*1 SWIFT & COMPANY v. UNITED STATES et al. Argued May 5, 5-6,
No. 282. March 1952. Decided *2 appel- the cause for Bernays argued Wiener Frederick Strack, him the brief were Wm. N. lant. With Dean O’Meara, Staley P. John Ross Arthur C. and Rynder. cause for the United argued W. Knowlton
Daniel Commission, appel- the Interstate Commerce States and Perl- him on brief was Solicitor General lees. With for the R. was man. Howell also counsel Samuel Commission. Interstate Commerce Atchison, Douglas F. for the argued Smith cause al., appellees. Fe Co. et With Topeka & Sante Railroad Martin Burgess him Kenneth on the brief were F. M. Lucente. and filed a brief Quasey the cause argued
Lee J. Assn, al., appellees. Producers et the National Live Stock for the Live Belnap argued Nuel D. the cause him on the brief Exchange al., appellees. et With Burchmore. were Robert N. Burchmore and John S. Guy Bryce A. L. Hamilton submitted on Gladson Company Yard & Transit brief for the Union Stock Chicago, appellee. opinion delivered the
Mr. Justice Minton Court. July Company,
On Swift and 28, 1947, appellant, amended, filed a before the Interstate complaint, later Atchison, Topeka Commerce against Commission *3 railroads, alleging charges Santa Fe and other the on shipments points direct carload of livestock1 from out- Chicago side Illinois to new proposed plant its Packingtown (1) unreasonable, (2) unduly prej- area are commodity, (3) unduly udicial to livestock as a prejudicial against competitors, to Swift as its all vio- lation of the Act.2 asked for Interstate Commerce Swift for joint through the establishment of reasonable rates line-haul serving Chicago Chicago carriers and the Junc- lessee, Chicago tion Railroad's and Indiana River Railroad, hereafter called Junction,3 joint such rates
1 shipments” shipments consigned The term “direct is used to denote directly packer slaughter, distinguished ship as from those consigned public ments to commission men for sale in the livestock market. 2 seq. (4) (5) require 49 U. S. C. 1 et 1 and 1 Sections § just rates; (1) carriers prohibits to establish and reasonable §3 giving any preference any carriers from undue or unreasonable particular shipper any particular description or to of traffic. A line-haul carrier is a common carrier railroad which trans ports freight traffic, distinguished livestock and other in interstate Junction, performs from a carrier such as services a local switching area. at siding industrial to Swift’s livestock delivery of
include rates the line-haul to exceed and not plant proposed points and other Yards at the now in effect Union pro- area. Swift’s line-haul railroads on located will be plant, present near its posed plant, carrier. any line-haul not on those of rails and Junction’s to file sought complaint, After Swift filed its to live- applies one as cancelling present a new tariff for switch- a flat provides tariff present The stock. and team and from industrial freight to ing carload not have would tariff, Junction under the new tracks; any under circum- for livestock switching offered services filing was and the objected, and others stances. Swift hear Swift’s com- that the Commission could suspended so together on a consolidated request and Junction’s plaint record. and refused complaint dismissed the Commission & Co. switching tariff as to livestock. cancel the Swift Atchison, Co., F. R. T. & S. 274 I. C. C. 557. Swift
v. of dismissal sought of the Commission’s order then review That court three-judge District Court. statutory fol- order, appeal the Commission’s and this sustained (b). 1253 and 2101 No pursuant §§ lowed 28 U. S. C. to cancel is raised as to the Commission’s refusal question tariff. shipments by All rail to the area are *4 direct solely by carriers; delivery handled the line-haul is to line-haul at line-haul rate. Such termi- terminals unloading pens nals are the Stock Yards and those a line-haul directly adjoining located switches carrier’s the one that has large packer rails. Swift is all such a line-haul terminal and can receive its direct terminal, at rates. This shipments of livestock line-haul Packing Plant, subsidiary the Omaha a Swift situated present plant two and of Swift’s one-half miles northeast district, outside the Stock Yards is located on the
377 rails of the Burlington Railroad, a line-haul carrier. Here Swift receives its direct livestock shipments, about 6,500 carloads annually, which it trucks to plant the Stock Yards area.4 The balance of the livestock de- livered Chicago, whether direct or is de- otherwise, livered to the Stock Yards, with some minor exceptions, by the line-haul carriers over certain running Junction tracks to the Stock Yards unloading pens. The carriers trackage have rights on these running tracks for a paid is to Junction. On direct shipments to a packer delivered Yards, facilities, Yards’ including a system vast of runways, overpasses and tun- nels, are used to drive the livestock from unloading pens to the packer’s plant. The charges for these facili- ties are fixed by the Agriculture. Secretary has never or switched any handled except livestock in an emergency. livestock in the Stock Yards area is
to be contrasted with that of freight.” “dead The line- haul carriers make no direct deliveries of freight; dead none of the approximately 500 industries in the area have plants located on line-haul rails the line-haul carriers do not have trackage rights over the Junction rails which lead plants. to the Consequently, all freight dead is switched Junction and delivered to the industrial sid- ings or team alongside tracks of and connecting with Junction’s rails.
