WALKER et al. v. KEENAN et al., 73 F. 755

SHOWALTER, Circuit Judge, after' making the foregoing statement, delivered the opinion of the court. In the recital in Keenan’s waybill, “To be delivered at Chicago station at rate of tariff,” which is otherwise in print, the word “Chicago” was evidently written on a space left blank by the printer. This was done at Kansas City. It is obvious from the showing of the record that cattle consigned to Keenan were not, within his understanding, to be unloaded and delivered at any station in Chicago on appellants’ line of road. The cattle were to be taken to the Union Stock Yards, where Keenan did business.

The case of the two cars mentioned in said waybill is nowise different, as affecting the matter in controversy, to what it would be if no such paper had been subscribed. In Covington Stock-Yards Co. v. Keith, 189 U. S. 128, 11 Sup. Ct. 461, a bill had been filed by Bliss and Gates against the Kentucky Central Railroad Company, to foreclose a mortgage on the railroad property of the defendant. Receivers had been appointed, and, at the time of the controversy, the suit was pending, and the receivers were in possession of and operating the defendant’s road.

On the 18th of June, 1886, Keith filed in the cause his intervening petition, making the receivers the parties defendant. Prior to the commencement of the foreclosure suit, and on November 19, 1881, the defendant railroad company had contracted with the Covington StockYards Company, whose cattle yards ‘adjoined the railroad track, and were, or were to be, provided with appropriate platforms, chutes, feeding pens, and inclosures, for the loading and unloading and delivery of cattle.

By this contract, said yards became the railroad company’s “depot for delivery of all its live stock,” and it was not to build or “allow to be built on its right of way any other depot or yards for the reception of live stock.” The Covington StockYards Company was to perform for the railroad company the. service of loading and unloading cattle, and to collect therefor a charge from all shippers and consignees not to exceed 60 cents per car load, and account to the railroad company for the same.

Said stock-yards company was also to feed and care for all cattle brought to the yards pending transfer to the cars or delivery to consignees. For this a reasonable charge was to be collected, and turned over to the railroad company; and, for all these instrumentalities and services, the latter company was to pay the former a certain compensation. Keith was the owner of appropriately constructed cattle yards, separated by the width of a street from the yards of the Covington Stock-Yards Company, and adjoining a switch track of the railroad company.

He had constructed or provided, apparently by the license of the railroad company, express or implied, platforms, chutes, and inclosures connecting his yards with said track. For a time subsequent to March 1, 1886, all cattle consigned to Keith, or his firm Keith & Wilson, who were dealers in cattle on commission, were unloaded into Keith’s cattle yards; but prior to the 18th of June, 1886, tiie receivers caused Keith’s appliances for loading and unloading to be removed from their track.

Keith was thereafter comjielled to accept delivery of cattle consigned to his firm through the yards of the Covington Stock-Yards Company, and was thus obliged to pay 60 cents per car for a service which, without inconvenience either to the public or the railroad company, he was prepared to dispense with; hence his intervening petition.

The court ordered the receivers, in the event that they or their agent in that behalf, the Covington Stock-Yards Company, should choose not to permit Keith thereafter to take his cattle through their yards without the 60 cents charge, to allow him to replace his platforms and chutes, and to unload and deliver to him thereat (he, or some agent employed by him, being then present to take charge of such cattle) all cattle consigned to him or to his yards. This ruling was affirmed by the supreme court of the United States.

As incidental to its business of transporting or hauling cattle, a railroad company must provide the means of loading, unloading, and caring for such freight pending its delivery to the consignee. The hauling the cattle from one point to another, and the providing the ear, track, engine, and servants for that purpose, are no more a part of the service rendered by the carrier than are the loading and unloading and the providing the appliances and servants for those purposes.

Nor, in the nature of things, is there any reason why, if the public convenience he subserved thereby, the compensation may not be apportioned so that so much may he paid for the loading and the hauling, and so much for the unloading and the care of the animals pending delivery. It was not necessarily a hardship or w'rong, as against the ordinary consignee at Covington, that he pay the charge of 60 cents per car for unloading, etc., to the agent in charge of the stock yards there.

