Amicus Curiae Brief — Spence v. Baltimore & Ohio Railroad

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Office-Supreme Gout U.S.

SEP 27 1966 ©

a | JOHN F. DAVIS, CLERK

Supreme Court of the United States

Ocroser Term, 1966.

No. 534 '

J. W. SPENCE, DOING BUSINESS as GEFF SEED AND

: GRAIN COMPANY,

Petitioner,

vs.

BALTIMORE AND OHIO RAILROAD’ COMPANY,

A CoRPoRATION,

Respondent.

BRIEF AMICUS CURIAE BY ILLINOIS AGRICUL-

TURAL ASSOCIATION

IN SUPPORT oF PETITION FOR CERTIORARI.

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Grorce E. Merxen, Jr.,

1701 Towanda Avenue,

Bloomington, Illinois 61701,

Attorney for Illinois Agricultural

Association.

Of Counsel:

Maruias, _—_— & icin

1701 Towanda Avenue, ~-

an Illinois 61701.

| PAGE

Statement of Consents................0.05. ere 1

Interest of Illinois Agricultural Association......... 2,3

Argument: Reasons for Granting he Writ! 6 és. 4,5,6

Conclusion ........... ire Gea secu aires cas 7

Crrations.

— Cases.

Baltimore & O. R. Co. v. United States ex rel. Pitcairn

~ Coal Co. (1910), 215 U. S. 481, 30 S. Ct. 164, 54 L. ed.

RE eta a cP cehesete nx ven Ar escehenneensdeenesn 5

Pennsylvania R. Co. v. Puritan Coal Min. Co. (1914),

237 U. S. 121, 35 S, Ct. 484, 59 L. ed. 867.......065. 5

Pennsylvania R. Co. v. Sonman Shaft Coal Co. (1916),

242 U.S. 120, 37'S. Ct. 46, 61 L. ed. 188............ 4)

United States v. Pennsylvania R. Co. (1916), 242 U. S.

.208, 37 S. Ct. 95, 61 L. ed. 251.........00cc cece ee. 6

| Statutes.

Public Law 89-430; 80 Stat. 168...........¢..0.0005. 6

United States Code. Annotated, Chapter 49, Sec.1 (4). . 6

United States,Code Annotated, Chapter 49, Sec. 23... 6

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Supreme Court of the United States -

Ocroszn Term, 1966

a 534. b2

J. W. SPENCE, DOING BUSINESS -AS GEFF SEED AND

| GRAIN COMPANY, —

Petitioner,

' MS. : :

BALTIMORE AND OHIO. RAILROAD COMPANY,

A Corporation; *

ee as | Respondent.

BRIEF AMICUS CURIAE BY ILLINOIS AGRICUL-

“° _ TURAL ASSOCIATION |

IN. SUPPORT OF PETITION FOR CERTIORARI.

To the H orable the Chief Justice and the Associate Jus- -

tices of the Supreme Court of the United States:

CONSENTS.

The Illinois Agricultural Association has received the

written consent of both J. W. Spence, doing business as

Geff Seed and Grain Company, Petitioner by.and through .

his attorneys, Leslie N. Jones, Francis S. Feiger, John C.

Robison and Gerald T. Quindry and of The Baltimore and

Ohio Railroad Company, a Corporation, Respondent by and _

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through its attorneys, Graham arid Graham to the filing of . |

. this brief Amicus Curiae prior to the consideration by the ,

Court of the Petition for Writ of Certiorari. and the same’

have been filed with the Clerk of this Court. . .

' THE INTBREST OF ILLINOIS AGRICULTURAL

| ASSOCIATION. |

The Illinois ‘anteaters Association is a not-for-profit

general farm membership ‘eorporation organized for the

purpose of promoting agriculture and the mutual -interests

of its farmer members therein. It is organized under the

laws of the State of Illinois having its principal office at

- 1701 Towanda Avenue, Bloomington, Tilinois 61701 and has

as its. members 195,000 families resident throughout the

State of Mlinois who are engaged in some form of farming.

