This was an action commenced by the plaintiff in error, plaintiff below, in the circuit court of the United States for the Southern district of Iowa, to recover of the defendant $1,550 on account of alleged violations of the interstate commerce act. An amended and substituted petition was filed, which, in five counts, stated plaintiff's causes of action. To this the defendant demurred, and, the demurrer having been sustained, judgment was entered in its favor. The plaintiff took the case to the court of appeals of the Eighth circuit, by which court the judgment was affirmed. 27 U.S. App. 394, 11 C. C. A. 489, and 63 Fed. 903. Thereupon the case was brought here on writ of error.
The first count alleged facts which, as claimed, show that the defendant had such relations to the Fremont, Elkhorn & Missouri Valley Railroad Company and the Sioux City & Pacific Railroad Company that the lines of those railroads, together with that of the defendant, were under a common control and management; and therefore that the defendant was to be treated for all practical purposes as the owner of a single line from the points in Nebraska, hereinafter mentioned, to Chicago. It stated the distances from those points to Chicago, and also from the places in Iowa along the line of defendant's road from which the plaintiff made his shipments, these latter distances being substantially less than the former. Then, after a general averment that the Nebraska rates to Chicago had always theretofore been greater than the Iowa rates, it alleged that on December 30, 1887, the defendant, for the purpose of giving unlawful preference to the shippers of corn and oats in Nebraska, and to unlawfully discriminate against the plaintiff and other shippers of corn and oats in Iowa, put in force from Nebraska points, a certain freight tariff upon corn and oats, in words and figures following:
'C. & N. W., G. F. D. No. 2,927, superseding G. F. D. No. 2,724, F., E. & M. V. and S.C.. & P., G. F. D. 949, and G. F. D. No. 859 of 1887.
'Chicago and Northwestern Railway, Fremont, Elkhorn and Missouri Valley and Sioux City and Pacific Railway.
'Joint tariff on corn and oats in car loads, taking effect December 30, 1887, to Rochelle, Ill., when destined to New York, Boston, Philadelphia, Baltimore.
From..................... Per 100 lbs.
Blair, Neb.......................... 11
Kennard, Neb........................ 11 '[Here follow rates from many other Nebraska points, which are omitted as immaterial in the case.]
'Prepaid. Way bill through to Rochelle, Ill., via Missouri Valley, at rates given above. For rates from Rochelle to Baltimore, Philadelphia, New York, and Boston, see C. & N. W., G. F. D. No. 2,604, November 25, 1878, amendments or subsequent issues.
'H. R. McCullough, G. F. A., C. & N. W. R.
'K. C. Morehouse, G. F. A., S.C.. & P. and F., E. & M. V. R.'s.'
After this it continued:
'Plaintiff avers that said freight tariff was never printed in type, and was never circulated or published at any of the stations on defendant's road in the state of Iowa, and no copy thereof was ever filed with the interstate commerce commission, as required by law, and the existence of the same was concealed from the knowledge of plaintiff and of shippers in the state of Iowa upon the line of defendant's road, and the benefits and advantages of the rates specified in such tariff were denied to plaintiff and shippers on the line of defendant's road in the state of Iowa.
'Plaintiff avers that said special tariff remained in force at the several stations named therein upon the line of the Fremont, Elkhorn and Missouri Valley Railroad in the state of Nebraska from December 30, 1887, up to the 1st of February, 1888, and large quantities of corn and oats were shipped during said time upon and over the several roads aforesaid, to Turner and Rochelle, and thence to Chicago, Ill., at the rates therein specified, to wit, the sum of 11 cents per 100 pounds from the stations of Blair and Kennard, Neb.