*1 PACIFIC COMPANY SOUTHERN Company, Pacific Railroad Plaintiffs, of America and

The UNITED STATES

the Interstate Commerce Commis- sion, Defendants.

Civ. No. 02577. District Court

United States

D. Nebraska.

Dec.

Raymond McGrath, Neb., Omaha, E. Pierce, Alan Furth C. and Robert L. San Francisco, Cal., plaintiff Southern Pacific. City, Cummings,

G. Clark New York Higgins, Omaha, Neb., P. William plaintiff Union Pacific. Turner, Wigger, F.

David John H. D. Larry Washing- Meyer, Dept, Justice, ton, C., Richling, D. Theodore L. U. S. Atty., Omaha, Neb., for defendant United States. Betty Ginnane, Kahn,

Robert W. Fritz Christian, Washington, C., Jo D. for de- fendant Interstate Commerce Commis- sion. McCarthy, City,

Dennis Salt Lake Utah, Porter, Denver, Colo., Ernest Don- Ross, Omaha, Neb., ald R. for defendant intervener Denver Rio& Grande. Prettyman, E. Barrett D. Washington, C., Holland, Omaha, Neb., C. Yale for de- fendant intervener Western Pacific. LAY, Judge, Before and ROB- Circuit Judges. PELT, and VAN District INSON LAY, Judge. Circuit Plaintiffs, Southern Pacific and Union enjoin equitable Pacific seek relief to Interstate Commerce pany through supplemental River or- Missouri of a from enforcement 1966, modifying parts Ogden, Utah, der, January connected dated line, points February continuous between all order of the Commission’s Oregon of and in- California and north entitled Control of Central Margarita, cluding Pacific, Docket No. Caliente and Santa Finance Calif., including the south *3 Ore., Kirk, Klamath Falls branch and general us the one issue before While points and hand, on and north the one routing legality preferential the the is along west of a the northern by Pacific and solicitation the Southern Arkansas, and boundaries Oklahoma Company Pacific Railr and Union the along Mississippi River, to the thence oad,1 plaintiffs argue within their case (but Mississippi the and Ohio Rivers questions. work basic the frame of two including on the intermediate cities First, they challenge propriety the River) Va., Wheeling, and Ohio to W. originally modifying imposed a condition just on a line drawn east thence by Interstate Commission the Commerce Y., Pittsburgh, Pa., Buffalo, N. when ac the Pacific Southern Niagara (Emphasis Falls, N. Y.” Railway in quired Pacific Central the ours.) (the 508 1923 76 I.C.C. case, Control (1923)). question The concerns second time, Rio At the the Denver legality agreement of a the 1924 and the (hereinafter Grande Western Railroad practices recip thereunder, providing for Grande) acquiesced the Rio routing by rocal solicitation Union However, Rio the condition. in in each Pacific Southern Pacific pro- sought reopen control Grande the behalf. other’s ceedings condition for modification By ap- (e). order the Commission 6-5 Commission in a the proved subject authorized, nine original modify decision refused to conditions, by acquisition the South- reference condition so as to eliminate ern Pacific control of the Central Pacific. Rio Grande The through Railway Company lease Pacific sought District then relief from the ownership. The and stock fifth condi- in The Commission’s Court Colorado. tion, condition hereinafter to as referred by Court aside the District order was set (e), read as follows: proceeding for remanded and the Company evi- to consider additional “That the Southern Commission Pacific I.C.C., cooperate R.R. v. & R.G.W.

