Opposition Brief — Spence v. Baltimore & Ohio Railroad

T we (a, roe 2S ae : :

eee re Y’. 4, 4 Office-Supreme Court, U.S.

= COURT, U, F I L E D 2

" OCT 6 1966

———

JOHN F. DAVIS, CLERK

Supreme Court

‘United States

i OCTOBER TERM, 1966

No. 534

J. W. SPENCE, doing business as) 7

Geff Seed ‘and Grain Company, | - es as .

Petitioner,

vB. _"s To the United States

r ‘Court of Appeals for ~.

THE BALTIMORE AND OHIO | the seventh circuit:

"RAILROAD COMPANY, a cor-

poration,

Respondent. |

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

HUGH J. GRAHAM, Jr.

HUGH J. GRAHAM, Il!

GRAHAM & GRAHAM

1201 South Eighth Street -

_ Springfield, Illinois

Attorneys for Respondent |

r ee SCHNEPP & BARNES, PRINTERS, INC., SPRINGFIELD, ILL.

“INDEX

7 | Page

APPENDIX Sloe Mee ale

Title 49 U.S.C.A. 1(15) ........ eileen eas wi... 19-20

Title 49 U.S.C.A. 1(16) . — ra ay

L.C.C. Rev. Serv. Order No. 947 |..... ienreenees, ae

-1.0.C. Rev. Serv. Order No. 968 ..... ea hes : aes 30-84

Public Law 89-430; 80 Stat. 168 .........8...... 35-36

ESD Se ire ep aS Or

CONCLUSION ....... U8 AOE OEE a

QUESTION FOR REVIEW ...........:.......0. 5

REASONS FOR DENYING WRIT-OF CERTIOR-

FR OA Oe a tar ane 1

STATEMENT OF CASE .......0000ccccccc0c0-.

STATUTES AND REGULATIONS APPLICABLE’ 4

Inst of Authorities Cited

Title MB, UBIO, Bee. 1(4) co onc cccccccccccccss a |

' Title 49, U.S.C.A., Sees. 1(10), 1(11), 1(13), 1(14), -

1(15), and 1(16) .......... (ae uewanenenss 4, 14, 15, 16

Title 49, US,C.A., See. 23 ......... pasaweneatess 4, li

ICC Rev. Serv. Order No. | eee rEeene 4, 15

ICC Service Order No. 968 .............--c.0005. 4, 15

Public Law 89-430; 80 Stat. 168 ... pivestyatwwkess 4,17

Baltimore & Ohio Railroad Co. v. U. S. ex rel. Pit-

cairn Coal Co., 215 U.S. 481 (1910) ........ .8, 9, 11, 14

Chicago, M inneapolis, St. Paul & Pacific Roilreed Vo. |

v. McCree & Co., 91 Fed. Supp. 57, 61 .........-. 15

Chicago, Rock Island & Pacific Railroad Co. v. Law- :

ton Refining Co., 253 Fed. 705 ..... Med AGERE RL 2, 3

ee INDEX—Coneluded :

nae Page

‘Corona Coal Co. v. Southern ee Co., 266 Fed. 726

(1920), Affmd. 250 U.S. 698 ............ 10, 11, 12, 14

Louisville & Nashvillé Railroad Co. v. ihn 54 Fed:

Oo 6 OCR G, WOE) os chvcekecccss isc. 2,12

U.S. v. Michigan Portland Ca Co., 270 U.S. 521

Se Perr ee rman rear the eens errs oe 15

Uz, 8. v. Hésaiieails Railroad 2421 U.S. 207: (1916)

ever re reer orl eye ror e Boece eens weseely 2, 10, 14

a

f IN THE

‘SUPREME COURT |

‘United States oe

- OCTOBER TERM, 1966 s

: No. | 334

Br

J. W. SPENCE, doing business as )

Geff Seed and Grain Company,

; Petitioner,

Vs. To the United States

- Court of Appeals for

THE BALTIMORE AND OHIO the Seventh Circuit.

RAILROAD COMPANY, a cor- are |

poration, . .

Respondent. j

- BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Reasons For Denying Writ Of Certiorari |

. The respondent herein submits. that. considerations re-

4

garding the granting of.a Writ of ‘Certiorari are not -

present in the instant matter for the following reasons:

1. Petitioner states jhat the opinion of the United States |

Court of Appeals, Seventh Circuit, in the instant matter is

directly contrary to the opinion and holding in U.S. v.

Pennsylvania Railroad, 242 U.S. 208 (1916).

The court, ih U.S. v. Pennsylvania ‘Railrdad, 242 U.S.

" 208 (1916), was faced | with the question of whether or

not the Interstate Commerce Commission, by virtue of the

1906 amendments. to! the. Interstate Commerce Act, had

authority to require a carrier to acquire tank cars for use

““by:a shipper. This question was presented to the United

States: District Court, following the issuance of an order

by the Interstate Commerce Commission requiring earriers

to build or purchase new tank cars by the Pennsylvania

Railroad, and the railroad ebtained an injunction enjoin-

ing’ the .enforcement of that ‘order in the United States

” Distriet-Court.*-On appeal, the United States Supreme.

'. Court held-that the Interstate Commerce ore ad had

i authority to issue such ‘an order.

\ ‘The position of petitioner, that the case of U.S. v. Penn-

- bylvania Railroad, 242 U.S. 208 (1916) stands for the

“es proposition that courts, as a matter of initial resort, have

jurisdiction to ‘issue mandatory orders for acquisition of

‘new. equipment is: not. the holding of that U.S. v.,Pennsyl-

-vania Railroad case. Rather, the court in that case did

hold that in view: of the existing legislation, the Interstate

“Commerce Commission had no authority to make such an

affirmative ‘order; ‘that court, however, makes no resola-.

tion of the ‘question whether or not a court had this

authority under the ther existing law.

_ 2. Petitioner’ cites Chicago, Rock ‘Island & Pacific Rail-

' toad Co. _v. Lawton Refining Co., 253 Fed. 705 and

Louisville ‘é ‘Nashville Railroad Co. v. Cory, 54 Fed. 2d

8. ( CCA 6, 1936) as evidence of a conflict in the circuits

as to the resolution of the instant matter. ¢ ‘Inasmuch as

petitioner concedes that United States Court of Appeals,

Seventh Cireuit, in.the immediate matter, is ‘in agreement

with Louisville & Nashville Railroad Co. v. Cory, 54 Fed.

