Jurisdictional Statement — Associated Truck Lines, Inc. v. United States

+ tether et ew W

Office Sunrsine cei ae AS

“DEC 27 an

~ YOHN F. BAVIS, CLERK

IN THE ~

—S

| Supreme Court of the United States

OCTOBER TERM, 1969

j xo DI? .

ASSOCIATED TRUCK LINES, INC., ET AL.,

Appellants,

Vv.

UNITED STATES OF AMERICA, ET AL.,

Appetees

‘On Appeal from the United States District. Court for the

- Western District of Michigan, Southern Division

JURISDICMONAL STATEMENT _

CONRAD A, BRADSHAW

1 Vandenberg Center |

Grand Rapids, Michigan 49502 . |

PETER T, BEARDSLEY

R. EDWIN. BRADY .

3 | _ ALBERT B, ROSENBAUM

~ Of Counsel: Sot - .. 1616 P Street, N.W.

WARNER, Norcross & ‘Yupp : Washington, D. C. 20036 |

1 Vandenberg. Center. 7 ROLAND RICE

Grand Rapids, Michigan 49502 J. ELLIOTT BUNCE

" Rick, CARPENTER AND Carraway RICHARD R. SIGMON

eae 618 Perpetual Building

618 Perpetual Building :

Washington, D. C. 20004 deat D.C. 20004

, Attorneys for Appellants

? *-

WILSON - EPES PRINTING CO. - RE 7-6002 - WASHINGTON. D. C. 20001

ON IE 3

I i

STATUTES INVOLVED... re abit

QUESTIONS PRESENTED |... Ghee SNR

STATEMENT OF THE CASE ....... Meee Ee

THE QUESTIONS ARE SUBSTANTIAL ee

CONCLUSION .......

APPENDIX A (Opinion and judgment of the District

Court in Associated Truck Lines, Inc. Vv. United

States, Civil Action No. 6070, September 28, 1969,

F.Supp.

APPENDIX B (Report and order of {nterstate Com-

merce Commission in National Furniture Traffic

. Conf., Inc. v. Associated Truck Lines, Inc., 332

Fe ol GRRISSAIRA SMR eR peony Mean ate a era RT EA

APPENDIX C (Order of Interstate Commerce Com- ©

mission, Division 2, January 17, 1968, denying peti-

tion for reconsideration in Docket No. 34815, Na-

tional Furniture. Traffic Conf., Inc. Vv. Associated

Truek Lines, Inc.) ........... Bs kV Ans eae ple is ed coe J

APPENDJA.D (Decision and Order of Interstate Com-

~ merce Commission, Review Board No. 4, October 10,

- 1967, in Docket No. 34815, National Furniture Traf-

fic Conf., Inc. vV. Associated Truck Lines, Inc.) ........

APPENDIX E (Report and Regommended Order of

Hearing Examiner, in Docket’ No. 34815, National

Furniture Trafic Conf., Inc. v. Associated Truck

‘Lines, Inc., served July 27, 196%) -....2-...--..--.002-0--0--

APPENDIX F (Statutes Involved)’ _........... Incicsiomnanpaacs

v

) FER IRN TERT EO TO eat NY ee

anwnwawnwe @

6a

30a

3la

ii © =. INDEX—Continued

' TABLE OF CITATIONS

Cases: - ee : Page

American. Trucking Association, Inc. v. Atchison,

4T. & S.F. Ry., 887 U.S. 399 (1967) ...............--- fate 2

Chicago, M., St. P. &.P. R. Co. v. Spokane, P. & S. --

Ry. Co., 300 I.C.C. 453 (1957), aff’d 182 F. Supp.