shall dence. Denver with the Union Pacific Upon D.C., F.Supp. Company Railroad secure active reconsideration, routing revised solicitation Commission maxi- con- freight prior holding and modified the mum via the lines traffic name omitting Company Pacific’s dition Railway originally Exam- and the recommended Com- physical 1. This same case heard the Dis stituted the evidence was practice, authority it was but in in but for trict Court Colorado was authority practice, or the remanded to the for consid Commission practice, eration of The attacked additional evidence. Dis authority issues, discussing plaintiff, in and where trict Court ob might physically seem would he served: found importance. preferential in ef- minor Thus “This solicitation was at- he of general being illegal improper is- fect tacked as un- there and before the Examiner der several sections of the sue before well although origin Commission, somewhat as the antitrust law. The ours). authority (Emphasis practices context.” these different were I.C.C., (e) W. R.R. R. G. and the & contained both condition Denver F.Supp. 249, 253, agreement. D.C., two items These eon- op- held the Rio likewise Union Pacific. The Grande iner.2 erates main Denver two lines between Ogden. Pueblo, the other and the Union One via Transportation contrary the Moffat Tunnel and to the National Policy (49 prior 1), and their Dotsero cutoff. of Dotsero the West U.S.C. Ogden. are identical to Dot- in violation Sec lines 3(4) sero Commerce cutoff and the Moffat Tunnel were Interstate thereby reducing opened 3(4). Act, 49 U.S.C. § distance between Denver the action of the Commis- We sustain 175 miles. injunctive re- deny sion and relief The Commission observed: quested. distance, “The differences whether helpful routes understand It is Pacific-Rio favor the Southern *4 demonstrated of the various carriers as Pacific- Grande routes the Southern map, Appendix A. attached on the insignificant routes, Union Pacific are operates of Pacific the route east Union length standpoint hauls from the of of Omaha, Cheyenne also and via schedules’], ‘maintenance of and [and interchanges the at Denver with makes therefore two the routes substan- through Grande, north- routes Rio via ”* * * tially comparable. east Colorado and central Kansas eastern I.C.C. 475-76 City. southern to Omaha and Kansas (e) Under condition and the 1924 trans- of Pacific is a route the Southern agreement between Pacific and Southern coast to route from the west continental Pacific, plaintiffs the have been City The Central Kansas via El Paso. routing soliciting and of favor each Pacific, by Pacific, the now Southern Gateway, in other’s lines at the Utah merger (Southern complete Pac. in 1959 interchanging preference other Merger, 806) connects Co. 307 I.C.C. lines. Gateway Rio with both Utah the the goes and the Union Pacific and Grande urge Plaintiffs now Commis- the to California. west power reopen sion has no proceeding modify Control or to condition intervening Pacific, an def Western (e). disagree. We As competes endant,3 with the Southern said its 1966 order: route on its north-south Pacific both through Oregon and California and changes of circumstances “[F]uture Og from, Franciso to east-west route San undoubtedly of reasons were prompted den. Pacific connects Salt Western which inclusion of condition (i) reserving jurisdiction reopen City and Rio Lake with both Grande Pa., Buffalo, N.Y., Falls, Niagara and 2. The modified condition reads: N.Y.(Emphasis ours.) Company “That the Southern Pacific t>y so- continue to secure acti/oe shall brief, licitation the maximum Western observes in its of p. 10, freight n. Missouri 7: traffic of January Ogden, Utah, “In River and Western between complaint Oregon, points north filed with the Commission a in California and against including Mar- Union Pacific and Southern Pa- and Santa Caliente alleging Calif:, including cific, Agreement garita, and south Kirk, the Memorandum of Klamath Falls branch points implemented Oreg., hand, north there- on the otie along of the the northern under violate Section 1 Sherman and west a line Arkansas, Policy, Act, Transportation the National boundaries of Oklahoma 3(4), along Mississippi River, 5(1) Interstate thence Sections to the By stipulation Mississippi (but in- Act. Commerce and Ohio Rivers complaint parties, hearing cluding Ohio on that intermediate cities on the stayed pending Va., being River) Wheeling, dis- and thence ultimate W. Pittsburgh, position just case.” a line east of the instant on drawn supplemental appropriate Pa- tween Central Pacific and Southern orders as lines, light Pa- cific’s California Southern future events.” forced a lease cific was to defend pow The Commission “has the acquisition Pacific. stock jurisdiction purpose er to for the retain similarly denied, with the This was Su- making finds modifications making preme ob- Court this relevant light necessary subsequent cir * : * servation O. Baltimore & cumstances R.R. policy v. United proof ample “The that the 18 L.Ed.2d system has been the Southern Any 5(9). also U.S.C. See to favor on its contrary illogically rule to bind securing could practica- itself, whenever transportation system our to ar freight national ble, carriage only for philosophies chaic normally beneficial eastward west- would move past, detrimental conditions over the shorter line of Cen- ward today. welfare connec- tral Pacific Railroad and its route], for its tions central own [the problems We turn to the substantive longer wholly much owned south- background A brief is neces involved. limited sary. ern route. This course and 1864 Pacific Rail arbitrary during the time the Congress. an rule passed by road Acts5 were building dominated These authorized Acts *5 purchase Pacific from [of the stock the in first transcontinental this by Union Pa- country completion Southern Pacific’s stock which found the in ‘un- in 1901 so-called joinder Promontory, until the Utah, cific] historic merger’ 1913, in result the as the roads, the the two Union Pacific and the this court the May 10, decision Pacific, Central on 1869. Case v. [United Pacific States Thereafter, 1887, Interstate 53, [, R.R., 226 33 S.Ct. 57 Pac. 61 U.S. passed, was Act and at Commerce compelling motive L.Ed. The 124]]. time, recently railroads, observed, as of this course of conduct is obvious. freight practical monopoly then “had a owns con- Southern Pacific and discrimina- route, southerly and receives trols the Trucking tions flourished.” American cent, compensation per for 100 Assoc., Ry., Atchison, Inc. v. T. & S.F. freight transported by its road and 1613, 397, 1608, 387 406, 87 S.Ct. Pacific lines. Central water Over the (1967). 18 L.Ed.2d 847 As other roads it receives a fraction route began develop country, rail- this freight, Union Pacific because the began competitive roads fu- view up its Eastern take connections Supreme ture. In 1912 the Court was carrying Ogden to the East. from confronted with the control of the South- the solicitation Self-interest dictates by This ern Pacific the Union Pacific. freight procurement for the disapproved was Un- United States v. longer by Pacific haul the Southern 53, R.R., 61, ion Pac. 226 U.S. 33 S.Ct. Pac. lines.” United States v. Southern (1912), being 57 124 restraint L.Ed. 496, Co., 214, 231, 42 259 U.S. of trade violative of the Anti- Sherman 499, (1922). 66 L.Ed. 907 trust of 1890. interlocking Transportation Act Thereafter, In 1920 the first because of the (1920). passed. It rec- physical relationships 41 456 financial was Stat. be- matter, purpose part (i), of mak- 4. Condition also 1923 may order, provides: ing orders Commission such as the I.C.C. supple- necessary appropriate may proceeding or “That this re- deem mentary present opened order.” time order of the upon Commission either initiative July or, 12 ch. Stat. of the Commission in the discre- Act of July 495; Commission, upon mo- Act of ch. tion of the 83). any person claiming (codified in § tion of interest U.S.C. an Stat. ognized argue “public They Railroad Acts. welfare” would that all con- be better trans ditions served a national attached to the 1923 order portation system. Subject nothing the Inter Commission were more than the approval state Commerce Commission’s fulfillment the Acts. direction, oth common carriers could Subsequent ap- to the Commission’s merge together join

