FERGUSON-STEERE MOTOR COMPANY, Plaintiff, v. UNITED STATES of America, Defendant and Interstate Commerce Commission, Intervener.
Civ. A. No. 5741.
United States District Court N. D. Texas, Dallas Division.
Nov. 3, 1954.
126 F. Supp. 588
“14 Taking of depositions at a distance is common to admiralty cases and this expense is considered a normal cost of litigation. Controversy over payment of counsel fees and travelling expenses may result in delay and possible loss of a mariner‘s testimony.”
The Government‘s motion for a protective order for payment of its counsel‘s expenses for the depositions noticed in Honolulu, is denied.
Frank Brooks, Warren Whitham, Callaway, Reed, Kidwell & Brooks, Dallas, Tex., for plaintiff.
I. K. Hay, Interstate Commerce Commission, Washington, D. C., James Durkin, Asst. Atty. Gen., John C. Ford, Asst. U. S. Atty., Dallas, Tex., Bernard E. English, Interstate Commerce Commission, Fort Worth, Tex., Edward M. Reidy, General Counsel, Interstate Commerce Commission, Washington, D. C., for defendant.
Before HUTCHESON, Circuit Judge, ATWELL, Chief Judge, and DAVIDSON, District Judge.
HUTCHESON, Circuit Judge.
This is an action brought under
The schedules in question were filed by the plaintiff with the Commission to become effective on July 28, 1954, and provided for reductions in rates and charges for the transportation of petroleum products in tank trucks from points in Texas to points in New Mexico. On July 26, 1954, the Interstate Commerce Commission, Board of Suspension, entered the order referred to above, in which it was stated:
“That said schedules make certain reductions in rates and charges for the transportation in interstate or foreign commerce of petroleum products in tank trucks and that the rights and interests of the public would be injuriously affected thereby.”
On July 29, 1954, the plaintiff filed a Petition for Reconsideration, in which it requested Division 2 of the Commission, the appellate division designated to consider and act upon petitions for reconsideration in such matters, “to cancel and nullify the order heretofore entered herein and to allow the suspended schedules to become effective.”
On September 17, 1954, the Commission, Division 2, acting as an appellate division, denied the petition, stating:
“That sufficient reasons have not been shown for vacation of the order described above.”
Thereupon, the plaintiff, on October 15, 1954, filed the complaint herein, in which it prays that a three judge court be convened, and that upon final hearing the order of July 26, 1954, be adjudged null and void; that the enforcement, operation and execution of said order be permanently enjoined; and that such other relief may be granted as to the Court may seem proper.
Counsel for the United States, and they are various and sundry, instead of admitting or of answering and joining issue with the allegations of the complaint, make what might be called a small dissertation or essay on “The legislative scheme of regulation provided for by the
Having thus contributed to the general enlightenment or the obfuscation of all concerned, they conclude, “Wherefore the United States says that it neither admits nor denies the plaintiff‘s allegations. The United States takes a neutral position. The United States does not oppose the order. The United States does not support the order at this juncture.”
The Interstate Commerce Commission intervened in said action, and filed its answer, praying that the complaint be dismissed and that the relief prayed for be denied, and all parties appearing, the cause was heard and submitted on oral argument and briefs, and now stands for decision.
While plaintiff in its argument concedes that Motor Carriers “are subject to regulation by the commission in rather meticulous detail, as set forth in part 2 of the
So insisting, it urges upon us that the provision of
Planting itself on these premises, it argues with force and vigor in effect: that the so-called reason put forward by the Commission in support of its suspension order is not a reason at all but a mere excuse, indeed “is nothing more than a tired overworked phrase which says nothing and means less“, put forward as face saving in support of an order which would otherwise be mere fiating; and that since this is so, the Commission has exceeded its authority in ordering a suspension without complying with the statute, and the order must be adjudged void, and its operation enjoined.
The Commission, evidently of the opinion that if it can be saved from its friends it can take care of its enemies,3 boldly and confidently opposes to plaintiff‘s position two propositions, either of which, if decided in its favor, would require the denial of the relief plaintiff seeks. In support of its first proposition, the Commission, citing many cases,4 urges upon us that if the Court should vacate the suspension order and thereby permit the reduced rates to become effective, it would be in effect prescribing or fixing new rates which it has been uniformly held the courts have no power to do.