2d 8 (CCA 6, 1931) this will not be discussed at this point.

ans

Chicago, Rock Island & Pacific Railroad Co. v. Lawton

Refining Co., 253 Fed. 705, is not analogous factually and

the following efcerpt from the opinion in the Lawton Case

should be dispositive of the claim that there is a conflict

in view of the Lawton Case. The excerpt, found at page 706,

is as follows: :

‘It is to be observed that the injunction is limited

to the use of cars in intrastate-traffic, and that there

was no evidence of the effect upon interstate commerce

that would result from the enforcement of the order.

There was no evidence to show that any other shippers ~

‘ desired that the railway company should furnish them

with such cars. Questions of dissemination are there-

. fore not presented by this record, nor are there any

’ questions arising under the acts of Congress i

. interstate commerce; but the case is to be determined

by the laws in force in Oklahoma relating to intrastate

_ + shipments.’’

For the above reasons then, it is submitted that none

of the elements are present which would compel this court

to grant a writ of certiorari in the instant matter.

“4

STATUTES AND REGULATIONS APPLICABLE

Petitioner asserts that the United States District Court

jurisdiction is grounded in Sec. 23, Title 49, U.S.C.A., and

in See. 1(4) of the same chapter. No mention was made

‘ by petitioner in his brief of Sections 1(15) and 1(16) of

Title 49, U.S.C.A. [Appendices A & B hereof], which

empower the Sakovetute Commerce Commission, during

periods of declared car shortages, to make just and reason-

able rules with regard to.car service.

Interstate Commerce Commission Car Service Orders,

Nos: 947 and 968, effective October 1, 1965 and October 4,

1965, respectively, [Appendices C & D hereof], are orders,

indicating that A\serious car shortage does exist nationally

-at the time this case’ was. presented in the United States

District Court, Southern District of Illinois, Southern

Division, and some of the remedies the Interstate Com-

' merce Commission has taken to alleviate this condition.

Moreover, not only is the Interstate Commerce Commis-

sion aware of, an existing ear shortage but so.also-is the

. United States Congress as indicated by Public Law 89-430;

80 Stat: 168, being an amendment to Sec. 1(14) Title 49,

U.S.C.A., which amendment is found.as ‘Appendix E hereof.

QUESTION FOR REVIEW

The question for review by this court is as follows:

Does a United States District Court have jurisdiction

during a period of declared car shortage, to issue a tem-

porary injunction ordering a carrier to furnish, daily, a

given number of box cars for grain shipment, to a specific

shipper? |

STATEMENT OF THE CASE

| The statement of the case of petitioner ‘should be supple-

mented with the following facts: °

The petitioner, J. W. Spence, doing business as Geff

Seed-and Grain Co., sought and obtained, without notice

or hearing, a temporary restraining order in the United |

States District Court, Southern District of Illinois, South- .

ern Division, compelling respondent, The Baltimore and

Ohio Railroad Company, to furnish sufficient box cars, not

less. than eight cars a day, to remove soy beans from peti-

tioner’s elevator at Geff, Illinois, to prevent heat loss fo

the contents. [App. p pie |

The complaint states that respondent carrier had dis-

criminated against it in favor of.shippers in. Springfield,

East St. Louis and other points in Illinois, by violation of

the statutes of the State of. Illinois, towit: Chapter 114,

Sees. 111, 112 and 116, in effect, by failing to deliver suffi-

cient cars. [App. pp. 3-5, 10] .

Harold W. Hartmann, car distributor for the pstbiiiie

‘and Ohio Railroad testified that his area encompassed

the southern portions of the States of Illinois, Indiana and

Ohio. [Ree: 48- O45. App. 65-67.] He also testified that he

had insufficient cars to satisfy all demands of shippers in

his area. [Ree. 63, App. 72.]

There was no finding by the Federal District Court;

Southern. District of. Mlinois, Southern Division, of any |

discrimination in the instant matter.

‘The petitioner did not seek ‘redress from the Interstate

Commerce Commission.

The Interstate Commerce Commission has primary juris-

diction over affirmative duties of carriers with regard to

complaints charging discrimination and allocation’ of box

car equipment for interstate shipment.

The original complaint filed by petitioner, J. W. Spence,

doing business as Geff Seed and Grain Company, charges

that this respondent, The Baltimore and Ohio Railroad

Company, discriminated against petitioner by failing to

deliver sufficient cars to petitioner (App. 3-5, 10). As was

noted in the opinion of the United States Court of Appeals,

Seventh Circuit, there was no proof of discrimination as

charged by petitioner. c |

That United States Court ‘of Appeals, Seventh Circuit,

in its opinion, did find, however, that there is presently

an emergency shortage of box car equipment needed to

handle the requests of various shippers.

More importantly, that court held that in’ view’ of + the

existing car shortage, the legislation and regulations pres-

ently applicable, a United States District Court is without

jurisciction to issue a mandatory order requiring delivery:

of a given pumber of ‘box cars to a particular shipper. It

would seem, in all fairness, the conclusion of that court

that entry of such an order may very well result in dis-

_ crimination is more than a reasonable one.

There have-been a number of United States Supreme

Court and United States Court of Appeals holdings deal-

ing with this: general problem of jurisdiction regarding

the allocation of car equipment.

”

8

8

One of the earlier cases dealing with the question of

allocation of equipment is, The Baltimore & Ohio Railroad

Co. v. U.S. ex rel. Pitcairn Coal Co,,.215 U.S. 481 (1910)

and cited with approval by the United States Court of

Appeals, Seventh Circuit, in the insant, matter. In that

case (Baltimore & Ohio Railroad Co. v. U.S. ex tel. Pitcairn

Coal Co.; 215 U.S. 481 [1910]), a coal mining company

filed its petition in mandamus in the United States District

Court of Maryland asserting that it -was entitled to an

‘equal. distribution of coal cars during car. shortages. ~The

car allocation formulas of the Baltimore arid Ohio Railroad —

Compary were at issue and the district court, after reso-

lution of most of the i issues against the petitioner, awarded

the writ on the issue of’ whether private cars should be

counted in computing car allocation percentages -in times ©

of cat shortages. The United States Supreme Court, after

interim appéal to the Circuit, Court of Appeals, remanded

the casé to the district court, dismissing the petition and

stated, at pages 492 and 493 of its opinion:

‘‘One of the assignments of error assails the. cor-

rectness of .the conclusion of the court below to the |

effect that, compatibly with the act to regulate com-

merce, there was power under the circumstances dis-

closed by. the record to consider the subject matters

which were complained of, and to award ‘the relief

- eoncerning them which was prayed. Indeed, the nature

of the controversy and the relief which it requires is.

such that, even without the assigned eryor, to which

we have referred, the question at the very threshold

necessarily arises and commands our attention as to

whether there was power in the.courts, under the cir-

- cumstances disclosed by the record, to grant the relief

prayed consistently with the provisions of the aet to

© regulate commerce, and to that subject we therefore

at once come. (Emphasis ours.)

