Utah Citizens Rate Ass'n v. United States of America & Interstate Commerce Commission, 192 F. Supp. 12

Utah Citizens Rate Ass'n v. United States of America & Interstate Commerce Commission

192 F. Supp. 12

D. Utah

1961

Check Treatment

*1 12

786; Pedersen, 324 U.S. 89 L.Ed. University, F.2d S.W.2d Walling v. 276.” Cf. 1316; ^[240] Spaeth Sondock, Cir., Boutell v. Mo.App. [79], 720, v. 631, Washington 90 L.Ed. Walling, 892, UNITED STATES of America and Inter- UTAH CITIZENS RATE and state Commerce Structural Steel Defendants, Plaintiffs, v. Commission, ASSOCIATION, Forge Co., support find conclusion I also for The Denver and Rio Grande Western many holding decisions build Company, Railroad Union Pacific Rail- ing employees, Company, road maintenance and service Southern Pacific Com- pany, The maintaining Western cleaning Pacific Railroad fa and otherwise Company, Railway Company, recognized traditionally instru cilities of Valley Tooele Railway Company, Salt commerce, themselves mentalities are Lake Railway Garfield and Western еngaged by the covered commerce and Company, Ogden Railway Union Act.15 Depot Company, Intervening De- fendants. foregoing, From Court con- Civ. No. C-58-60. cludes that at all since October times them, defendants, and each of United States District Court requirements failed meet the Utah, D. 11(c) 15(a) (2), and Sections 7 and Central Division. 15(a) (5), consequently Nov. thereof, paying violation some of Judgment On Motion Alter or Amend engaged employees their Jan. production goods in the for commerce herein, wages and referred at per hour, employing less than some $1 employees longer of said for workweeks compensating

than 40 hours without them at rate not one- thаn one and less regular rate, half times fail- keep, preserve make, records showing employees some said day

hours worked each and each week

them. The Court finds no intentional or noncompliance

willful or violation of

provisions particulars the Act interposed have indicated. The defenses good been asserted in faith. These con-

siderations, however, justify do not noneompliance tinued violation They weighed of the Act. will

molding injunctive relief which the plaintiff ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Court concludes the is warrant- judgment

Aed. will be entered accord- ingly, but after the Court had opportunity to consider with counsel parties

for the the form of decree. Engebretsen Co., Supply Co., v. Cir., 15. See E. J. Albrecht Food & 141 F.2d Cir., 602; 331; Walling Cir., 150 F.2d Sondock, Mid-Continent v. 132 F. Corp. Cir., Keen, Petroleum 157 F. 2d certiorari dеnied 318 U.S. Walling 2d v. Mutual Wholesale 87 L.Ed. 1142. *2 principal questions presented Two (1) for determination this Court: present proceed- Whether in the

n *3 ings standing valid- ity findings Com- and order of the mission; so, (2) and if whether such by supported and order are sub- stantial evidence. freight Interstate rates were increased by

