valley of California and the small valleys of the coast ranges. The other rate group covers the Imperial Valley region, situate in the extreme southeast corner of California and centered around the city of El Centro.
Mandell contended that the rate applicable to the shipments in question was that published from El Centro to Philadelphia in Item 1399H of § 3 of Agent L.E. Kipp's
Tariff, ICC No. 1508 (Kipp's Tariff). This rate, which was sought to be made applicable via the intermediate point rule, was ten cents per hundred pounds less than the rate claimed as the proper charge by the Carriers for central California points.
The intermediate point rule provides essentially that the commodity rates established by it apply to "any destination point . . . via a given route" where the intermediate point is "not named in the tariff, which point is intermediate to a point to which a commodity rate . . . is published . . . via a route through the intermediate point, and via such route . . . to the next point beyond."
Mandell claims that the intermediate point rule makes the El Centro rate applicable because: (1) Salinas, Watsonville Junction, Tipton, Brentwood and Firebaugh, even though not named in § 3 of the tariff, are intermediate points between El Centro and Philadelphia; and (2) El Centro is the "next point beyond". Mandell contends for the El Centro rate, notwithstanding the fact, upon which all parties agree, that no shipments of any goods have ever traveled over a route from El Centro to Philadelphia via Salinas, Watsonville Junction, Tipton, Brentwood or Firebaugh (hereinafter the "El Centro route"). The El Centro route is therefore one hypothetically constructed for tariff purposes by use of the intermediate point rule.
The carriers claim that the applicable tariff is that published from the named central California points from which the goods were actually shipped to Philadelphia via the Ogden Gateway in Item 1147 D of § 1 of Kipp's Tariff. They assessed and collected freight charges accordingly. The Carriers argue that the hypothetically constructed El Centro route is not only inapplicable, but that it is also arbitrary, unreasonable and contrary to law.
It is appropriate at this juncture to describe the hypothetical El Centro route. The parties agree that such "route" between El Centro and Philadelphia, utilizes the lines of the San Diego and Arizona Eastern Railway Co. (San Diego Railway) to San Diego, the Atchison, Topeka and Santa Fe Railway Co. (Santa Fe Railway) to Los Angeles, and the Southern Pacific Railroad (Southern Pacific Railroad) through Salinas to Ogden, and thence to connections to the East. They also agree that the El Centro route differed from the route to which the Carriers claim the rates in § 3 apply, i.e., from El Centro to Philadelphia using the Southern Pacific Railroad and connections to the east via Arizona and New Mexico,
in the following particulars:
1. The El Centro route takes traffic in a directional back haul from El Centro through Mexico to San Diego, a distance of 147 miles, thence 732 miles in a northwesterly direction to Roseville, California via the San Joaquin Valley (or 834 miles in a northwesterly direction to Roseville, California, via the coast) before turning and starting towards eastern destinations;
2. The route crosses three mountain ranges with over 2 per cent grade before returning to a point comparable to El Centro;
3. The route utilizes a railroad over which regular through perishable schedules to the east have not been maintained from El Centro;
4. The San Diego Railway did not have industries at El Centro;
5. Traffic moving to the east via the actual Southern Pacific Railroad route via Arizona and New Mexico would require no interchanges until it reached Deming, New Mexico, El Paso, Texas, or Tucumcari, New Mexico, on the Southern Pacific Railroad, whereas traffic loaded at Southern Pacific Railroad perishable sheds at El Centro and routed through central California via the San Diego Railway and the other connections outlined on the El Centro route would require three interchanges between carriers before it was turned over to a connecting line at Ogden;
6. The scheduled time to move a car from El Centro to eastern points via the El Centro route exceeded the guaranteed scheduled time using the Southern Pacific Railroad route via Arizona and New Mexico by five days, and for perishable traffic expedited service is essential.
Notwithstanding these facts, the ICC found in plaintiff's favor and awarded reparations.
It found that the rate to Philadelphia, Pa. from the origin points of the shipments in question, i.e., central California, was the lower rate from El Centro since the central California origin points were, in its view, points intermediate from El Centro, California to Philadelphia under the routing and intermediate point rules published in Kipp's Tariff. The ICC entered a final order on December 19, 1956 in the sum of $1,314.69 with interest at 4% from the Pennsylvania Railroad, and $24.33 with interest at 4% from the Baltimore & Ohio. The Carriers refused to pay the reparation award, and in accordance with the statutory procedure, 49 U.S.C. § 16, the plaintiff has brought this action to enforce the award.
