# Penn Refining Company v. Western, New York & Pennsylvania Railroad Company

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United States Supreme Court
208 U.S. 208
Penn Refining Company v. Western, New York & Pennsylvania Railroad Company
Argued: October 18, 21, 1907. --- Decided: January 27, 1908
The plaintiff in error, who was plaintiff below, seeks to review a judgment of the circuit court of appeals for the third circuit (70 C. C. A. 23, 137 Fed. 343), reversing absolutely and without allowing a writ of venire facias de novo, the judgment of the circuit court of the United States for the western district of Pennsylvania in favor of the plaintiff company for $8,579, with interest from May 15, 1894; in all, $12,706.92. This sum was made up of the charge of 14 cents for the weight of the barrel in which oil was transported to Perth Amboy from the Pennsylvania oil fields, from September 3, 1888, the time when such charge commenced, to May 15, 1894, the time when the hearing on the claims was had before the Interstate Commerce Commission.
The proceeding resulting in the petition herein to the circuit court was originally commenced before the Interstate Commerce Commission, and thereafter conducted pursuant to §§ 13 to 16 of the act creating the Commission (24 Stat. at L. 379, 384, chap. 104), as amended by the act of 1889 (25 Stat. at L. 855, 859, chap. 382, U.S.C.omp. Stat. 1901, p. 3165), to obtain relief from certain alleged illegal practices of the railroad companies in the way of overcharges for the transportation of oil for the complainants in the petition, and to obtain reparation therefor.
Three substantially contemporaneous, yet also separate, petitions, were filed with the Commission, two on the 4th of December, 1888, and one on the 30th of January, 1889, by the Independent Refiners' Association of Titusville, Pennsylvania, and the Independent Refiners' Association of Oil City, Pennsylvania, against several railroad companies. The petitioners were associations of some sixteen separate refining companies, operating distinct and separate works in the oil regions of Pennsylvania, near the city of Titusville or Oil City.
The petitions were filed for the purpose of obtaining relief from certain charges made by the defendant companies against the petitioners for the transportation of their oil from those oil fields to tidewater in New Jersey, and specially to Perth Amboy, in that state, and described as a point in New York harbor, and also to Boston and points in that vicinity. Their petition relating to the charges for transportation to Perth Amboy is alone involved here.
The ground of complaint in that petition was that the railroads who were therein made defendants, viz., the Western New York & Pennsylvania and the Lehigh Valley, charged 66 cents per barrel of oil, which was alleged to be an excessive, unjust, and unreasonably high rate for the transportation of oil to Perth Amboy.
There was no complaint in the petition of the failure of defendants to furnish tank ears for the petitioners for the transportation of their oil to Perth Amboy. There was no averment of unfairness of the rates as between barrel and tank oil. Nor was there any averment that the defendants, by their custom of charging for the gross weight of the oil and barrels, were giving a preferential rate to the tank shippers as against the barrel shipments made by plaintiffs. It was only alleged that the rate for the transportation of oil to Perth Amboy was unreasonably high at 66 cents per barrel, the weight of the barrel being included and charged for therein. The averments in the petition, that plaintiffs were subjected to undue prejudice and that an undue advantage was given their competitors in business, among others the Standard Oil Trust, had no relation to discrimination arising from a charge for the weight of the barrel, but was connected with the averment that the charge of 66 cents for the carriage of the oil was excessive, and hence worked a disadvantage to the plaintiffs and gave an unreasonable preference to the competitors in plaintiffs' business.
The prayer of the petition was that the Commission direct the defendants to cease their unlawful acts, etc.
The evidence was taken before the Commission in the three cases, with the understanding it should be applied to each or all the cases, so far as applicable therein.
It appears by the evidence before the Commission that the charge of 14 cents per barrel in addition to 52 cents for its contents) for the transportation thereof to Perth Amboy commenced about September, 1888, and prior to that the charge had been 52 cents for the oil and the barrel. There had been some reasons alleged on account of which the charge had been limited to the total of 52 cents before September, 1888. Perth Amboy was the station to which all the petitioners in the proceedings before the Commission, applicable to that port, had consigned their oil for export, and that station had no conveniences for unloading in bulk the oil which was brought there in tank cars. Not one car in a hundred was a tank car. The trade demand at that point was for oil in barrels, and the ocean shipments therefrom by the petitioners were also made in barrels, as there were no vessels from that port carrying oil in bulk. Some of the petitioners in the proceedings before the Commission owned tank cars, but did not use them for the Perth Amboy port for the above reasons. Oil which came to Perth Amboy, intended for export, if it arrived in tank cars, had to be there unloaded and filled in barrels before it could be loaded on ships. The petitioners, including the plaintiffs, therefore, had no use for tank cars to that point. The Lehigh Valley road did not own tank cars, nor did any of the other railroad companies to any material extent, except the Pennsylvania Railroad, which is not a party to this proceeding. The charges for transportation of oil in tank cars did not include any charge except for the oil. In the transportation of the oil to Perth Amboy via Buffalo the initial carrier was the Western New York & Pennsylvania Railroad Company, the Lehigh Valley Railroad Company taking the oil as delivered to them in barrels in cars at Buffalo, New York, and transporting it to Perth Amboy, the plaintiffs paying therefor a joint through rate, amounting to 66 cents per barrel, including the barrel. The defendants had established this joint through rate. The tank cars that were used by others for transportation to other places than Perth Amboy were rented from the owners, who were also shippers of the oil, to the railroad companies, who paid the owners for the use of such tank cars a certain sum, determined by the miles run. Those cars were used exclusively for the transportation of the oil of the owners of the cars.
