Brief in Opposition to Petition for Writ of Certiorari — Long Beach Banana Distributors, Inc. v. Atchison, Topeka & Santa Fe Railway Co.

~~ J

“LONG BEACH BANANA DISTRIBUTORS, INC, a Cali-

fornia corporation, et al., ©, . . —— Petitioners,

OS.

THE ATCHISON, ‘TOPEKA: @ SANTA FE RAILWAY sek,

COMPANY, . i "Respondent.

CONSOLIDATED 1 PRODUCE CO., a California corporation,

ea . Petitioners,

% * US. .

e PACIFIC ELECTRIC RAILWAY CO., Respondent.

niente NELLA, SAM CANCILLA and DIEGO CAN-

GILLA, dba BANANA KING, etc., et al., Petitioners,

* ha oS. ais

‘ ; SOUTHERN PACIFIC COMPANY, Respondent.

¢ Brief in Opposition to Petition for

~ Writ of Certiorari. :

— FREDERIC H. STURDY,

634 South S

Tos Angeles, Cali 90044,

f “Attorney R

KENNETH 'E. RISTAU, JR, . Souhaw: Poctle Company;

‘THEODORE B. OLSON, and Pacific Electric Reil-.

GIBSON, DUNN & CRUTCHER, way Co. :

3 Los Angeles Calf, 90014, ° | « JOHNJ.BALLUF,

Of Counsel Respondents . 121 East Sixth. Street,

Ae m Poot Company and Los Angeles, Calif. 90014,

Pacific Electric Railway Co. ° Attorney for Respondent’ The

‘ Atchison, hy so & Santa

MATTHEW H. WITTEMAN, _ Fe Railway Company.

- 121 East Sixth

Moe Seed Ie¢ Ricdoodes Ths | ONE - : \

Reka Aihton Topeho 6 & Sonta Fe

“-

SUBJECT INDEX ’

Page_.

Questions Presented ......-.+-csecce-cce--0- et Bake Sea 2: |

Statement TE GD vadvincecrecceenenbs ue eons ee

Argument ODE COREL. SOR points keiae 6

. Correct ‘and. Is Fully in Accord With. All

-Prigr Decisions on the Same Subject by the

Interstate Commerce Commission; Other

\\ (1) The Ruling of the Court. of Appeals Was

_ Courts ‘of Appeals and, This Court ....... ae Sale 6

\- (2) The Action of the Court of: Appeals in Over-

‘ ruling One of Its Own Prior Decisions Was

POOMIEE . scnsintecnesinicts 9

Conchaaich pone aolenenae ae

“eg

at

TABLE OF AUTHORITIES CITED

Cases. P oe Page —

Chicago, M. St..P. & P. Ry. v. Campbell River |

» Mills’ ‘Co. , 33 2d OP iceciciustcecsnemccdcomccmwesude ae

Duhont Vv ‘Director General, 74 I.C. Cio. Ever eeeats,° ee

Hamilton Emery & Corundom Co. v. Boston & AL

ety BS, VES Fees, Oe sen sees ce

Lake Cargo Coal Rates 1925, 126 1.C. ©: 508 9

. Osborne MeMillan Elevator Co. -v. Minn., 306 I. c Ses,

SPR NN Sila Ni hee ED WYK IESTES ees FLOR a ANIRER Semen re 9

Pennsylvania Railroad vy. Public ‘Utility Comm. of

. _ Ohio, 298 U.S. 170; 80 L. Ed: DESO: 2 pcini coentss 6, 7

Powell v. United States, 112 F. 2d 764 1. ene es

Railroad Commission of Ohio v. Worthington, ; —

U.S. 101, 5G TF TO ii chest tows 8

_Schuster’s Wholesale Produce Co. v. Texas & P.

Ry. Co., 145 So. 368, cert. den., 289 U.S. 745; -

TF Sk SR IE pnienee actin ioaeomaskntaunlnen Zi 8

Southern Produce Co. v. Denison & Pac. S. Ry. .

