FROZEN FOOD EXPRESS, Plaintiff, Ezra Taft Benson, Secretary of Agriculture of the United States, Intervening Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Common Carrier Irregular Route Conference of American Trucking Association et al., Intervening Defendants.
Civ. Nos. 8285, 8396
United States District Court, S. D. Texas, Houston Division
Jan. 26, 1955
CONNALLY, District Judge
(4) To permit plaintiffs, the labor organizations, and the employees specified in paragraph number (3) of this decree to file papers and other documents in consolidated Dockets CL-3714, CL-3715, CL-3716, TE-4540, and TE-4953;
(5) To give plaintiffs, the labor organizations, and the employees specified in paragraph number (3) of this decree an opportunity to be heard in the consolidated hearing; and
(6) To consider the agreement between plaintiffs and the Brotherhood of Railway and Steamship Clerks, Frеight Handlers, Express and Station Employes, the agreement between plaintiffs and The Order of Railroad Telegraphers, and the custom and practice under those agreements, in making an award and order in consolidated Dockets CL-3714, CL-3715, CL-3716, TE-4540, and TE-4953.
The Findings of Fact and Conclusions of Law which the Court has rendered in this cause are hereby affirmed and made a part of this decree.
It is further ordered, adjudged and decreed that all costs be and thеy are hereby taxed against defendant The Order of Railroad Telegraphers and defendant Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.
Stanley N. Barnes, Asst. Atty. Gen., and Charles W. Bucy, Associate Sol., Washington, D. C., for intervening plaintiff.
Malcolm R. Wilkey, U. S. Atty., Houston, Tex., and Edward M. Reidy, Chief Counsel, and Leo Pou, Associate Counsel, of Interstate Commerce Commission, Washington, D. C., for defendants.
Callaway, Reed, Kidwell & Brooks, Rollo E. Kidwell, Dallas, Tex., Todd, Dillon & Curtiss, Clarence D. Todd, Peter T. Beardsley, Wаshington, D. C., Baker, Botts, Andrews & Shepherd, J. C. Hutcheson, III, and Edwin N. Bell, Houston, Tex., Macleay & Lynch, David G. Macdonald and Francis W. McInerny, Washington, D. C., Reeder, Gisler & Griffin, Lee Reeder, Kansas City, Mo., J. W. Nisbet, Chicago, Ill., Carl Helmetag, Jr., Philadelphia, Pa., Rice, Carpenter & Carraway, Washington, D. C., Fulbright, Crooker, Freeman, Bates & Jaworski, W. H. Vaughan, Jr., Houston, Tex., for intervening defendants.
Before HUTCHESON, Chief Circuit Judge, and CONNALLY and KENNERLY, District Judges.
CONNALLY, District Judge.
Filed pursuant to
Civil Action 8285:
In June, 1948, the Interstate Commerce Commission, of its own motion, instituted a proceeding, being MC-C-968 on its docket, in the nature of an investigation, to determine the meaning and scope of the term “agricultural commodities (not including manufactured products thereof)“, as used in the above-mentioned statute. The proceeding was widely noticed in the affected trades and industries. Many interested parties, including the Secretary of Agriculture of the United States, the Commissioners of Agriculture from a number of the States, associations of shippers, motor carriers, and others, intervened. After extended hearings, during which much expert testimony was offered as to the manner and method of cleaning, preparing, packaging, and otherwise processing the various commodities in question, the Commission issued its report and order entitled “Determination of Exempted Agricultural Commodities“, 52 I.C.C. Reports, Motor Carrier Cases, 511-566. In such report, the Commission announced its definition of such statutory term,1 which definition it then undertook to apply to the various commodities under consideration, and enumerated those which it found to come within the statutory language, and those which it found to fall without.2 Thereupon, the proceeding was terminated and removed from the Commission docket.
The plaintiff Frozen Food Express was not a party to the prоceeding before the Commission. By amended complaint filed here July 12, 1954, plaintiff alleges that it desires to carry agricultural commodities (not including manufactured products thereof) for hire, to and from all points within the United States, irrespective of the limitations imposed by its own certificate; that the report of April 13, 1951, deprives plaintiff of its right to do so. Alleging that the action of the Commission, in entering the report in question, was arbitrary, capri-
The Secretary of Agriculture has intervened, denominating himself “Intervening Plaintiff“. He makes common cause with plaintiff in contending that a number of commodities3 are within the exemption. Several trucking associations, and some sixty southern and western railroad companies, have intervened. These intervenors take a contrary view, and support the report of the Interstate Commerce Commission.
