Plantiffs Brief — CHICAGO & C. RY. CO. v. Pub. Utilities Comm.

Supreme Court brief1917

Ask Donna

What actually matters in this document.

Text

o FILDD

JUN 2 1916

JAMES DMALLE 2.

CLE®K

IN THE

Supreme Court of the United States

Ocrosrr Term, A. D. 1915.

No. 495 “/,

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY

COMPANY,

Plaintiff in Error,

Us.

STATE PUBLIC UTILITIES COMMISSION OF

ILLINOIS,

Defendant in Error.

IN ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS,

BRIEF AND ARGUMENT ON BEHALF OF PLAINTIFF IN

ERROR FILED IN OPPOSITION TO MOTIONS TO DIS-

pr AFFIRM OR TRANSFER TO SUMMARY

DO :

Burton Hanson,

_ 0. W. Dynes,

Attorneys for Plaintiff in Error.

SURTHORP-WARRER PRINTING COMPANY, CHICAGO.

PREMERA REA SE DEE

INDEX.

PAGE

Argument .. ---eee eee e reece eee e eee rete eee teen nee e ener eetens 16

Brief of argument in opposition to motions to dismiss writ and to

affirm judgment . . ...... ssc e cece cece cece eee e teen eeeeteeeee Se

Brief of law points and authorities.............2:. eee cere eee 9

Objections to motion to transfer this cause for hearing on sum-

mary Gocket 2... ceeee cece cece cece cece ener eeeeneeceeceeeees 23

Reasons why judgment should not be affirmed as in cases without

merit brought merely for Gelay........ccccccccccccesccccescces 19

Reasons why writ of error should not be dismissed for lack of

jurisdiction © 6 6 cece eee eee e eect ence tent ene erent ee eeeeenees 16

Statement Of THE CASE... 26. .ccccsedcccsvocrcvecvecsoereessseosce 1

Sufficiency of specifications Of eCFTOTs.........ccccccccccccccccees 24

List OF AUTHORITIES CITED.

Atlantic Coast Lame v.. Wharton; 20t OU. Si, GiB... .ccccccccsceccs 11

Baltimore & Ohio R. R. Co. v. Piteairn Coal Co., 215 U. S., 481... .15-18

Baltimore & Ohio R. R. Co. v. I. C. C., 221 U. S., 612, 618......... 14

Bowman v. C. & N. W. Ry. Co., 126. 0. Ss. GG, 461, SOB ww. ce cccns 10

Brown v. Maryland, 19 Wheat. 419, 446...... icc ccccsccsccevsecce 12

oo. ©. & S& L. Hy: Gee ©: Hilbols; FT U.. Ss GOR. oon ccc ieces 11

Cc. M. & St. P. Ry. Co. v. Public Utilities Commission, 268 IIL, 49.... 15

Cooley v. Board of Wardens, 12 How., 200, 319. ............cceces 10

County of Mobile v. Kimball, 102 U. §., 691, 696, 697............ 10-12

Covington Bridge Co. v. Kentucky, 154 U. S., 204................... 11

WE PALE TECINGE), Be WER, ly ts eins ciesiec we cutee cncananasecece 10

Gibions Vv. Oude, SF Wiewts, 2: TOG Zaks sik cence ccccececwscenns 12

Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196, 204......... 10

Gulf, Colorado & Santa Fe Ry. Co. v. Hefley, 158 U. S., 98, 108, 104. 10

eee Wy CC, ee Wie a NN, Beeb oclew keen sc eeeesctmnwe duced 11

ROS: Ve Oe Oe MOG. COs Se Oy ic Clog sacceccnsaneacdances 11

momnen ¥.-O..R. Le PF HB. Hi Co, S18 Uz. GS. BR occ cccc cecccs 10

Houston. & T. ©. R. H. Co. v. Mayes, 216 U. S., SBh..... cies scenes 11

Houston East & West Texas Ry. Co. v. U. S. and Texas Pacific Ry.