“Be a consideration of this question it is essential |

9

to at once summarily and accurately fix the subject

matter of the alleged grievance and the precise char-

acter of the relief. required in order to remedy the

evils complained of upon the assumption of their

existence. As to the first, it is patent that the griev-

ances involve acts of The Baltimore and Ohio Railroad,

regulations adopted by that company, and alleged

dealings by the other corporations, all of which it is.

asserted, concern interstate commerce, and all of which,

it is aNeged, are in direct violation of the duty imposed

upon the railroad company by the provisions of the act

to regulate commerce. As to the second, in view of the

- nature and character of the acts assailed, of the prayer

for relief which we have previously excerpted, and

. of the relief which the court below directed to be

awarded, it is equally clear that a prohibition, by way

of mandamus, against the act, is sought, and an order,

by way of mandamus, was invoked and was allowed, |

which must operate, by: judicial decree upon all the

_ humerous parties and various interests as a rule or

regulation as to the matters complained of for the

. conduct of interstate commerce in the future. When’

the situation is thus defined we see no escape from

thé conclusion that the grievances complained of were

primarily within the administrative competency of the

Interstate Commerce Commission, and not subject to

be judicially enforced; at least, until that body, clothed

‘by the statute with authority on the subject, had been

afforded, by a coniplaint made to it, the opportunity

to exert its administrative functions.’’ —

The Court of Appeals in the instant matter noted that

the resolution. of the issue of a proper allocation of car

equipment during a period of shortage was one requiring

‘the administrative ex pertise of the Interstate Commerce

Commission just as was noted in the case of Baltimore &

Ohio Railroad v. U.S. ex rel. Pitcairn Coal Co., 215 US.

~ 481 (1910), .

10

‘The case of U.S. v. Pennsylvania Railroad Co.,°242 US.

208, has previously been noted by respondent in this brief

in its suggestion toxthis court that a writ of certiorari is

inapplicable in the instant matter.

As was noted earlier, U.S. v. Pennsylvania Railroad, 242

U.S. 208, should properly stand for no, more than the

proposition that the Interstate Commerce Commission, by

. virtue of legislation. effective through 1906, did not-have

authority to order a carrier to acquire tank car equipment.

A later case, Corona‘Coal Co. v. Southern Rwy. Co., 266

Fed. 726 (1920), affd. 260 U.S. 698, is most similar fac-

tually to the instant matter. The question before the. federal

district court, upon removal from a state court, was the

propriety of the issuance of a temporary injunction with-

out notice or hearing against a carrier in time of dire

coal car shortage challenging an allocation rule of a carrier.

That court of appeals held, at pages 138 and 734, that it

' was without jurisdiction, saying:

“On consideration of paragraph 12 and the other

_ provisions of the Transportation Act, and the purpose

for which the Interstate Commerce Commission was

~ ereated and clothed with authority, I am consfrained,

to believe that plaintiff has presented a case for ad-

ministrative intervention, and not one calling for the

exercise of a judicial function.

‘*Moreover, for the courts to. assume jurisdiction

over cases like the one presented by 1 the plaintiff would

be a suggestion that the courts be invited to interfere

in all similar controversies between mines and rail-

roads. This would force the courts to go very largely

into. the business of railroad and mine administration,

and thereby, to the extent of such interference, would

Be imposed insuperable work of mere direction and _ .

management and not of a judicial character. The courts

are not fitted for such duties, but the Interstate Com- °

i

merce Commission is especially and well designed for

that field of usefulness.’’ : .

The court further stated in that Coronal Coal Company

. case [266 F’. 726 (1920) affirmed 260 U.S. 698], at page 735:

‘*The court is mindful of the fact that the continu-

ation of the injunction pending the suggested appeal

would be calculated to encourage other mine operators

in a situation similar to that occupied by the plaintiff,

to seek redress in the state court as that sought there

by the plaintiff. Such a course would tend to render

nugatory the rules of ear distribution established by

the defendant under the sanction of ‘the Interstate —

Commerce Commission and in conflict with the action |

of this court. — ae a

‘“‘That the shortage of cars adversely affects the

- coal-mining company is fully understood, and that the

interests of the plaintiff may to a greater or'less extent

be injured by the refusal of the court'to keep in force

the injunction, is appreciated. But the answer to this -

suggestion is that, under the view of the case which

the court has taken, the plaintiff can apply for; and

_ doubtless receive, immediate -redress from the Inter- .

state Commerce Commission, which, as the court has

held, has jurisdiction of the subject matter of the ,

plaintiff’s complaint, and is designed and equipped to —

grant relief upon proper showing being made.”’

It must be remembered that the instant matter came to.

° the federal district court upon a charge of discritnination

° although no proof was made on such point. Additionally,

Sec. 23 of Title 49, U.S.C.A., by its own terms is inapplic-

able where there is proof éf discrimination. Consequently,

it is submitted that Sec. 23, Title 49,-U.S.C.A., is not prop-

erly a part of this instant matter.

Apart from failure of petitioner, in the instant matter, -

to prove any discrimination, Baltimore & Ohio Railroad

Co. v. U.S. ex rel. Pitcairn Coal Co., 215 U.S. 481 (1910),

s

*-

- +42

is sdontival to the instant matter. Moreover, in Corona

Coal Co. v. Southern Rwy. Co., 266 Fed. 726 (1920) affd.

260 U.S. 698, where there was no question of diser imination

(and therefore identical in principle with this situation)

that court found the federal district court was without

jurisdiction. 3

The most cogent summary of the proper focus for reso-

lution of this case at hand is. found in Louisville & Nashville

Railroad Co. v. Cory, 54 Fed. 2d 8 (CCA 6,931). That

ease did not have involved the question of discrimination ;

- the sole i issue was whether or not a earrier had maintained

a Sufficient fleet of cars to properly service its customers.