erwise notwith proval acquisition of Central Pa- standing prohibtion antitrust agree- Pacific, cific the Southern an other laws.6 ment entered into with the Union Pa- theoretically premised cific Immediately thereafter, the Southern (e). agreement condition sought authorization from the (1) obligated Union and Central acquire Commission to control of Central preferentially Pacific to solicit each Act, 480-482, Pacific under the 41 Stat. other, (2) obligated Union Pacific and amended, 5(2) 49 U.S.C. preferentially Central route opposed by This was the Union Pacific. along freight shipper unrouted long hearing After a Union Pacific the Union Pacific and objection and others withdrew their (3) expanded territory approval the Commission attached to its solicitation and merger specified nine conditions. beyond (e). condition The failure of the (e), supra Condition reflected similar proceeding concern of the Commission over South consider favoring longer ern Pacific’s route to thereunder motivated the District Court jeopardy transcontinental “splintered to remand case to avoid route of Central Pa Pacific and Union issues,” authority of A. L. Mech- newly approved merger cific. The ling Barge Lines, Inc. United conditions were embodied in the decree 11 L.Ed.2d of the District Court. United States v. (D.Utah Southern Pac. Co., 290 F. 443 similarly *6 Plaintiffs defend the 1923). appeal No taken was from the and the order of the Commission or court. Acts, arguing that, Pacific Railroad like the conditions in the Interstate Com THE PACIFIC RAILROAD ACTS simply order, they Commission merce too present proceeding In the embody statutory accorded benefits urge Pacific and the Southern Pacific Acts, them the and therefore cannot be (e) only that condition is not lawful but countermanded order of the Comm accords with Pacific mandate ission.9 jeetion 6. The any Interstate Commerce Act was fur- to condition which would Transportation ther require amended solicitation from own terri Pacific, 54 Stat. 899. tories for either Western gate the West or East the Utah 7. In the recent order of the Commission ways.” Southern Pacific Co.—Control denying control of the Western Pacific R.R., —Western Pacific I.C.C. by either the Southern Pacific or the (Emphasis ours.) Fe, Santa the Commission observed: possibility “We have considered the generally 8. other relevant conditions authorizing or one the other of the required cooper- the Southern Pacific to applicants acquire herein to control join maintain- or the Union Pacific in ate subject of Western Pacific to a so- ing service, schedules via rates safeguard licitation condition to Gateway and the Cen- line central route of Western Pacific similar tral Pacific. imposed to the condition in the Central However, urge Pacific case. the situation 9. Plaintiffs it was understanding parties, here does not contain the element of mutual of the in- intermingled properties operations cluding Grande, the Rio that condition necessitating (e) the control authorization Pacific furtherance of the case, and, in the Central Pacific more- Railroad Acts and therefore should over, Apropos Santa Fe has recorded its oh- be set aside. here Mr. Jus- is provide roads, supplemental of the connection their first equal upon interpreted basis order, accomodations carriage, independent and outline Railroad Acts in accord roads plaintiffs’ can no method which the two contention. 317 I.C.C. through joint (1962). Upon compelled make a reconsideration in be rate, order, stock itself. and that at of the the Commission reversed the time interpre- provision in there no such We 1966 order and its transfer feel the There- con- commerce acts. tation is in accord with correct the interstate Pacific, fore, Acts. is said it struction Grande, provide part would as follows: no than the Rio These Acts less mercy practically been at the have of rail- “The track the entire line favorable the Southern Pacific uniform road and branches shall be of might or unfavorable treatment width, Presi- to be determined matter it in the have been accorded to that, when dent of the United so transported to be business completed, from the cars can run Congress eastwardly. purpose of coast; River to Missouri permanent road to the to secure the whole said continuity physical so far as coast telegraph shall be branches apparent, we do concerned is operated purposes of and used for all require- stop think acts with that travel, transpor- communication, provided It is that facilities as ment. tation, public govern- so far as the rates, shall time and connected, concerned, ment are as one any any be without discrimination ** *” July line; Act of continuous kind in of either of said com- favor 1, 1862, ch. Stat. panies, or the road bus- adverse to “ * * * companies others; the several au- any or either of the iness Congress thorized to construct aforesaid purpose to secure and the hereby required operate roads are road, operating a continuous line of telegraph for said roads and use Missouri from the river travel, purposes communication, empha- road, further coast as one transportation, so far Congress of June sized the act of government concerned, as and the making Ill,] 331,18 Stat. [c. line; oper- and, one continuous in such agent an offense officer use, ation and to afford and secure companies con- authorized advantages equal each and facilities *7 engaged roads, or struct rates, transportation, to and with- time operate operation thereof, to to refuse any any kind out of discrimination purposes of any and use the same of the road or of favor business transporta- communication, companies, or of or adverse travel and either said any govern- to road or or either tion, business of far as and so * * July others concerned, continuous are one ment 2, 1864, 216, 15, 362 13 Stat. ch. making line, misdemeanor and it (codified 83). in 45 U.S.C. § use, refuse, operation in such and af- roads ford and secure to each of said language interpreted This Supreme advantages equal Court in facilities as to United States v. and R.R., 61, 53, Pac. 57 226 U.S. 33 rates, S.Ct. transportation, and without time Day L.Ed. Mr. Justice any any favor discrimination kind in stated: any of said of or adverse to or either 91-92, companies.” said, only acts, at intend- U.S. “These it is are permanent physical ed to secure the at 59. Brennan's tico statement that “the ICC S.Ct. United U.S. prisoner parties’ (con- (1967) is not submis 18 L.Ed.2d 159 curring opinion).

sions.” See Baltimore & R.R. v. O. language fulfilling public duty by Plaintiffs construe the would fail in its above trackage bridge agreement of the Court to mean Pa- that the Union prefer connecting cific and Central Pacific must across Missouri roads connecting prejudice another to the of a River. The Court enforced the contracts line, may but that no other carrier dis- between the carriers said: against criminate This either them. provisions of “For only acts, spirit contradicts not bridge relating acts plain language but the as well. river, the Missouri its construc- over Day operation, imposed Mr. Justice added: on the Pa- duty Company permitting cific systematic pre- “Such Company run en- Rock Island concerted discrimination said as are gines, bridge cars and trains over destroyed to have the Rio Grande’s and the tracks between Council Bluffs carrying trade as a connection for the * * and Omaha 163 U.S. at East for business at would have 586, 16 S.Ct. at 1181. violated the discriminations statute as Pacific, impossible ignore adverse “It is for us to equally spirit great policy violative of the letter and favor continuous Congress. Certainly congress, the acts of such lines thus declared pol- discriminations could be restrained it is in effectuation of (Union Railway icy arrangements the courts Co. that such business Chicago, v. Rail- Rock Island & Pacific as will make such connections effective way Co., 564, 603, (Emphasis ours.) [16 U.S. are made.” might 265]), S.Ct. 41 L.Ed. at U.S. 16 S.Ct. at 1183. possibly have resulted in a forfeiture original Section 15 of the Act of rights of all under the acts of Con- 1862, amendatory provisions, and its gress.” (Emphasis ours.) clear indication that the vision of Con- 92, 33 S.Ct. at 59. gress was not confined to the Union Pa- prohibits 15 of just Section the Act “discrim cific and the Central Pacific or their any lines, ination of kind in branch privileges road nor were their of10 favor or or business either of said com be forever exclusive: panies, or adverse to road or business “ * * * any other company * * any n either others incorporated, now to be hereafter (Emphasis ours.) incorporated, right shall have the Ry. Chicago, case Union Pac. connect their road with the road and Ry., provided R.I. P.& branches act, (1896), places 41 L.Ed. 265 Mr. such just as cited such n Justice Day, contrary plaintiffs’ equitable terms as the President of the position. authority may prescribe. Under the Pa- United States Wher- Acts, Supreme company cific Railroad Court ever the word is used in this n enjoinedthe Union from discrim- act shall be construed to embrace the *8 connecting inatory practices associates, to other successors, words their assigns, lines. it The Union Pacific reasoned the same if as the words had acknowledges openly (emphasis 10. The Pacific either of others.’ add- page compel ed) this construction in a footnote on Yet to Southern Pacific brief, only por- 67 of Union Pacific’s gues: when it ar to solicit the Central Pacific tion of the Central Pacific-Union Pa- pro- “The 1864 Pacific Railroad Act cific route is discrimination in favor of ‘any any portion. hibits discrimination of kind the Central Pacific is This quite apart in or of road business from the that fact favor of any companies or either of said and ad- Pacific solicitation via Rio is Grande any against or verse to the road or business of discrimination Union Pacific.”