Co. v. U. S., 234 U. S., 342, 350, 351, 354, 355...... 11, 12, 13, 14, 25, 26

Illinois Central R. R. Co. v. Behrens, 233 U. S., 473.............00. 14

Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S.,

PONE I REN ais’ & diSieaie aareRdiatersca% aad, o Wine cunecaen was oko wees 14

Sa aaa Le aa a ee ne ee a |

Interstate Commerce Commission v. L. & N. R. R. Co., 227 U. 8. Pes

Gn 9/6 See eet nevhneensvene oduesdsaneahhsardes teense weunebccl 15-18

Loulsville & Nashville R. R. Co, v. Eubank, 184 U. S., 27...... 11-12

McNeill v. So. Ry. Co., 202 U. 8., F48....... ccc eecceseeeeeeseees aT

Minnesota Rate Cases, 230 U. S., 352, 309, 400................ 9, 10, Bie

Mississippi R. R. Commission vy. I. C. R. R. Co., 203 U. S., 335.. li

Mondou v. N. Y. N. H. & H. R. R, Co., 228 U. S., 1, 47, 54, 55

Northern Pacifie Ry. Co. v. Washington, 222 U. S., 370, 378...... 10

Poehlmann Bros. Company v. C. M. & St. P. Ry. Co., 30 I. C, CG,

OF 63s Menke isha shaen OA kab ib be osc buddha tek kee calaie 4,5,9,1617

Railroad Commntesion of Ohio v. Worthington, 225 U. S., 101....,. a

Second Employers’ Liability Cases, 223 U. S., 1, 47, 48, < 53, 54....1144

Shreveport Case, 234 U. S., 342...........c0cuene 11, 12, 13, 14, 19, 25, 98

Smith v. Alabama, 124 U. S., 465, 473...........ccecccssceeeeeccs ll

Southern Pacific Co. v. I. C. C., 219 U. S., 48B8........cecceeeceese 15-18

Southern Ry. Co. v. U. S., 222 U. S., 20, 26, 27.........0..e cee eeee 4

Southern Ry. Co. v. Reid, 222 U. S., 424, 436..................,, 10

St. Louis S. W. Ry. Co. v. Arkansas, 217 U. Wh, Mea wik e NTA Leave 10

Texas & N. O. R. R. v. Sabine Tram Co., 227 U. S., 111........... 10

Texas & Pacific Ry. Co. v. U. S., 234 U. S., 342, 351....11, 12, 13, 14, 25, 28

Wabash Ry. Co. v. Illinois, 118 U. S., 557, 577......... ccc. cceeeee ll

Welton v. Missouri, 91 U. &., 275, 280........csccccsccescccsccece 10

Yazoo & Miss. Valley R. Co. v. Greenwood Grocery Co., 227 U. S.,1. 10

IN THE

Supreme Court of the United States

Ocrosner Term, A. D. 1915.

No, 495

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY

COMPANY,

Plaintiff in Error,

vs.

STATE PUBLIC UTILITIES COMMISSION OF

ILLINOIS,

Defendant in Error.

IN ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS,

BRIEF AND ARGUMENT ON BEHALF OF PLAINTIFF IN

ERROR FILED IN OPPOSITION TO MOTIONS TO DIS-

EE _ AFFIRM OR TRANSFER TO SUMMARY

STATEMENT OF THE CASE.

May IT PLEASE THE Court:

The Illinois Commission, by the order complained of, 4

reduced by 50 per cent. a factor of a through rate common b

to interstate and intrastate traffic on a record which was 4

passed upon by the Interstate Commerce Commission and

held insufficient to warrant any reduction in that factor.

The rate ordered reduced applies to that portion of the 4

through hauls which lies between Chicago, Illinois, and ‘

Morton Grove, Illinois, and for w

error makes a charge of forty cent

shipments of coal which are moved as far as Chicago op

proportional rates applicable from points of origin in

Illinois, Indiana, Ohio and certain other States,

The Chicago, Milwaukee & St. Paul Railway Company

has its eastern terminus at Chicago. It, therefore, does

not reach the coal fields to the east and south of that

terminus from which Chicago and its environs obtain

coal. Morton Grove is a

Chicago.

hich the Plaintiff jy

8 per ton on carload

suburban town northwest of

Quite a large number of railroads carry coal from

southern points in Illinois and Indiana to Chicago. Also

from points farther east, in Ohio, Pennsylvania and West

Virginia. Those roads publish two kinds of rates, namely;

(a) A local rate, applicable from point of origin

to destinations on their own rails in Chicago, and

(b) <A proportional rate, applicable as a propor-

tion of a through rate when the coal passes through

Chicago to points beyond on the rails of a connecting

carrier, such as the Chicago, Milwaukee & St. ‘Paul

Railway Company.

When the coal moves under the through rate to destina.

tions beyond Chicago, the charge of the originating car-

rier is ten cents a ton less than its local rate to Chicago.

This proportional rate, combined with the local rate of the

Chicago, Milwaukee & St. Paul Railway Company as a

connecting carrier, makes up the through rate from point

of origin, via Chicago, to destinations beyond Chicago,

such as Morton Grove, the destination involved in this

proceeding. The earnings of the Milwaukee Road out of

the through rate on such coal movements, are its full local

rates, as published in its tariffs. Forty cents per ton is

its local rate on carload shipments of coal from Chicago

to Morton Grove. The earnings of the inbound carriers

, OEE ALE REALL ILLS IF LL ROR LES IE PDEE OM

sae oe —

ILLUSTRATIVE DiAGRAM

MORTON GROVE

¢ INDIA NA

FL LINOA s|

PANA

SULLIVAN

DISTANCE ae tans

Pana to Morton Grove 2!17 Miles S|.