In an action for money damages the shipper was successful

in trial court but was reversed by the United States Court

of Appeals, Sixth Circuit, on the principle that the reason-

able adequacy of car supply presents an issue for admin-

istrative determination by the Interstate Commerce. Com-

‘mission before resorting for aid to the judiciary. The

language of that opinion is found at page 10 as follows:

‘‘The claim of the plaintiff is, not that he did not

receive his proper share of the cars available for dis-

tribution, but that the defendant was not possessed of

such an adequate supply of coal cars as was reasonabl

necessary to serve the mines upon its road during

normal times, and, had it been so equipped, the num-

ber of cars furnished plaintiff would have been pro-

portionately increased.- Fundamentally, therefore, the

duty of defendant which plaintiff alleges was breached -

was the duty td provide itself with reasonably ade-

. quate facilities'to perform its professed public eke 4

and not the 2 duty to serve all who applied without

crimination, for it is- conceded that this latter, d

was performed in so far’as the defendant was able a

perform it with the equipment at hand.‘ The former, - °

_ we think, presented an administrative question for the

13 |

initial determination of the Interstate Commerce Com-

mission. ... de

‘“‘The reasonable adequacy of car supply presents

a question which ‘is indistinguishable in its legal as-

pects from a question’ of the character of equipment

which the carrier must provide (Loomis v. Lehigh .

Valley Railroad Co., 240 U.S. 43, 36 S. Ct. 228, 60 L. Ed. .

*Ҥ17) ; from one of the reasonableness of a rule by which

open-top cars were supplied to- tipple mines-and_ box

cars to wagon mines (Midland Valley Railroad Co. v.

_. Barkley, 276 U.S. 482, 48 S. Et. 342, 72 L. Ed. 664); -

‘from one.where the attack is upon the reasonableness

of a rule, or the method of car distribution’ practiced

by the carrier (Pennsylvania Railroad Co. v. Clark

Bros. Coal Mining Co., 238 U.S. 456, 35 S. Ct.° 896,

59 L. Ed. 1406; Morrisdale Coal Co. v. Pennsylvania - —

Railroad Co., 230 U.S. 304, 33 S. Ct. 938, 57 L. Ed.

1494); ~ ... In all the cases just sited it was held

that initial resort must be -had to the Commission.

In all it was recognized that the inquiry was. one of

fact and the exercise of reasonable discretion in tech-

nical matters; and that a determination gould be

reached only upon a consideration of a s of fact

evidence, a proper appreciation of the rights and obli-

gations of both carrier ‘and shipper and the practical

limitations upon the service reasonably to be required,

and an intimate acquaintance with the innumerable

problems of transportation. All of these questions relate

to regulation in its legislative sense and demand the

. attention of experts. The rule is well stated in' Great . .

; Northern Rwy. Co. v. Merchants Elevator Co., 259 U.S.

285, 291, 42 S. Ct. 477, 66 L, Ed. 943, and should, we

think, be here applied.”’ (Emphasis. ours) |

The above cases have been cited for the proposition

that during a period of declared carn shortage, the courts,

when presented with problems similar to the instant matter,

‘have been compelled to find, that in view of the legislation

applicable at the time the various case arose for determin-

; are

- eas \ _ +

t ation, the courts had no. jur isdiction to intervene’ on behalf

of a shipper. :

' The conclusion which these courts have reached has been

that the Interstate Commerce Commission has the ad-

ministrative’ ex pertise to deal with these situations. This,

it is submitted, is properly so since that, Interstate Com-

‘merce Commission has’ available, reports showing, for..

-example, movement. of car supply, nature of shipment ‘runs *

of the various carriers, needs of particular shippers 4nd _

carriers unique to & given area, and that they alone have

this _knowledge to resolve these issues ; and _ in. fact for? +

_ + the courts to infervene would be to create myriad problems

attendant upoh the transportation industry. |

The United States. Congress, subsequent to these three

cases, Baltimore & Ohio Railroad Co. v. U.S. ex rel. Pitcairn

Coal Co., 215 U.S. 481 (1910) ; Corona Coal Co. v. Southern

Rwy. Co., 266 Fed. 726: (1910) affd. 260 U.S. 698; and

U.S. v. Pennsylvania Railroad, 242 U.S. 208 (1916), adopted

the Esch Car Service Act, now.codified at Sec. 1(10) et seq.,

- Title 49, U.S.C.A., heretofore referred to in as ina

A&B. | ‘

II.

The Interstate Commerce Commission by promulgation

of emergency orders in times of car shortage has exclusive

jurisdiction: over issuance of mandatory orders against

_ carriers concerning allocation of equipment: involved in

interstate commerce. 7

Previously, the scope of inquiry has Sidi vbieail to the

judicial development of guide lines regarding the juris-

diction of a United States District. Court to issue an in-

junction to order a carrier to make available car equip-

ment toa shipper in times of dire car shortage.

ae os

i or

be 15

In addition, as indicated, there has been congressional

activity relating to this very problem. The Esch Car Ser-

vice Act of 1917 [being Secs. 1-10 et seq..and more particu-

larly Sees. 1(15) and 1(16), ‘Title 49, U.S.G.A., Appen-

' dices A & B hereof] are directly applicable. in the instant

matter. This Act was passed at a time when there was

a national shortage of car equipment needed to service :

the coal industry. By virtue of See. 1(15) [Appendix A],

the Interstate Commerce Commission in times of emer-

*

-Yency may order a carrier, without notice or hearing, .,

without any finding of discrimination,.to suspend its own

Ya

ft

rulés regarding allocation of equipment ‘and to adopt the 3a 4 4

Commission rules regarding such allocation. The Inter. x

~ State Commerce Commission, .by virtue of Oar Service

_ Orders Nos. 947 and 968 [Appendices C & D hereof], .

haye in fact found that such car emergency shortage does

exist and has promulgated its own rules regarding car

service. ' - & |

. These particular orders, Nos. 947 and 968; [Appendices .

C & D] were issued just thirteen days before the United

States District entered the ‘temporary ‘restraining order

_ in this matter. Such-car service orders have the effect

of law, [U. §. v! Michigan Portland Cement Co., 270 U.S.

521, 525] and by their own terms apply to intra and inter

state shipments. [Chicago, Minnedpolis, St. Paul, é Pacific

Railroad Co. v. McCree & Co., 91. Fed. Supp. 57, 61].