Si, 366 U.S. 766: (2068) | 22 11

Denver & R. G.'W. R. Co. Vv. UnionP. R. Co., 351 |

Te FE, ED bcccchthicnicsisotnvdanenatensalaneataholanoiaeielilatancs 11

East ‘South Joint Rates and Routes, Cancellation,

44 M.C.C. 747 (1945) _...... ~sbaivsieaillccuiauedaliaibtabauaeinas 9, 10

Frozen Food Express,. Inc. V. United States, 351

U.S. 40 (1956) _...... , asdstiasaniadiesae: ae sbastcheoada iene 8

Furniture Restriction by Associated Transport,

Inc., I. & S. Docket No. M-20028 (not pr inted)

(decided February 24, 1966) ........-....--.-.---.---.--02- 10

National ‘Furnituré: Traffic Conf. v. Associated

‘Truck Lines, Inc., 332 1.C.C. 802 (1968) ............2 2

Southeast Shippers Ag§n., Inc. v. Akers Motor |

Lines, Inc., 54 M.C:C. 770 (1952)...........--...s.---24 9

United States v. Drum, 368 U.S. 370 (1962) ........:.. 3

Western Pacific R. Co. v. Camas Prairie R. Co.,

316 I.C.C. 795- (1962); aff’d sub nom. Western

Pacific R. Co. v. United States, 320 F. — 852

c HX

{

“ v ¢ 7

- ;

(N.D. Cal. 1964) RRS ED I PE TT Pe est LTA OE AT PEE 1l

STATUTES:

‘Interstate Commerce Act, Title 49 U.S. C.

£160), MUSO. $1 oe

§ 216(b) /49 U.S.C. § 316 (b) 3, 4

§ 216(c), US See ns 3, 5, 6,7

§ 216(d), 49 U.S.C. § 316(d) .......................... 3,4

§ 305(b), 49 U.S.C. § 905 (b) ....... intinesnnsinionnsiotnites 7

Judicial Code, Title 28 U.S.C.

Es Se eens OF I ccc ennctsinpecvtineencnnsne 2

§ 1336, 28 U.S.C. § 1836 -...---------------eee 2,5

§ 2101(b), 28 US. ” EE COD vncienesscicerasceene 2

‘INDEX—Continued ”

MISCELLANEOUS: ; | coma

Legislative material : 6

.113 Cong. Rec. 1983-0... fang

S. 8510 (87th Congress) pleaaiss ay

§. 676 (88th Congress) ........ scaled dheananalacssoaie

= §. 1062 (88th Congress) -.:.................ccccccce cece

S. 1785 (89th Congress) 2... cccecccccccceene.

S. 751 (90th 2S ae

H.R. 12362 (87th cout Sg aaa x

H.R. 2088 (88th Congress) 00.0000. ;

1.R. 4701 (88th Congress) 0.0... f Ee

.R. 7166 (89th Congress) cea

H.R. 6533 (90th Congress) _..... INE a a PSO EERE

Hearings before the Subcommittee on Surface

Transportation, Senate Committee on Com- .

merce, 90th Cong:, Ist . ser, 90-37

i: eres ERED ORAL. UCL Te TT 10

Annual Reports, Interstate Ceiailbinis Commission

75th (1961)... sseecsealinchendilantninacen 8

oops peta RE LOTTE ediciones , \s

ioe Long ng Ee eT EE RET TE RO

78th (1964) ......... RES pe binekcasscbioans 8

PMwNMHDMDPRODDANDO OH

4

IN THE

Supreme Court of the United tates

OCTOBER TERM, 1969 |

No.

ASSOCIATED TRUCK LINES, INC., ET AL,

Appellants,

Vv.

- UNITED STATES OF AMERICA, ET AL., .

Appellees. :

On Appeal from: the United States District Court for the —

_ Western District of Michigan, Southern Division

eo.

JURISDICTIONAL STATEMENT

‘ ;

Appellants, Associatéd Truck Lines, Inc., American

Trucking™ Associations, Inc., and the Regular Common

Carrier Conference of American Trucking Associations,

Inc., appeal from the judgment of the United States

District Court for the Western District of. Michigan,,.

Southern Division, entered on September 29, 1969, af-

firming a report and order of the Interstate Commerce

Com nission decided December 31, 1968, requiring the

estab!ishment by appellant Associated Truck Lines, Inc.,

.of through-route, joint-rate, and interchange arrange-

ments on shipments of furniture moving beyond Asso-

ciated’s lines, and directing the suspension of future

similar tariff filings of other motor common carriers of

_

2

property cancelling such through-route, joint-rate, and

interchange arrangements, Appellants submit this state-

- ment to show that the: Supreme Court’ of the United

States has jurisdiction of the appeal and Gist the ques- :

tions are e. substantial. .