679 Congress (Em purpose to of was that properly thereto.” added been provide the branches ours.) connections phasis for the main line Strong in review said Justice Mr. through running with railroads road Pac. in Union Acts Railroad Territory, on the east the States 345-346, Hall, U.S. R. v. R. provide connections those and to (1875): L.Ed. States, points at or at those within Congress, of the act scheme “The (Em- western boundaries.” near their then, very apparent. It to se- is ours.) phasis line, the main cure the connection of Congress by the purpose at least three branches, Railroads, Acts Railroad passage and with Missouri and Iowa eastwardly strong East running link between railroad a a to create from through Iowa, mili City West, ensure either sufficient Sioux if An areas tary protection the isolated Minnesota. that State scheme, dependable needed, think a we as as observance well inquiry considering speedy at commercial and social will aid means Congress Congress, en place that the act of But it is clear what access. single, only unbroken President made a the orders of the visioned thereof, line, pursuance of rail a network established cross-nation feeding complementing eastern terminus of the Iowa branch. roads may reasonably From it be inferred route.12 transcontinental it; building 11. will fur- This section now codified as 45 U. sist embarking recognized Congress S.C. 82. nish a motive for § might money It be a it main line. will Act be further amended when mighty commence said: lonesome business wilderness, enacted, “And be it That line in a the main mere further amend, congress may, any time, alter, nothing attach itself it has at where begin repeal got it it where this act.” 22. You have 13 Stat. to. Ry. of no use what- And observed in Union Pac. to the world will seem building Chicago, Ry. supra, Why, sir, like R.I. P. & ever. bridge magnificent river and across a 1183: abutments, ap- framing your “On an act was never June 66,] you get proved, it. I do not can on to [c. Stat. ‘to facili- which commercial, postal military think it is best this should tate Cong., Cong. Globe, among states,’ 2d communication the several done.” 37th carried forward as section Sess. 2807 Statutes, provided which Revised Act, Leav- In Section 9 of the 1862 ‘every company in Unit- enworth, Pawnee, Railroad and Western operated ed whose road is granted Company author- of Kansas was assigns, be, steam, its successors and point ity on the build line from a carry up- hereby, and is authorized to River in Missouri Kansas road, boats, bridges on and over its “upon north, the same line to the govern- ferries, passengers, troops, respects conditions in all terms and supplies, freights prop- mails, ment provided for the construc- in this act erty way on their from state to telegraph line railroad and tion of the state, compen- receive another and to ** (Emphasis first mentioned therefor, sation and to connect with ours.) the Hannibal In Section roads of other as to states so form Company Joseph of Mis- St. continuous lines for the specifically to con- authorized souri was place of destina- the same to the new transcontinental nect itself ” ours.) (Emphasis tion.’ amendatory passed in act In the route. together attempts during Despite is to be construed numerous Atty. (14 Opinions Congressional pro- cut off the with the 1862 debates to (1873)), Congress posed lines, majority further au- branch consist- Gen. *9 companies ently Kansas railroad rea- thorized the voted to retain them for such proposed expressed connection with the to make sons of Ohio as Senator Wade practicable or speech line where Pacific Union in his of June 1862: desirable; addition, Pa- in if the Union are essential “I believe the branches as company by trunk; of con- time such cific as the main will as- equal Ogden, at to afford insist Plaintiffs Ogden eastern its several connec- Rio means to the Grande solicitation against operates connected, also as one tions discrimination would constitute continuous central trans- under Pacific Rail Overland through Ogden agree. and the continental line Preferenc-' road Acts. We cannot points beyond, among pro Missouri River to and discrimination are es see no reason for a con- in we now valid of the Acts no sense hibitions requirement of a tinuance this Com- sanctioned them.13 under Rio mission which Grande is plaintiffs’ reli We conclude that precluded equality from treatment is un ance on the Pacific Railroad Acts availing. the Southern Pacific so far traf- fic solicitation is concerned. Rio (e) MODIFICATION OF CONDITION does seek Grande to have the (a). 5(2) Og- prefer UNDER Southern Pacific it at the interchange prejudice den alternatively argue Plaintiffs that the any the Union other rail- Commission did sufficient have only equal competi- road. It seeks an grounds (e) to find that condition was no position. tive “just longer and reasonable” Sec- 5(2) (a) ****** of the Interstate Commerce Act. petitioner’s competitive “Had the situ- Ogden ation at been more than that of The Commission considered evidence connecting clearly a line in change minor we demonstrated requirements have no doubt that since in the circumstances of Rio (e) competing using condition would have been dif- Grande as a Ogden Gateway. line actually imposed from ferent those in points The Commission “primary objective” the Control case. out that the proceed- conditions in the Control “After consideration of the full rec- ing, acquisition by wherein stock South- ord, procedural without limitations ern Pacific of ap- Central Pacific was imposed, before now find we proved, protection was “the of the com- present discriminatory effect petitive position of the transcontinental practices against the Rio in Grande route the Central via solicitation and against possible the Southern Pacific’s stifling of traffic a com- results in preference long-haul southern petition between the Union Pacific and route via El Paso.” 328 I.C.C. the Rio on Grande Transcontinental (1966). The Commission states: relegate It traffic. tends to the Rio secondary way “The Rio Grande a Grande no status as a seeks to operation. disturb such transcontinental carrier. a method The concern Congress But Rio Grande 1862 and 1864 now also maintains through strong joint routes and there be transcontinental rail rates with the Trottman, History “proceeding good nection was not also Pa- faith through to build the said cific 10-22 the ter- ritories,” company the Kansas au- project 13. thorized to As take over the district court stated United junction Co., build to the with the States v. Southern Pac. F. (D. 1917), Pacific. Sections on 1006-1007 Utah rev’d Section Burlington grounds, other Missouri Company given specific (1922): authority 66 L.Ed. 907 join physical require con- line “Those statutes Union Pacific. For discussion make of the decision to nection Pacific to include furnishing connecting branches and and the lines within the Acts, equal scope advantages Improve- Russell, see as to and facilities rates, ment loith- Communication time and with the Pacific (Em- Coast an out Issue discrimination kind." American Politics ours.) pp. phasis 1783-1804 296-320 See