_ These emergency car service orders were issued by the

Interstate Commerce Commission pursuant to authority

granted in the Esch Car Service Act of 1917.

gv

16

Thus, .it is apparent, not only that the Interstate Com-

> merce Commission is cognizant of a car shértage présently,

but also. has taken steps to alleviate this shortage.

| By virtue of the Esch Car Service Act of 1917’ and the

emergency orders issued by the’ ‘Interstate Commerce

Commission in October, 1965, and the information it has

generally concerning railroad mévement it. must be seen

that the only. logical repository ‘of power for i issuance of

mandatory orders against carriers lies with the Interstate

Commerce Commission. Orily thé Interstate. Commerce

Commission has the necessary inforniation ex pertise to

administer a nationwide program during times of dire

car shortages. — ! |

Stated otherwise, by virtue of that t legislation and the

action of the Interstate Commerce Commission thereunder,

the Interstate Commerce Commission has preempted the

‘field of regulation of railroad box car equipment.

The Interstate Commerce Commission has the informa-

tion at: hand- of—the- -varying ‘needs and_abilities of the_

interstate carriers and the requirements of the shippers in

their particular areas.

The Commission can order a particular carrier to make:

whatever adjustments with regard to the routing, move-

ment and distribution of cars for the benefit of another

railroad as it deems necessary in view of the needs. of

interstate commerce, [Title 49, U.S.C.A., Sec. 1(16)]. For

example, the Commission, on a finding of an emergency,

can order the Lehigh Valley Railroad to furnish specific

box cars to the Illinois Central Railroad to alleviate a

shortage of box cars of the latter, unique to a particular

locale, [Sec. 1(15), Title 49, US. C.A.].

Moreover, the amicus.curiae brief of the-Interstate Com-

“©

.

.-

¢

.

. ee

; “i

merce Commission submitted to the Seventh District Court |

of Appeals, in this matter well illustrates the alertness and

involvement of the Commission in the total situation and the

other administrative remedies it holds available to the

shipper. — a

There is, therefore, no resson to set out these additional

. powers in detail except to state generally that upon a proper

showing to the Commission, the Commission would have

"every right, without notice or hearing, to rearrange allo-

cation rules of Tlie Baltimore and Ohio Railroad Com-

pany, in the area of Geff, Illinois or if it saw fit to order |

neighboring carriers to make ‘available specific types of

equipment to the respondent for benefit of petitioner and

_ Shippers similarly situated. -

And, finally, the United States Congress is presently

aware of the shortage. regarding box car equipment in ©

the rail’ transportation industry as is indicated by the

passage of Public Law 89-430; 80 Stat. 168. This act ; Was

approved May 26,1966, and-is Appendix E hereof. The

tenor of this. act is to make greater inducements to the

railroad industry to: acquire or build freight car equip-

ment. In substance, the end. result desired is the present

increase among the carriers of freight car equipment

to end a car shortage. : :

oO

In conclusion; it is submitted that interstate transporta-

_ tion by rail is of national scope. — | rs

_ The Congress is aware of this fact ; the Interstate Com-

. merece Commission is aware of this fact. The judiciary is

aware of this fact. _ its

Each has acted at various times in its own way to

alleviate the difficulty of a national car shortage.

18

For example, by: regulations issued presently under ear-

lier statutes, the Interstate Commerce Commission has acted

_to alleviate this car shortage. The Congress, i in May of this

year, has acted again to alleviate this car shortage.

* Because the situation is of national scope and because

of the action by the Interstate Commerce Commission and

the United States Congress, it must reasonably: be: con-

cluded that the Interstate Commerce Commission has pre-

-empted the field of car equipment eines in times of:

car shortage. oer

And, accordingly, a United States District Court i is with-

out jurisdiction to enter a temporary injunction requiring

an interstate carrier, during times of dire car shortage,

to deliver daily a given number of box cars to 4 particular

; shipper.

a

CONCLUSION > meee

view of the above, it is respectfully prayed of this

court that this court deny the petition for writ of certiorari

of petitioner, J. W. Spence, doing business as Geff Seed

and Grain Company, i in the instant matter.

Respectfully submitted,

-HUGH J. “GRAHAM, dre

ee as _ HUGH Jd. GRAHAM, Ill

. GRAHAM & GRAHAM

1201 South Eighth Street —

Springfield, Ilinois

Attorneys for Respondent

>

1, i

APPENDIXA

**(15) Powers of Comubiiton im case of: emergency. —

Whenever the Commission is of the opinion that. shortage

of. equipment, congestion of traffic, or other emergency

» requiring .immediate action exists in any section of ‘the |

country, the Commission shall have, and it is hereby given,

authority, either upon complaint or upon its own initia-

tive without complaint, ‘at once, if it so orders, without

answer or other formal pleading by the interested carrier

or carriers, and with or without notice, hearing, or .the.—

making or’ filing of a report, ‘according as the Commission

may determine: (a) to suspend thé operation of any or all

rules, regulations, or practices then established with re-

spect to car service for such time as may be determined :

by the Commission; (b) to make such just and reasonable

directions with respect to car service without regard to

the ownership as between. carriers of locomotives, cars, and

other vehicles, during such emergency as in its opinion

will best promote the service in the interest of.the public.

and the commerce of the people, upon such terms of com-

pensation as between the carrier as they may agree upon, ©

or, in the event 6f their. disagreement, as the Commission

may after subsequent hearing find to*be just and reason-

able;‘(c) to require such joint or. common use of terminals,

“tibedine main-line track or tracks for a reasonable dis-

tance outside of such terminals, as in its opinion will

best meet the emergency and serve the public interest, and

upon such terms as between the carriers as they may agree

upon, or, in the event of their disagreement, as the Com-:

mission may after subsequent hearing find to be just and

reasonable; and (d) to give directions for preference or -

priority in a embargoes, _or_movement of

2 20

‘traffic under permits, at such time and for such periods as

3. It may determine, and ‘to modify, change, suspend, or annul

_ them. In time of war or thresfened war the President may

certify to the Commission that it is essential to the national

defense and security that certain traffic shall have prefer- .

__encé or priority in transportation, and the Commission |

‘shall, under the. power herein conferred, direct that such

_ preference or priority ‘be afforded. ”

‘See. "1(15), Title 49, U.S.C.A.

| eae a)

a we i 21 ’ .

oa ue APPENDIX B

**(16) Rerouting of traffic on failure of ‘eitial. carrier

to. serve public. — Whenever the Commission is of opin-

o ion that any carrier by railroad subject to this. part

(Sets. 1-5, 5b-15a, 16, 17-23, 26, 27 of this title) is for

any reason unable to transpart the traffic: offered it so as

properly to-serve the public, it may, upon the same pro-

cedure as ptovided in paragraph (15), make such just

and reasonable directions with respect to the handling, :

routing, and movement of the: traffic of such | carrier and its.

distribution over other lines of roads, as in the opinion

of the Commission will best promote the service in the

interest of the public and the commerce of the. people, and

upon such terms as between the carriers as they may agree

upon, or, in the event of their disagreement, as the Com-

mission may after saya hearing _ to be Just and

reasonable.’’ :

_ See. —, Title 49, U.S.C.A.”

e ‘APPENDIX 0.