OPINION BELOW

The opinion and judgment of the District Court for

the Western District of Michigan; Southern Division, en- .

tered September 29, 1969, but not yet officially reported

at the time of the printing of this statement,’ is repro-

duced in Appendix A hereto. A copy of the report and

-order of the Interstate Commerce Commission in ‘Docket

No. .34815, National Furniture Traffic Conf, v. Associ-

ated Truck Lines, Inc., 332 1.C.C. 802, is attached hereto

as Appendix B; a copy of the order of January 17, 1968,

denying petitions for reconsideration therein is repro-

‘duced in Appendix C; a copy of the decision and order

of October. 10, 1967, therein is reproduced in Appendix

D; and a copy of the Examiner’s report and recommend-

ed order therein is attached as Appendix E.

JURISDICTION

‘This suit was brought pursuant to 28 U.S.C. § 1336

to enjoin and set aside the report and order of the Inter-

state Commerce Commission. The decision and judgment

of the District Court was entered on September 29, 1969,

and notice of appeal was filed October 28, 1969, The .

jurisdiction of the Supreme. Court.to review this_deci-

sion by direct appeal is conferred by Title 28, . United

States Code, Sections 1253 and 2101(b). The. following

decisions sustain’ the jurisdiction of the Supreme Court °

to review the judgment on direct appeal in this case:

American Trucking \ Associations, Ine. v. Atchison, T. &

The decision is sats Whitiad reported at 1969 Fed. Car’. Rep.

{ 82,141.

8

S. F. Ry., 387 U.S. 399 (1967); United States v. Drem,

368 U.S. 370 (1962); Frozen, Food Express, Inc. v.

United States, 351 U.S. 40 (1956).

STATUTES INVOLVED _

The provisions Of ‘subsections (b), (c), and (d)- of

section 216 of the Interstate Commerce Act, 49 U.S.C.

§ 316, are a in Appendix F hereto.

QUESTIONS PRESEN TED:

1. Whether the Commission’s requirement that Asso- ©

ciated Truck Lines, Inc., in its tariff, shall establish with ’

other carriers through-route, joint-rate, and interchange

arrangements on shipments of furnitygre moving beyond

its own lines, contravenes the. prov of. 49 U.S.C.

§ 316(c) which permits, but does not require, common

carriers of property by motor vehicle to establish such

through-route, joint-rate, and interchange arrangements.

2. Whether the Commission’s determination to suspend —

arbitrarily from carrier tariffs the future cancellation

by other property motor common carriers, through-route,

joint-rate, and interchange arrangements with other car-

- riers on shipments of particular commodities moving. be-

yond their lines contravenes the provisions of 49 U.S.C. °

§ 316{c) permitting; but not requiring, the establish-

ment of such through-route,. joint-rate, ‘ahd interchange

_ arrangements.

STATEMENT OF THE CASE.

Effective May 1, 1966, appellant Associated Truck

' Lines, Inc. (Associated), cancelled its through-route,

joint-rate, and interchange arrangements on shipments

of furniture between Central States ‘territory* and the

2 Central States territory generally embraces the States of Ili-

nois, Indiana, Iowa, Michigan, Missouri, Ohio, Pennsy Ivania, West

Virginia, and Wisconsin.

a

South.*. Nine months later, on February 5, 1967, appellee 3

National Furniture Trattic Conference (C onference) filed

a complaint with the Interstate Commerce Commission

(Commission) alleging that the tariff cancellation. vio-

lated various provisions of the Interstate Commerce Act,

and the matter was assigned for handling by modified

procedure, ,

‘On July 27, 1967, the Commission served the report -

and recommended order of its Examiner (Appendix E) —

finding that the assailed tariff provision had not been

shown unlawful and recommending that the: complaint

be dismissed. On: exceptions and reply thereto, by. deci-

sion and order dated October 10, 1967 (Appendix D),

the Commission, Review Board No. 4, affirmed ‘and

adopted, With modification, the Examiner's repért and

recommended order, and, by. order dated January 17,’

1968 (Appendix C), the Commission, Division 2 acting

as an Appellate Division, denied the Conference's peti-

tion for reconsideration, However, by order dated Feb-

ruary 19, 1968, upon’ petition by’ the Conference, the |

proceeding was declared to be one involving an issue of

general transportation importance, thus permitting re-

consideration by the entire Commission.

