227 U.S.

Statement of the Case.

with the Interstate Commerce Commission, and this rate was applied.

"All the lumber in question was in fact unloaded from the cars by W. A. Powell Company, Limited, into the Texas & New Orleans Railroad Company's slips, or upon its docks, in reach of ships' tackle and loaded into the ships previously chartered for the purpose by W. A. Powell Company, Limited, which steamships carried same thence direct to Europe, where this lumber was applied upon contracts for sale in Europe made before the lumber began to leave Ruliff, and made in fact before the lumber was purchased from the Sabine Tram Company, and before it was sawed, and before the logs from which it was sawed left the State of Louisiana for the Sabine Tram Company's mill at Ruliff, in the State of Texas. One of the ships actually waited at the docks at Sabine for the arrival of part of this lumber which constituted a portion of its cargo.

"The ship which carried the last of this lumber from Sabine to Europe was chartered by W. A. Powell Company, Limited, for this purpose after these lumber shipments began to arrive at Sabine, but before all of the shipments had left Ruliff.

"None of this lumber remained in the slip at Sabine, or on the docks, except for the time necessary to await the arrival of the particular ship which had previously been chartered for the purpose and designated by W. A. Powell Company as the ship which was to carry that particular lumber from the port of Sabine to Europe.

"Any shipment of lumber intended for export to Europe, and in fact shipped from any point in Texas, to and through Sabine as its port of transshipment, could be contracted for, billed to and from Sabine, shipped, transported and handled in every particular just as was this lumber.

"W. A. Powell Company, Limited, before this lumber began to arrive at Sabine, took out a blanket policy of in

surance, protecting same against loss, from the time this lumber should come into the possession of W. A. Powell Company, Limited, at Sabine until its final delivery by W. A. Powell Company, Limited, in European ports.

"At the time this lumber was shipped it was destined by Powell Company for export to some foreign port, but the particular destination of any particular portion of the lumber was not fixed, although the destination of all of the lumber to certain foreign ports was known and fixed. The Sabine Tram Company had no concern with the destination of the lumber after it came into the hands of Powell Company, and had no particular knowledge thereof. It supposed from the fact that it was known that Powell Company were exporters of lumber, from the character of lumber which was such as was intended for export, from the fact that Sabine was an important place at which very little lumber was used, and from other facts and circumstances, known to millmen generally, that the lumber was intended for export, but gave that matter no concern, being only concerned with the delivery of the lumber to Powell Company at Sabine station, and paying the freight thereon. What was done by the Texas & New Orleans Railroad Company after the arrival of the lumber at Sabine, in the way of switching to the docks, allowance of certain privileges allowed only to export freight, was done at the instance and for the benefit of Powell Company, with which the Tram Company had no concern.

"Upon the freight bills was a charge for wharfage against the Tram Company which was paid by Powell Company as a proper charge against them and not against the Tram Company. Export freight was entitled to seven days' free time for unloading, and 30 days' free storage on the docks, or in the slips, which privileges were availed of by Powell Company in handling this lumber.

"The freight bills were made out against the Sabine Tram Company and defendants knew that Powell Company were paying the freight for the Tram Company.

"The defendants, in charging the export rate, acted. under the advice of their attorneys, that the facts constituted the lumber an export shipment and subjected it to the Interstate Commerce Commission rate."

On motion the court modified its findings as follows: "Powell & Company purchased lumber from other mills in Texas, with which to supply its said sales in part; it did not know when any particular car or stick of lumber left Ruliff, into which ship or to what particular destination it would ultimately go, or on which sale it would be applied; this not being found out until its agent, Flanagan, inspected the invoice mailed to, and received by, him after shipment. Upon inspection of the invoice, he determined from the character of the lumber described whether it was suited for one cargo or the other. The lumber remained, after arrival, in the slips or on the dock from one to thirty days until a ship chartered by Powell & Company arrived, when that company selected out the lumber suited for that cargo, and shipped it forward to the destination for which Powell & Company intended it.

"We withdraw our finding that the rules and orders of the Texas Railroad Commission would allow a switching charge of $1.50 per car on domestic shipments. The only testimony we can find on this point is that of witness Beard, General Freight Agent of the Texas & New Orleans Railroad Company, that 'the Texas rate for switching these cars would have been $1.50 per car, that is, if Powell Company owned the docks; if it was shipped to the warehouse owned by consignees or his place of business.' This testimony does not authorize the general finding on this point made by us.