081 pursuant found connected, The Commission contin- operated as agreement: by to said exist- line, thwarted uous transcontinental 1946, representatives such several ence “In December today. operating adopted map parties on which lines versal on the Commission’s modification the time of the remand from the district neous court, nothing road ditional facts apparent Under these circumstances it Commission was ing, Refining Cf. United States v. United States Smelt- sistent power the case in trol of Administrative Action 714 ous the 1924 heard new evidence tinuing administrative initiative. public interest, der, the Commission re- (1965). And, when and condition sonable. stances reflected interest has been several central The Rio ment of one tional continental routes at stances.” another under Plaintiffs by favoring gauge “public “Upon statements. See remanding implications Acts than was developments interpretation which in view policy. The with a accordance with the direction of S.Ct. defense country it and the reconsideration, Grande is fulfilled (e) interest.” Under us, place emphasizes (Emphasis is'contrary Commission’s action before after one of & Min. of these routes. concept had been nois rather than district court. 1962 and guided transcontinental will not changed circumstances much least, Pacific Railroad present 94 L.Ed. 750 present Congressional desire national remand “without ad- since by longer just of the Pacific Rail- it.” Jaffe, these central trans- an original Co., of administrative it did consider as Furthermore, more the existence that in 1962 the significance a broad and con- ours.) Agreement finally important subsequent now be served However, considerations we Judicial Con- day day transporta- imposition, expense by now denial of and is “con- thereun- The na- an circum- decided. welfare circum- routes. public previ- erro- Acts find rea- it is seg- up- re- ” ment. agents structed routing practices fer Policy sion’s Atchison, & al T. precisely though areas western trunkline scribed nize that the areas so are plement guage the Missouri eastern oming, 'Kansas, Nebraska, South Da- kota, cific also solicits and routes traffic via to but not Utah, Union Pacific from and to Nevada and ferred den preferentially California territory territory.” unload within stop quired subsequent to the Commission’s destination is in American Transp. 87-88, plaintiffs “Southern (1957), as points on lines constructed or ac- not authorized to actions testimony import is said order; Our were are and in territory; the said complete loading Mr. in territory North carry those described where the western correctness Co. including marked ‘as ports bewill frequently National indicated recently Union Pacific Pacific has also Justice traffic v. United to be River Oregon, said solicit S. Trucking located out the Dakota. Southern Pa- ^[1924] outlined representatives F. (3) in the western traffic (2) 173, 176, 2 L.Ed.2d measured.” territory agreement.’ Portland. preferred outlined includes “the Ry., and route via cited moving traffic Clark marked modify traffic outside North of solicitation and the areas de- Transportation Colorado, Wy- agreement Assoc., or to managers yardstick L.Ed.2d in (1) agreed to stated requiring origin fully west of partially Commis from or western of such approv freight recog- export Inc. v. Schaf agree- Kirk, sup- lan- pre- U.S. Og- al- in- *11 682 States, Here, determined that United & R.R. v. Baltimore O. 1100, 1107, 386, form- 372, 18 Southern Pacific of the S.Ct. the routes 386 U.S. 87 Union Pacific and (1967): at with the 159 ed