Since Junction provides only trackage rights livestock shipments to the Stock Yards, the line-haul rates on do not include Junction as participat- ing carrier. Junction does participate, however, joint
4 The cost of trucking $50,000; Swift is it is much less than the cost of consigning either the livestock to the Stock Yards and paying for yardage their paying facilities or switching charges having here in issue and the livestock proposed plant. delivered freight Dead composed of commodities other than livestock. *5 378 not switching operation any freight. For dead for
rates participates, Junction in which rates by line-haul covered car.6 per charge $28.80 a flat has shipments at any to direct apply would charge This have which, as we Packingtown plant proposed Swift’s but rather rails any line-haul located is noted, rails. on Junction’s break-up up made at are Yards the Stock
Trains for a few to sev- carriers, located from line-haul of the yards in from coming A train Yards. miles from the eral Junction, which Yards the Ashland the west moves Yards. and the South into the North divided are and dis- separation, receipt, used for the are North Yards outbound empties freight of dead tribution of cars the South industries, while and other packers from inbound. This freight for of dead are cars Yards used owned running tracks parallel three by made division is 1104, over 1102, 1103 and Junction, numbered in and out operate permitted are the line-haul carriers trains to Sixty-three percent Yards. of the Stock exclusively of live- composed area are the Stock Yards both trains, carrying are consolidated stock. The balance freight. dead carrier, using An train line-haul all-livestock moves Track 1103 eastward over equipment, its own crew and is there Yards unloading pens the Stock unloaded, being are the cars spotted unloading. While end of the around to the engine off, passes other cuts unloading completed, is couples on; train and when 1102 or 1104 over Track the train returns westward break- Ashland Yards and back through Junction’s train This empties. with the all-livestock up yards proceeding figure was heard This was at the time Subsequent increases have authorized the Commission’s examiner. brought $39.24. *6 line- by movement to the Stock Yards one
delivered haul carriers for line-haul rates. Yards through
A train moves the Ashland consolidated 1103, on Track break-up yards point from the to a certain train, an train. In this consolidated just as all-livestock just engine hauled behind the dead-freight cars are point At a and the livestock cars the rear. certain out and dead-freight 1103 the cars are cut switched Track nine Junction re- upon into the South Yards one tracks, from Junction later moves ceiving which tracks freight the dead to the industrial and team tracks in the area. packers other industries located freight receiving After the dead has been switched to the line-haul 1103 to tracks, engine returns Track couple onto the livestock cars and move them to the freight being the dead switched unloading pens. While only ingress means of Yards, 1103, to the South Track by the live- west, to the Stock Yards from the is blocked many as remaining cars on the track. Sometimes stock block reason of the up by four trains at a time are tied as on Track does in from the east coming
An all-livestock train directly proceeds Yards but pass through the Ashland all yards. However, break-up Yards from the the Stock Yards, as would the Ashland freight through dead moves complaint if were to Swift all livestock to be delivered shipments that most of the livestock granted. The fact portion the western carriers makes by are handled unimportant present transportation operation purposes. livestock would move complaint granted,
If this were In- of dead plant freight. the manner proposed Swift’s movement, as the line-haul movement to the stead of one would be two Yards, there movements —one by in the South Ashland Yards made receiving tracks movement carriers, and the second line-haul from located on Junction’s plant, its South Yards to Swift’s would 1103, above, The on Track described tie-up rails. to the Stock accordingly consigned be as trains increased cars place any Yards would have to of Swift’s livestock receiving congestion on the Junction tracks. would be the fact that live- costs involved increased freight. handled as as dead Live- easily stock cannot be in switching operations cannot be “kicked” stock cars with dead-freight cars, stopped can which are collision mini- placed other cars. Livestock cars must be with a handling. mum of further rough Still difficulties would *7 be encountered because livestock must be unloaded, every twenty-eight hours, watered and fed in accordance seq. S. C. 71 et with federal law. livestock § U. When in Chicago, generally arrives there are a few only hours remaining delivery for to unloading pens order to com- ply with this law. Therefore, expeditious of handling the livestock is required, especially since there no are along facilities unloading, Junction’s rails for such water- ing feeding. Some 31 required hours are for a car freight of dead to clear Ashland Yards and be delivered. apparent It is livestock must be handled much time. less