——__—

vary with the distances from Chicago of the points of

origin. For the shorter hauls, which are from Indiana

points of origin and Illinois points of origin, their earn-

ings are the lowest. From West Virginia mines to Chi-

cago the rate is $2.05 per ton.

To further illustrate this rate structure in its simpler

aspects we submit the diagram on the adjoining page.

The distance from Pana, Illinois, to Morton Grove, Illi-

nois, is 217 miles. The through rate on coal, $1.22. From

Sullivan, Indiana, to Morton Grove, the distance is 216

miles and the through rate, $1.27. The effect of the

Illinois Commission’s order here involved, is to reduce

the rate on coal between Pana, Illinois, and Morton

Grove, Illinois, to $1.02, which is 25 cents a ton less than

the current rate from the Indiana point equally distant.

The portion of the route marked in red on the diagram is

over the rails of the Milwaukee Road and is common to

all movements of coal to Morton Grove, whether they

originate in Illinois, Indiana, Ohio, Pennsylvania or West

Virginia, and whether they originate on the lines of the

Chicago & Eastern Tllinois Road, shown on the diagram,

or on the lines of any of the many other roads that haul

coal to Chicago from points in the States named.

It is the portion of the route between Chicago and

Morton Grove, shown in red, on which the Illinois Com-

mission ordered the fifty per cent. reduction in rate and

on which the Interstate Commerce Commission held that

the rate is not shown to be unreasonable and may not

properly be regulated apart from the through rate as a

whole.

The question passed upon in the order appealed from

in this case was decided by the Interstate Commerce

Commission on a complaint brought against the Chi-

cago, Milwaukee & St. Paul Railway Company by Poehl-

mann Bros. Company, the same complainant that brought

the complaint before the Illinois Railroad & Warehouse

Commission which resulted in the order that is here being

reviewed.

At the time the Interstate Commerce Commission took

jurisdiction of this question, that Commission had be.

fore it the same evidence and in fact the same record

that was before the Illinois Commission when it subse.

quently heard the case and entered the order appealed

from. How the two Commissions happened to pass upon

the same record, is explained by the fact that the record

made before the Interstate Commerce Commission, in go

far as facts and evidence are concerned, was, by agree-

ment and stipulation between the parties, made the ree.

ord before the Railroad & Warehouse Commission of the

State of Illinois at the hearing before that body. (Ree,

19.)

There were added to the record before the Illinois Rail-

road & Warehouse Commission a few questions and an-

swers not contained in the record before the Interstate

Commerce Commission (Rec., 15 to 18), but those ques-

tions and answers in no way changed or modified any

fact here involved and are in no part material to the

issues before this court. The Interstate Commerce Com.

mission held that the evidence was not sufficient to war-

rant a reduction in the rate that was reduced by the IIli-

nois Commission acting on the same record. The Inter-

state Commerce Commission’s decision is reported in

Poehlmann Bros. Company v. C. M. & St. P. Ry. Co., 30

I. Cc. C., 89.

The Interstate Commerce Commission, in taking juris-

diction of the question involving the rate subsequently

regulated by the Illinois Commission, found the rates

from points of origin to destination, as published in the

—

carriers’ tariff, to be ‘‘through rates,’’ and held that the

factor of the through rates which the Illinois Commis-

gion regulated, could not be regulated independent of or

apart from & regulation of the through rate as a whole.

Id., 92.

The tariffs on which the State Commission passed

were constructed the same as those on which the Inter-

state Commerce Commission passed, and a through intra-

state rate, from point of origin to destination, was in-

yolved in the same way as the one which the Interstate

Commerce Commission held should be regulated as a

whole and not by the regulation of a single factor thereef.

(Ree., 2, 3, 11, 13, 14.)

Poehlmann Bros. Company is to be allowed reparation

to the extent of 20 cents per ton on coal from Illinois

points of origin if the order of the Illinois Commission

ig sustained, and Poehlmann Bros. Company is now buy-

ing substantially all of its coal in Illinois. (Ree., 15.)

Prior to the time the Interstate Commerce Commission

dismissed the complaint against the factor of the through

rates, which the Illinois Commission reduced, Poehlmann

Bros. Company received two-thirds of its coal over inter-

state routes from points east of Illinois. (Ree., 25.)

BRIEF OF ARGUMENT IN OPPOSITION TO MO.

TIONS TO DISMISS WRIT AND TO AFFIRY

JUDGMENT.

The order of the Railroad and Warehouse Commission

of the State of Illinois, the validity of which this court

is asked to pass upon, is unlawful in the following par.

ticulars:

(a) The order is unlawful in that it is a regula-

tion by the Illinois Commission of a factor of a

through rate which is common to interstate and in.

trastate traffic contrary to and in conflict with its

regulation by the Interstate Commerce Commission

on the same state of facts and on the same record,

(b) The order is unlawful in that it expresses ag.

sumed jurisdiction by the Illinois Commission of a

rate question over which the Interstate Commerce

Commission had assumed jurisdiction under the Act

to Regulate Commerce.

plaintiff in error, as a common carrier, to discrim.

inate against localities outside the State of Illinois

and grant unlawful preferences to localities within

the State of Illinois.