- Co;, 165: TC... 423 | 0 Ch Lies cuiboondbdeniotenicoomreiest ee

Tampa Fuel Co. v. A.C.LR. Co., 43° LCC. 231... 9/

Texas & N.O.R. Co. v. Sabine Trans: Co., 227 7 US. if es

024; SF ha Bh. PRE oicicnnidiccaoed OE 3

United States v. Erie Railroad Co. 280 U.S. 98, 74

eri Se geeaeeen porins cara hicaibasaa atsluncealin ules wlgisabtated le

United States v, Illinois Central R-R. Co., 230 Fed.

940 avesebicun rhabncincssidiscaddeninandanssbticncasmbeen sr tten tee e teense eeeee 8-

a. Geen

Foc ot Ses aR Sal ROT ele! PaO RE

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: »

4

: IN THE

Supreme Court of the- United States

October ‘tom, 1968

No. 1359

pf.

LONG BEACH BANANA ‘DISTRIBUTORS, INC., a Cali-

fornia corporation, et al., Petitioners,

US.

THE ATCHISON, TOPEKA & SANTA FE ‘RAILWAY

‘COMPANY, . Respondent.

CONSOLIDATED PRODUCE CO., a California corporation,

et al., \ . Petitioners,

° US. an

Sean ELECTRIC RAILWAY CO., Respondent.

EUGENE NELLA, SAM CANCILLA and DIEGO CAN--

CILLA, dba BANANA KING, etc., ef al., Petitioners,

SOUTHERN PACIFIC COMPANY, Respondent.

a

Brief in Opposition to Petition for

Writ of Certiorari.

mS

To the-H Satvable Chef Justice and Association Jus-

tices of the Supreme Court of the United States:

Respondents accept Petitioners’ Jurisdictional State-

ment, the recitation of the Statute Involved, the basis -

for Federal Jurisdiction Below, and the substantial ac-

curacy of Appendices A and B to the Petition.’

1Some typostiphical errors appear in Appendix A, for ‘which

<feason our references to the Opinion of the Court ‘of Appeals

~ Jwill-be both to 407 F. 2d 1173, and to pages 1-20 of the Appendix

“to the Petition for Certiorari. References to the trial court’s

Findings of Fact.and Conclusion of Law will be both to pages

21-23 of ‘of said Appendix and to the Record. ;

pir a

WIT, tn Poe aa <r Ry ree GRE NITE ® @

wes

)

’ .

PREC eH RMSE oe Yim cy Tee

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ee Ses

| Case or their statement of the Question Presented ; ; and

for the several reasons hereinafter set forth, we do

' not agree that a review by this Court is either neces*

sary or.appropriate in = within cases.

Questions Presented

Petitioners assert that “The question eban here- °

‘in for review. is whether or not the Comt of Appeals ©

* was in error ‘in overruling its prior decision in Chicago,

M. St. P! & P. Ry. v. Campbell River Mills Co., 9

We ds not agree with Petitioners’ Statement of the

Cir. 53 F. ys (Petition p. 2). So far as we can -

ascertain,. the dverruling by a Court of Appeals of one’

of its own prior decisions (decided 38 years before)

is not a ground for review by this Court, particularly

, where, as here, the current decision was by the Court

en. banc. Hence, it would appear that ‘on its face the

e

petition is not well taken.: .

ns

The true. questions presented, as Respondents see it,

are: pater

(1) Was the Court of Appeals correct in holding

: that the interstate and foreign commerce rates (rather

than intrastate ‘or logal rates) applied to Respondents’

: carriage of the imported bananas from the ports of en-

try. (Los Angeles or San F rancisco ) to other points

within the state of California? -

is)

(2) Was the Court of Appeals’ ruling contrary to

any decision of ‘any ‘other Court of ascie or of _ this _

Court? ~

re 4 : , 2

3

=

Statement of the Case.

The facts of these cases are not in dispute, having -

been established ‘by two written stipulations [R. pp. 29-

38 and 147-149].. Such facts are accurately summar-

ized in the Opinion of the Court of Appeals (App. pp.

1-6; 407 F.2d 1173-1175). Nevertheless, a brief state-

ment of. the case appears to be in order.

The within actions are for a refund of a part of cer- -

tain freight charges paid by Petitioners (banaria whole-

salers) to the Respondents (rail common east bad for

_ the rail movement of bananas wholly within Cali-

fornia. The carriers chargéd rates. applicable to intra-

state or foreign commerce, whereas the Petitioners claim

that intrastate or local rates ‘should have been clarged.