We are of the opinion that the action may not be maintained, and must be dismissed, for the reason that the report and order of the Interstate Commerce Commission of April 13, 1951, is not an “order” subject to judicial review under any of the statutes cited. The proceeding before the Commission was not an adversary one. The order which initiated it purported to do no more than direct that an investigation be made of the meaning of the statutory language. Notice was given only to the public. When the final report and order was forthcoming some two years later, the only “order” entered was one discontinuing the proceeding and removing it from the Commission‘s docket. The question is controlled by U. S. v. Los Angeles & S. L. R. Co., 273 U.S. 299, 47 S.Ct. 413, 414, 71 L.Ed. 651, holding a very similar “order” of the Interstate Commerce Commission which found, after an investigation, the value of certain railroad properties, not to be subject to reviеw. The language of Mr. Justice Brandeis, speaking for a unanimous Court there, aptly describes the order in issue here:
“The so-called order here complained of is one which does not command the carrier to do, or to refrain from doing, any thing; which does not grant or withhold any authority, privilege, or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier‘s existing or future status or condition; which does not determine any right or obligation. This so-called order is merely the formal record of conclusions reached after a study of data collected in the course of extensive research conducted by the Commission, through its employees. It is the exercise solely of the function of investigation.”
The proponents of jurisdiction here rely upon Columbia Broadcasting System v. U. S., 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563. It was there held that an order of the Fеderal Communications Commission promulgating certain rules and regulations requiring that the Commission deny a license to broadcasting stations under certain circumstances, was subject to judicial review, upon a showing by the complaining party of strong equitable considerations. This authority is clearly distinguishable from the present case. The order there in question was entered in the exercise of the agency‘s rule-making power. Such orders, togеther with those fixing rates and those determining controversies be-
Likewise, the complaining party there showed an immediate and continuing threat of irreparable injury if the order were not reviewed. It is not so here. The statement of plaintiff that it desires to carry for hire most or all of the commodities on the Commission‘s proscribed list, and that if it does so, the Commission likеly will seek injunctive relief to restrain plaintiff, shows no basis for the intervention of a court of equity. Plaintiff will have an adequate remedy in the event of such interference.
It follows that Civil Action 8285 will be dismissed.
Civil Action 8396:
A complaint was filed December 23, 1953, with the Interstate Commerce Commission by East Texas Motor Freight Lines, Gillette Motor Transport, Inc., and Jones Truck Lines, Inc., charging that Frozen Food Express was and had been engaged in transporting fresh and frozen dressed poultry, and fresh and frozen meats, and meat products, for hire, between points in interstate commerce not authorized by its certificate of convenience and necessity. Frozen Food readily admitted that it had been so engaged, but defended on the theory that such products all were within the agricultural exemption. The Commission found each of these products not to be within the exemption, and ordered Frozen Food Express to cease and desist from such unauthorized transportation. The present proceeding was filed by Frozen Food Express to review that order.4
While the present action was pending in this Court, the Secretary of Agriculture of the United States filed with the Commission his petition for leave to intervene, pursuant to
The rail carriers and truсking associations which intervened in Civil Action 8285, also appear in this action. They support the Commission, and oppose the position taken by the plaintiff and the Secretary of Agriculture.
Armour & Company, being engaged at various points in the United States in the slaughter of livestock and the killing, dressing, and sale of poultry, has intervened, urging that dressed poultry is an exempt commodity, that meat is not.
The position taken by the Secretary of Agriculture that thе proceeding before the Commission was null and void in its entirety by reason of the failure of the Commission to give him notice thereof, need not long detain us. The proceeding there was not one with respect to “rates, charges, tariffs, and practices” relating to the transportation of farm products, and hence was not one of which the Secretary was entitled to notice under the statute.