(d) The order would interfere with and place a

burden upon interstate commerce, and the agencies

of interstate commerce, since in passing on precisely

the same service that the Interstate Commerce Com-

mission passed upon, and considering the same state

of facts on the same record, the Illinois Commission

denies the plaintiff in error the right to make a

charge for service common to interstate and intra-

state traffic which the Interstate Commerce Commis-

sion held was not shown by that record to be unrea-

sonable or discriminatory.

(e) The order requires plaintiff in error to per-

form service for intrastate coal shippers at one-half

what the Interstate Commerce Commission has held

BAP Jem RL hae Oe i at

—a———

on the same record is not shown to be an unreason-

able rate to charge for the identical service rendered

on interstate coal shipments.

(f) The order would have the effect of regulating

interstate traffic through coercing plaintiff in error

to change a factor of an interstate rate (which the

Interstate Commerce Commission has held not to

have been shown unreasonable or discriminatory) to

avoid the discrimination resulting from the order.

(g) The order would result in unlawful discrim-

ination against interstate shippers of coal and would

result in extending unlawful preferences to their

competitors who ship intrastate to the same destina-

tion on the railroad of plaintiff in error.

(h) The order would result in unlawful discrim-

‘nation against interstate commerce and in granting

unlawful preferment to state commerce.

(i) The burden of proof rested upon the com-

plainant before the [Illinois Commission and the laws

applicable indulged complainant in no presumptions

that would supply the-place of the necessary evidence

which the Interstate Commerce Commission found

wanting in this record.

‘) ‘The order of the Illinois Commission is not a

regulation of the through rate, but is the fixing of

divisions as between the earriers participating in

the through rate, where the carriers had not failed

to agree on divisions, had not asked the Commission

to fix divisions, and where the Commission had no

statutory power to fix divisions as between car-

riers.

(k) This case is distinguishable from the Minne-

sota Rate Case for the reason, among others, that in

the case at bar the Interstate Commerce Commission

had taken jurisdiction of, and heard evidence on, and

adopted a policy in regard to, the compensation 0

the earrier for the identical service on which the

State Commission directed a reduction in the car-

rier’s earnings in an order that is in conflict with

the action of the Interstate Commerce Commission.

In the Minnesota Rate Case the Interstate Commerce

Commission had not taken action or entered an order

in respect of the compensation involved or in respect

of the record on which the state rate was fixed. There

was not conflict between the Federal authority

the State authority arising from an identical state

of facts in the Minnesota Case.

If the foregoing propositions are supported by the

record before this court, as we contend they are, this

is not a cause to be summarily dismissed as one over

which this court has no jurisdiction nor should the judg.

ment be peremptorily affirmed as in cases where the writ

is frivolous and brought only for delay.

| 9

EF OF LAW POINTS AND AUTHORITIES.

oad

BRI

I..

ederal Government had taken jurisdiction of the

rvice here involved on October 26,

to the attempted regulation by the

ber 25, 1913, that resulted in

The F

rate and railroad se

1912, which was prior

[llinois Commission, on Octo

the order complained of.

Poehlmann Bros. Co. v. C. M. & St. P. Ry. Co.,

30 I. C. C., 89.

ai.

‘There is no room in our §

for the assertion of State power in hostility to the

authorized exercise of Federal power. The author-

ity of Congress extends to every part of interstate

ecommerce, and to every instrumentality or agency

by which it is earried on; and the full control by

Congress of the subjects committed to its regulation

is not to be denied or thwarted by the commingling

of interstate and intrastate operations.’’

Minnesota Rate Cases, 230 U. S., 352, 399.

cheme of Government

See also:

Mondou v. N. Y.N. H. & H. R. R. Co., 223 U. B.,

1, 47, 54, 55.

IIl.

“In matters, admitting of diversity of treatment

according to the special requirements of local condi-

tions, the States may act within their respective

jurisdictions until Congress sees fit to act; and, when

Congress does act, the exercise of its authority over-

rides all conflicting State regulation.”’

Minnesota Rate Cases, 230 U. §., 352, 399, 400.

See also:

Yazoo & Miss. Valley R. Co. v. Greenwood Gro-

cery Co., 227 U. S., 1.

Texas & N.O. R. R. v. Sabine Tram Co., 227 U.

S., 111.

R. R. Commission of Ohio v. Worthington, 225

U. S., 101. |

Herndonvy. C. R.1. & P. R. R. Co., 218 U. S., 135.

St. Louis S. W. Ry. Co. v. Arkansas, 217 U.S,

136.