If complaint were Swift granted, pay would not for or switching the second movement Al- Junction. though Junction has never moved livestock in past except in an emergency, under existing tariffs it can switching Swift the rate per $28.80 of applied car now other commodities. But if Swift is to obtain what seeks, the line-haul carrier must establish as the line-haul a joint rate rate with Junction higher which is no than present line-haul rate. This would mean that line-haul carrier must absorb the switching charge, or that switching both the charge and present line-haul rate must be decreased, with the line-haul carrier and Junc- tion sharing absorbing the amount of the decrease. of bottleneck through of livestock delivery The expedi- for the geared provide be Yards must Ashland receive. must handling special tious and are handled7 freight which of dead huge quantities Yards have resulted of Ashland facilities the restricted of a seventy years, period over a development, in the rea- For this operation. pattern intricate complicated, for the most pattern calls attempt change son, any judgment and administrative consideration expert —a If the Commis- perform. are ill-fitted to task that courts its decision should weight factors, to the relevant gave sion then to the Commission’s move not be overturned. We report. pre- found that in the circumstances
The Commission existing charge provided by the sented the unlawful not be unreasonable or otherwise tariff would that the establish- livestock, secondly, applied transportation was not nec- joint ment of rates such It took public or desirable interest. account essary Yards and the development of the historical the Stock with the in- together of livestock therein which yard development dustrial of the area have made further found that expansion impracticable. The Commission *8 the switching yards highly congested and, are now as one put it, “running witness are bank full.” it is true While shipments that livestock into the area have been decreas- ing, dead-freight shipments severalfold, have increased congestion and the will future. continue the foreseeable gave The Commission careful consideration the com- plication operations through of the additional and dif- switching handling ferent movements in the of required livestock as freight. contrasted with dead the Whether
7During years 1945, 1947, average 726,000 the 1946 and an of over year, cars a empty, through loaded and were funnelled the Ashland Yards.
382 which into delivery of livestock for the
system line- at an established years seventy existed for over has definite terminals recognized and which has rate, haul highly in a movements minimum of train calling for a system another displaced area, should be congested would operations the complicate further would not included and services properties the use of necessitate fixed, and terminals were line-haul rates present the when judgment the administrative is a committed question based on judgment that is of the Commission. When by the evidence abundantly supported findings duty it of the courts case, in this is record, whole States, 335 S. v. United U. Ayrshire Corp. it. to sustain City, Jersey v. Commission 573, 593; Interstate Commerce States, 316 v. & Co. United 503, 522-523; 322 U. S. Swift Mills, 409- 397, S. 230-231; Adams v. U. 216, U. S. v. Union Interstate Commerce Commission 410; Pacific Co., 222 541, R. S. 547-548. U. question the reasonableness Hy in the
charge posed was to the Commission case Co., Atchison, grade v. T. & S. F. R. Corp. Food Products There, Hygrade sought 195 I. C. C. 553. to have switching charge Junction, absorb the but railroads that it additional the Commission found was reasonable appeal line-haul rate. On to this Court charge Atchison, finding was not disturbed. T. & S. F. R. States, v. S. 193. At that time the Co. United U. $12 It per considerably higher, was car. is now charges but for other commodities and have services risen also. of showing switching charges
The burden that the were upon unreasonable was Swift. Louisville & N. R. Co. v. States, 1, record, 238 U. S. On this United sustained; charges having burden was not existed for having approved been as reasonable years Atchison, tacitly approved by Court, Commission
383 States, T. F. their reasonable- supra, & S. R. Co. v. United showing a presumed ness is to in absence of continue to the contrary. it un-