nationwide the Interstate Commerce 175, Commission in Ex its Parte No. 589, 179, I.C.C. I.C.C. I.C.C. Hayes, (Pugsley, Rampton Calvin L. The Public Service of Utah Commission City, Rampton Watkiss), Lake Salt refused to allow similar on in- increases Utah, plaintiffs. for trastate A traffic. in- Thirteenth Section Wigger, Washington, vestigation John H. D. D. C. hearing and were conducted (Robert C., Bicks, Washington, by D. and A. the Interstate Commerce Commission Utah, Kesler, City, upon Lаke A. Pratt Salt report, which it issued a 297 I.C.C. defendant, briefs), 87, with him the on for order, directing and later an in- freight United States. trastate rates in Utah in- comport grant- creased to with increases Johns, Jr., Counsel, C. H. Assoc. Gen. ed Ex interstate in Parte No. This C., Washington, (Robert C. D. C. W. I. three-judge order was sustained Ginnane, Counsel, Washington, D. Gen. district, court in this Public Service Com- C., briefs), him ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the de- with on the States, mission of Utah v. United D.C. fendant, Interstate Commis- Commerce 1956, May 19, F.Supp. Utah 803. On sion. 1958, Supreme the United Miner, Hobbs, A. U. L. Salt and W. appeal States reversed. Public Service Leverich, City, (Bryan Lake Utah P. States, Commission of Utah v. United City, Utah, Collins, Elmer B. Salt Lake 1958, 421, 796, Neb., Porter, Denver, Omaha, P. Ernest mandate, 2d 886. Pursuant to the it was Colo., Bowen, Al- Albert R. Arthur A. thereupon directed this Court that the len, Jr., Cornwall, and S. N. Salt Lake Commission’sorder be set aside and that City, Utah, briefs, for with them on the the cause be remanded to the Interstate intervening defendant carriers. pro- Commerce Commission for further LEWIS, Judge, ceedings conformity Before Circuit with the CHILSON, opinion. CHRISTENSON District Court’s Judges. meantime, 196, in Ex Parte No. 279, again 298 I.C.C. in Ex Parte Judge. CHRISTENSON, District 206, No. 299 I.C.C. 429 and 300 I.C.C. pre- Plaintiffs, pursuant procedure the Interstate Commerce Commis- in 28 U.S.C. scribed sion §§ authorized additional rate increases 2321-2325, seek this action have on interstate traffic. A further Thir- investigation aside an order of the Interstate Com- set teenth Section was institut- requires hearings merce Commission which ed and аdministrative were operating increase, Utah Commission, railroads held. The on December exceptions, report certain Utah intrastate issued its in the combined freight correspondence proceedings (Docket rates with in- Nos. 31484 and approved by 32253) creased which it allowed the Public in three nationwide thirty Commission revenue days Service Commission of Utah designated proceedings approve Ex Parte Nos. in which to the increases held 175, 196 required and 206. remove the burden in- grounds 37 S. time the other Within commerce. terstate This no- Ct. L.Ed. 233. Public Service legal right possesses no Commis- reason that it tified Commerce the Interstate injuriously af- or- interest that would bе not enter sion would that it Associa- fected the order. Rate The Utah Citizens der. rehearing re- petition for tion filed a however, result, The reason Com- Interstate consideration with plaintiff pertain do not Structural March On merce Commission. Forge Company. The distinc Steel order, assailed issued clearly in Alexander tion is established denying petition proceeding, in this States, Sprunt Son, *4 & Inc. v. United reconsideration, rehearing following supra, al cases the which establish, effec- requiring to railroads the lowing ac of similar the maintainance May 13, 1960, rates increased the tive by directly affected dis tions those transportation charges for intrastate tinguished by сourt in connection the in accordance of Utah State within the parties with of relief to with its denial report. findings in its contained the only interest. indirect sentimental initial- Association Citizens Rate Hubbard, Utah Village of United Ohio, 1925, v. States plain- party ly brought sole this action as 160, 474, 45 266 U.S. S.Ct. standing capacity raise to tiff. Its Case, Chicago 389; Junction 69 L.Ed. questioned were here involved the issue Eddy Corporation supra; v. & Skinner granted by to leave the defendants. We 557, 1919, States, 39 United plain- join party a to the Association 772; 375, Com 63 Interstate L.Ed. S.Ct. Forge tiff, Company, Structural Steel Diffenbaugh, 1911, merce v. shipper in Utah a substantial 22, 42, 83. 56 L.Ed. 32 222 S.Ct. U.S. that even Defendants assert commerce. standing last cases was thе cited addition, no with this the shippers recognized part of on standing legal maintain this action by directly of the orders affected others general revenue order to set aside Jersey City Compare the Commission. the Commission. States, D.C.N.J.1950, 101 F. v. United by 702, pressed Supp. us the defend statutory capacity to sue Lack of Court, Maris, Judge ants, for the where may disempower from an association plaintiff not had pointed out that maintaining Mof an action as this. rights a muni shown 1933, League States, United fat Tunnel v. adversely cipal corporation af would 113, 543, 53 S.Ct. 77 L.Ed. U.S. by More Commission’sorder. fected general capacity to sue and Neither adopt power over, foundational in the Utah Citizens vested sued statewide revenue orders enforce and affecting non-profit corpo Rate Association as is involved'. by 1953, ration Utah Code Annotated §§ Eddy Corporation & v. See Skinner statutory 16-6-1,16-6-8, authori nor its States, supra, and the Utah rate United appear party as a or to inter zation to standing shipper deny To case. by virtue of 28 U.S.C. herein § vene 2323, validity Com to be heard as standing for it to maintain affords do violence to the would mission’s order very enjoin the Commission’s an action government, of constitutional base Pittsburgh Ry. v. & W. Va. Co. order. aggrieved directly by power of those 1930, 479, States, U.S. United illegal action be able to in claimed 980, and Alexander 74 L.Ed. power judicial it. voke States, Son, Sprunt Inc. & v. United plaintiff shipper that the conclude 74 L.Ed. We U.S. standing Chicago Case, 1924, maintain this 832; action has Junction cf. party 258, 267-268, in interest criterion of 44 S.Ct. under 264 U.S. person 2323 and under 28 U.S.C. § and Merchants’ Manu aggrieved adversely standard v. affected Traffic Ass’n of Sacramento facturers’ 10(a) States, D.C., the Administrative Pro- 231 F. reversed United 1009(a). “possible uncertainty Act, application See of cedures U.S.C.A. § Trucking Page United v. isolated American Ass’ns instances.” 