Such charge ought, of course, to be specified, as now provided by the interstate commerce law, in connection with the tariff schedule, in order that the shipper may be advised of the same.

The question whether a person to whom cattle were consigned for delivery at the Covington Stock Yards could have resisted the charge of 60 cents pm- car was not before the court in the Keith Case; nor could the court have ruled in the affirmative on such question, assuming due notice to the shipper beforehand, without, in effect, compelling the railroad company to perform, for nothing, part of the service comprehended in its obligations as a carrier. Keith’s Case stood on its own facts.

Keith having, without inconvenience, so far as appears, to the public or to the railroad company, and apparently by its permission or the permission of the receivers, himself provided the facilities and appliances -for unloading into his yards cattle consigned to his firm, the railroad company or the receivers representing it, on the one hand, no longer owed to him, as respected cattle consigned to his yards, the duty of providing such structures and appliances; nor, on the other, was Keith hound to pay the railroad company or its agent in that behalf, the Covington Stock-Yards Company, any charge which, on the face of the case, was distinctly a compensation for the performance of such duty.

The Case of Keith, furthermore, shows the expediency and. propriety of separating and apportioning the compensation to the carrier, so that the instrumentalities for and the service of unloading need not be paid for when the consignee has no occasion to use said instrumentalitiés or to exact such service.

That decision, on its ultimate and essential facts, is that a railroad company, when the means for the unloading and delivery of cattle have been provided by the consignee himself at a convenient point on its line of road, may not refuse to make such delivery for the sole and only purpose of compelling such consignee to pay a charge fixed by the company in response to its obligation to provide the means of unloading for consignees who must, necessarily, require that service.

If Keith’s yards had been at some point in Covington, remote from the Kentucky Central track, and he had, by the license of the Kentucky Central Railroad Company or the receivers, extended a track of his own from the Kentucky Central track to his yards, and had there equipped a station for unloading, there would have been no obligation on the railroad company to Keith or his patrons to provide a depot on its line for the unloading of cattle consigned to his yards; nor could Keith have referred to such supposititious obligation as a reason for resisting compensation to the railroad company for the service of moving cattle cars from its line over his track to his yards.

In the case at bar, appellants, with their own engines and switching crew, remove the cars laden with cattle from a point on the Chicago end of their line, over the track of the Union Stock-Yards & Transit Company, to the Union Stock Yards. For this transfer from their own line to the stock yards, they charge, as stated on the tariff schedule, $2 per car. All the petitioners do business at the Union Stock Yards. It is the understanding between them and appellants that cattle cars consigned to them are to be taken to the Union Stock Yards, and there unloaded.

Upon the general and ordinary obligation of a common carrier of such freight to provide the appliances for unloading, and upon the fact that appellants have not provided means for unloading and delivering cattle at their freight depot in Chicago, petitioners argue: First, that the $2 per car is for depot facilities at the stock yards; and, second, that the stock-yards station must be held to be appellants’ “Chicago station,” in the same sense as would be the terminal station at Twelfth and State streets if cattle yards and facilities for unloading were there provided.

But the obligation of appellants to furnish delivery facilities upon them line of road in Chicago is not due to these petitioners with respect to cattle which appellants are expected to bring to the Union Stock Yards. Petitioners do not desire their cattle unloaded and delivered at any point in Chicago on appellants’ line of road.

The $2 per car is not a charge for the use of the inclosures and station fittings at the stock yards, but for moving the cars from the line of appellants’ road, and over the line of another company (which company exacts from appellants a toll of.80..cents per car), to a point in Chicago on said last-named line. The case is the same as though petitioners themselves owned the stock yards, and the delivery station there, and the tracks leading to said station, and appellants charged them f 1.20 for transferring a car from appellants’ line in Chicago to said stock-yards station.

If facilities for unloading cattle cars were provided by appellants at their station in Chicago (the showing of the record being otherwise, as it is), the fact would he immaterial, since the petitioners’ cattle must be taken by appellants to the Union Stock Yards. Appellants’ failure to supply unloading facilities at its Chicago terminal station can in no way "affect the rights of a litigant who, in view of the question at issue, could in no event have benefited by such facilities.