L.Ed.2d “substantially are now the Rio Grande pointed out has often “This Court Although the 1962 similar.” policy the national that appearance, lend orders 1966 Commission long history trial product of ‘is * Douglas says * in Baltimore Mr. as Justice Congress. Mc- *.’ error States, supra, 386 v. United & O. R.R. States, Trucking United Co. v. Lean (dissenting 449, 1141 at U.S. 80, 370, 67, L.Ed. 64 88 321 U.S. S.Ct. having part), dif- “decided been In that that case it found 544 regulatory than rather ferent bodies Transportation 1920 Act commission,” we feel nevertheless same change sharp policies in the ‘marked a findings support there exist sufficient objectives ef- embodied those being (e) of condition as no modification Act Con- forts.’ that [Ibid.] longer “just and reasonable” nor ac- gress adopt the Commission directed “public with the interest.” cord plan for rail- consolidation 1116, observed: ring opinion, portation ^[*] “The ICC economies, into a And Mr. Justice Brennan in a concur- authorize end carrier-initiated But left carried compel mergers. interest and conditions.” found complete plan of consolidation proved roads ‘competition Commission was ing that mony with and in furtherance ited number of possible.’ ^[*] public with the unification, however, the Commission was wholly transaction ^[*] to be proposed which would be so forward » the United the transaction Consolidation would be service the Commission has former interest would be 386 U.S. at consistent with the shall be with the carriers. possibilities [Ibid.] upon (Emphasis ours.) Commission to recognized systems.’ extends transaction Stat. proposals Act was amended to given fust This States preserved The initiation of adequate 898; however, Transportation no parts pattern warned upon 41 into ‘a ‘the 87 S.Ct. at reasonable promoted. which it power increased Congress does Stat. affected, approve inquiry in har- a find- of the trans public effect fully that lim- 481 ap- tices with or without tiffs gether District agreements and that United condition PRACTICES UNDER 1924 AGREE- ter tinize called that S.Ct. at 1617. As Mr. Justice Frankfur can & the substance administrative province judicial with as an there is found to record for the body found that Commission to draw the conclusion “So S. F. said in Trucking Assoc., MENT. were nevertheless long with the States, Despite it must stand. Ry., supra, the 1924 Court of Colorado that did, In this (e) function conclusions Rochester Commission’s it is as there is express a court the record 307 must original question. specifically passed upon, the modification of con- the admonition only judgment body.’ regard, condition its exercise.” urge L.Ed. is exhausted when abe Inc. v. Telephone Corp. “our task concurrence there travels approved ” 125, 145-146, warrant it should be re considered authority, permitted rational basis arising itself, Atchison, can survive their beyond (1939): Having Ameri expert plain prac from scru ‘The not to 87 59 T. York, Citing Chicago, B. & R.Q. sustained nom. Co.—Con- sub New trol, C. 271 I.C.C. 146. See also De- & St. L. R.R. v. United troit, F.Supp. Co.—Control, (N.D.Ohio 1951). T. & I. R. I.C.C. proceedings. (e) the Pacific the Control contravention of dition position many why this Acts. There are reasons must fail. *12 It Commission under is true that the grant 5(11) First, approach the could of the Act we the Section defer to construing immunity as the from “antitrust laws” Court in the Colorado District restraints, condition, agreement practices as from “all other limita and well as pro- Notwithstanding plaintiffs’ prohibitions But it of law.” is and tions issue. immunity important awkward to can use of consider that of their own testations 5(11) agreement, only given language we to be under Section in their 1924 * * * participating in join Commis- in the “carriers the observation those agreement un approved devised for a or authorized that the was transaction sion * * * * * arriving purpose section der “the stated meaning understanding a “carrier The was common the Union Pacific * * * merger making participating” them the or for of the conditions and ” * ** obligatory. acquisition the reciprocally With stock Central lease and authority (e) by modified, any for It is true Pacific Southern Pacific. condition objections, routing preferential it or solicitation be- to file but intervened agreed no Central the Commission had tween the Union Pacific and is that 1, supra. jurisdiction note over Union Pacific to See the must cease. obligations impose on it. As the Com Secondly, practices the between these acknowledges, the Union Pacific mission observed, parties, re- are not as we have only acquiesced proceedings and in the by Acts, quired but the Pacific Railroad set forth.15 Under these cir conditions are in contravention fact direct cumstanstances, Commission had no the only possible sanction them. authority to the Union Pacific relieve practices the and pro any or from “restraints (e), original of condition 5(11). 1923 version of law” Section hibitions Commission-approved any clear, it be event should we which embodied as observed, that modification of provision have exemption pursuant of the to a (e) re condition the Commission has Transportation codified Act of now approval moved for dis ostensible However, 5(11). 49 U.S.C. § parties. crimination seriously within whether in doubt proceedings Commission Control Third, the Commission that observed to the Union contrary could authorize the na both to for the preferentially and route policy, transportation solicit as declared tional Pacific) (Central Southern Pacific Transportation 1940.16 As generally (a) (d) 15. provide impartial regula- “Conditions to for fair and cooperate require Pacific to transportation the Southern tion of all sub- modes join in main- [chap- the Union Pacific ject provisions with this Act schedules, taining service, and rates title], via ters and of this Ogden gateway pre- of the recognize so administered as each; advantages Pacific. the inherent serve Control economical, “It case promote safe, adequate, was observed jurisdiction there no therein to and efficient and foster sound service against Pa- transportation an enforce order economic conditions carriers; carriers than the Southern among cific or other en- the several However, and Central Pacific. courage and mainte- the establishment approved accepted charges trans- nance of reasonable they apply made, unjust services, portation the conditions dis- without lines, criminations, preferences Pacific and its constituent undue or ad- comply its intention to there- vantages, and evinced com- or unfair or destructive cooperation so as its was nec- far with petitive practices; cooperate essary required.” 472. 317 I.C.C. duly authorized several States encourage thereof; hereby and to fair officials 16. to be nation- “It declared Congress transportation policy wages equitable working conditions; al observed, pref- requires facilities, expert Commission has extensive routing judgment knowledge solicitation erential and considerable industry. plaintiffs relegate “tends Rio Con- secondary gress Grande to a as a trans- left that task to the Commission status exper- carrier.” continental Commission ‘to the end that the wisdom and soliciting may found ience of used only competition”; “stifle connection form with this “public transportation, welfare” defense” and “national in its coordina- Cong.Rec. are better served all other forms.’ maintenance of strong, experience ‘The wisdom central transcontinental several *13 routes; courts, commission,’ “equality treatment” that that of proposed must a must determine be dominant consideration when whether dealing competing is with lines that consolidation ‘consistent with “substantially similar,” interest.’ Cf. Interstate Com- as the Union such R. and the merce Commission v. Illinois Rio Grande. 