line of demarcation at $2.50 per short ton.

Cost, if below or at that line, plays no part; if above, it is the sole basis given. And inasmuch as cost, for reasons heretofore stated, cannot be accepted ,as a published rate under the act, part of plaintiff’s icing tariff is void for uncertainty.

But, while the Commerce Act and all tariffs and doings of carriers should be strictly construed and enforced to accomplish the large purposes of fairness and uniformity, we are of opinion that the general principle in relation to statutes, wills, contracts, etc., that the illegal parts will be excised and the legal preserved unless the bad is so interwoven with the good that extrication is impossible, should be applied to the facts of this case. Plaintiff had duly declared that icing service was not included in the carriage rate, and had published an icing tariff, part of which was good and part bad.

Where to cut seems clear, and what is left is without taint. And what is left is the only part that has been acted on by plaintiff. Whether the carriage and icing charges separately or combined were reasonable, whether plaintiff could lawfully arrange to procure ice from defendant’s competitor, and whether that arrangement brought about an undue preference, are matters beyond this case. The judgment is .affirmed.