ASSOCIATION. OF AMERICAN RAILROADS -

_ Operations and Maintenance Department -

- Car Service Division . — als

Transportation Building on 1203

_.. , Washington, D.C. 20006

BR. R. Manion |

‘Vice. President

Operations and Maintenance Dept.

. P. Miller, Chairman ‘ae

.-W. Taylor, Executive Assistant

. Ww.

8

+

Benton, Assistant to Chairman—Refriger ator Cars

chreiber, Assistant. to Chairman—Statisties

. S. Harlan, Assistant—Advisory Boards

. J, Kelley, Director of Military Transportation

. E. Highland, Manager, Railroad Relations

. H. Blose, Manager, Closed Car Section

.,W. Flickinger, Manager, Open Car Section’

. G. Randali, Manager, Port Traffic

(stspe steed sha Aad

" October’5, 1965

| File: 522-947"

Supplement No.*11

Si -: to oe

_ Cireular CSD 500

To All Railroads:

Herewith Second Revised Service Order No. 947, Rail- |

‘road Operating. Regulations for Freight Car Movement,

effective at 12:00 Noon, October 1, 1965; (received in this

office at 4 p.m., Monday, October 4), ‘and a at li: :59

p.m., December 31, 1965. m

-

93

~The only ponies in this. Second Revision compared with

~ Revised Service Order 947 distributed with our letter April

29, 1965 covering Supplement No. 9 to Circular‘CSD 500 ©

'. appears in paragraph (5). (ii) naming R: D. .Pfahler, '

Director, and H.R. Longhurst; Assistant Director, Bureay

of Railroad Safety and Service, ICC, as — of the

Commission.

“f Yours very truly, ; 7

: bce : ~ hie Bh. Miller :

| _ Lists: CS. 1, 1A, 1B, DMs, CSAs.

‘Title 49 — Transportation 7 *

| Chapter I— - Interstate Commerce Commission

Subchapter A — General Rules and Regulations “<

‘ * Service Date

Part 95. — Car Service +. October 4, 1965.

Second Revised Service Order No. 947 |

Railroad Operating Regulations for Freight Car Movement: —

' At a Session of. the Interstate Commerce Commission,

: . Divktee. 3;*held at its office in ‘Washington, D.C., on the

Ist day of October, A. D., 1965. es

_ It‘ appearing, That an sinitin heats of freight cars

exists in all sections of the country ; that cars loaded and

empty aré unduly delayed in terminals and in placement at,

or remoyal from industries ; that present rules, réegula-

_ tions, and practices with respect to the use, supply, con-

trol, movement, distribution, , exchange, interchange, and

return of freight cars are insufficient: to proniote the most

efficient utilization of cars; it. is the opinion of the Com:

mission that an emergency ‘exists requiring immediate :

action to promote car service in the. interest of the public

and the commerce of the people. Accordingly, the Com- —

mission finds that notice ) and public procedure: are imprac-

D >

22°

3 .

-”

4.

beng and contrary to the public interest, and that good

c

use exists for making this order effective upon less than

thirty days’ notice.

It is order ed, That:

§95.947 Railroad Operating Regulations for Fr ‘eight

‘Car Movement.

(a) Each common ¢arrier oe railroad. subject to the

Interstate Commerce Act shall observe, enforce and obey

the following rules, regulations and practices with respect .

to its car: service: :

(1) Placing of Cars:

-

(i) Loaded cars, which after placement will be governed |

by demurrage rules applicable to detention of cars -await-

ing unloading, shall be actually or constructively placed,

within 24 hours after the first 7 00a. m., exclusive of Satur-

days, uadays, and holidays, following arrival at destina-

tion.

{ ii) Actual placement means placing of car on con-

_ signee’s tracks, or when for public delivery placement on

,carrier’s tracks accompanied by proper notice.

.

(iii) .When delivery of a car, either empty or loaded

consigned or ordered to an industrial interchange track

or to other-than-a-public-delivery track cannot be made on

‘ account of any condition &tributable to the consignee, such

car will be held at destination or, if it cdénnot reasonably

be accommodated there, at an available hold point and

constructive placement, notice shall be sent or given the

consignee in Writing within 24 hours, exclusive of Satur-

days, Sundays, and holidays, after arrival of car at hold

point.

— «BB

(iv) Loaded cars held at billed destination for access-

orial terminal services describgd in the applieable tariffs,

such as holding for orders or ‘inspection, shall be placed

on carrier ’s or consignee’s unloading or inspection tracks,

within 24 hours, exclusive of .Saturdays, Sundays, ‘and

holidays, after arrival at billed destination. On cars set

off and ‘held short of billed destination, a written notice .

_ Shall be sent or given to consignee within 24 hours follow-

- ing’ the first 7:00 a.m. after arrival at hold point:

(2) : Removal of Cars: |

(i) Empty cars must be removed from point of unload- °

_ ing or interchange tracks of industrial plants within 24

hours after the first 7:00 a.m., exclusive of Saturdays,

Sundays, and holidays, following unloading or release by

_ consignee or shipper, unless such cars unloaded are ordered

or appropriated by the shipper for reloading within such

a 24-hour period. Empty cars not required for loading at

point where made empty must be forwarded in line-haul

service within 24 hours. after the first 7:00 a.m., exclusive

of Saturdays, Sundays, and holidays, following ‘removal

of empty cars.

(ii) Outbound loaded freight cars must be removed from

- point of loading or interchang@® tracks of industrial plants

within 24 hours after the first 7:00 a.m., exclusive of Satur- .

days, Sundays, and holidays, following tender and accept-

ance by carrier of the bill of lading covering the cars.

Such’ cars must be forwarded in line-haul service within

24 hours after the finst 7:00 a.m. following their receipt in

outbound makeup or classification yards.

, (3) Holding Car® for Prospective Loading:

(i) Cars shall not be held for prospective loading at

any time, for any industry, or consignor, other thati those |

needed to protect current outbound _—

oe .