On reconsideration, with one’ member concurring in

part and 6ne member dissenting, the Commission issued

the assailed report.and order (Appendix B) finding that

Associated’s tariff proviston in question is an unreason-

able practice contrary to section 216(b) of the Act, 49

U.S.C. $316(b), and that it unduly and unreasonably

disadvantages shipments of furniture contrary to section ~

216(d), 49 U.S.C, $ 316(d), and is, therefore, unlawful.

(App. B, pp. 22a-23a) Although ‘Appellant Associated

was the only defendant before it and although the com-

plaint brought inté issue only the assailed tariff provi-

“The South territory generally embraces the States of Alabama,

Arkansas (in’part), Florida, Georgia, Kentucky, Louisiana, Missis- _

' sippi, North Carolina, South Carolina, Tennessee, and Virginia.

‘

»

sion of Associated, the Commission acted to condemn -

and cancel all similar tariff filings, both existing and

- to be proposed for the future, of all motor common car-

riers of property subject to its jurisdiction. It directed

its Board of Suspension to suspend, “upon its own mo- —

tion, even without shipper protest, future selective tariff

filings similar to the one at hand,” and announced that,

‘as to those tariff provisions already established and* not

subject of an Investigation and or SuSpension proceeding

or formal complaint, it “would endeavor to obtain the

necessary reforms” through the efforts of its Section of

Tariffs and field staff, (App. B, p. 22a). By order dated

March 6, 1969, appellants’ petitions for reconsideration

were denied.

Action. was brought in the United States District

Court for the Western ‘District of Michigan, Southern ’

Division, under Title 28, United States Code, sections

1336: and 2321, to review the ruling of. the Commission.

In a decision entered September 29, 1969 (App. A), the ‘

District Court. affirmed the Commission’s report and

order. After summarizing the factual background of the

assailed Associated tariff publication, the Commission’s

findings and those of the concurring Commissioner, with

respect thereto, the Court stated (App. A, p. 5a):

“From an examination of the record we find sub-

stantial evidence, considering the record as a whole,

to support this finding of the Commission. ,

“The determination of the Commission is s hereby

affirmed.”

The District Court did not consider and pass upon the

question of the Commission's power to require Associated

to establish through- route, joint-rate, and interchange

os in the light of the provisions of 49 U.S.C.

§ 316(c) making the establishment of such arrangements _

permissive rather than. mandatory, nor upon the ques-

tion of the lawfulness of. the Commission’s arbitrary

~ condemnation of other similar tariff -provisions.not put

ra |

in issue before it, even though these questions: were prop-

erly vaised in the complaint and preserved in brief and

oral ar gument.

"THE QUESTIONS ARE SUBSTANTIAL

The assailed report And order of the Commission _

abr uptly reversed a long line of decisions ' which have

consistently held that Section 216(¢c) of the Interstate

Commerce Act* is permissive ‘and that, by its terms,

motor common carriers of property are free to establish

xnd maintain, and also free to withdraw or cancel,

through-route, joint-rate, and interchange arrangements

with other carriers, Although the complaint put into

issue a single tariff provision of one individual motor

carrier, the Commission used this proceeding to promul-

gate a new policy" radically limiting the right of motor

common c#riers of property under section 216(¢) to

‘voluntarily establish.and maintain through-route, joint-

rate, and interchange arrangements on shipments ‘of

property moving beyond their own lines.’ In-the assailed

' Cited in Appendix B, pp. lla-l2a,.

‘49 U.S.C. § :316(c), reproduc ed ‘in Appendix F hereto.