622 of 51 S.Ct. grounds States, 1960, On on other which the order City including assailed, v. Floral was Garden L.Ed.2d claimed insuffi- ciency States, D.C.Mont.1956, 143 F. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍United evidence Supp. ship- prejudice show undue to interstate pers by ratеs, question was no already said been What standing raised the Court as to the largely question disposes also of the plaintiffs. We reach thus the exhaustion of reme administrative controversy. merits of the dies The so- raised the defendants. saving called clause in the Commission’s The law of the case established was order,1 the defendants as asserted the decision of remedy open appropriate Public Service Commission of plaintiffs, applicable where States, supra. United re- This decision validity of the entire state-wide revenue controlling mains unless the state jurisdic order is called into evidence before the now Commission is *5 grounds. position, in tional In this as significantly application different or the standing sustaining shippers our of the Supreme Court’s decision has been question, procedurally to raise the changed by the 1958 amendments City parallel case Floral v. Garden 13(4) Section of the Interstate Com- States, us, supra, supports al United Act, merce introduced the Trans- though we doubt the Association portation 85-625, Act of P.L. 85th standing itself would have raise Cong., 13(4). 49 U.S.C.A. § following question. primarily The cases reversing prior decision, In our upon by relied to demonstrate defendant Supreme Court said that the order of the their that “the have mistaken Commission was in fol- vulnerable statutory remedy rail in scheme lowing respeсts: they rate-making”, road and that appropriate await a occasion to more finding prevail- 1. As to the that the saving complain pursuant clause ing abnormally intrastate rates were low Georgia order, point: in and failed to contribute a fair share Service Public Commission v. United revenue, posi- of over-all there was no States, S.Ct. tive evidence before the Commission to 1397; Algoma 75 L.Ed. Coke Coal & expenses indicate the relative costs and States, D.C.Va.1935, Co. v. United 11 F. the intrastate interstate Company Supp. Koppers shipments. States, D.C.Pa.1955, F.Supp. United 2. There was no substantial evidence Algoma Koppers 159. involved finding support intrastate merely permissive rates on selected com conditions were not more favorable than in modities interstate commerce. transporta- those incident interstate language Georgia, quoted the defend tion. plain indeed indicate that the ants does There in was absence the find- tiffs there would not heard to attack ings any indication that the Commis- governing “a order vast mul a statewide itself concerned revenues sion though (even among titude of rates” pas- conditions relative to Georgia plaintiffs there Pub was senger operations. Commission as well as inter lic Service vening shippers). attack, But so Shortly Supreme after the Court’s dе- rejected, precedurally cision, 13(4) was the basis of the Act was amended § foregoing complaint otherwise, 1. “The relate or any as to the law- generally, and are with fulness individual Utah intrastate prejudice reexamination, upon any particular commodity." out rate on language prior portions in italicized codification of used the addition early court 13(4)): decisions. As (49 § U.S.C.A. Georgia Public Serv Duty (4) of Com- par. “§ States, supra, ice Commission v. United regulations re- State mission where phrase, used inter “undue burden” Whenever sult in discrimination. changeably with, apposition or “un investigation any Commis- just discrimination.” 283 U.S. hearing, finds that sion, full after 619, 622, And 1397.2 charge, rate, fare, clas- аny such the Court in 1958 decision the Utah regulation, practice sification, or stated, power rate case exists “Federal unreasonable undue or causes * * * * * * this area those when prejudice advantage, preference, or rates cast an undue burden on interstate persons or localities as between Citing 13(4) commerce.” stood it hand one on the commerce prior to the 1958 amendment. foreign or commerce and interstate 421, 425, 796, 798, L.Ed.2d any undue, hand, un- or on the other unjust reasonable, discrimination on, against, inter- burden or undue addition, parenthetical The relat (which foreign state to the method of determination may without find dis Commission undue burden separation intra- crimination, partly also a codification revenues, property, and ex- state prior phrase law. decisional considering in penses, and without may “which the find without *6 totality operations results or the separation a and intrastate of interstate group any carrier, or or of thereof groups property, expenses,” revenues, is wholly within carriers of merely permissive proce and reflects the hereby any forbid- State), which is Supreme approved dure Court in the unlawful, it den and declared to King 1952, States, such cases as United fare, rate, prescribe or shall the 301; 97 U.S. S.Ct. L.Ed. charge, mini- or the maximum or Illinois Commerce Comm. v. United minimum, mum, or maximum States, 1934, U.S. charged, and the to be thereafter Georgia Public Serv regulation, practice classification, or States, supra. ice Commission v. United observed, in such thereafter to be considering phrase, next “without The as, judgment, re- will in its manner totality operations in or results there- the advantage, preference, move such any carrier, groups group of of of discrimination, prejudice, or burden wholly any State,” *» within could # * carriers simply a revenue