The Commission ordered the defendants to cease and desist from charging or collecting any rate or sum for the transportation of the barrel package on shipments of oil in barrels over their respective roads or lines from the oil regions of western Pennsylvania to New York and New York harbor points, or, on reasonable notice, promptly furnish tank cars to complainants and others who may apply therefor for purpose of loading and shipping oil therein to such New York harbor points as the shipper may direct; and that said defendants notify the public accordingly by publication in their tariff of rates and charges, pursuant to the provisions of § 6 of the act to regulate commerce. It was also ordered that the rate on shipments of oil, both in tanks and in barrels, over said roads, should be the same, and the said rate from said oil regions to New York points should not exceed 16 1/2 cents per hundred pounds. The defendants were also required 'to refund to the several parties legally entitled thereto, within sixty days after notice of this decision and demand thereof by such parties, all sums received by them for transportation over their roads of the barrel package, on shipments of oil in barrels, when the use of tank cars had not been open to shippers impartially, and the shipper claiming reparation has been thereby deprived of their use.'
In its opinion, covering, so far as applicable, the three cases, the Commission said that the unlawful discrimination regarding the charge of 14 cents for the barrel package, in addition to the 52 cents for the carriage of the oil per barrel, as against 52 cents per barrel by tank cars, without any charge for the package, lay in the fact that the choice was not open generally to shippers, and that the case was one where both modes of transportation are employed by the carrier, and the use of one, the tank cars, is not open to shippers impartially, but is practically limited to one class of shippers, and that the charge for the barrel package in barrel shipments, in the absence of a corresponding charge on tank shipments, resulted in a greater cost of transportation to the shipper in barrels on like quantities of oil, between like points of shipment and destination, than to the tank shipper, and that it was an unjust discrimination, subjecting the barrel shipper to an unreasonable disadvantage, and giving the tank shipper an undue advantage, and that no circumstances and conditions had been disclosed by the evidence in these cases authorizing such discrimination by any of the defendant carriers.
The order of the Commission was filed November 14, 1892, and the proceedings were kept open for the purpose of ascertaining the amounts which were due the parties plaintiff on the theory adopted by the Commission.
The defendants did not comply with the order, but continued to charge the 14 cents for the barrel, and the parties seeking reparation-that is, the recovery of the damage which they alleged they had sustained-applied for a hearing before the Commission to ascertain the amount thereof. The Commission proceeded thereafter, on proper notice, to determine the amounts due each of the claimants from September 3, 1888, the time of the commencement of the charge for the barrel transportation, to May 15, 1894, the time of the hearing before the Commission, and found (October 22, 1895) the amount due the plaintiff, the Penn Refining Company, Limited (among many other claimants), to be the amount already stated, arising, as found, from the transportation of barrels containing petroleum oil, shipped and carried by the railroads from Oil City and Titusville to Perth Amboy at 14 cents per barrel in addition to 52 cents for its contents.
The Commission, in its reparation opinion, stated that the carriers had failed to notify the public, by publication in their tariffs of rates and charges, that they would, on reasonable notice, supply shippers who might apply therefor with tank cars for transportation to New York harbor points. The original order, directing the publication of these notices by defendants in their tariffs of rates, was entered November 14, 1892, while the period covered by the reparation order of October, 1895, giving damages, included four years, namely, from September, 1888, to November, 1892, before the making of such order. The Commission, in its opinion, also stated that tank cars had not been open to the use of shippers generally on the carriers' roads, but there was no statement or finding that plaintiffs had ever applied for such cars or desired them, or had been refused. The companies did not comply with the order of reparation, and the Commission then commenced (some time in 1896) a proceeding in its own name in the circuit court of the United States, in equity, to enforce all the directions contained in the orders, including the provision for the payment of the money damages found due the various claimants. Upon demurrer that court held that the latter provision could not be enforced in equity, as the railroads were entitled to a jury trial on the issue as to the amount of the money recovery, and that the order in regard to the amount due ought to be enforced by each plaintiff in his own name. Interstate Commerce Commission v. Western New York & P. R. Co. 82 Fed. 192-195.
Thereupon, and in April, 1901, this proceeding by petition was commenced in the United States circuit court for the western district of Pennsylvania by the Penn Refining Company, Limited, to recover the amount of the money reparation directed by the Commission. The Lehigh Valley Company demurred to the petition, which was overruled, and issue was then joined by all the defendants upon the material allegations of the petition, and the case was tried in March, 1902, and a verdict found for the plaintiff against all the defendants.
Messrs. James W. Lee, Samuel S. Mehard, M. J. Heyward, and Eugene Mackey for plaintiff in error.
Messrs. John G. Johnson, Francis I. Gowen, and Patterson, Sterrett, & Acheson for defendants in error.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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