* The precedential nature of the préceeding was announced by its

- designation as one: “involving an issue of general transportation

-importance” (App. B, pp. 7a-8a), thus permitting: plenary consid-

‘eration: by the entire membership of ne Commission’ under its

General Rules of Practice (49 C.PLR, § 1100101 () (3)), and by

the generalized statement of the question

“We reopened this proceeding to consider whether a motor

‘common carrier of general commodities may lawfully, refuse

to participate in through routes, joint rates, and interchange

agreements with respect to some authorized commodities and,

‘at the same time, hold itself out to provide such service: with

respect to other authorized commodities.” (App. B, p. 8a)

‘The association appellants (American Trucking Associations,

Ine. and Regular Common Carriet Conference of ATA) intervened

in the proceeding before the Commission and joined in the judicial

appeal because of the impaet of this decision on all motor common

carriers of property.

7

report and order, the Commission not only declared un-

lawful the individual tariff publication involved, but also

condemned all similar tariff publications of all motor

common carriers of property, both those presently iny-

effect and those to be filed in the future.*

Section 216(¢), unlike the’ statutory provisions gov-

erning other types of ¢arriers,” provides that motor com-

mon carriers of property “may -establish reasonable

through routes and- joint rates," but does not require

them to dor so. Despite this permissive provision of the

governing statute, the Commission in the assailed report,

and order required Associated to establish through-route,

joint-rate arrangements on shipments of furniture mov-

ing beyond its line and, in addition, directed that future’

similar tariff publications seeking to cancel such arrange-

ments only on certain commodities be suspended, without

shipper protest and without. regard for the reason for

the cancellation. The report declares, in. the words of

‘the dissenting Commissioner," “in effect and as a matter

of law, that if a motor common carrier maintains through

routes on some traffic, it must maintain. through routes

on all traffi@”

In affirming the assailed teport and order, the District

Court did not consider the basic question of. the Com-

mission’s power under the statute to order a motor com-

mon carrier of property to establish and = maintain

through-route, joint-rate arrangements on all authorized

‘As to future tariff filings similar to the one at hand, the Co-

mission directed its Board of Suspension to suspend them, “upon

its own mation, even Without shipper protest,” and as to those

publications already established and not subject to proceedings, it

stated it would “initially endeavor to obtain. the necessary reforms”

through the efforts of its Section of Tariffs and field staff. ( App.

B, p. 228)

* See 49 U.S.C. $$. 1(4) ‘(Ccommmon cerriers subject to part I of

the Act, 316 (a) (common carters of passengers by motor vehicle),

and 905(b) (commen carriers by water).

'° Appendix B, p. 25a

J

8

commodities if it provides such. arrangements on any

‘ commodities. The Commission’s determination for the |

- first time ‘herein that it has such power under the stat-

ute requires plenary consideration by this Court.

In enacting. the Motor Carrier Act, 1935,'' Congress .

specifically -rejected the original proposal for mandatory

through routes and joint rates between motor common —

carriers of _ proper ty and adopted, in lieu thereof, the

-current permissive provision.'"* And on a number of oc-

casions at least since 1961, Congress has failed to enact

mandatory through-route, joint-rate provisions for motor

carriers of property although urged by~the Commission

to do so.'* Most recently on April 24, 1969,“ the Com-’

mission submitted a legislative recommendation seeking

amendment of part II of the Act to authorize ‘it “to re-

quire the establishment of through routes and joint rates

between:-motor common carriers of property and between

those carriers and common carriers by rail, sain and -

water.”’*

11 Now part II of the Interstate Commerce Act, 49 U.S.C. §§ 301

et seq.

12 Aspendix B, p. lla, citing 79 Cine: Rec. 5655.

18 Such legislation was recommended by the Commission in each

of its annual reports to Congress in 1961-1964 (75th Annual Re-

port,. p. 186; 76th Annual Report, p. 201; 77th Annual Report,

_p. 19; 78th Annual Repért, p. 69), and a number of bills were

introduced in Congress/to implement these recommendations, but

none were enacted. (%. 3510 and H.R. 12362 in the 87th Congress;

S. 676 and H.R. 2088 in the,88th Congress; S. 1785 and H.R. 7166

in the 89th Congress; S. 751 and H.R. 6533 in the 90th Congress.)