The bananas in question ‘were bias in Costa Rica,

Panarna and Ecquador. It was ’ stipulated that they ©

were imported from Central and South America

through the ports of Los. Angeles and San Francisco ie

and ‘moved beyond by . defendant railroads to other

points in California.” [R. p. 29, lines 29-32].

The trial court found (and such findings are not at-- ~

tacked) that all parties intended from the time the

bananas were grown on the farms that they were to be

_ carried: in the regular and usual course of business to

inland points beyond the California ports: of entry

[Find. 4; App. p. 22; R. pp. 151-152], and that’ the

bananas moved in a continuous movement from the in-

terior of the foreign countries (where they were grown)

A? -

x.

c

as,

—

to point8 within the State 6f California [Find. 3;.App. \

p. 22; R. p. 151]. Fin ;

The through movement from the inland points of -

Costa Rica, Panama and Ecquador to the inland points

of California, although continuous, involved three legs

or segments.” The first leg, from the producing fields), ,

to the seaports of the foreign countries, was by va-“

rious means, including “public service railroad”, gov-,

_ernment owned railroad, “public carrier” railroad, “for

hire” barge carriers, and trucks, some of the latter

being “for, hire” and some owned by the farmers [R.

p. 30, line 26, to p, 31, line 7]. The second leg of, the

movement, across the high seas, was in chartered ships

[R. p. 31, line 31, to p. 32, line 2], which ships in-

cluded _registries in six different countries [R. p. 148,

line 6, to p. 149, line 19]. The third and final leg of,

the movement was from the ports of Los Angeles and

San Francisco to interior: points of Califprnia by ‘the

Respondents common carrier railroads. |

Commencing in 1927, and continuing for more than

30 years, all parties treated the California rail move-

mefit as a part of foreign commerce and Respondent

carriers charged the applicable rates filed with ‘the .

Interstate Commerce Commission. However, in 1959;

Petitioners changed their pesition and contended that

the California portidn of the movement was intrastate

and that the intrastate or local rates filed with the Cali-

fornia Public Utilities Commission should apply. Peti-

tioners’ contention was based on the unique (and.wholly

' unsupported) theory that since the immediately pre-

ceding high seas transportation had. been made in char-

tered ships rather than by common carrier, no foreign

i

‘

‘ \

\

ee

commerce ‘within the meaning and intent of the inter-

state Commerce Act ever took place.

Accordingly, the ultimate issue presented to the

courts below was: ~

Was Respondents’ rail movement of these import

bananas from the ports of California to other

‘points in California a part of a shipment from

a foreign country so as to make the Interstate

*

j-

Commerce Act applicable, or Was such movement

merely. an intrastate or-locd] shipment ?

The trial court fourtl that the California rail move- _

- ment was an inseparable part of . foreign commerce

[ Finds. 5 and 6; App. p. 22; R.-p:" 152], held that

under all of the circumstances ; present, it‘ was immate-

rial whether the immediately preceding transportation

over the high seas waS by common carriage or char-

tered ship, and concluded that respondent carriers had~

acted properly in applying the’ rates filed with the In-

terstate Commerce Commission rather than the local

fates filed with the California Public Utilities Commis-

sion [Conclusions of Law 1 and 2; App. p. 23; R.

- . 152].

~ Petitioners appealed to the United States Court of

Appeals for the Ninth Circuit.. The cases were argued -

before a three judge panel and taken under submission.

Thereafter, by the Court’s own order, the cases were

withdrawn from the three judge panel and set for hear-

ing before the Court en banc. After hearing the matter

en banc, the Court of Appeals by a unanimous deci- °,

sion affirmed the judgment of the District Court. ©

. Ts,

carriage by by the owner of the product. No such cau :

/ | —6— : = thy

/ ARGUMENT: .

5) The Ruling of the Court of feiss Was Cor-

_ rect and Is Fully in Accord With All Prior

Decisions on the Same Subject by the Interstate

‘Commerce Commission, Other | Courts of Ap-

peals and This Court. <_

Although not mentioned i in their statement. of “Ques- |

tion Presented” (Petition p eh Petitioners later argue

(Petition p. 4), that the Xicision of the.Court of Ap-

‘ peals below conflicts with a decision ‘rendered by this

Court in the case-of Pennsylvania Railroad v. Public.