In support of its second proposition, the Commission urges that the reason given by the Commission is patently adequate and that the judicial function is exhausted where it is found to constitute a rational basis for the conclusions approved by the administrative body, since the Courts are not concerned with the correctness of the Commission‘s reason or with the consistency and inconsistency of decisions which it has rendered.
Pointing out that the order does not constitute a final determination with respect to the reasonableness and lawfulness of the proposed schedules but serves only as an interim action, to preserve the status quo while the Commission is making the investigation required to determine whether the proposed rate is or is not lawful, and that under the law the suspension can continue effective only for the maximum period fixed by statute, the Commission presses upon us that for the Court to sustain the plaintiff‘s contention here would be for it to invade the province of the Commission in a matter which the Congress, without defini-
In addition, the Commission cites as directly in point a decision of a statutory three judge court,5 in the case of Hudson and Manhattan Railroad Co. v. U. S. and Interstate Commerce Commission, decided July 16, 1951, and in support of its citation attaches a copy of the unreported opinion to its brief.
In that case, one of the grounds of attack upon the order of suspension was that it did not sufficiently set forth reasons therefor. The Court dismissed the complaint, stating correctly, we think, with respect to this ground, “The order distinctly stated that the tariffs in question make certain increases in fares for the interstate transportation of passengers, and, the rights and interests of the public appearing to be injuriously affected thereby, we hold this to be adequate compliance with
Plaintiff cites no cases from any court, specifically sustaining its view that the provision of the statute, for giving the carrier reasons, is mandatory rather than directory in the sense that it is for the courts to test and determine the sufficiency of the reasons given. It cites no case in which a suspension order was enjoined for want of adequate reason. It nevertheless insists that the Commission is wrong on both of its grounds and the injunction prayed for should be granted.
We do not think so. Without discussing or dealing with the Commission‘s first proposition: that suspension orders are not subject to court review further than to say of it, that whether this is true to the full extent claimed by the Commission, it is certainly true that the making of the orders is confided to the discretion of the Commission, and that only upon the closest and most compelling showing that discretion was not exercised at all, or, if exercised, was abused, would a court interfere with a suspension order; we think it clear that, considering the reason given by the Commission in this case in the light of this compelling principle, it cannot be said of it that it was no reason at all and that the Commission, therefore, entered the order not in the exercise of its discretion and in compliance with the statute but without the exercise of discretion and in defiance of the statute.
This is not to say that we endorse, as the best type of administration, the practice, if it is the practice of the Commission, of employing a rubric such as the one employed here to keep the promise to the ear while it breaks it to the hope of the carrier. Indeed, of quite the contrary opinion, we believe the Commission would be better advised to make as clear as it can in each case wherein lies the rub of the suspended rate or schedule. It is to say, though: that when, as here, the question is one of the power and duty of the Court to interfere because the Commission has acted in violation, or without the authority, of law, it is not for the Court to tithe mint, anise and cumin by rejecting the words chosen by the Commission to convey its reasons to the carrier; and that to sustain the attack upon the order would be to do just that.
The relief sought by plaintiff is denied. Its bill is dismissed for want of equity.
DAVIDSON, District Judge (concurring).
The plaintiff brought this action to set aside the Commission‘s order, invoking those sections of the law wherein a specially constituted three-judge court may set aside “any order” of the Commission where it is found that such “order” is illegal or void.
After careful study and full consideration of all the questions raised and the
It appears that this court does not have jurisdiction of the cause in that neither the action of the Commission of July 26, 1954 in suspending such rates nor the action by the Commission of September 17, 1954 in refusing to vacate the order previously made constituted such “order” within the meaning of those sections of the statute under which the appeal is sought. The order involved a matter of procedure only, interlocutory in character, and is wanting in finality.