155, Co., 452, 215 U.S. 54 L. [30 S.Ct. discretionary The Commission’s 280;] Pennsylvania United Ed. Co. v. regard appraisal of the facts with States, 351, 370, 236 U.S. 591 [35 S.Ct. transportation policy national must stand 616;] Chicago United L.Ed. States v. if there evidence the deci to warrant Heights Co., 344, Trucking 310 U.S. Trucking McLean v. United sion. Co. 931, 1243]; 84 Purcell L.Ed. [60 S.Ct. States, 370, 321 U.S. 64 88 S.Ct. States, v. United 315 S. [62 (1944). Rutledge L.Ed. 544 Mr. Justice 709, 86 L.Ed. Com- Ct. If the 910]. commented in McLean: statutory did mission not exceed the Congress confined limits within which transportation policy “The national re- findings are ade- discretion and its quires ‘promote the Commission to * * * * * * supported by evidence, quate and it is economical serv- upset not our function order.” to ice foster sound condi- economic 86-88, at 64 321 U.S. S.Ct. at 380. among transportation tions carriers; encourage several the es- germane interest Public to this case tablishment and maintenance of rea- (1) service, (2) adequacy includes charges transportation sonable economy (3) use of the efficient services, unjust without discrimina- transportation facilities. York New See tions, preferences undue or ad- [or] States, Corp. Central Securities v. United * * vantages 12, 24-25, L.Ed. 287 U.S. 53 S.Ct. 77 (1932). also, totally But until we short, “In must esti- Commission approach new evolve a toward scope appraise mate effects Congress consolidation,17 requires competition curtailment Commission, courts, as the well proposed which will result from the give important “consideration of con along consolidation and consider them including sequences anticompetitive ef advantages improved serv- fects.” Denver & R. v. Unit G. W. R.R. ice, operation, costs, etc., safer lower States, 485, 492, ed 387 U.S. determine whether the consolidation 1754, 1759, 18 L.Ed.2d 905 effectuating will assist the over-all policy. Resolving Finally, these deter complex task preferential considerations is a which mined that developing, —all nating, to the end of coordi- this title] shall administered preserving carrying trans- national and enforced with a out view to portation system by water, highway, policy.” the above declaration of rail, adequate means, 1). (prior as well as other to § U.S.O. meet the needs of the commerce of States, Service, Transportation Policy, United Postal See National S. pro- Rep.No. 445, Cong., the national defense. All 260- 87th 1st Sess. [chapters 1, 8, 12, of this Act visions Houston, Shreveport case, East & shipper West was a not routed traffic States, 3(4) 234 U.S. of the Texas R. Co. v. direct violation United of Section 3(4) 833, 838, 58 L.Ed. Act. S.Ct. Interstate Commerce Section (1914), for the “there no part “All carriers basis reads as follows: ** * Congress unduly to ex- contention intended shall connecting empt any discriminatory prac- prejudice any action dis- affecting specifical- in- that is not tice of interstate carriers tribution traffic authority ly shipper.” commerce it had terstate routed Pac. R.R. Co. reach.” Western holding urge that this is er Plaintiffs United (other proof no roneous there exists since (1965), 338, 343, 15 L.Ed.2d received 1922 that at than evidence Supreme Court said: per time from 2 to 4 cent unrouted) freight sufficient “In the con- absence settled 3(4), then, shipping to create “undue struction of its manifest was affected present purpose deprive prejudice” time reason railroads dis- routing. However, apportion economic ad- cretion vantage among competitors com- fact this overlooks *14 interchange preferential the involves solicitation attacked mon must be basic guide routing, preferential and that well as to decision.” as per practices two cent the between Thus, preferential feel that we freight originated plain by the the “preconcert when done solicitation on the tiffs and not routed before “systematic” discriminatory ed” and directly contacted, is is either solicited or basis, by parties conducted the here as plaintiffs.18 the routed for in, statutory prohibition the falls within 3(4) prohibition is of Section 3(4) preferen well. The Section as against discriminatory conduct agree by tial dictated solicitation against connecting lines. The carrier competitive is without ment concern by wrong- Act cannot be circumvented re benefits of lines and without similar fully inducing shipper commit the lationship possible the best service place discrimination of the carrier. apportion shipper. much an It is as words, legislation In not to other is advantage” ment as direct of “economic weakly permits so construed that be routing plaintiffs argue, pref itself. As indirectly accomplish what ihe carrier to has referred erential solicitation been by preferential rout- he do direct cannot by disapproval without the Commission ing. policy expressed In of the clear view occasionally special under circumstances. statute, meaningful no we see dis- Ry. See, g., Chicago, I. Re e. & L. Co. soliciting arbitrarily tinction between 539, 557, organization, I.C.C. freight unrouted time and arbi- (1944); (1943), Min 254 I.C.C. trarily routing shipper leave it should Ry. neapolis, Re M. Co. P. & S. S. St. it unrouted. organization, 525, 574-75, 252 252 I.C.C. course the interpreted Of I.C.C. The statute must be present broadly Pacific was purposes case where to effectuate its obliged Leasing, for the to solicit Central B & C Truck interest. route C., own El Paso route rather than its Inc. v. I. C. 283 F.2d 164-165 special example. circum- (10 1960). But is another As is Cir. stated Ogden, agreement states, parties and via River 18. The the Missouri “the Ogden; cooperate Pacific west the Southern shall to secure origin or destina- has active such traffic as solicitation the maximum, freight River will west of Missouri traffic via * * via so solicited and routed Pacific lines *. South- traffic to afford Union is understood that such as “It longest respectively origin or ern Pacific has destination east ours.) (Emphasis practicable haul.” River solicited and Missouri will be Pacific between routed via involved, character, stances such as the re question were transform law organization merger formerly question of two into a of fact and so insulate separate legal judgment.” lines. Discrimination on a the decision from arbitrary purely anticompetitive basis, Jaffe, Judicial Control of Administra- connecting prejudiced Action, p. where the lines of tive service, equal fer is out facilities and far arguments Other made de- scope permissible activity side concerning fendants intervenors vio- disapproved.19 must be lation 15(1) of the anti- Section freight Since inde- trust laws. has Since Commission shipper pendently routed so- grounds, these relied re- discriminatorily licited or routed to the quire no discussion. prejudice Grande, 3(4) of the Rio Section conclusion, prohibits find being we no au both such thority (1) “unduly prejudicial,” further without Acts, (2) Transportation the National facts us. before (3) Policy 3(4) or Section of the Inter applied 3(4) The Commission Section plaintiffs’ state Commerce Act for only routing. We are discriminatory routing and solicitation cognizant “powerless” that we are practices, for the reten discretionary agency affirm action other original tion of the condition. We find grounds than on the invoked findings adequate made agency. Burlington Lines, Truck Inc. v. support modification its 1923 156, 169, United 5(2) order under Section of the Inter (1962). However, 9 L.Ed.2d 207 state Commerce Act. 3(4), the construction of Section we are reviewing agency *15 discretion. And deny plaintiffs’, request enjoin, We although fully relying upon expertise aside, suspend supple- set annul and of the Commission in review of en- mental order Commission dated apropos matter, tire is Professor Jaffe’s January 6, 1966, entered Finance statement: Docket No. Control of Central Pa- Pacific, according- judgment cific expert may, “The ly complaint judg- seen, we dismiss the and enter have relevant de- cision, ment for the herein defendants cannot reason of its ‘pure’ quality, specifically expert It is so ordered. parties, including theAs the Interstate directions, in both a railroad balanced Commission, Commerce have observed connecting cars to transfers carriers in arguments, their briefs solicitation proportion some to cars received. reciprocal basis, on a as well as rout- reciprocity interchange “But ing, degree industry are to some found connecting not short- railroads practices. We note discussion in develop long-run term. A railroad will Conant, Mergers and Abandon- interchange preference patterns pro- (1964): ments 34-35 longest by favoring tect its own hauls shipper “If the does not control connecting carriers that are not shipment, entire the initial any segment rivals traffic. carrier will be free to choose which Thus, Chicago Western, and North connecting transport carriers will Chicago a main has line from shipment to its final destination. At Omaha, has inter- established wide major connecting points, such as Chi- change complementary with the cago, Louis, City, St. Kansas Pacific which extends from Omaha Omaha, initiating an must carrier Denver, Ogden, west Portland. choose which of number of connect- Neither the North Western nor ing shipments should lines receive bound Pacific has inter- substantial major cities on two or more routes. change Rock Island at Omaha with the competition, price the absence Burlington, both whose lines usually principle choice is made on the Chicago run and thus from Denver reciprocity. A transfers part connecting many North rival Western carriers as cars as it them, or, from if traffic is not Pacific.” receives A