Houston & T. C. R. R. Co. v. Mayes, 210 U. S.,

321.

Atlantic Coast Line v. Wharton, 207 U. S., 328.

Miss. R. R. Commission Vv. 1. GC. R. R. Co., 203

U. &., 335.

McNeill v. So. Ry. Co; 202 U. S., 543.

Hanley v. K. C. So. Ry. Co., 187 U.S., 617.

Louisville & Nashville R. R. Co. v. Eubank, 184

U. S., 27.

C. C. C. & St. L. Ry. Co. v. Illinois, 177 U. §.,

514.

Covington Bridge Co. v. Kentucky, 154 U. S.,

204.

Wabash Ry. Co. v. Illinois, 118 U. S., 557, 577.

Hall v. Decuir, 95 U. S., 485, 488.

Vv.

The Interstate Commerce Commission is clothed with

power, granted by Congress through the Act to Regu-

late Commerce, passed under authority of the Commerce

Clause of the Constitution, which power is adequate to

meet the varying exigencies that arise and to protect the

national interests by securing the freedom of interstate

commercial intercourse from local control. ;

Houston East € West Texas Ry. Co. v. U.S. and

Texas & Pacific Ry. Co. V. U. S. (Shreveport

Case), 234 U. S., 342, 350, 351.

See also:

Minnesota Rate Cases, 230 U. S., 352, 398, 399.

Second Employers’ Liability Cases, 223 U. S.,

1, 47, 53, 54.

Smith v. Alabama, 124 U. S., 465, 473.

County of Mobile v. Kimball, 102 U. S., 691, 696,

697.

Brown v. Maryland, 12 Wheat., 419, 446.

Gibbons v. Ogden, 9 Wheat., 1, 196, 224.

ie &

The authority of Congress, exercised through the In.

terstate Commerce Commission, extends to interstate

common carriers as‘instruments of interstate commerce

in such way as necessarily embraces the right to control

their operations in all matters having such a close and

substantial relation to interstate traffic that the control

is essential or appropriate to the security of that traffic,

to the efficiency of interstate service, and to the main.

tenance of conditions under which interstate commerce

may be conducted upon fair terms and without molesta-

tion or hindrance.

Texas ¢ Pacific Ry. Co. v. U. S., 284 U. S., 342,

351.

VII.

‘‘The power to deal with the relation between two

kinds of rates, as a relation, lies exclusively with

Congress. It is manifest that the State cannot fix

the relation of the carrier’s interstate and intra-

state charges without directly interfering with the

former, unless it simply follows the standard set by

Federal authority.’’

Houston & Texas Ry. v. U. S., 234 U. S., 342,

354.

See also:

L. & N. R. R. v. Eubank, 184 U. S., 27.

—

VIII.

“That an unjust discrimination in the rates of a

common carrier, by which one person or locality is

unduly favored as against another under substan-

tially similar conditions of traffic, constitutes an evil

is undeniable ; and where this evil consists in the

action of an interstate carrier in unreasonably dis-

criminating against interstate traffic over its line,

the authority of Congress to prevent it is equally

clear. It is immaterial, so far as the protecting

power of Congress is concerned, that the discrim-

ination arises from intrastate rates as compared

with interstate rates. The use of the instrument of

interstate commerce in a discriminatory manner 80

as to inflict injury upon that commerce, or some

part thereof, furnishes abundant ground for Federal

intervention. Nor can the attempted exercise of

state authority alter the matter, where Congress has

acted, for a State may not authorize the carrier to

do that which Congress is entitled to forbid and has

forbidden.”’

| Houston & Texas Ry.’v. U. S., 234 U. S., 342,

354.

IX.

“Jt is also clear that, in removing the injurious

discriminations against interstate traffic arising

from the relation of intrastate to interstate rates,

Congress is not bound to reduce the latter below

what it may deem to be a- proper standard fair to

the carrier and to the public. Otherwise, it could

prevent the injury to interstate commerce only by

the sacrifice of its judgment as to interstate rates.

‘ongress is entitled to maintain its own standard

as to these rates and to forbid any discriminatory

action by interstate carriers which will obstruet the

freedom of movement of interstate traffic over their

lines in accordance with the terms it establishes.”’

Houston & Texas Ry. v. U. S., 234 U. S., 342,

355.

i *

‘*Wherever the interstate and intrastate transac.

tions of carriers are so related that the Government

of the one involves the control of the other, it jg

Congress, and not the State, that is entitled to pre.

scribe the final and dominant rule, for otherwise

Congress would be denied the exercise of its consti-

tutional authority and the State, and not the Nation,

would be supreme within the national field.’’

Houston & Texas Ry. v. U. S., 234 U. S., 342,

351, 352.

See also:

Illinois Central R. R. Co. v. Behrens, 233 U. §,,

473.

Interstate Commerce Commission v. Goodrich

Transit Company, 224 U. S., 194, 205, 213.