In addition, S. 1062 and H.R. 4701 (88th Congress), omnibus

transportation bills, included proposals to,encourage through routes

and joint rates for all modes of transportation, but were not en- .

acted.

1 Interstate Commerce Commission press release # 112-69.

1 Under Section 216(c), such through routes and joint rates

between motor common carriers of property, on the one hand, and,

on the other, common carriers by rail, express, and water, are also

permissive. The assailed report and order also. raises the question

whether the Commission may require rail,,express and water com-

—

i

These Commission efforts to secure legislative change

are not prompted by any question as to the scope of its

authority. The Commission has consistently recognized

that under the permissive provisions of Section 216(c)

it has no power to compel the establishment of through

routes by motor.common carriers of property and it can-

not, therefore, prevent. such carriers from closing such

through routes, whether the route was closed only as to

certain points,’ only in conjunction with certain con-

necting carriers,’’ or only on movements on which the

publishing carrjer would be the intermediate rather than

the viinating or delivering carrier."* In testimony in

support of legislative proposals for mandatory through

routes and joint rates for motor common carriers of.

property, the Commission, has denied that it has the very~

power it seeks here sagen In the justification in

support of S. 751 in the 90th Congress, then Chairman

Tucker of the Commission stated: |

“At present the Commission does not have the au-

thority to require motor carriers to establish the °

through routes and joint rates. As a result, motor

carriers may restrict the establishment of through

-routes and joint rates to selected commodities.” .

a And in testimony on the proposed legislation: in May

1967, just nineteen months before the assailed report and

mon carriers which have entered into through-route, joint rate

arrangements with motor carriers on specific commodities to re-

frain from cancelling.them if they so Wesire, or, indeed, to enter

‘into such arrangements with motor carriers on all commodities.

16 Southeast Shippers Assn., Ine. v. Akers Motor Lines, Inc., 54

M.C.C. 770 (1952) (cancellation of through route, joint rate, and

interchange arrangements on shipments to or from Malone, N.Y.)

17 Fast South Joint Rates and Routes, Cancellation, 44 M.C.C.

747 (1945) (cancellation because of inability to agree upon inter-

s change arrangements.)

18 Fast South Joint Rates. and Routes, Cancellation, supra.

19 113 Cong. Rec. 1983. |

10 Ns

order were issued,”’ Commissioner Murphy read from a

letter. complaining of carrier cancellation of through-

route; joint-rate, and interchange arrangements on furni-

ture,-and stated: “However, the Commission has no ef-

fective manner of correcting the described situation. —

In the assailed report and order, the Commission dis-

claimed any attempt to conipel through routes and joint

rates , |

“We ee to make it unmistakably clear that

we are not attempting here to assert any jurisdic-

_tion to establish through routes, joint rates, and

interchange “arrangements between common carriers

of property by motor which Congress has entrusted

to the managerial discretion of these carriers.”

Nevertheless, the order, if it becomes: effective,* will re-

quire Associated to establish through-route, joint-rate ar-

rangements on shipments of furniture: Additionally, the

report and order seeks to apply the same compulsion to all

“Y Hearings before the Subcommittee on Surface “Transportation 2

of the Senate Rageonre on Commerce, 90th Cong., Ist Sess., ser. ©

90-37, at 21-22 (1967). ~

“1 And sev I.&S. Docket.No. M-20023, Furniture Restrictions By

Associated Transport, Inc. (not printed) (decided February 24,

- 1966), cited in the assailed report and order (Appendix-B, p. 10a,

n.2), in which the Commission, Rates and Practices Review Board,

referring to East South Joint Rates and Routes, supra, said:

“If a motor common carrier of property may cancel its par-

ticipation in through routes and joint rates applying. on all

commodities, it logically follows that it may do so with respect:

to one commodity provided that some unlawfulness, under some

other section of the act, does not result therefrom.” (mimeo.

p. 6). .

*2 Appendix B, pp. 210-258

23 By stipulation and order agreed to by the parties-and approved

by the District Court below, appellee-defendants United States of

America and Interstate Commerce Commission agreed to the entry

of an interlocutory injunction to remain in éffect until final de-

termipation by the three-judge Court in consideration of a rapid

disposition of this matter on the merits. The ‘Commission order

herein has not yet become effective.