The fact that the rate is so that Swift finds high economical use does not and of itself establish unreasonableness of rate. A revision switch- ing charge ground on the of its unreasonableness and the switching establishment of a reasonable rate for was not Any asked. rate excess the line-haul rate to the Stock Yards was Swift by unreasonable, considered as as it was a demanding joint rate not excess of the line- haul rate to the Stock Yards. Unreasonableness is not made out by mere assertion. Federal Power Comm’n v. Co., Natural Gas Hope 591, U. S. argued
It is next that because dead freight is delivered siding Swift’s industrial at the line-haul rate, is a against discrimination a commodity to im- pose switching charge in addition to the line-haul rate delivery of livestock the same point. argu- That is completely ment answered findings Commission’s as to the different and complex more nature of the switch- ing services required livestock as with compared dead freight. The cost of the performed by service delivery Junction of dead freight figured in the line-haul rate. The line-haul livestock, rate for the rea- sonableness of which is not in and of itself attacked here, has never contemplated such switching services because performed has never them. placed
Reliance is Swift upon the case of United Co., States v. O. R. Baltimore & There, U. S. 169. delivery industrial at line-haul rates had been practice. The Cleveland sought Stock Yards to ter- minate such because it owned a segment of the track used to serve Swift and prevent wanted to the use thereof unless livestock be routed through yards paid therefor to the Stock Yards. In the al- *10 pay Yards wanted the carriers
ternative, of Yards’ of such for the use the Stock equivalent siding. plan industrial Such a leading track to Swift’s com- against would have discriminated Swift because its of petitors get delivery could without the use the Stock by would the Stock Yards’ track hence be unaffected Yards’ demands. This Court held that the Stock Yards ownership not to work a discrimination could use its track had said not exist. Congress should authority “Here under its constitutional Congress that in provided engage has no railroad shall certain in of three types discriminatory of conduct violation of found that provisions the Act. The Commission discriminatory conduct here. The excuse offered that of 1619 required the railroads is the owner Track prohibited things. them to do the But the command Congress against discrimination cannot be sub- of a that a ordinated command track owner practice railroad the track discrimination.” using Id., at p. to an
Delivery siding industrial at line-haul rates was there allowed the Commission and sustained for sought by Court the reason the Stock Yards discriminatory upset delivery procedure, act to the usual here, vastly complicated operational while a more set- ting, complicate by obtaining Swift would it further a at from itself service line-haul rates different the usual delivery procedure or contemplated considered present Chicago when the line-haul rates to were fixed. If granted here, Swift were the relief it seeks it would be obtaining something that no other packer receives, a and, being against, instead discriminated granted discrimination would be its favor. Swift al- ready enjoys competitive advantage because it can ob- plant tain direct livestock at its Omaha at hardly line-haul rates. It can be heard to say present system competitors favors its in the Stock Yards’ area. prejudicial
Swift also failed its burden of showing to it as opposed competitors treatment to its in localities other than Chicago, dehvery who do receive industrial at competitors’ line-haul rates. These are plants located for the part most on line-haul rails, carriers’ *11 no complicated switching movements are involved. Swift receives at Chicago, elsewhere, the same rates and serv- packers ices as other similarly situated.
Junction is a subsidiary of the New York Central Rail- road Company. The latter an agreement had with the Stock Yards provision contained a that New York operate Central would “the benefit, advan- tage, and behoof of the business and of the affairs” Stock Yards. this proceeding When was begun before the Com- mission, Junction did not intend to it. Attorneys defend for the Stock Yards wrote a general letter to the counsel of New York Central, calling attention to the failure of Junction to defend and to the covenant in agreement. They pointed out possessed that Junction the evidence necessary to meet in the issue Swift’s complaint, that such evidence should be adduced, and that under the agree- ment, Junction was obligated to in defend order to avoid irreparable to injury the Stock Yards. Junc- Thereafter, tion defended.