"The freight rate due under the tariff on file with the Interstate Commerce Commission and collected on these

Argument for Plaintiffs in Error.

227 U.S.

shipments was 15 cents per hundred pounds and under this rate, the services rendered without other charge included switching from Sabine station to the docks, seven days' free time exclusive of Sundays within which to unload the lumber from the car and thirty days' free storage of the lumber upon the docks at the wharves or in the slips belonging to the Texas & New Orleans Railroad Company. W. A. Powell & Company, Ltd., availed itself of all these services and privileges which were stipulated for by the Interstate Commerce Commission tariff and included in the 15 cent rate charged on export freight.

"There is not now and was not at the time these shipments moved, any local market for lumber at Sabine, the population of which place does not exceed fifty in number. Appellees have never done any local business at that point. For the year 1905 there was exported through the port of Sabine 14,667,670 feet of lumber; for the year 1906, 39,554,000 feet. The shipments in controversy, together with other shipments of lumber to Sabine and Sabine Pass, constitute a large and constantly recurring course of foreign commerce passing out through the port of Sabine."

Mr. Hiram Glass and Mr. H. M. Garwood, with whom Mr. Maxwell Erarts and Mr. S. W. Moore were on the brief, for plaintiffs in error:

The shipments in question constituted foreign commerce to which the rates prescribed by the Railroad Commission of Texas did not apply. Armour Packing Co. v. United States, 209 U. S. 56; Baer Bros. Mer. Co. v. Mo. Pac. R. Co., 13 I. C. C. Rep. 329; Coe v. Errol, 116 U. S. 517; Cosmopolitan Shipping Co. v. Hamburg Am. P. Co., 13 I. C. C. Rep. 266; Cotton Rate Advances, 23 I. C. C. Rep. 404; Cutting v. Navigation Co., 46 Fed. Rep. 641; Denver &c. R. Co. v. Int. Com. Comm., 195 Fed. Rep. 968; G., C. & S. F. Ry. Co. v. Fort Grain Co., 72 S. W. Rep. 419;

227 U.S.

Argument for Defendant in Error.

S. C., 73 S. W. Rep. 845; G. W. T. & P. Ry. Co. v. Barry, 45 S. W. Rep. 814; General Oil Co. v. Crain, 209 U. S. 211; Houston Nav. Co. v. Ins. Co., 89 Texas, 1; La. R. R. Comm. v. St. L. S. W. R. Co., 23 I. C. C. Rep. 31; La. R. R. Comm. v. T. & P. Ry. Co., 144 Fed. Rep. 68; S. C., 184 Fed. Rep. 989; Ohio R. R. Comm. v. Worthington, 225 U. S. 101; S. C., 187 Fed. Rep. 965; Re Transportation of Sugar, 22 I. C. C. Rep. 558; Shepard v. No. Pac. R. Co., 184 Fed. Rep. 765; Southern Pac. Terminal Co. v. Int. Com. Comm., 219 U. S. 498; State v. G., C. & S. F. R. Co., 44 S. W. Rep. 542; State v. I. & G. N. R. Co., 71 S. W. Rep. 994; State v. Sou. Kansas R. Co., 49 S. W. Rep. 252; Swift & Co. v. United States, 196 U. S. 375; T. & N. O. R. Co. v. Sabine Tram Co., 121 S. W. Rep. 256; T. & P. Ry. Co. v. La. R. R. Comm. of La., 183 Fed. Rep. 1005; The Daniel Ball, 10 Wall 557; Wood-Hagenbarth Cattle Co. v. G. H. & S. A. Ry. Co., 146 S. W. Rep. 538.

G., C. & S. F. Ry. Co. v. Texas, 97 Texas, 274; S. C., aff'd, 204 U. S. 403, distinguished.

Mr. George C. Greer for defendant in error:

The shipments were intrastate, and therefore the local state rate applied; and the plaintiffs in error became liable to pay the penalties and suffer the consequences that the Texas laws prescribed for charging a higher rate.

The shipments in question were not a part of foreign commerce for the following reasons:

The lumber shipped was by the only shipment contract, or arrangement provided, destined for Sabine, and no other point when it left Ruliff. Nor was this shipment arrangement changed while the lumber was in transit.

The lumber was not committed to a common carrier for its final and continuous voyage to a foreign point.

There was no known or fixed destination to a foreign point; or any destination beyond Sabine within contemplation of the shipment under discussion.