APPENDIX *16 argument ROBINSON, not its could District based on absence E. RICHARD (dissenting). Judge survive own statement. designed Congress system the so The respectfully the submit that I would that “branch lines” would connect with Acts the Railroad construction trunk”;1 question re the “main the heavily majority by relies too offered the they foresee com could mains whether interpretation the lan- systems. peting A used indicates word guage be- “Discrimination” has chosen. they not. did that by present use in the come colored “ * * * companies the several Act; “branch Interstate Commerce * * * hereby required op- to be- proportions far lines” have assumed * ** erate continuous obviously contemplated by

yond the those line.” expect hardly to find could Acts. One language Acts the I to find the "branch- am constrained guard against specifically would which for- which discrimination was es” to application of an Interstate Com- lines, competi- the were feeder bidden envisioned; any yet merce referred to Act tors. “discrimination” by quotation particular 1. trunk” “Branch lines” “main were offered the descriptions majority. Cong. Cong.2nd given sys- often Globe 37th Congressional debates; Session, [1862]. tem in the appears directed, to have been noting addition It is also separate worth that the segments trunk”, to the two of the companies “main given express right were to compete the branches who to were be corporate to consolidate their structures. themselves, tween not with “one July 2, 1864, con Act of ch. Congress tinuous I line”.2 believe that Stat. 363. railroad; intended to create one the two agree I do not that the cases cited in organizations accomplish were formed to majority opinion weight add to the this end and were not to dimin intended position particular, therein taken. In I right operate ish to their as such. I agree cannot that case of agree obligations would of the Ry. Chicago, Ry. Pac. Co. v. R. I. & P. parties by under the Acts were fulfilled [supra] Supreme enjoined Court physical mere connection absence “discriminatory practices” au of discrimination between themselves thority of the Pacific Railroad Acts. branches, and their I would not gave support Reference Acts equate duty fulfillment of with exhaus finding Congressional the Court’s rights. duty policy; questions neither involved solicitation and arises from the given light nor the answers shed here. control of Central Pacific might The other authorities well be cited arrangements Pacific and the re which position in favor of the taken words, sulted. my interpre other if Union Pacific as well as those conclu correct, tation is the Pacific Railroad sions for which were cited. Each gives parties right agree cases refer to the “main line” competitive exert in concert lawful them; “connecting force available to control of branches.” I would not agree language Central Pacific Southern Pacific de can be trans planted apply mands equally competing such an be made. following Senator Sherman offered the 000 a mile. I think it would be much argument private ownership wiser to leave these various branches hope proposi- branch lines: “I that this to be built the local interests con- tion, prong Oong.Globe, Gong., which will add another cerned.” Sess., 2nd 37th many-pronged railroad, [1862], this down, will be voted proposition and that Hampshire Senator specific from New will be 3. That case was an action for adopted, may agree upon performance and that we of certain contracts entered railroad, construction of one main Pacific into the Union Pacific and the Chica- may promptly constructed, go, Railway Rock Island and Pacific give Company Chicago, such reasonable aid as we can to and the Milwaukee diverging routes, pointing Railway Company all main and St. Paul in which line, diverging and I think these the Union Pacific had leased the use ought corpora- bridge lines to be under different their across the Missouri to the part companies. tions. There is one of this bill that two latter named The Union *17 I do like. authority not I do not wish to criticise Pacific claimed that it no had it, I but do not think the Pacific Rail- to lease the use of its lines and that the Company ought any road to build these of contract was therefore ultra vires. The diverging They ought lines. to be built Court found that the did contract not by companies different fulfilling so the that all disable the Union Pacific from diverging other, compete obligations public. lines will each with to the The Court compete and with each other fair- then cited the Pacific authority as Railroad Acts ly, they pour proposition while their streams of for the the that great line, Congressional policy commerce into one which is favored “continuous by impossible ignore aided the Government. But under the “It is lines”. for us to operation you great public policy of the bill as have it now the in favor con- of framed, Company congress, by the Pacific Railroad tinuous lines thus declared lines, will pol- own one of these branch and that it is in effectuation of that may icy arrangements to the of other interests sacrifice that such business as involved these divert the whole roads will make connections are such effective line, Ry. travel and to one made.” Union Pacific go, 589, Co. v. Chica- destroying property Ry. Co., 564, thus the in which R.I. and P. at you yourself $16,- invest to the tune of at 41 L.Ed. may recognize protected be systems. the cific Railroad acts cases Each something acquisition imposing upon the more the demand Acts that and exercise of the physical control South- mere connection.4 than set ern Pacific the five conditions position is not novel. The I have taken ’ out above. Interstate Commerce It was stated the adopted proposed originally The is di- modified condition it Commission when solely review, protection the rected now under conditions the five and, thus, interpretation Pacific line Central would and cited as the correct line. favor it over the Union Pacific ruled on the Commission when first Although proposed modified con- reopening petition modification. for continued following dition is directed toward from is taken Control line, Pacific, protection Centra] Central Southern purpose fall short of would at 484: I.C.C. expected not be Pacific could existing “The are consistent conditions preferentially solicit purposes the Pacific stated obliga- reciprocal in the absence of Acts, purposes one Railroad Pacific. It protect of those conditions physical clear mere connection rights and the of the Union Pacific satisfy purposes does acts, public are under those still which acts; Pacific Railroad it is note- imposing the and effect. force worthy the 1862 act and both conditions, stated: we authorized the roads con- 1864 act ‘By Railroad virtue of the Pacific one cerned ‘to form themselves into acts Union Pacific and Central ” company.’ consolidated reciprocal have certain Even counsel ex- for the Government right rights, including the co- pressed proper con- a similar view operation establishment argument struction of in his acts maintenance Pacific- via Co., United Southern Pac. States Union Pacific train route of p. 217, L. U.S. at 42 S.Ct. joint reasonably service and rates Ed. 907 [1922]: competition necessary to meet imposed routes, cooperation “The on other Pacific Railroad laws and to respects, the franchise the Central Pacific other to the end that companies op- be on the franchise lines said shall connected, reciprocal Union Pacific Railroad erated used as duty the one railroad not to dis- continuous line. We think that against rights in favor criminate the other of the Union Pacific and all railroad, to- but exert other interests of the Pa- pre- systematic particularly 4. I “Sueh refer States v. United R.R., discrimination as said concerted are Pac. 33 S.Ct. U.S. destroyed the Rio have Grande’s I read that [1912]. 57 L.Ed. As carrying trade a connection for case the Court made two observations First, they important would the East business here. as discrimina- re- have violated the found that the Pacific Railroad Acts statute quire physical Pacific and tions adverse more than mere connec- why equally violative of letter then reasons tion. Court listed ”* * * Congress. they spirit physical of the acts of believe connection was only requirement; at 59. did *18 opinion obligations clearly proceed indi- I believe to define the light Pacific and Central did is shed on cates that exist. Some special given question, however, by treat- com- Pacific were be another opinion. that created While ment because the Acts ment in that contained rights them. the extent of their about dis- While the Court disturbed defined, against their existence never- is not crimination Southern acknowledged. Grande, they definitely Rio theless stated against the Un- discrimination such contrary to the Act. ion would gether voluntary cooperation in normal single natural forces of competing naturally with the

parallel Southern Pacific * * [Emphasis supplied] persuasive, my opinion,

Most Interstate Com-

fact Commerce recognized mission has operated

railroads themselves have interpretation long period for a “long-continued reliance”, This

time. express finding made an Com-

mission’s 1962 decision. of Cen- Control [supra tral Pacific Southern Pacific undisputed p. It 483]. is aspirations the time

Rio had Grande imposed

the nine conditions of be- were

coming competitive Union Pa- with the participated

cific. Rio Grande case; affected Control conditions operation of that route certain imposed; interpreta-

extent when

tion of clearly Pacific Railroad Acts was stated; were the conditions accepted reflecting up until law rights reflected in 1957. which are granted by e”

“condition were the Con- gress; by the cannot be deleted therefore, respect- I

Commission. must

fully dissent. Markowitz, City, M.

David New York for defendant Jean Claude LeFranc. Netter, Lewy, Dowd, Fox, Ness & Stream, City, New York for defendant Nebbia; Stream, Jean Arnold C. New City, of York counsel. Morgenthau, Atty. M. for UNITED Robert U. S. STATES of America York, District of New New City; Tendy, York William Ober- Otto DESIST, Dioguardi,

Samuel Frank Jean Attys., maier, U. Asst. of counsel. S. LeFranc, Claude Jean Nebbia Anthony Sutera, Defendants. Irving City, Younger, York New No. 66 Cr. 7. defendant Samuel Desist. United States District Court Glasser, City, M. Abraham New York S. D. New York. Dioguardi Frank defendants Aug. 30, Anthony Sutera.

PALMIERI, Judge. District Preliminary Statement case, presently judice sub before This Appeals the Court a trial com after