Second Employers’ Liability Cases, 223 U. §,,

1, 48, 51.

Southern Railway Co. v..U. S., 222 U.S., 20, 26,

27.

B. € O. R. R. Co. v. Interstate Commerce Com-

mission, 221 U. &., 612, 618.

XI.

‘‘The fact that carriers are instruments of intra-

state commerce as well as of interstate commerce

does not derogate from the complete and paramount

authority of Congress over the latter or preclude

the Federal power from being exerted to prevent the

intrastate operations of such carriers from being

made a means of injury to that which has been con-

fided to the Federal care.’’

Houston & Teras Ry. v. U. S., 234 U. S., 342,

351,

FEO AE SINE SEM OLD NOTH ORE

XII.

This court has several times recognized in its opin-

ions that the work of solving the details and intricacies

of rate regulation has been delegated by Congress to

the Interstate Commerce Commission, and this court has

held that acting within that field the Interstate Com-

merce Commission is supreme and its acts are not re-

viewable here except where the Commission exceeds its

authority or otherwise fails to conform to the require-

ments or the limitations of the Act to Regulate Com-

merce. vee

Interstate Commerce Commission v. I. C. R. R.

Co., 215 U. S., 452.

B. &0.R.R. Co. v. Pitcairn Coal Co., 215 U. S.,

481.

Southern Pacific Co. v. 1. C. C., 219 U. S., 433.

XIII.

The Interstate Commerce Commission, having exam-

ined this record and found the facts insufficient to war-

rant a reduction of the rate for the service here involved,

the Illinois Commission may not, under the law, deduce

a different conclusion from the same facts and enter a

regulative order founded on what the Interstate Com-

merce Commission has declared to be insufficient evidence

to support such order.

Interstate Commerce Commission Vv. L. & N. R.

R. Co., 227 U. S., 88, 91.

XIV.

Plaintiff in error exhausted its means of remedy in the

State tribunals without gaining relief.

C. M. & St. P. Ry. Co. v. Public Utilities Com-

mission, 268 Tl., 49.

ARGUMENT.

REASONS WHY THE WRIT OF ERROR SHOULD NOT BE DISMISsgp

ON MOTION OF DEFENDANT IN ERROR FOR ALLEGED LACK oF

JURISDICTION,

The undisputed facts establish that the Chicago, Mil.

waukee & St. Paul Railway Company, plaintiff in error,

is a common carrier subject to the Act to Regulate Com.

merce; that as such common carrier the reasonableness of

its rates and charges, for service in the transportation

of coal, in carloads, delivered by it at Morton Grove and

received by it from connecting carriers in Chicago, was

passed upon by the Interstate Commerce Commission on

the same record, so far as evidence and admissions are

concerned, that is involved in this proceeding; that the

Interstate Commerce Commission held on this record:

(1) That the evidence was of such an unsatisfac-

tory character and so insufficient that the complaint

was not sustained.

(2) That the rates from Chicago to northern sub-

urban points, such as the one here involved, are a

part of a complex rate situation that cannot be prop-

erly adjusted as a portion of a through rate without

the adjustment of the through rate as a whole.

(3) That the rate here in question is a part of a

through rate and as such must be regulated as a

through rate and not independently of the through

rate.

(4) That the complaint must be dismissed, both

for lack of sufficient evidence to warrant the redue-

tion prayed for and because it seeks to have regu-

lated one factor of a through rate only.

The opinion of the Interstate Commerce Commission

is reported in Poehlmann Bros. Company v. C. M. € St.

EVRA SE AALS DEAE BETTY Be ey eee ae —

—

- —p, Ry. Co., 30 1. C. C., 89. The following language is

quoted from page 92:

“While, as stated, only the delivering line is made

a party defendant, the comparisons made by com-

plainant are nearly all with respect to through rates,

or factors of through rates, from points of origin to

destinations within, or just beyond, the Chicago

switching district. The adjustment of rates within

this general district is an exceedingly complex one.

Ordinary prudence dictates that we should not pre-

scribe a change in this adjustment, or require a re-

duction in any specific rate therein, except after care-

ful examination of all the facts, both with respect to

the rate itself and also its relation to the general

adjustment.

Upon the record it clearly appears tha’ complain-

ant is not discriminated against by defendant.

The traffic in question is through traffic. The rate

specifically attacked, although a separately estab-

lished rate of the delivering line, cannot be consid-

ered entirely apart from its relationship to the

through rate for the through haul from interstate

points of origin. Some regard must be had to the

measure of the through rate as an entirety, and

neither the through rate nor the carriers respon-

sible for it and participating in it are before us in

this proceeding.

Considering the absence of evidence as to the rea-

sonableness of the through rate, and the unsatisfac-

tory evidence as to the separately established rate

under attack, we must refrain from expressing any

conclusion upon the reasonableness of either rate.