mean that in case phrase, "or not addition the need investi- as this nothing gate on” specific undue adds it a rate burden rates as would in merely existing way only a law amounts but in If understood casе. in cast interstate intra- We find little basis the decisions can charges to in the state is undue for doubt alluded Conference Re- unjustly discriminatory. part port referring to this of the amend- therefore Such questioned have been It was said: “The first amend- ment. proposed change This the insertion of the ‘or courts. would ment is words present on’ in afford the Commission additional burden thus undue lan- statutory support describing protection guage needed in the adminis- extend- 13.” Conference Re- interstate commerce. The addition tration section ed to July 24, (to port would No. ac- of any words serve to remove these power 3778), Cong. company S. 1958 U.S. Code as to the Commission’s dоubt Admin.News, Sess., upon appropriate Cong., where, 85th 2nd instances p. records, finds, it it has done some Vol. proceedings, the burden section that existing quired findings, supported law would further codification make However, record, con- defendants evidence in the that the involved. passenger amendment tend that the means deficit not may find interstate, lower than wide ambit that or about profitableness despite any of, indication affirmative or circum- segment segment contrary surrounding, any stances operations “burden” represents an ultimate rates upon it with which immediately refer- commerce without is not interstate In- concerned. deed, intra- consequеnces ence to whether that follow generally a bur- requirement it such state rates make the train of such a dem- broadly interpreted, den. Thus onstrate that it exalts formal sistency policy. would overrule amendment over sound In the Chicago, place, decision in first Court’s if the Commission must Milwaukee, State profitableness P. & P. R. Co. v. St. determine the of in- Illinois, 1958, passenger operations, trastate it will segregate the Utah compelled 2 L.Ed.2d as reaffirmed in of course be might case, supra, permit the but rate revenues and costs attributable regulation to be fed- field rate entire intrastate and interstate Yet traffic. erally arrogated by separate prеcisely treatment it is this that in Illinois segments or total net unrelated Commerce Commission v. United follow, ap- States, The result could effects. 474 [54 prehended by here, intra- 1371], King 78 L.Ed. and the case transportation generally said, urged would be difficulty state we transpor- required allocation, to subsidize of accurate re- was not operations are quired tation as far overall when interstate and intra- Indeed, Frank- mingled Mr. Justice together.” concerned. state traffic were dissenting furter, opinion in his recognized problem and ac- Utah case knowledged We believe that a matter (Page possible result procedure rather than substantive *7 S.Ct.): U.S, page 816 of change transportation policy in the basic why apparent Congress “There is no reason of the involved. If were this is any deficit, passenger like a lower so, conceptual not serious and constitu sur- other favorable circumstance tional, practical difficulties, and further rounding transportation, intrastate would be invited. But there no seems justify a rate on would not lower why Congress provide reason or cannot freight intra- If intrastate traffic. clarify procedural a factor to render whole, con- taken as a state traffic practical more the formula it there fair tributes its share to needed established, was, tofore and which under not, revenues and does from a reve- existing appropriately law considered against ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍standpoint, nue discriminate majority in the Utah In rate case. commerce, justifica- interstate what opinion our the amendment in area this finding tion can there for a previ no more only does than to obviate possible discrimination that is segment necessity ously because a of intrastate traf- determined of affirmative in fic is considered Rais- isolation? showing or evidence that may this situation in passenger intrastate deficit not lower is compelling the effect of intrastate concerning or than interstate commerce to contribute more than of, profitableness or sur circumstances its fair share.” segments rounding, opera of intrastate But he added: with which the tions Commission was immediately legisla necessarily not concerned.