Utility Comm. of Ohio, (1936) 298 U.S. 170; 80 L.

Ed. 1130: In that case, an owner of coal transported it

on its own railroad from its mines in Pennsylvania to _

one of its plants in Ohio, where the coal was, dumped

from the Cars; washed, and broken up or assorted into ~

the sizes desired by customers. Then, for the first”

time 1t was tendered to a corimon carrier for move-

ment to another point in Ohio. This Court held ‘that

the Ohio common carrier movement was not subject to

the jurisdiction of the Interstate Commerce Commis-.

sion because the prior catriage which brought the prod- -

-

uct across the state line from Pennsylvania into Ohio/

was by a strictly. private carrier. Wholly aside from

the fact that- there was an obvious break in the con- -

tinuity of the movernerit at ‘the owner’s Ohio plant,

a reading of that case will demonstrate that there are

several other reasons why it is neither controlling nor

even pertineht to the cases at bar.”

In the first place, the case dealt with strictly private

Situation appears in the cases at bar.

.

~~,"

7

AN Anan

a

— “-

In the second place, the decision was concerned solely —

with a determination of what constitutes interstate

commerce. The question of what constitutes foreign

commerce for the purpose of the Interstate Commerce

Act was not involved. This important differertte was

noted by the Court of Appeals in the case at bar (App.

pp. 14-15; 407 F. 2d 1173, at pp. 1179-1180).

Lastly, in distinguishing (fom the cases then before

it) two cases involving foreign commerce,’ this Court,

speaking through Justice Cardozo stated:

“cc

. Upon a shipment of merchandise to and

from a foreign country, the Interstate Commerce

Act applies to the carria ge in this country, though

that part of the carriage is within the limits of a

single state.” ~

_ Penn, R.R. v. Public Util. Comm. of Ohio,

, 298 U.S. 170, at 176,

. Thus, the opinion in the Pennsylvania Railroad case

expressly excludes any implication that it ‘was intended,

to apply to foreign commerce. en

The validity of the Opinion of the Court of Appeats '

in the three cases at bar is fully supported by many

other decisions on the same subject matter. Thus, in at

least three earlier reported decisions, the movement of

imported bananas from United States points of entry

to other points within the same state, has beeti held to

be a part of foreign commerce and therefore subject to

the jurisdiction of the Interstate Commerce Commis-

sion. In this connection, see: Sf ta

Schuster’s Wholesale Produce Co. v. Texas’ &

+ = -P. RyeCo., 145 So. 368, 369-371 = 1932-

' 2United States v. Erie Railroad Co., (1929) 280 US. 98 and

Texas & NOR Co. v. Sabine Trans. Co., (1913) 227 -U.S. 111.

.

ee te a ea

. 1933) cert: denied Mayr 1933, 289 U.S. 745;

77 L. Ed. 1491.

[ Note” that. certiorari was denied by this Court

some two years subsequent to the Campbell

River case decision upon which Petitioners rely.] | .

Southern Produce Co. v. Denison & Pac..S.°Ry.

». Co.; (1930) 165 L.C.C. 423, at pp. 425, 428;

United States v. Illinois Central R.R.. Co«.230

Fed. 940, 941 (1916, E. D. Louisiana).

Each of the above three cases is on all fours with

the present banana cases (except tifat. the port of -entry

was either New Orleans or Galveston rather than Los

Angeles or San Francisco), and sofar as we can ascer-

tain, their soundness has never been heretofore ques-

tioned. |

Similar movements of various other commodities

within a state have likewise uniformly been held to be

subject to the Interstate Commerce Act irrespective of

the mode or type: of transportation involved prior or

subsequent to the products reaching the port of entry

or exist. See, for example: i

United States v. Erie Railroad Co., (1929) 280

U.S, 98, 74 L. Ed. 187;

Texas & N.O.R. Co. v. Sabine Trans. Co.,

(1913) 227 U.S. 111, 57 L. Ed. 442;

Railroad Commission of Ohio v. Worthington,

(1912) 225 U.S. 101, 56 L. Ed. 1004;

| .