Although the: Illinois - Agricultural Association is not a.

party to this proceeding, the issues involved herein vitally

affect its members. Lack of sufficient railroad cars yearly

causes considerable loss to Illinois farmers not only by

reducing proceeds from crops for want of timely access to

markets but also by deterioration in the product as where

the grain has had to lay on the ground because of the impos-

sibility of moving it.

Petitioner is of course vitally concerned in this case

because it affects its own business, but we submit that the

problem is much broader in its effects and consequences. ,

FS-Services, Inc., a farmer cooperative affiliated with the

Tilinois Agricultural Association is not only: a manufac- -

turer and distributor of farm supplies to farmers in Illinois,

Towa and Wisconsin, but has ‘40 local member companies’

awho are engaged in grain ‘marketing, operating 75 grain .

elevators. Another Illinois Agricultural Association affil-

‘jated farmer cooperative, Illinois Grain Corporation, has

‘additionally some 217 member companies who are engaged

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in the cooperative shite of grain at many locations

-e throughout the State of Illinois. —

The Illinois Agricultural Association during ‘the last

several years has received numerous requests from these ©

companies and. from individual farmers located throughout

the State of Illinois urging the Association to take all:

necessary and -proper action to induce the» railroads to

alleviate railroad car shortages.. Complaints to Illinois |

Agricultural Association from grain companies and indi-

vidual farmers concerning serious railroad car shortages

have not only been leveled against Respondent, byt have’ |

also included the other railroads operating in the State of

- Iinois ; and have not only involved the inability for lack

of cars to transport ‘soybeans, but have-also involved the .

inability to transport many other agricultural supplies we

-. products for the same reason. £

In addition to the foregoing, the source of basic produets

used by the said FS Services, Inc. in its manufacturing

plants originates in various parts of the United States and

Canada. This company, which manufactures and dis-

tributes, among other farm supplies, a great portion of the

fertilizer used on the farms of Illinois, Iowa and Wiscon- 2

sin, like other similar fertilizer companies, has jbeen-

seriously hampered by the car supply problem. These com-

panies use the same types of equipment as do the grain

elevators, thus i increasing the existing problem. The méem-

ber grain companies mentioned heretofore ship many car-

loads of grain to various destinations throughout the United

States. Due to the inability of the rail carrier to furnish

adequate amounts of equipment, many shipments’ have had |

to be curtailed in previous years and there is apparently

-no relief possible without the aid of this court. -

These facts clearly demonstrate. thatthe problem i is truly |

national i in scope.

- ARGENT.

REASONS FOR GRANTING THE WRIT. “,

1. The Decision of the Court of Appeals Leaves Petitioner

and Others Suffering Loss From Car Shortages With

No Effective Remedy.

_ The decision of the Court of pean for the Seventh

Circuit which appears as Appendia A at page 6 et seq. in

_ the Petition for Writ of Certiorari holds that the Petitioner

has no judicial remedy, but that there is an issue for the

Interstate Commerce Commission to decide. This issue, .it

is stated, is the reasonableness of the defendant’s method

of car distribution for seasonal loading during a temporary

ear shortage. The Interstate Commerce Commission in ‘its

briéf Amicus Curiae filed with the Court of Apptals in'the |

case, Page 9 et seq., however, indicated that it had no

authority under the Interstate Commerce Act to grant any

effective remedy so far as requiring the railroads to have

- available adequate amounts of equipment. We thus have -

_ the impossible situation that the issue.raised here cannot

_ be answered by the Commerce Commission for it can only

decide that the Petitioner js entitled to more existing cars,

‘or that he is not entitled oPe existing cars. The only’

-issue on a further appeal oil be the reasonableness and

propriety of that order. The question here raised, as to

whether or not the railroad has a responsibility to furnish

reasonable transportation to the Petitioner and the others

by havirig available an adequate humber of suitable cars to

reasonably meet the demands of all shippers, and whether ©

this duty ean be enforced in g% court a law, “ not be

. determined. ’

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2. The Court of Appeals Has Erroneously Applied the Law

acs as Determined by This Court. ©

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The case cited by the Court of ‘Appeals to support its

conclusion is’ Baltimore & O. R. R. v. United States ex rel.