“It not The does follow history that the Commission should be re- tive of the amendment bolsters nothing discriminating against in- is therein not interstate There is this view.3 recognition may further an affirmative consistent with the show as presump- prima aspects facie matter of intrastate that to rebut the favorable operations. resulting dissenting opinion those tion the amendment The from pending a whole intrastate traffic as effect4 referred then who claim to the part managers present change on the Statement of the would create a in the Report, regulatory in Conference in the the House scheme. As stated Admin.News, Cong. justices) dissenting opinion (of 1958 U.S.Code four p. Cong., case, consequence Sess., 3484-85: 85th de- 2nd Vol. the Utah a inser- is the “The second amendment cisions— (which following radical, tion of the words: “would in all likeli- separa- may way unworkable, change without find hood prop- and intrastate tion of interstate Commission has administered erty, expenses revenues, provisions 13(4) without for over section operations considering totality years.” or carrier, group any results thereof of any wholly groups Dissenting Opinion, page of carriеrs within 462 of 356 at State). U.S., page at 818 of 78 S.Ct.: amendment, course, ex in order to “With this in- “Of those who contend that jurisdiction ercise its over not dis- trastate traffic whole is rates, may criminating against find that the Commission still must traffic interstate undue, unreasonable, they may show, such rates cause come forward and respect unjust against, any dissimilarity or un discrimination claimed surrounding commerce. The due burden interstate conditions and in- aspect traffic, nature amendment deals with the trastate some favorable support operations a find the evidence to Com- that By ing. two recent decisions mission take into account. Milwaukee, (Chicago, showing, the absence of such a how- ever, St. Paul and Pacific Railroad Co. v. able to should be (January 13, 1958), State of Illinois assume that discrimination shown to ex- particular segments U.S. in- ist 292, 573], Public [2 L.Ed.2d trastate and interstate traffic 13(4) proceeding Service Commission of v. United which the (May 1958), States cerned is offset other conditions 886), speculates may L.Ed.2d the Com that this Court affect required wholly segments mission is to consider the entire different of intrastate operation, passenger, freight present State commerce. record in the determining suggestion in whether or not case is devoid of the remotest freight causing passenger trastate rates were the Utah defi- pas- in undue revenue discrimination than cit is less the interstate holdings senger deficit, terstate commerce. If and the Commission required required mean these cases find should not be to seek out such *8 ing beyond findings of — evidence itself and make already those it has made. “undue, unjust unreasonable, dis- or against, crimination on, or undue burden “This is a solution that accommodates foreign imponderables pre- interstate or commerce— and does not demand only light subject can be made in the over- where the of cision nature the totality oper- yield approximations. only all statewide of a carrier’s It is a can ating body responsive reg- results from its derived entire solution to the difficult appliсable State, ulatory posed 13(4). problems within of rates the it Em- preclude advantages the mak- would Commission from in it are some of the bedded ing finding showing only simplicity a on in administration that would particular expanded, the effect of the rate or rates if Court had as it follow question. not, done, might The Commission could well have the doctrine of interpretation, against persons an under such continue to discrimination or locali- unjust effectively removing permit pro- function ties state-wide orders against tecting shippers interstate com- discrimination all interstate by intrastate caused rates and merce discrimination without reference to rev- charges. time, At the same there remains enues. causing opportunity shippers “Rather than the amendment an interpreta- change, possible In- commission to to the it is the a state show satis- these recent court decisions that terstate Commerce Commission’s tion of higher language as bill in the same than intrastate terminal costs couched Utah; Transportation adopted that in the within that the latter must later traffic Committee, necessity Act con- of of 1958 and the have two terminal costs (origin sidering legislation, destination) assigned it; the pending cited the dissenting ap- apparent opinion with that would interstate traffic have one proval. posi- originated Utah; if Frankfurter’s it Mr. Justice terminated in bridge moving point tion be ac- on therefore should traffic across cepted or, most, persuasive. would all one have none at at (where between with- switched railroads perceive interpreted, As thus we State). in the problem. must no constitutional And we Beyond circumstances, and these latter the absence in the conclude that general tending evidence to show that con an that the Commission indication affecting conditions traffic and con the revenues cerned itself with per- were not more favorable than those passenger ditions relative to intrastate taining traffic, density to interstate presеnt operations not render the does convincing traffic studies are now more affirma There was order vulnerable. no position. in favor the carriers’ Ad- all, showing by plaintiffs, at tive specific compara- ditional data and new would that conditions such revenues