Although the ICC award was entered on December 15, 1956, suit was not instituted in this Court until December 16, 1957. The matter came onto the Court's master calendar, and preliminary motions were heard by a number of judges sitting on the motion list. After disposition of the motions, the matter became dormant; the parties did not press it or order it down for trial. Ultimately, the matter came onto the individual calendar of the undersigned, who summoned the parties and heard the case on a stipulation of facts and briefs.
Finding the hypothetically constructed El Centro route to be arbitrary, unreasonable and contrary to law, we refuse to enforce the Commission's order.
Resolution of the question before us will require a rather lengthy reconstruction of the tariff provisions, including an examination of the few cases which have construed similar tariff provisions, especially the pivotal decision of the Eighth Circuit in A.E. West Petroleum Co. v. Atchison, T. & S.F. Ry., 212 F.2d 812 (1954) which we elect to follow.
Because Mandell asserts that the Court is without power to set aside a Commission order, we must first address our attention to the question of the scope of the Court's review of Commission orders.
II. Scope of Review
It is well settled that tariff construction is a question of law. The Court is being asked here to construe the language contained in a written document. No administrative determination was made as to any matters of fact, and no resort was had to any field of technical knowledge wherein the Commission might be deemed to have special competence. A tariff, for our purpose here is not essentially different from any other written instrument. This has long been the settled rule of the law. See Gt. No. Ry. Co. v. Merchants Elev. Co., 259 U.S. 285, 42 S. Ct. 477, 66 L. Ed. 943 (1922); Lafond Motor Co. v. No. Pac. Ry. Co., 2 F. Supp. 658 (D.C. Minn. 1932); W.P. Brown & Sons Lumber Co. v. L. & N.R. Co., 299 U.S. 393, 57 S. Ct. 265, 81 L. Ed. 301 (1937); A.E. West Petroleum Co. v. Atchison, T. & S.F. Ry., 212 F.2d 812 (8th Cir. 1954). Furthermore, it is settled law that a tariff must be construed to avoid unjust, absurd, or improbable results. National Van Lines, Inc. v. United States, 355 F.2d 326 (7th Cir. 1966); A.E. West Petroleum Co. v. Atchison, T. & S.F. Ry. Co., supra. The test of interpretation of railroad tariffs was well set out in United States v. Missouri-Kansas-Texas R.R. Co., 194 F.2d 777, 778-779 (5th Cir. 1952):
"The construction of a printed railroad tariff presents a question of law and does not differ in character from that presented when the construction of any other document is in dispute. The four corners of the instrument must be visualized and all the pertinent provisions considered together, giving effect so far as possible to every word, clause, and sentence therein contained. The construction should be that meaning which the words used might reasonably carry to the shippers to whom they are addressed, and any ambiguity or reasonable doubt as to their meaning must be resolved against the carriers. But claimed ambiguities or doubts as to the meaning of a rate tariff must have a substantial basis in the light of the ordinary meaning of the words used and not a mere arguable basis."
It is our task then to review the Commission's decision, and if we find its interpretation contrary to law, to set it aside.
III. The Rationale of the ICC Order
As we have pointed out, the Commission interpreted the tariff to "permit" the application of the lower rate as published in Item 1399H contained in § 3 of Kipp's Tariff by means of the alternative provision
and in conjunction with application of the intermediate point origin rule contained in § 3. The Commission
concluded in its final opinion, Samuel P. Mandell Co. v. Pennsylvania R.R., 298 I.C.C. 609 (1956):
"Here, the defendants parties to the Kipp Tariff prior to September 1, 1949, elected to provide for and published routing which plainly stated that, except as otherwise provided in the tariff (and no other routing was provided from El Centro on the San Diego-Arizona Eastern), all rates subject to the intermediate rule would apply over any and all routes made by the use of the lines of any of the carriers parties to the tariff . . . The publication by the defendants of this plan of routing rendered the application of the claimed routes both definite and certain, and presumably reasonable." Id. at 615.
The rates established in § 3 were subject to routing instructions contained in Item 2000E of Kipp's Tariff. Those instructions provided that:
"Except as otherwise specifically provided in this tariff, the rates authorized in this tariff apply only as follows: