*1 INC., A. L. MECHLING LINES, BARGE et al. STATES UNITED et al. Argued 8-9, 18, 1961.
No. 41. 1961. Decided December November *2 B. for Hayes argued Edward the cause and filed briefs appellants. M. argued
Daniel Friedman the cause for the United Commission, appel- States and the Cox, him lees. With on the brief were Solicitor General Attorney Loevinger, Acting Assistant General Assistant Attorney Solomon, Lionel Kirkpatrick, General Richard A. Kestenbaum, H. Neil Garson. Robert W. Ginnane and argued intervening M. Tolmie
Donald the cause for A, Kaier, him railroads. on the briefs With were Edward H, Bierma, Souby, Robert James M. and James E. Jr. Steffarud. opinion delivered the
Mb. Brennan Justice Court. appellee
In December the railroads published filed with the Interstate Commerce tariffs establishing through grain pro- combination from rates, ducing in Northern Illinois certain areas Eastern des- for tinations, were lower than local or flat rates from Chicago same commodities to the same destinations. long- Since these tariffs be in violation of would provisions of §4(1) short-haul Interstate Com- Act,1 simultaneously applied merce for the 380, (1): amended, Stat. C. 1 24 49 U. S. 4§ any subject chapter “It shall be unlawful for common carrier to this charge greater compensa- chapter or 12 of this title to receive aggregate transportation passengers, tion in for or of like property, longer kind of a shorter than for a distance over the direction, being route in the same the shorter same line or included longer distance within by pro- the first
administrative relief which authorized Timely appel- filed (1).2 protests viso to 4 were proposed that the railroad rates alleging lant barge lines, legitimate competition threatened the extinction into areas producing for the traffic from water carriers 2 of the Com- Chicago. January 1969, On Division 9, author- Order No. mission entered Fourth Section expressly although izing proposed railroad rates — Commis- withholding pending further approval them — any hearing before sion action.3 Order was entered Divi- and the investigation completed, had held or any findings. On the same day, sion did not set out investigation instituted with Division ordered that an *3 to the lawfulness the rates.4 respect as whether Pending final Commission determination to was and after permanent warranted, Fourth Section relief appel- had in for the months, Order 19059 effect 10 is pres- the of which review barge lant lines filed action in ently sought, District Court for the Eastern District the complaint part of Missouri. The was based on the statutory procedure for review
2 “Provided, upon application That to the after Commission and investigation, carrier, may by special cases, such be authorized the charge longer Commission less for for than shorter distances transportation property, passengers the or the Commission and may prescribe designated from time to time the extent to which such may operation foregoing provisions carriers be from the relieved the section, exercising authority upon of this the but conferred it in this proviso, any permit the Commission shall not the establishment of charge point reasonably to or from more distant not com pensatory performed; for the service and no such authorization shall merely granted potential competition on account of water not actually in existence . . . .” 3 19059, 9, 1959, Fourth Section Order No. Jan. Grain and Grain to the East. Products from Illinois 4 32790, 1959, Corn, Oats, Soybeans Docket No. Jan. —Illinois the East. aside prayed the court to set orders,5 Commission and lacked ground Order 19059 on the the Commission power grant protested relief as to tariffs Fourth Section an holding first completing investigation, without full making findings adversary hearing, explicit statutory had been granting criteria for the of such relief complaint met.6 relief under also Declaratory Judgment and under review Act7 Act;8 provisions the Administrative Procedure challenged administrative alleged that practice continuing one, prayed was a for a declara- beyond of the powers tion that Commission.
Pending the determination action, eliminated the long-haul short-haul discrimination from their rates and notified the of their letter application respecting withdrawal Fourth Section which Order 19059 had granted temporary relief. Hav- enjoin Jurisdiction to and set aside orders of the Interstate Com merce Commission is conferred on the District U. C. Courts S. plaintiff’s 1336. Section 1398 venue in the locates district of § principal residence office. United Section makes the States defendant, a nominal 2323 authorizes the intervention of the Com § party, requires mission or of interested and 2325 such actions *4 three-judge to heard and determined a court. 6 complaint alleged statutory requirement The that longer “reasonably compensatory” had, rate for the haul be gloss, authoritative administrative been imbued with four distinct criteria, namely, that a rate so described must “(1) expenses cover and more- than cover the extra or additional handling applies; incurred in to (2) traffic which it be no lower necessary existing competition; (3) than to meet not be so low as legitimate carriers; threaten the of competition by to extinction water (4) impose not jeopardize an undue burden on other traffic appropriate return of property generally, on value carrier as contemplated in 15a of the section act.” 7 2201, 28 S.U. C. 2202. §§ 8 243, 5 60 Stat. U. S. C. 1009. §
328 lawsuit, pending in the as defendants
ing intervened
Commission,
moved for
then
with the
railroads, together
first, that as to the
grounds,
on the
action
dismissal
19059 the withdrawal
Order
for annulment
prayer
cause
rendered the
application had
the Fourth Section
second,
juris
District Court lacked
moot; and,
District
declaratory judgment.9 The
grant a
diction to
Supp.
F.
to
386.
the motions
dismiss. 188
granted
Court
appeal
under
barge
perfected
lines then
to
decision as
our
1253,
postponed
and we
§
S. C.
U.
the merits.
First,
they
assert
their brief that
“have
continuing
having
F.
interest
S. 0. 19059 vacated since
to any
by appellants against
it would be a defense
action
for damages
suffered from the railroads'
departure
Appellants
fourth section
rates.”
point,
connection,
certain
to
of our decisions10 which suggest
jurisdiction
grant
As to
declaratory judgment
lack of
it was
argued
only
controversy”
not
there was no
“actual
within the
meaning
statutory provisions
of U. S. C.
but
also that
5, supra,
incorporate
provision
set forth in note
no
for declara
tory relief, provide
the exclusive mode of
review of Interstate
Commerce Commission orders.
Co.,
Lambert Run Coal Co. v.
&
Baltimore Ohio R.
329
they
attacking
from
precluded
to them
will be
collaterally
19059
the order must be set
Order
if
all, by statutory
at
direct review.
aside,
Inc.,
36,
Munsingwear,
In United
States v.
S. U.
expressed
should not be
party
Court
the view that
in subsequent
litigation by
concluded
a District Court’s
issues,
judg-
resolution of
review of the
appellate
when
incorporating
resolution,
ment
otherwise available
intervening
as of
fails
right,
because
mootness. We
principle
implemented
there held that that
should be
the reviewing
vacating
judgment
court’s
the unreviewed
principle
Munsing-
below.11 We think
enunciated
wear at
equally applicable
least
to unreviewed adminis-
orders,
trative
and we
its
adopt
procedure here.
District Court should have vacated the
order which
declined to review.12
disposition
solely
Since our
rests
brought
pur
authorized
I. C. C. order must be
in federal court
statutory
procedure);
suant to
review
Callanan Road Co. v. United
States,
(authority
on the mootness to be is not discrimination, it long-haul short-haul of the any appropriate foreclosing determination, on as taken the Commission occasion, (a) whether future procedures utilizing enter Order empowered to authorize Order 19059 was effective to whether did; (b) it related; it or which departures Fourth Section a of Order 19059 establishes pendency (c) whether their carry if out appellants defense for predicate damage a suit to us to expressed intention alleged of the railroads on the violation against no as to course, we here intimate view Of statute. damages exist cause action for may there whether predicated on a of a carrier Fourth competing favor departure. Section
Second, since assert their brief appellants in granting . Commission ‘tem- practice “the . . to the porary’ authority departures Fourth Section protests of Railroads over the without hearing findings in granting or the order such “continuing” presently there is an authority” one, is jurisdiction actual within the of the Court by declaratory judgment.13 to resolve significant aspect think it on We of the case that is appeal, the Commission on this conceded that it has, obliged findings to make is challenged that the fatally supporting findings defective because no were made. The Commission further it has represents that practice accordingly. amended its It appears thus “continuing” one practices validity whose appel- 13Appellants previous state that on several occasions they challenge review has failed because of intervening mootness either applica occasioned the withdrawal tions, citing States, 305; Supp. Coastwise Line v. United 157 F. Barge States, American Commercial Line Co. v. United Civ. No. (S. 1959), by superseding orders, D. citing Tex. Atchison, Carriers, & S. R. Inc., T. F. Co. v. Dixie 355 U. 179. S. Nor adjudicate longer. lants would have us continues no juncture appropriate would to decide at this whether required hearing an evidentiary the Commission to hold prior “temporary to granting Fourth Section relief.” Despite it is not present the Commission’s insistence that *7 experience newly adopted practice so its required, with making findings respect protested of all Fourth Section may Orders lead provide the Commission to for a hearing least under some circumstances. —at a
Declaratory judgment remedy judi- is committed to cial discretion. Nor need this Court first have the view a may lower court it decide such discre- before ought tion not be Public exercised. Service Comm’n v. Wycoff Co., 344 S. 237. think U. We that sound discre- remedy tion withholds the where appears that a chal- lenged “continuing practice” is, adjudica- at the moment undergoing significant tion sought, modification so that confidently its ultimate form predicted. cannot be doWe not, possibly reach the therefore, questions difficult appellants’ whether to the Commission’s “con- challenge practice” tinuing gives controversy, rise to an actual whether on pleadings the District Court was these other- possessed wise of jurisdiction to render a declaratory judgment.14
The dismissing the District Court the com- plaint is modified to provide proceedings are remanded to the Interstate Commerce Commission with direction to vacate and set aside Order 19059.
It is so ordered. Clark, Justice, Justice whom The Mb. with Chief Douglas Mb. Justice Black and Mr. Justice join, dissenting.
Believing that an actual still exists I case, agree cannot that it is In my moot. opinion, the 9, supra. See note filing subsequent to the suit have occurring events necessity a issues for decision on the negated not and I vacate the dismissal complaint, would raised remand case to Court and three-judge District on these issues. pass it with instructions to lines complaint by appellant barge filed findings, statutorily required for lack of aside, to set permitting cer- order of the Commission a transpor- higher tariffs for impose tain railroads to grain longer “for a shorter than for a distance tation of line or route.” The also asked over the same Act that it was unlawful under the for declaration in practice railroads to engage the Commission and the illegal temporary in a whereby such orders continuous long- and by-pass series were utilized to short-haul §4(1) ques- of the Act. The provisions railroads *8 complaint in shortly tion the case after the intervened by was filed. The raised the are issues two- (1) validity temporary (2) the of the the fold: order, continuing practice against of the validity alleged used appellants. thought
The
District
elimi-
three-judge
Court
the
of the
by
long-haul
nation
the railroads
short-haul dis-
accompanied
crimination,
by the withdrawal of the appli-
permission
which had
for
cation
such discrimina-
tion,
validity
temporary
left the decision as to the
of the
meaningless
order a
issue. This overlooks the fact that the
validity of this order
is still an
actual
appellants
intervening
between the
and the
railroads.
the
invalidity by
Neither
concession of
the Commission
pursuant
nor
the vacation
order
to the Court’s
the
opinion
validity.
is determinative of
order’s
Upon
the determination of this issue rests the
of
ability
the
by
to collect
appellants
damages occasioned
the tariffs
by
pursuant
used
the railroads
to the temporary order,
assuming
plausible
liability
a
exists
theory
(a
authority
decide). For
which I
not now
question
need
validity
the
issue is saved from mootness
indicating
the basis of
by
may
the
the order
“be
possibility
Terminal Co.
proceedings,”
further
see Southern Pacific
Comm’n,
(1911).
U. S.
I
the
would not be
Moreover,
appellants
note
fact that
in a
from
the
later suit —the
challenging
barred
order
not
point
upon
majority
affirming
relied
by the
—does
the issue moot
this case.
render
If
for
of this
only
validity
need
a decision on the
damages
aid a suit
which
temporary order were to
might possibly
might
formally
I
not
take
brought,
by my
with
issue
the decision below and its affirmance
However,
Brethren.
by
because of the
issue raised
second
e.,
i.
complaint,1
alleged
an
circumvention of the
Act
utilization of
a continuous stream of such
orders,
validity
as
temporary
as well
order,
gave
presently disputed
which
birth to
it,
very
case.
continuing practice
com-
plain
of an application by
consists
for an
permitting
imposition
order
a
lower tariff for
long-haul
charged
than is
for a short-haul over the
line;
same
the issuance by the Commission
a temporary
necessary
without
findings required by
(1);
the maintenance of
such
order as long
pos-
sible
delaying
disposition
the final
application;
and the withdrawal or vacation of such order
whenever
*9
judicial
of its validity
test
appears
thereby
imminent,
frustrating any review on the ground of mootness.
It is
by
claimed that
continually repeating
process
the
railroads and the Commission
kept
have
in effect an
argued
It could be
that
continuing
even if the
practice was not
ease,
an issue in the
its existence
determining
could be considered in
the case is moot. See Southern
whether
Terminal Co. Pacific
Comm’n,
(1911).
The lower question that this it, before felt practice issue was tinuing controversy. The opinion a justiciable present did not regardless by saying Court affirms this result of the controversy, presents an actual question whether any to relief discretion withhold is sound this Court the has renounced because Commission before Court has practice. appears It the challenged the upholding dis- position in the placed itself dubious ground was on a that was cretion that never exercised mystified presented. by I am the tactic which never initially committed the effect exercises discretion “possibly difficult deciding trial court in order to avoid questions” properly before this Court. as my complaint interpreted applied
In view the and by raises an actual the court below validity alleged practice.2 though of the Even there controversy, is a the court below the exercise its might injunctive discretion no relief, decide that either I for; however, called do not feel that declaratory, intervening partial repentance by the Commission compels the lower court to refuse relief. I Rather would think that representation Commission’s is only one fact to be along considered with all the other circum- appellants’ stances which they affidavits indicate would 2 Analysis alleged reveals entering “still follows the such orders with supporting findings.” out requested It that “the absence of power authority temporary in the Commission to enter fourth- prior section hearing, orders to a sup enter them without porting findings, definitely Also, appellants established.” noted validity might Commission’s entry become moot order, “just of a final as other cases which similar relief has have become moot before Supreme issues could be determined Court.”
335 Furthermore, if the opportunity.3 show afforded preceding cases which court might below take note played hanky-panky that the railroads have with indicate away freight to attract years their rates for an effort waterways.4 from the
To at was dismissed as moot sum the time case up, there that the and the railroad charge following using practice illegal intervenors were “temporary” purpose of Con- orders to frustrate the gress recognize and have the Act “so administered preserve advantages” the inherent of “all modes of trans- portation subject prac- ...” Based on this [thereto]. appellants prayed that the temporary orders and tice enjoined the continuous be declared and illegal appropriate and for other relief. Under the record here I am convinced presented, there is a if heard could be amenable I relief. would vacate the dismissal and remand case to the court below for its consideration of the issues raised and for its thereon, including decision whether, exercise of its discretion, any injunctive or relief declarative
3 Such other that, factors would include evidence in 1958-1959 eight alone, protested separate the water carriers had other dis and applications temporary tinct 4 relief in which orders to that similar only here obtained; year involved were that in over a one applications formally upon of these had been acted Commis sion; applications two of these were withdrawn the face tests; pending applications awaiting that five of these are still final temporary having decision before the Commission with orders years; in effect for over one a half these rates avowedly designed by freight were the railroads to divert from the carriers; water and that as a result the water carriers lost thousands grain per year. shipments of tons of 4 ; Mechling, (1947) U. Comm’n v. S. Waterways Corp., Interstate Commerce Comm’n v. Inland S.U. opinion) (dissenting (1943). 692-703 Also see cases cited note opinion. 13 of the Court’s *11 for;
called the further instruction, with accordance Bryan Austin, with the utilized in v. S.U. 933 (1957), upon appellants’ request they granted to amend pleadings leave their changed to meet the con- brought dition case as about Commission’s intervening concession its order void, well as its renouncement of the challenged practice. Indeed, some of indicate our cases that if at that time chose to assert their cause of for damages, action that too might be included in such amendment, event that claim single would be heard aby judge of the three- judge Compare Bryan Austin, court. supra; Public Service Comm’n Freight Lines, v. Brashear 312 U. S. 621 (1941).