The learned counsel for appellees treat the Covington Case as a pronouncement by the supreme court that the receivers there must forego their 60 cents per car, and let Keith’s cattle be delivered through the Covington Stock Yards, unconditionally. On the contrary, the essential and central fact upon which the judgment went was, as already explained, that Keith’s yards adjoined the track, and he had, without hurt to the railroad company or to the public, and apparently by the license of the company, provided the mea,ns of; unloading info his own yards.

He had no occasion to avail himself of the service of, and the instrumentalities provided by, the Covington Stock-Yards Company, the concern which had assumed, to that extent, the duty of the carrier; hence the order that Ms cattle must either be unloaded into his own yards, or else jiassed free of charge through the yards controlled by the Covington Stock-Yards Company for the railroad. If the rule of law had been■ as counsel for these appellees contend, then the order would have been that Keith’s cattle be unloaded free of charge into the yards used by the railroad company, without any alternative.

The alternative implies that except in the case of Keith, or of a person having cattle yards and unloading facilities in Covington similarly situated with respect to the road operated by the receivers, the yards provided by the railroad company or the receivers as a place of delivery must be used, and the 60 cents paid as a proper item in the freight charge.

To any assumed rule of law that a carrier could not divide into two or more items Ms freight charge for carrying live stock, so that the instrumentalities for unloading and delivery need not be paid for by consignees who are themselves prepared to receive their cattle directly from the cars, the decision in the Covington Case cannot be referred. The opinion states no such rule; nor can any such rule be evolved therefrom consistently with the judgment of the court.

Wien, as here, the delivery is to he made in Chicago, hut at a point, away from the carrier’s line, and by means of a track not owned or possessed by the carrier, the printed

schedule of such carrier showing in two items the compensation exacted for the haul to Chicago, and that exacted for the transfer in Chicago to the point of delivery, the theory that, such carrier is bound by law to unload such freight at a station on its own line in Chicago, and that the transfer from its line to a point on the other line for the purpose of delivering at the latter point (being an equivalent or substitute for what ought to have been done pursuant to such supposed obligation) is comprehended in the service of hauling to some station on its line in Chicago, is unsound.

One side of the proposed equation is mythical. There is no obligation on the carrier in such a case, and as to such a consignment, to unload at a station on its line in Chicago, or to provide unloading and delivery facilities at such station. In the carrier’s charge for the haul to any station or point on its line in Chicago, in such a case, there is not comprehended any compensation for unloading facilities at such station or point.

The 23-J- cents per hundredweight pays these appellants for hauling from Kansas City to a station or point on their line in Chicago; the $2 per car pays for the transfer thence to the stock yards, where the consignees desire the delivery to be made. The Covington Case was prior to the interstate commerce law. Within the express terms of the second paragraph of

section 6, quoted in the statement which precedes this opinion, the total compensation to the carrier for his services as carrier may be divided into at least two items. The separation by these appellants of their charge for loading and hauling to Chicago from their charge for transferring from their line in Chicago to a specified point in Chicago, away from their line, is authorized by the statute.

No satisfactory reason suggests itself against the legality and propriety, under special circumstances, such as exist here and as existed in the Covington Case, of such a division of his compensation by a carrier even apart from the statute. The learned district judge who made the order appealed from evidently understood the opinion in the Covington Case to imply that no division of a carrier’s charge could be made. If this were the sound construction of that case, the statute has changed the rule, as already suggested.

It is not suggested, assuming any such charge as is here in question to be legal at all, that the amount is unreasonable. The contention that the carriers must move cattle from their lines of road over the track of the stock-yards company to the stock yards, without compensation other than as contained in their charges for hauling to points on their respective lines in Chicago (and this is what the claim of these appellees amounts to), is invalid. The order appealed from is reversed, and the cause remanded, with the direction that said order be vacated, and the intervening petitions dismissed, for want of equity.