26

(4). Repair Tracks :

(i) Any cars taken out of service for repairs, or carded

for repairs, shall be repaired at the earliest time consistent

with efficient railroad operating practices.

(5) Car Distribution Orders:

_ (i) Observe, obey and comply with special car orders

and freight ear distribution orders now outstanding, or

hereafter issued by the Car Service Division, Association

of American Railroads, not inconsistent with any order

of the Commissiqn. E. Paul Miller, Chairman of the Car -

Service Division, is directed to inform the Director or the

' Assistant Director of the Bureau of Railroad Safety and

~ Service of such outstanding orders or similar orders which ©

may be subsequently issued ‘and, to advise. the Director or

the Assistant Director of the Bureau of Railroad Safety

and Service of railroad performance and compliance with

such orders.

(ii) R. D. Pfahler, Director, and. H- R. Longhurst,

Assistant Director, Bureau of Railroad Safety and Service,

Interstate Commerce Commission, and each of them, are

hereby appointed Agents of the Commission with authority

to issue such orders or directions as either may find neces-

sary with respect to the location, reldécation, and distri-

bution of freight cars as between sections of the country,

- or carriers by railroads or on such eatriers, throughout the

. United ‘States.

(6) Yard Checks, eperdialin and Records :

(i) The necessary yard and track checks shall be made

and sufficient supervision and records: shall be maintained

to enable carriers to comply with the provisions of this

order. } :

27 .

(7) Railroad Operating Regutations for the ‘Sistas.

_ of Loaded Freight Cars:

(i) No common carrier ‘. railroad subject to the tien

state Commerce Act shall willfully delay the movement.

of loaded freight cars’ by holding such cars in yards, term-

inals, or sidings for the purpose of increasing the time

in transit of such loaded cars.

(ii) Loaded cars shall not: be set out between terminals

except in cases of margin or sound operating require- —

ments.

(iii) ‘Backhauling loaded cars for the purpose of in-

creasing the time in transit shall constitute willful delay

and is prohibited. (

(iv) Through loaded cars‘shall not be handled on local

or way freight trains for the purpose of increasing the

time in transit of such loaded cars.

(v) The use by any common carrier by railroad, for

- the movement of loaded freight cars over its line, of any

route other than its usual and customary fast freight route

from point of receipt of the car from consignor or connect-'

ing line, except in emergencies, or for the purpose of

according a lawfully established transit privilege (not in-

cluding a diversion of reconsignment privilege) is hereby

prohibited.

(8) Carrier Officials’ Responsibility :

(i) . The division superintendent in charge of each term-

inal under his jurisdiction or supervision, or if no division

superintendent is in charge the general. manager of each

railroad will be held responsible for car service at each

terminal and for ‘the proper observance of the rules pre-

scribed by this order. |

(b) Application. “

(1) The provisions of this order shall apply. to intra-

_ State and interstate commerce.

(2) When computing the periods of time provided in

this order, exclude Saturdays, Sundays, and such holidays

as are listed in Item No. 25, Agent H. R. Hinsch’s Demur-

-rage Tariff I.C.C. H-11, or reissues thereof, only when

they occur within the said perjods of time, but not after.

(ec) Regulations Suspended — Announcement Required.

‘The operation of all rules and regulations, insofar as they |

conflict with the provisions of this order, is hereby sus-

pended and each railroad subject to this order, or its agent,

shall publish, file, and post a supplement to each of. its

tariffs affected hereby, in substantial accordance with the -

provisions of Rule 9(k) of the Commission’s Tariff. Cir-—

cular No. 20, announcing such suspension.

(d) Effective date. This order shall tesa effective at

12:00 Noon, October 1, 1965.

(e) Expiration date. This order shall expire at pt 209

p.m., December 31, 1965, unless otherwise modified, changed,

or suspended by order of this Commission.

(See, 1, 12, 15, 24 Stat. 379, 383, 384, as amended ; 49 U.S.C.

1, 12, 15. Interprets or applies See. 1(10-17), 15(4), 40 Stat.

101, as amended*54 Stat. 911; 49 U.S.C. 1(10-17), 15(4).)

It is further ordered, That a copy of this order and

direction shall be served upon the Association of American

Railroads, Car Service Division, as agent of all the rail-

roads subscribing to the car service and per diem agree-

ment under the terms of that agreement; atid that notice

of this order be given to the general public by depositing

a copy in tlie office of the Secretary of the Commission at

*

29

Washington, D.C., and by filing it with the Director, Office

of the Federal Register.

By the Commission, Division 3.

: | H. Neil Garson,

. oe Secretary.

(SEAL)

7

a

2

N

f

j

H. G. Randall, Manager, Port Traffic .

30

2°

APPENDIX D

ASSOCIATION. OF AMERICAN RAILROADS’

5 Operations and Maintenance Department

| _. Gar Service Division 2 --——

' Transportation. Building

_-Wasliington, D. C. 20006

gare

a Clana a R. RB. Manion

‘ Vice. President.

| _ Operations and Maintenance Dept.

. Miller, Chairman 7 . <<

E.

B. W. Taylor, Executive Assistant

D.:

W. Benton, Assistant to Chairman—Refrigerator Cars

H. Schreiber, Assistant to Chairman—Statistics

R.'S. Harlan, Assistant—Advisory Boards

J. J. Kelley, Director of Military Transportation

A. E. Highland, Manager, Railroad Relations

J. H. Blose, Manager, Closed Car Section

T. W. Flickinger, Manager, Open Car Section

October 1, 1965

Cireular CSD ‘No. 510

To All Railroads: . |

_ Herewith copy of Interstate Commerce Commission Ser-

vice Order No. 968 issued by the Commission October 1,

1965, effective at 12:01 A.M., October. 4, covering utiliza-

tion of fifty foot long or longer plain box cars (KM, XME

and XI), and ‘plain box cars forty foot long or longer with

side door openings eight foot wide or wider ( XM, XME

and X1). ee

The order is echeduled to expire at 11 59 P.M., Decem-

’ - October 1, 1965

31

ber 31, 1965, unless otherwise modified, changed, ‘sus-—

pended or annulled by order of the Commission.

_\ Yours very truly,

/s/ B.P. Miller aa

ee Lists : CS-1, 14, 1B, DMs, CSAs. . aa - 7?