1]

other motor eommon ) carriers of property by directing

automatic suspension” of other. similar tariff. provisions

tendered for filing. Thus, a motor common carrier of

property seeking, for whatever reason, tp cancel through-

route, joint-rate arrangements on particular traffic will.

be denied its statutory right to do so. In either case,

the carriey will be denied the freedom, which the Com-

mission has heretofore consistently recognized, to estab-

lish and maintain through-route, joint rate,arrangements.

The Commissien’s. decision rests upon the proposition

that for a motor common carrier to hold out through-

route, joint-rate ~rrangements on some authorized com-

modities and not on others is per se unlawful: “Asso-

ciated may not. merely refuse to participate in joint

movements of furniture, and, fat the same time partici-

pate in such movements on other traffic.’ ** As the dis-

senting Commissioner states,” this decision establishes a

stricter mre under this permissive statutory provision

than that applied under-provisiens which authorize the”

Commission to requive through vorxtes heturean aarviars

of other modes. In numerous proceedings involving car-

riers by railroad under the mandatory provisions of part

I of the Act, both the Commission and the courts have

approved through-route, joint-rate arrangements only on

specific cacacongs Sag even over'a challenge because the

arrangements Were not established for all commodities.”

24 Appendix B., p. 2

25 Appendix B., pp. 25a-26a/

“26 B.g., Denver & R.G.W.R. Co. Vv. Union PLR. -Co., ‘351 U.S. 321

(1956); Western Pacifie R. Co. Vv. Camas Prairie R. Co., 316 L.C.C.

795 (1962), aff'd sub nom. Western Pacific R. Co, Vv. United States, -

230 F. Supp. 852 (N.D.Cal. 1964) ; Chicago, M., St. P.@P.R. Co. V

Spokane, P. & S. Ry. Co., 300 LC.C, 453 (1957), aff'd sub nom.,

Chicago, M St. P. & P.R. Co. Vv. United States, 182 F. Supp. 81,

366 U.S..745 (1961). ;

27 See Denver-& R.G.W.R, Co. Vv, Union PR. Co., supra, 351 U.S.

at 326. :

~

12

Although disclaiming any assertion of ‘jurisdiction to.

compel through-route, joint-rate arrangements between

~motor common carriers of property contrary to the stat-

ute, the Commission has established a new policy declar-

ing, in effect, that if such a carrier maintains through

routes on some ‘traffic, it must maintain them on all

traffic. ‘The choice left to the carrier under this policy

is clearly. either to forego all through-route, joint-rate—

arrangements on traffic moving beyond its own lines or

to establish and maintain such: arrangements on all such

- beygnd traffic. The decision substantially nullifies that

freedom to establish such through-route, joint-rate ar-

rangements “which Congress entrusted to the managerial

discretion of. these carriers.” ** The failure of the Dis-

trict Court to consider and decide the question of whether .

‘the Conimission’s action herein exceeds its statutory au-

_ thority requires plenary consideration by this Court.

*s Appendix B, pp. 21a-22a.

13

CONCLUSION

__The questions presented by this appeal are new, sub-

stantial and of public importance. For. the reasons

stated, appellants urge the Court to note probable juris-

diction and. to. reverse the judgment of. the District Court

with remand ‘to that Court for disposition consistent

with this Court’s a sunriens

“Respectfully submitted,

- Conrap A, BRADSHAW

1 Vandenberg Center

~ Grand Rapids, Michigan * 49502

PETER T. BEARDSLEY

‘R. EDWIN BRADY

ALBERT B, ROSENBAUM

1616 P Street, N.W.

Washington, D. C, 20036.

ROLAND RICE

! ‘J. ELLIOTT BUNCE

~ | RICHARD R, SIGMON

618 Perpetual Building

are _« Washington, D. C, 20004

Attorneys for Appellants

- e

- OF Counsel:

. WARNER, Norcross & Jupp

1 Vandenberg Center

Grand Rapids, Michigan 49502

RICE, CARPENTER AND CARRAWAY

_ 618 Perpetual Building

Washington, D. C. 20004

”

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