The complaint must be dismissed, and it will be so

ordered.”’

This court has several times recognized in its opinions

that the work of solving the details and intricacies of

rate regulation has been delegated by Congress to the

Interstate Commerce Commission, and this court has held

that acting within that field the Interstate Commerce

Commission is supreme and its acts are not reviewable

here except where the Commission exceeds its authority.

or otherwise fails to conform to the requirements or the

liraitations of the Act to Regulate Commerce.

Interstate Commerce Commission v. I. C. R.R.

Co., 215 U. S., 452.

B. @ O. R. R. Co. vy. Pitcairn Coal Co., 215 U. 8,

481.

Southern Pacific Co. v. I. C. C., 219 U. S., 433.

The Interstate Commerce Commission, in the exercige

of its sound judgment and discretion within the field

where it is supreme, declared that there was insufficient

evidence in the present record to warrant a reduction or

other regulation of the rate which the Sta. ~c.nmission

reduced. When the Interstate Commerce Commission

found the evicence was insufficient to warrant a redue-

tion in the rate, it was powerless, under the Act, to re-

duce it.

This court said, in Interstate Commerce Commission y,

L. é N. R. R. Co., 227 U. S., 88, 91:

‘‘The statute gave the right to a full hearing, and

that conferred the privilege of introducing testimony,

and at the same time imposed the duty of deciding

in accordance with the facts proved. <A finding with-

out evidence is arbitrary and baseless. * * * It

would mean that where rights depended upon facts,

the Commission could disregard all rules of evidence,

and capriciously make findings by administrative

fiat. Such authority, however beneficently exercised

in one case, could be injuriously exerted in another;

is inconsistent with rational justice, and comes un-

der the Constitution’s condemnation of all arbitrary

exercise of power.’’

The Interstate Commerce Commission, in passing upon

the facts in this case, was governed by the law outlined

in the foregoing quotation. It declined to disregard all

rules of evidence and capriciously make findings by ad-

ministrative fiat. Under such circumstances, we are ap-

parently forced to the conclusion that the Illinois Com-

——_—

mission’s order is merely administrative fiat. To reason

otherwise is to argue that the Interstate Commerce Com-

mission’s judgment is wrong within the peculiar province

where its judgment is conclusive.

Clearly a conflict between Federal authority and State

authority, or assumed State authority, is presented. That

this court has jurisdiction to determine whether an or-

der of a State Regulating Body invades the province of

the Interstate Commerce Commission, contrary to the

Commerce Clause of the Federal Constitution and the

laws passed thereunder, is not a subject that requires ar-

gument.

3 =

REASONS WHY THE JUDGMENT SHOULD NOT BE AFFIRMED ON

THE THEORY THAT THE WRIT IS FRIVOLOUS, WITHOUT

MERIT, AND MERELY BROUGHT FOR DELAY.

We present to this court a question of unusual gravity

and importance that has arisen under the Act to Regu-

late Commerce as amended. The question is somewhat

analogous to the central questions involved in the Minne-

sota Rate Case, 230 U.S., 352, and in the so-called Shreve-

port Case, 7. é P. Ry. Co. v. U. S., 234 U. S., 342.

This court is asked to say whether the general prin-

ciple of law declared in the Shreveport Case should

control in cases involving facts and conditions such as

are presented by this record.

The amendment to the Act to Regulate Commerce, un-

der which the central question here presented has arisen,

is relatively new. Sufficient time has not elapsed since

its adoption to bring before this court many of the

academic questions of broad and general application that

must, in the course of time, be finally dealt with here,

This court has not yet declared whether & common ¢ar.

rier, subject to the Act to Regulate Commerce, must sub.

mit to having its rates and earnings reduced by State au.

thority for a service applicable alike to interstate and

intrastate transportation when the Interstate Commeree

Commission has already passed on the same state of facts

in the same record and held the facts insufficient to sup.

port an order reducing the rates,

This court has not yet said whether, under the condi-

tions referred to in the preceding paragraph, the carrier

can be forced by the action of a State Commission to re.

duce its charges for interstate carriage that the Inter.

state Commerce Commission has held not to have been

shown unreasonable or be forced to the alternative of

charging 100 per cent. more to the interstate shipper than

the State Commission allows it to charge the intrastate

shipper for that part of the service that is common to

both.

This court has not yet said that the action of the In.

terstate Commerce Commission must be regarded as con.

clusive and preclude contrary action by a State Commis.

sion when the former holds that a through rate, one fae.

tor of which is common to interstate as well as intrastate

traffic, must be regulated as a whole instead of merely by

regulating the one factor thereof which is common to in-

terstate and intrastate traffic.

These are all questions entailing the construction of

the Federal Act to Regulate Commerce that can only he

finally determined by this court, which of itself should

be sufficient answer to defendant in error’s motion for a

dismissal on the alleged ground that the writ is devoid

of merit and brought only for delay.