It is Swift’s contention that this illegal. is covenant We do not find it necessary pass upon that matter. farAs as Swift is concerned, it does not any direct receive shipments at the Stock Yards; hence any decision as to livestock shipments to Swift would affect the not If Yards. other packers would demand siding industrial in the event complaint allowed, Swift’s were un- questionably the effect upon Stock Yards would be very material. give consideration did Commission true
It is other successful, if were Swift probability to the likelihood The same service. demand might packers does as it Commission, demand seemed of such packers, other if demand However, this obvious. us, consid- Commission, received reasonably forecast it was case, in this conclusions reaching the eration con- the overcrowded burden on the additional light operations, of the complexity area, the dition of livestock handling in the for extra care necessity Yards. at the Ashland bottleneck through the it to move by giving conclusions not led such was The Commission unnecessary wholly It was to this weight covenant. with be impact may consistent covenant’s The thereto. to have con- not shown been consideration, but such by the Commission. manner, upon or relied any trolling put arguments other given have consideration We merit; without equally them to be and find forth Swift opinion. require discussion they do Court is the District judgment of
Affirmed. Douglas Reed, Mr. Justice with whom Mr. Justice dissenting. joins, majority of the accept the conclusion
I not able to am on this can Commerce Commission that the Interstate rates joint through prayer deny the appellant’s record de- and the terminal defendants between the line-haul admitted It is Junction Railroad. fendant, Chicago is de- freight save livestock every that manner of here in switch- private industrial livered rates. joint through embracing under ing tariffs district a “discrimination that it is not the Court concludes When switching a commodity impose against livestock as rate for in addition to the line-haul statutory re- it violates the point,” livestock to the same equality between To quirement commodities. accord joint through private rates for sidetracks to all commodities livestock, prefer- constitutes such a save ence those commodities proscribed over livestock as is by 49 (1). U. S. C. 3 opinion § See note of the Court.
It is the law under the Interstate Act, Commerce set out 3§ that (1), public interest best served when common carriers accord equally reasonable treat- ment to all their patrons. To sure, be the law might be public interest is best by served avoiding congestion pass order to the maximum amounts of through traffic a transportation bottleneck. But Con- has gress decided, both for the Commission and Court, the commonweal shall be served guaranteeing that there shall not be discrimination between commodi- ties carriers. The difficulties of congestion, limitations facilities, or other shipping disadvantages are to be equally borne shippers, all otherwise the Interstate Commerce Commission could unreasonably prefer com- modities through transportation orders, and in effect would be to prescribe authorized the manner in which goods shall be marketed the public interest. The in- adequacy of transportation not, facilities may my opin- ion, be cured by penalizing one commodity for the benefit of the others.
When, as here, the carriers while fixing joint through rates for in general commodities fail to furnish them to shippers of livestock, on application the Commission should fix such That rate. rate should be established, 49 U. S. C. 15 (3), § in the same manner as similar rates for other commodities, of course with proper con- sideration of *13 costs handling respective com- mo’dities. I it no consider answer on this record to say that the switching charge may be no more than the dif- in ference cost of handling dead freight and livestock. when the problem that meet is entitled shipper The switching factor to determine comes Commission be rates should through Joint rate. through joint Then, siding. on Swift’s shipments to livestock accorded unreasonable, as is attacked if the rate then, not until and if fact, supported by on the rely properly the Court may Commission, Commerce the Interstate finding of a re- services of the complex nature “more freight” dead with compared livestock quired major- See in the rates. the difference justifiable makes commis- any of The reasonableness p. 383. ity opinion, over other commodities rates of livestock increase sion showing its findings depend upon evidence should without handling of cost of the extra necessity because congestion. regard to
I would reverse. Frankfurter, dissenting.
Mr. Justice imply serious my of brethren conflicting views scope the meaning interpreting differences Commission. Interstate Commerce report with the speak does therefore, report Plainly, with case. my difficulty Therein lies clarity. needed how can ambiguous, done is If what the Commission has what it did? it was do I whether authorized decide intelligible precludes order Dubiety the administrative review. judicial had be the Commission matter, views the
As the Court specifi more controversy merely rate-fixing fore justi transportation considerations relevant cally whether per of 4.8 cents switching charge aof local imposition fied charge as a with the line-haul in combination pounds* sidings. And private fair rate for held, on a hearing was based rate, was * This effect when 60,000 pounds. minimum
the record, according Court, amply sustains the finding of the Commission that such a combination did an constitute rate. Mr. Justice Reed unreasonable Douglas interpret the order not to be a Mr. Justice rate-fixing all, but, order at effect, determination the Interstate Commerce Commission that un- livestock, all like other commodities, may private be excluded from in the stockyards area, although this is done not but aby designedly preferential terms rate. The dif- ficulty is, course, intensified in that the rate is fact prohibitive.
Where, as here, this Court can draw only conflicting strands of reason from explanation In- given by the terstate Commerce Commission, we have not spoken been to with sufficient clearness. “We must know what a de- cision means before duty becomes ours say whether Chicago, M., it is or United States right wrong.” v. St. Co., P. P.& R. 499, U. S. I Therefore, think the decision below should be reversed with direction to re- mand the case to the Interstate Commerce Commission for appropriate action.