We, the same court now sitting, the same three judges, a little more than a year ago sat in the case of Houston Fire & Casualty Co. v. United States and Interstate Commerce Commission. Our opinion is filed in the office of the District Court in Fort Worth as of date February 11, 1953. In that case a very similar question was presented and in passing upon it the court reasoned to such an end, citing authorities as follows:
In United States v. Griffin, 303 U.S. 226, 232, 58 S.Ct. 601, 604, 82 L.Ed. 764, the court dismissed an action to set aside a determination of the Commission, relating to railway mail pay, for want of jurisdiction, and, in so doing, traced the history of the act and made the following observations with respect to the limited jurisdiction conferred:
“The
Urgent Deficiencies Act provides a method of judicial review of orders of the Interstate Commerce Commission possessing the following extraordinary features: (1) The original hearing in the district court is not before a single judge, but before three, of whom one must be a circuit judge; (2) From the decree of the district court as so constituted a direct appeal to the Supreme Court is granted as of right, instead of a review by a circuit court of appeals; (3) Upon both the trial court and the Supreme Court rests the obligation to give the case precedence over others. These features were first introduced by theExpediting Act of 1903, 32 Stat. 823, 15 U.S.C.A. §§ 28, 29 and notes for suits by the United States to enforce the antitrust and commerce laws. They were extended by theHepburn Act of 1906, § 5, 34 Stat. 584, 590, 592, 49 U.S.C.A. § 16 and note, to suits to enforce or to set aside orders of the Interstate Commerce Commission. When that jurisdiction was vested in the Commerce Court provisions with like effect were provided for cases coming before it.36 Stat. 539 . To its jurisdiction the district court succeeded, with these features, under theUrgent Deficiencies Act .“In the opinion of the Congress jurisdiction with the extraordinary features of the
Urgent Deficiencies Act was justified by the character of the cases to which it applied — cases of public importance because of the widespread effect of the decisions thereof. In such cases Congress sought to guard against ill-considered action by a single judge and to avert the delays ordinarily incident to litigation. In construing the Act, this Court concluded that despite the broad language used in the Commerce Court Act, Congress could not have intended to include in this special jurisdiction suits to set aside every kind of order issued by the Commission. For substantially every decision, and every other kind of action by the Commission is expressed in, or if followed by, an order; and many of the orders are obviously not of such public importance and widespread effect as to justify, in cases affecting them, the extra-ordinary features of theUrgent Deficiencies Act .”
Similarly, in the recent case of United States v. I. C. C., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, the Court again had occasion to review the history of the statutes and pointed to the policy of
“We have frequently pointed out the importance of limiting the three-judge court procedure within its expressly stated confines. We are confident that in holding that one judge rather than three should entertain cases challenging Commission reparation orders we interpret the congressional expediting procedure and the
Interstate Commerce Act in accordance with their basic purpose.”
Under this prevailing doctrine, the courts have consistently held that jurisdiction to review orders of the Commission do not authorize review of preliminary or interlocutory action of the type involved in the case at bar. The reason for this is the requirement that the administrative remedies should be exhausted and administrative determination arrived at on the merits before resort to the court. This is especially true of investigative steps, such as the one in this case, preliminary to a determination of the matter investigated. See Davis, Administrative Law, Sec. 196; United States v. Illinois Central Railroad Co., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007; and Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, at page 385, 58 S.Ct. 963, at page 967, 82 L.Ed. 1408, in which the court said:
“The provision for review thus relates to orders of a definitive character dealing with the merits of a proceeding before the commission and resulting from a hearing upon evidence and supported by findings appropriate to the case.”
Cf.
In the instant case there is no issue of the Commission having made determination with respect to the lawfulness or reasonableness of the rates involved. The Commission has simply determined that in order for it to properly consider the rights and interests of the public, the involved rates should be suspended pending the investigation concerning the lawfulness of said rates. It cannot be anticipated as to whether the Commission will find such rates lawful or unlawful after the investigation.
It must be emphasized that
The complaint is dismissed for want of jurisdiction in this court to hear it and without prejudice to plaintiff‘s right to proceed elsewhere as it may be advised.
My conclusion as stated above is that the case must be dismissed and I therefore concur in the decision of Chief Judge of the Circuit Court, Honorable Joseph C. HUTCHESON.
ATWELL, Chief Judge (dissenting).