Title 49 — Transportation

_ Chapter I-- Interstate Commerce Commission

Subchapter A — General Rules and Regulations

Part 95 — Car S@gvice | ”

Service. Date

Service Order No. 968

Utilization Of Fifty-Foot Long Or Longer Plain Boxcars

And Plain Boxcars Forty-Foot Long Or Longer With

. Side Door Openings Eight-Foot Wide Or Wider

At:a Session of the Interstate Commerce Commission,

Railroad Safety and Service Board, held in Washington,

D.C., on the 1s day of October, A.D. 1965.

At appearing, That there is an acute shortage of boxcars

fifty-foot long or longer and boxcars forty-foot long or - -

longer with side door openings eight-foot wide or more;

and it appearing that the present carrier rules, regula-

tions and practices with respect to the use, supply, control,

movement, distribution, exchange, interchange, and re-

turn of boxcars of these dimensions to the railroads own-

ing such cars are ineffective;: the Commission is of the

opinion that an emergency exists requiring immediate ac-

tion in all parts of the country, and that notice and public

procedure are impracticable and contrary to the public

intérest and that good. cause exists for making this order

effective less than thirty-days’ notice.

f& |

; $2

It j is ordered, That:

§ 95.968 Utilization Of Fifty-Foot Long Or Longer Plain

Boxcars And Plain Boxcars Forty-Foot Long Or Longer

With Side Door Openings ‘Eight-Foot Wide Or Wider.

(a) Each common carrier by railroad subject to the ©

Interstate Commerce Act shall observe, enforce, and obey

- the following rules, regulations, and practices with re-

spect as its car service:

(1) The provisions of this order apply ‘to plain (XM,

XME, and XI) forty-foot or longer boxcars with side door

openings of eight-foot or wider and plain (XM, XME, :

and XT) fifty-foot or longer boxcars with any size side

door opening of all ownerships, ne all boxcars with

plug. doors.

(2) For gurposes of this order, districts as shown. in

_ the Official Railway Equipment Register, ICC R.E.R.-No.

356, ‘supplements. thereto or subsequent reissues thereof ©

govern. These districts are identified as Association of

.. American Railroads car: ‘selection chart showing home dis-

tricts for all principal freight car ownership.

(3) Cars locating in a home district may be used only

for loading to a destination on or via owner’s ) Tails or to

a junction with the owner.

(4) Cars locating in a district adjacent to a eens dis-

_ trict may be used only for —s to a home district or

—— if routed via the owner. —

’

(5) Cars located in other districts (not home districts -

or districts adjacent thereto) may be used for loading to,

via, or in the direction of the owner, or to any destination

_ within a home district or within’a district adjacent or

emanate to a home district.

(6) Cars locating empty at a junction with the owner

must be loaded to or‘via the owning road or delivered

owner empty at that junction.

(7) In the absence of proper ‘iii cars must be

ved to the owner empty under Association of American

Railroads Car Service Rules or Special Car Order 90.

. (8) The provisions of this. order do not relieve car-

riers of the necessity to. comply. with the time limitations

applicable to the movement of cars under Second Revised

Service Order No. 947. a

(9) B.-D. Pfabler, Director, snd’ H. R. Longhurst,

Assistant Director, Bureau of Railroad Safety and Ser-

vice, Interstate Commerce Commission, and each of them,

are hereby appointed Agents of the Commission with |

authority to grant permits of exemption from this order

as they may find necessary.

(b) Application. The provisions of . this order shall

apply to intrastate and interstate commerce.

(c) Effective date. This order shall become “effective

at 12:01 A.M., October 4,1965.

(da) Expiration date. This order shall expire at 11:59 ©

P.M., December 31, 1965, unless. otherwise modified,

changed, suspended, or annulled by order of this Commis-

sion. © a F.

(See. 1, 12, 15,.24 Stat. 379, 383, 384, as ‘oie, 49

U.8:C. 1, 12, 15. Interprets or applies Sec..-1 (10-17),

15(4), 40 Stat. 101, as amended 54 Stat. S11; 49 U.S.C.

1(10-17), 15(4).) :

It is further ordered, That evpine of. a order and

direction shall be served upon the Association of American

Railroads, Car Service Division, as‘ agent of the rail-

as

oe

roads subscribing to the car service — per diem po

* ment under the terms of that agreement;. and that notic

of this order shall be given to the general public by

positing a’copy in the office of. the Secretary of the ne

mission at Washington, D. C., and by filing it with the* |

‘Director, Office of the Federal Register. - 4

_ By the Commission, Railroad Safety and Service Board. |

ba ' H. Neil Garson

ery - Seeretary

(SEAL) =

“APPENDIX E

INTERSTATE COMMERCE — RAILROAD FREIGHT

3 ‘ - CAR ‘SUPPLY

Mine Legislative History of Act, see p. 1563

Public Law 89-430; 80 Stat. 168

~~ 7 1098]

Aw ‘Act to aménd section 1(14)(a) of the Interstate Com-

merce Act to insure the adequacy of. the national railroad

freight car supply, and for other purposes.

" Beit enacted by the Senate and House. of Representa-

tives of the United States bid America Se Congress as

sembled, That:

Section. 1( 14) (a) of the ee Hy Ceisbitini Act® is

~ amended by adding at the end thereof ‘the following: ‘‘In - -

fixing such compensation to be paid for the use of any

type of freight car, the Commission shall give considera-

‘tion to the national level of ownership of such type of —

freight car and to other factors affecting the adequacy of

the national freight ear supply, and shall, on the~hasis of -

such consideration, determine | whether - compensation

- should be’ computed solely on the basis of elements’ of |

ownership expense involved in owning. and maintaining

such type of freight-car, including a fair return on value,

_or whether such ‘compensation should be increased by

‘such incentive element or elements of compensation ‘as in

-, the Commission’s judgment will provide just and reason-

able compensation to freight car owners, ‘contribute to

sound car service prac tices (including efficient utilization

and distr ibution of Esats), and’ enegurage the acquisition

o

oa

aS

9. 4 USCA” na. éo i ee

x\

\

36

and maintenance of a car supply adequate to meet the

_ needs of comméret and the national defense. -Thes Com-

mission shall not make any incentive element applicable

to any type of freight car the supply of which the Com-

mission finds to be adequate and may exempt from the

compensation to be. paid by any group of carriers such

incentive element “or elements. if the Cominission finds

it to be in the national interest.’’ —

Sec. # Any compensatidn fixed pursuant to the ame

ment siaihe to the Interstate Commerce Act by the fivst

section of this Act shall not take piect before Roptenmer

1, 1966. é

Approved May 26, 1966.