‘Pitcairn Coal Co. (1910), 215-U. 8. 481, 493, 30 S. Ct. 164,

169. This is an earlier case than the case of Penn. Railroad

' Co. v. Sonman Shaft Coal Co. (1916), 242 U. S. 120, 124,

37 8. Ct. 46, 48 cited by this court and is distinguishable.

A major element in Pitcairn Coal, supra, was preferential |

treatment of certain shippers. This was a prime reason for

‘ requiring the parties to first proceed before the Interstate

. Commerce Commission. In the instant proceeding, how-

ever, no discrimination has been raised as an issué.

The Court of Appeals also failed to apply the true dis-

tinction between a Commission matter and a matter for the

courts as-énunciated by this Court in the Sonman' case °

supra (242 U. S. page 127). There the conditions in the.

coal ‘trade were normal and the demand for cars was’

reasonable. There was no unusual or abnormal condition

not reasonably to have been foreseen by the railroad such

as an extraordinary volume of coal traffic or an unusual

* detention of cars on other lines of the railroad. There must

be an element of the unforeseen to constitute an emergency

‘ear shortage requiring Commission action and me eon

tion caused by long term neglect on the ailroad

as complained of in the current proceeding. This is con-

sistent with the earlier holdings of this court. Penngyl-

vania R. Co. v. Puritan Coal Min, Co. (1914), 237 U.S. 121,

133, 35 &. Ct. 484.

_In the case now before the court we have a situation

_ which has steadily worsened over a period of 15 years

because of the failure of the rdilroads over a long period of

» time to replace-such a large number of its worn out cars

that the railroads are now unable to transport the crops of

the ferritory in question within-a reasonable ‘time.

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3. The Passage of Public Law 89- 430, 80 Stat. 168 ‘hows.

the Congressignal . Intent That: This. Petitioner and

- Others Suffering From a_.Car Shortage Retain Their

Rights to Judicial Remedy.

‘The controiling decision of this court: in U. Su v. Penn.

‘Railroad Co. (1916), 242 U. S. 208, 37 S. Ct. 95, held that

the Courts, not the Interstate Commerce Commission, had

jurisdiction to compel carriers to acquire adequate facilities

for transportation. The°Commission in its brief Amicus

Curiae supra likewise admitted it had no such powers.-

Likewise, Public Law 89-430; 80 Stat. 168 effective Sep-.

tember 1, 1966, gave the Commission. no authority to order

the railroads to acquire cars but only gave the Commission

authority to encourage the carriers to aequire more equip- -

ment by the indirect means of heavy charges for use of

another carrier’s car. Since Congress must be presumed to .

have known the prior holdings of this Court and the con-

sistent administrative practices in connection therewith,

and still did not give the Commissien the authority to order

the acquisition of equipment, the power to require the rail-

roads to provide and furnish transportation upon reason-

able request therefor under United States Code Annotated,

Chapter 49, Sec. 1 (4) must remain where this court and

Congress by Sec. 23 of such chapter left it, that is, in the

courts. (For quotation of the terms of: these acts see

Appendices D and E, pages 15 and 16 of the Petition for

Writ of Certiorari.) ; :

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CONCLUSION.

Therefore, the Illinois Agricultural Association through

its attorney George E. Merker, Jr. prays that a Writ of

Certiorari as sought by the Petitioner be issued in this

cause.

__ Respectfully submitted, |

GrorcEe E. MErRKER, JR., -

1701 Towanda, Avenue,

Bloomington, Illinois 61701,

Attorney for Illinois Agricultural

Association. Ka :

Of Counsel:

Maraias, Merker & ADLER,

1701 Towanda Avenue,

Bloomington, Illinois 61701.

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