Most able and exhaustive treatment is given the question now before us, in so far as it concerns dressed poultry, by Judge Graven of the United States District Court for the Northern District of Iowa, in Interstate Commerce Commission v. Allen E. Kroblin, Inc., 113 F.Supp. 599, 600, affirmed, 8 Cir., 212 F.2d 555, certiorari denied 348 U.S. 836, 75 S.Ct. 49. Reviewing the long struggle between the Interstate Commerce Commission in its efforts to restrict the application of the exemption in question, and the Department of Agriculture and others in seeking to expand it; reviewing the legislative history of the Motor Carrier Act of 1935, and various proposed amendments thereto; and considering the congressional intent which prompted the insertion of the agricultural exemption, Judge Graven concluded that dressed poultry constituted an “agricultural сommodity“, and did not constitute a “manufactured product thereof“. Hence, such commodity was within the exemption. It is sufficient to state that we agree with those conclusions as to fresh and frozen dressed poultry.
Counsel for the Commission urges that this Court should disregard the Kroblin case, on the argument that the only question before us is one of the adequacy of the evidence before the Commission. It is said that the order which was entered was one within thе general purview of the Commission‘s authority, and that if its findings are supported by “substantial evidence“, this Court has no alternative but to leave it undisturbed. While we do not quarrel with such statement as a general proposition of law, the argument is not convincing in its application to the present record. The primary facts before the Commission were without dispute and were the subject of stipulation. Reduced to simplest form, they showed that beforе a chicken or duck became “dressed poultry“, the bird was killed, his feathers and entrails removed, he was chilled, and in some cases frozen, packaged, etc. In addition, such “facts” consisted of evidence of so-called “expert” nature, that this treatment or processing of the chicken or duck rendered him a “manufactured product“.
It is apparent that there is only one ultimate finding called for, namely, whether under the typе of processing reflected by the record, the product falls within the statutory definition. The question then is a mixed one of law and fact, calling for the application of the processes of legal reasoning and of principles of statutory construction. The fact that the Commission‘s findings are supported by an “expert” who gives his opinion that a dressed chicken is a manufactured product, does not foreclose the questiоn, nor remove it from the scope of judicial review. Baumgartner v. U. S., 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Lehmann v. Acheson, 3 Cir., 206 F.2d 592; Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217.
In our opinion, fresh and frozen meat does not fall within the category either of “ordinary livestock” or of “agricultural commodities“, and hence is not within the exemption. Since the enactment of Part II of the Interstate Commerce Act in 1935, motor vehicles used exclusively in carrying “livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof)“, have been exempt. By amendment in 1940, the term “ordinary” was inserted immediately before the word “livestock“. The term “ordinary livestock” is defined in
Referring only to the live animals, “ordinary livestock” may not be tortured to include the carcasses of slaughtered meat animals, or the mеat which is the product of butchering. Meat has been regarded generally in the industry as a
Nor may meat, fresh or frozen, be considered an “agricultural commodity” for present purposes. The exemption has treated the live meat animal in a separate generic class from “agricultural commodity” since the enactment of the statute; and if the live animal, on entering the slaughter pen or the packing house, is not an “agricultural commodity“, we are unable to see how he becomes one on emerging therefrom in the form of beef or pork. The Commission was correct, in our opinion, in holding fresh and frozen meat to be non-exempt.
The enforcement of the order of the Interstate Commerce Commission, MC-C-1605, East Texas Motor Freight Lines, Inc., et al. v. Frozen Food Express, is enjoined and restrained in so far as said order interfered with, enjoins or restrains the plaintiff Frozen Food Express from transpоrting fresh and frozen dressed poultry in interstate commerce (when the motor vehicles used in carrying such poultry are not used for carrying any other property or passengers for compensation). Other relief sought by plaintiff is denied.
Clerk will notify counsel.
KENNERLY, District Judge (concurring in part and dissenting in part).
I concur with all the foregoing opinion except the decision in Civil Action 8396 with respect to fresh meat and frozen meat. As to that I respectfully dissent.
I think all of
Clarence W. MITCHELL, Plaintiff, v. Jack P. HENDRICKSON, Defendant.
No. A-8652
United States District Court, Alaska Third Division, Anchorage
Feb. 11, 1955
John S. Hellenthal and Ralph H. Cottis, Anchorage, Alaska, for plaintiff.
Albert Maffei and Edward L. Arnell, Anchorage, Alaska, for defendant.