[215 U.S. 98, 99] On December 10, 1907, the Interstate Commerce Commission entered an order requiring certain railroads running into Chicago to cease and desist from making a terminal charge of $2 per car for the transportation of live stock beyond the tracks of said railroads in Chicago, and for delivery thereof at the Union Stock Yards, and requiring them to establish and put in force for said services a charge of $1 per car. Compliance with the order was postponed by the Commission until May 15, 1908. On May 7, 1908, the appellees filed this bill in the circuit court of the United States for the district of Minnesota, to restrain the enforcement of said order, averring that the actual cost to them for such terminal services exceeded in each instance the sum of $2 per car, and that the companies were making delivery at a charge less than such actual cost; that therefore the reduction of the charge by the commission to $1 per car was unreasonable, opprssive, and unlawful. A hearing was had before three judges of the eighth circuit, and a restraining order entered as prayed for by the railroad companies, from which order an appeal was taken to this court.
Assistant to the Attorney General Ellis and Mr. S. H. Cowan for appellant.
[215 U.S. 98, 102] Messrs. William D.Mchugh and Walker D. Hines for appellees.
Statement by Mr. Justice Brewer:
Mr. Justice Brewer delivered the opinion of the court:
The controversy as to this terminal charge has been of long duration. A history of it antecedent to the present litigation is to be found in Interstate Commerce Commission v. Chicago, B. & Q. R. Co. 186 U.S. 320 , 46 L. ed. 1182, 22 Sup. Ct. Rep. 824.
It is well to understand the precise question which is presented in this case. That question is the validity of the terminal charge of $2 per car. The report of the Commission opens with this statement: 'The subject of this complaint is the socalled terminal charge of $2 per car imposed by the defendants for the delivery of car loads of live stock at the Union Stock Yards in Chicago,' and its order was in terms that the railroad companies be-'required to cease and desist on or before the 1st day of February, 1908, from exacting for the delivery of live stock at the Union Stock Yards, in Chicago, Illinois, with respect to shipments of live stock transported by them from points outside of that state, their present terminal charge of $2 per car.
The 2d section of the act known as the 'Hepburn act' (an act to amend the interstate commerce act, passed on June 29, 1906, 34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892) requires carriers to file with the commission, and print and keep open to inspection, [215 U.S. 98, 105] schedules showing, among other things, 'separately all terminal charges . . . and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates.' By 4, the Commission is authorized and required, upon a complaint, to inquire and determine what would be a just and reasonable rate or rates, charge or charges. This, of course, includes all charges, and the carrier is entitled to have a finding that any particular charge is unreasonable and unjust before it is required to change such charge. For services that it may render or procure to be rendered off its own line, or outside the mere matter of transportation over its line, it may charge and receive compensation. Southern R. Co. v. St. Louis Hay & Grain Co. 214 U.S. 297 , 53 L. ed. 1004, 29 Sup. Ct. Rep. 678. If the terminal charge be, in and of itself, just and reasonable, it cannot be condemned or the carrier required to change it on the ground that it, taken with prior charges of transportation over the lines of the carrier or of conecting carriers, makes the total charge to the shipper unreasonable. That which must be corrected and condemned is not the just and reasonable terminal charge, but those prior charges which must of themselves be unreasonable in order to make the aggregate of the charge from the point of shipment to that of delivery unreasonable and unjust. In order to avail itself of the benetfi of this rule, the carrier must separately state its terminal or other special charge complained of; for, if many matters are lumped in a single charge, it is impossible for either shipper or Commission to determine how much of the lump charge is for the terminal or special services. The carrier is under no obligations to charge for terminal services. Business interests may justify it in waiving any such charge, and it will be considered to have waived it unless it makes plain to both shipper and Commission that it is insisting upon it. In the case in 186 U. S. supra, we sustained the decree of the lower court, restraining the reduction of the terminal charge from $2 to $1 as to all stock shipped to Chicago, although the Commission had stated that there had been a reduction of the through rate [215 U.S. 98, 106] from certain points by from $10 to $15, in reference to which reduction and its effect upon the order of the Commission we said, speaking by Mr. Justice White, after quoting from the report of the Commission (pp. 338, 339):
The tariff schedules of the appellees make clear the separate terminal charge for delivery from their own lines to the Union Stock Yards. We quote the schedule of the Chicago & Northwestern Railroad Company:
The others are equally specific. In some of them, as in the Atchison, Topeka, & Santa Fe Railway Company, it is provided:
Further, is is shown by the affidavits that the amount of such terminal charge is not entered upon the general freight charges of the companies, but is kept as a separate item. The Union Stock Yards Company is an independent corporation, and the fact, if it be a fact, that most or even all of its stock is owned by the several railroad companies entering into Chicago, does not make its lines or property part of the lines or property of the separate railroad companies.
With reference to the reasonableness of the terminal charge, it was stipulated on the hearing before the Interstate Commerce Commission that all the testimony taken in the former proceedings might be considered. It also appears that additional testimony was there offered. None of this testimony has been printed in the record presented to us. We have, however, our former decision as well as the report of the Commission on the recent hearing, and also the affidavits filed on this application, and can consider them. It appears from the former case that, after some discussion, when testimony was being offered on the question of reasonableness, the Commission suggested that it was probably unnecessary to offer further evidence, and said (p. 327):
In its report in the present case it said:
Under those circumstances it seems impossible to avoid the conclusion that, considered of and by itself, the terminal charge of $2 a car was reasonable. If any shipper is wronged by the aggregate charge from the place of shipment to the Union Stock Yards, it would seem necessarily to follow that the wrong was done in the prior charges for transportation, and, as we have already stated, should be corrected by proper proceedings against the companies guilty of that wrong, otherwise injustice will be done. If this charge, reasonable in itself, be reduced, the Union Stock Yards Company will suffer loss while the real wrongdoers will escape. It may be that it is more convenient for the Commission to strike at the terminal [215 U.S. 98, 110] charge, but the convenience of Commission or court is not the measure of justice.
We are unable to find any error in the conclusions of the trial judges, and their order is therefore affirmed.