The plaintiff is a motor carrier of petroleum products from Texas to New Mexico. One of its competitors is a railroad, and the railroad rate on the same sort of freight was lower than the plaintiff‘s rate. It exercised its right to initiate its own rate, and in order to meet the rate that had been recently established by the railroad it reduced its own rate to the same figure that was charged by the railroad.
This right to adjust its rate to meet competition is within the zone of reasonableness, and resulted in no undue prej-
Such a rate is unlawful if it is unjust, or, unreasonable, that is, too high; or, gives any undue or unreasonable preference or advantage to any particular person, port, etc.; or subjects any particular person, port, or, description of traffic to any unjust discrimination, or, any undue, or, unreasonable prejudice, or, disadvantage.
So, also under the National Transportation policy a motor carrier rate can be unlawful if it constitutes an unfair, or, destructive competitive practice. Rates avoiding these pitfalls are lawful and are not subject to lawful change, or, challenge by the Interstate Commerce Commission. The Commission has no more power than is given to it by the statute, and can only act in accordance with the statute creating it and setting forth its powers. See Southern Pacific Co. v. Interstate Commerce Commission, 219 U.S. 433, 31 S.Ct. 288, 55 L.Ed. 283.
In the case at bar, the Commission suspended the rate filed by plaintiff, and giving as a reason for such suspension that, “It further appearing that the rates and interests of the public would be injuriously affected thereby.”
The only authority that the Commission has to make such an order is found in
In the instant case, the plaintiff‘s tariff was suspended by the Commission, and the reason given was, and is, “that the rights and interests of the public would be injuriously affected thereby.” It is very difficult to see how the shipping public would be injuriously affected by the reduction of its own rate. The shipping public would benefit thereby. And again we suggest that the purported reason is no reason at all, either in fact, equity, or, law. We know that the Commission only has such authority as the statute gives it. The “reason” must be unreasonable, or, unjust, causing undue, or, unreasonable preference, unjust discrimination, undue, or, unreasonable prejudice, or, constitutes a destructive, competitive practice.
It is also generally understood that the general meaning of “‘arbitrary and capricious,” is, “‘without any reasonable cause, without any cause based upon the law; without reason given; in disregard of evidence. It is comparable to, without justification or excuse; with no substantial evidence to support it; a conclusion contrary to substantial, competent evidence.‘” See In re Rogers, D.C., 47 F.Supp. 265, 266.
Judge Hutcheson, in Braswell v. United States, D.C., 49 F.Supp. 940, announced that whenever the court is presented with an instance where the Commission has acted arbitrarily it has not hesitated to set aside the order of the
Again, I wish to emphasize the fact that the Commission can suspend a rate only by making a statement in writing of its reasons for such suspension. Having failed in this indispensable requisite, its subsequent action was, and is, void.
“Rights and interests of the public” is a mere generalization. It is conclusion. In Atlanta & St. Andrews Bay Ry. Co., v. United States, D.C., 104 F.Supp. 193, it was stated and supported by Alabama Great Southern R. Co., v. United States, 340 U.S. 216, 227, 71 S.Ct. 264, 95 L.Ed. 225, that the Commission has the duty to make basic or quasi jurisdictional findings essential to the statutory validity of the order. See Eastern-Central Motor Carriers Ass‘n v. United States, 321 U.S. 194, 64 S.Ct. 499, 88 L.Ed. 668; Baltimore & O. R. Co. v. United States, D.C., 22 F.Supp. 533; Saginaw Broadcasting Co. v. Federal Communications Commission, 68 App. D.C. 282, 96 F.2d 554.
The Century dictionary‘s definition of the word, “reason,” is, “a ground or motive for a belief, course of action, or the like.”
These thoughts drive us once more to the statutory requirement that the Commission shall state in writing its reasons, or, reason, for suspension. Since there is not a sufficient compliance with the statute, restraint must follow.
Just what may appropriately hereafter occur, has no place in this opinion. Whenever the Commission shall act lawfully, that is, within the terms of the statute, its voice must be obeyed, but until it does so, its voice is without any legal compulsion, and the citizen need not attend or perform in accordance with its direction.