presented by tive been them have ratios upon interstate burden have altered the which terminal include costs from found to existed And the here- evaluated factors. record reve the Commission consideration tofore other- held be deficient been pertaining to the and conditions nues combination, strengthened. wise freight component. these considerations have led us tо two to the other reference With present or- clude that the Commission’s points on which at- der is to this focused not vulnerable held evidence Utah rate case tack, objections now nor to the other carefully insufficient, examined we have urged by plaintiffs. be record before urged are matters briefs Other prior have been deficiencies lieve that the require special deemed not sufficient to law of the case. corrected within impair action discussion here or by plain urged point persistently most the Commission. in in the tiffs nowhere evidence is that plaintiffs’ com- We conclude that there the railroads is troduced plaint be, hereby, and it is dis- costs that terminal to show evidence are re- missed. The defendant carriers heavily traffic bear as protective re- leased with from order argued they It traffic. do on spect impounding of from revenue maintaining operat cost disputed increases. Defendants im facilities constitutes terminal taxable costs awarded their herein. citing expenses, portant part railroad Chicago, Iowa v. & Central Des Moines Judge (concurring). Quincy LEWIS, Burlington Com Railroad Circuit all al., pany, 232 I.C.C. et agreement complete I am *9 similarity going to of the evidence my expressed in CHRIS- brother views question the with is concerned conditions relating opinion mеr- TENSON’S to the costs. over-the-road and with the How- its this case result. response ever, railroads’ The is that the inter- I do not share confidence ex- possibly may pressed costs could state terminal not the that action be main- specific transportation system, responsibility faction the existence factors the favoring general rests, all, predominantly traffic in that for which after wisely ignored. be should not It the with is the Interstate Commerce Commis- designed that seems best solution to sion.” purposes of the achieve the Act without pages interposing insurmountable obstacles to 5. See footnote and 460-461 of regulation U.S., page national and the effective the single respective shipper railroads accounts instance of at the tained subject and ex- to for held an be accounted reserve to it desirable and deem pending impor- to the order of this Court my upon that pression views matters of all final determination the question time as until such tant including herein, final de- may involved point determinative. be cision United States Alter Motion to Plaintiffs’ On appeal, such of an Court in the event Judgment or Amend to be funds thereafter to distributed Judge, LEWIS, may shippers Before Circuit as be determined such CHILSON, by Dis- thereto CHRISTENSON to be entitled this Court Judges. judgment trict final be in the event order to annul the said vacate and as Inter- subsequent order of the PER CURIAM. insofar state Commerce timely plaintiffs mo- filed The freight they increase judgment con- tion to alter amend here rates the State of within here- decision tained in our memorandum involved, to returned otherwise grant judgment (a) said railroads. setting complaint, prayed for hereby juris- declaring retains and void the null “The Court aside and making purpose of for the Commerce Com- diction order of the Interstate respect any necessary orders in I.C.C. mission dated March (b) shippers direct or to 31484 and to refund Docket Nos. require moneys impounded returned hold intact defendants to moneys impounded under the to the heretofore railroads.” aсtion, dated court in this of this order foregoing provision The was based May 11, time until such substantially upon proposal parties may their reme- have exhausted they suggested railroads which as an by appeal for time tak- or until the dies ing granting to the alternative Court’s expired. appeal shall have temporary restraining prayed for order plaintiffs. support of, Memoranda in and in re- to, this sistence motion have been filed judgment In our decision and said: we respective parties; counsel for the plaintiffs’ “We conclude that the they stipulated on December complaint be, and it is here- writing the motion could be by, dismissed. defendant car- upon dеemed submitted these memo- pro- riers are released from the argument. randa and without oral respect tective order with im- May 11, 1960, upon plaintiffs' ap- On pounding of revenue from the dis- plication temporary injunction ” * * * puted increases denial, part but as a order of disposition to, This was not intended denial, this Court said: properly, previous alter could ordered, however, “It further is order which was based rail- ** * intervening that the railroads respect proposal, with road’s separate keep shall the increased moneys up impounded to the date of the moneys amounts of received them judgment. To Court’s remove uncertain- through application of the in- ty respect, paragraph in this the last freight creased involved here- judgment decision of the Court’s pending the determination on the read as follows: amended merits Court of the permanent plaintiffs’ injunction conclude that of a “We *10 be, complaint hereby, it is the enforcement of the dis- Interstate following upon Commerce Commission order missed conditions. allow- increases, defendant carriers are released from and shall im- respect moneys separate protective