. It is significant that the I.C.C. reached vits decision after. spe-

cifically noting that “. . . Bananas are imported regularly, and .-

continuously throughout the year and reach the ports: in cargo

lots, usually in ships owned and operated by the producing and

importing interests ...” (165 1.C.C. at p. 425)\ ea? wy

,

a : <®

. — Vv. United States, (4th Cir. apace 412

F. 2d 764;

‘Tampa Fuel Co. v. ACL. Co., asi) 43

E.C.C.:231, 232, 233::

Dupont v. Director General, (1922) 74 a

191, 193;

~ Lake Cargo Coal Rates 1925, (1927) 126 LCC.

309, 314;

Hamilton’ Emery & saonr om Co. v. Boston &

Albany R.R., (1932) 188 I.C.C. 409 at 410;

Osborne McMillan - Elevator Co. v. Minn.,

(1959) 306 I.C.C. 155, 157, 158. ao

The foregoing twelve decisions of this and other

Courts and of the Interstate Commerce Commission

clearly demonstrate that the proper rule to be applied is

that which was adopted’ by the -Court of Appeals in

these cases below, to wit, where an import or an export -

is involved, so long as the appropriate intent and con-

tinuous movement exists, and the origin of the product —

(in the case ‘of imports) or the destination, of the prod-

uct (in the case of exports) is a foreign country,

comm

United tes is a'part of foreign commerce and sub-

ject to the Intgrstate Commerce Act.

carrier rail carriage of such product within the

&

(2) The Action of the. Court of Appeals in Over-

ruling One of Its Own Prior a Was

Proper.

As demonstrated siete, the Court of Apoeate’ cor-

rectly held that under the circumstances of these cases, .

__ the interstate or foreign rate was applicable to the Cali:

Rep Bre METI Ae

LIT ILA LONELY 5 TO PN EL Serre

ae | aa

_ fornia movement of the imported bananas regardless of

whether the immediately. preceding ,waterborne: carriage

was by private, chartered or common carrier.” Accord-

ingly, it quite properly overruled its own 38 year old .

prior decision* insofar as said decision could be in-

terpreted as requiring that the prior waterborne move-

‘ment of ‘bananas necessarily had to be by common car-

rier before the subsequent California rail movement

' could be held to be a part of foreign —-- The

_Teasons for such overruling are fully discussed in the

Opinion of. the Court of Appeals and we deem it un-

necessary to further lengthen this brief by/here restat-

ing such discussion.\We are content to stand on the

Opinion (App. pp. 6412; 16-17; and 20; and 407 F.°

2d 1173, at pp. 1176-1 i82).. : ie

\

3 em eared |

We are not aware of any decision, and Petitioners

have cited no decision, by. any United States Court of

Appeals or by this Court which “in any way suggests

_that in the case| of either: - imports. to or exports from

a foreign country, the’ thode’ ~or character of the over- -

seas carriage is in any way “material. Such shipments

have Aniformly been held to constitute. foreign com-

_merce. As a result, subsequent shipments ' ‘(in the case:

‘of imports) and prior shipments (in the case of ex-

” “ports) by rail common carrier within the United States ‘

are — to the jurisdiction of the Interstate Com-

‘chines, ww. St 'P. & P. Ry. v. Campbell wats Mills ce, ’-_

(1931) 9 Cir. 53 F. 2d 69. | :

é

—1 ee

merce Commission, and the rates charged for, Bose ship”

ments are governed by the interstate tariff rates filed

with the Commission. _

The Petition for Certiorari should be denied.

Respectfully submitted,

_ Freperic H. Sturpy,

a . Attorney for Respondents Southern

Pacific Company and Pacific Elec-

tric Railway Company.

Joun J. BALLUFF,

1 a for Respondent The Atchi-

opens & Santa ns Railway

C as ny.”

Suiieea: E. eae U, Jr.,

a porE B. OLson,

pa n, Dunn & Sioa, .

Of Counsel for: Respondents '

- Southern Pacific Company — \

an i Pacific Electric Railway x

Company... °s

Marr EW H. ‘WitTEeMAN,

_ OF-€ ounsel, for Respondent —

aN av The Atchison, is opeka & Santa: EES. eh eee

“es Be Railway Coniany. ea

j

pe a ys Suk