pound order with to im- said bank pounding disputed appeal), from future revenues be added after reversed on other grounds in- from such incrеases. The funds 324 U.S. impounded pursuant Hovey McDonald, the order L.Ed. creases to May 11, 1960, 136, 141, the Court dated 23, 1960, prior Supreme received to November L.Ed. Court said that herein, filing judgment date of the of the correction of the form of a decree after impounded appeal by adding shall continue to held and be to a receiver direction by separate pay ac- money said railroads in bank over he his hands which counts and for paying shall be accounted had been restrained from over subject injunction during held of this Court pendency to the order an of the pending mat- invalid, of all final determination suit was not because that was a “thing including coursе”, ters involved herein final deci- in view of the record sion Supreme may United States case. And about the same be appeal, foregoing in the event of an said of such funds If amendment. thereafter ship- present distributed to such motion to amend the court’s pers may as respect determined impounded this Court order in funds is to be entitled regarded thereto in 60(a), the event final as a motion under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Rule judgment be such as to supra, may be, vacate and annul as well it our action would any the said subsequent order or express order provision come within its of the Interstate Commerce Commission made, such amendment can be notwith- insofar as it increases standing рendency appeal, at freight rates here involved prior docketing within the time to the Utah, State of otherwise to be returned appeal. ap- case the record on Since to said railroads. Defendants are award- peal certified, apparent not been it is has ed their taxable costs herein.” that the case has not been docketed. See Supreme Court Rule 28 U.S.C. More- Except specifically provided, as above over, protection the continued judgment the Court’s decision and plaintiffs, pending appeal, in accordance heretofore filed shall be and remain in pre-existing with the directiоn of the effect, full force and and as so modified may court be considered in the nature judgment shall constitute the of this stay spirit of a within the of the Revised Court. Rules of the Court, Rules 18 encourage stay subd. 2 which Some arisen applications to be made in the first in- power of this court make the fore stance the courts below. See Cumber- going filing correction reason of the land Tel. & Tel. v.Co. Louisiana Public appeal of notice of from Comm., 1922, Service original judgment filing our after where one judg the motion to alter and amend the Judge signed order, power but generally ment. It is considered that an of the lower court otherwise was not de- appеal properly perfected when divests nied. The fact that the railroads them- jurisdiction the trial court of of the case. initially proposed very selves principle But this has not been extended tinuing provision may be deemed a preclude the correction of the record supersedeas waiver of a bond. proceedings they actually so that properly Finally, occurred are set Am. forth. it seems doubtful that our Error, Appeal 530, p. 193; judgment appealable Jur. § was because of lack 60(a) F.R.Civ.Proc., U.S.C.; finality Rule present see view of the inter- Greenberg Bldg. Corp., vening Cir., v. Arsenal motion. See Fed.R.Civ.Proc. 1944, 144 (provision 59(e), F.2d 292 2284(5); see also 28 interest U.S.C. § thought implicit judgment to be 28 U.S.C. could cf.