Aside from the foregoing generic reasons why this

cause should have the benefit of the full consideration and

deliberate judgment of this court, rather than a peremp-

tory dismissal, we urge the following specific reasons:

The complainant has proved that to give effect to the

Illinois Commission’s order is to burden interstate com-

merce, to discriminate against localities and shippers in

other States, to give undue preference to localities and

shippers in Illinois and to deprive the interstate carrier

of interstate commerce that it has enjoyed and will con-

tinue to enjoy if the ruling of the Interstate Commerce

Commission stands as controlling and conclusive and un-

impaired by the conflicting ruling of the State Commis-

sion.

At the hearing before the Interstate Commerce Com-

mission, June 14th, 1912, Mr. Poehlmann testified that

Poehlmann Bros. Company consumed approximately

30,000 tons of coal a year at its Morton Grove Plant and

that two-thirds of that quantity of coal came from points

of origin outside the State of Mlinois. (Ree., 24, 25.)

The same witness, testifying before the Illinois Commis-

sion in 1914, testified as follows:

“‘Q,. About how many tons of coal a year do you

consume in your business?

A. Approximately 30,000.

. What portion of your coal comes from mines

in the State of Illinois?

er At the present time almost all of it.’’ (Rec.,

It is obvious that Mr. Poehlmann was figuring on rep-

aration benefits derivable from a decision by the Illinois

Commission that would place a.rate penalty on inter-

state coal and allow reparation on intrastate coal where

the interstate basis in effect was charged for the portion

of the haul which was common to interstate and intra-

state service—the portion shown in red on the diagram

opposite page 3, supra.

The rate which the plaintiff in error may charge for

hauling carload shipments of coal from Chicago to Mop.

ton Grove is forty cents per ton when the coal comes

from Indiana or points east and southeast of Illinois,

Under the Illinois Commission’s order the plaintiff i,

error can charge only twenty cents per ton for identically

the same service. Formerly 20,000 of the 30,000 tons con.

sumed by Poehlmann Bros. Company came from inter.

state points of origin each year. Plaintiff in error earned

$8,000 for its service in transporting over its portion of

the haul that quantity of coal. The same coal is now be.

ing transported from points of origin in Illinois, and

while plaintiff in error at present is collecting forty

cents per ton on these Illinois shipments, it can only re.

tain one-half of that amount, or twenty cents per ton, if

the order of the Illinois Commission is held valid, The

other twenty cents per ton, or $4,000 per year, must be

paid back to Poehlmann Bros. Company if the order of

the Illinois Commission is sustained in this court.

Referring again to the illustrative diagram opposite

page 3, supra, the coal mine at Sullivan, Indiana,

could no longer compete with the coal mine at Pana, Illi.

nois, in supplying coal consumption at Morton Grove,

for while the points are virtually equi-distant from Mor.

ton Grove, and while their rates would be nearly the

same as far as Chicago, under the Illinois Commission’s

regulation the carrier is left to charge 100 per cent. more

from Chicago to Morton Grove on the Indiana coal than

on the Illinois coal. The only escape from this is for

the interstate carrier to bow to the authority of the State

Commission and reduce its interstate rate to conform to

the rate prescribed by the State Commission for iden-

tically the same service on intrastate shipments. This

would, of course, be in reality the regulation of inter.

state rates and charges by a State Commission.

—

IIl.

as TO THE MOTION TO TRANSFER THIS CAUSE FOR HEARING

ON THE SUMMARY DOCKET.

We are opposed to this motion only because we feel

the importance of this case is such that it should not be

summarily dealt with. Its importance to the plaintiff in

error is not confined to merely the loss of $4,000 a year

throughout the future in consequence of the applica-

tion of a twenty-cent rate in lieu of a forty-cent rate on

20,000 tons of coal annually, for if Morton Grove is en-

titled to a reduction of 50 per cent., so are the stations

north and south of it on the plaintiff in error’s railroad.

Also, the City of Evanston and towns on that branch

would be entitled to corresponding reductions. The same

would be true of cities located between Chicago and Elgin,

Illinois, on that line of this carrier’s road and interstate

commerce would have to suffer the unfair competition

discussed in preceding pages, the only alternative being

that this carrier might allow the State Regulating Body

to control its interstate rates by voluntarily reducing

them to conform with the rates fixed by the State.

Apart from the immediate interests of the plaintiff in

error, outlined above, there is still the broader interest

of interstate shippers of coal to be considered, for if they

may he made the victims of discriminatory rates regu-

lated by the State to an extent such that they are excluded

from the Chicago market, purchasers of coal will, doubt-

less, change their patronage from mines in Indiana and

other States east and south of Illinois to the Illinois mines

as the record shows Poehlmann Bros. Company has done. ‘

Mary ERC

PREIS SO

It should be borne in mind also that if the Illinois Com-

—

mission may regulate the rates of the Chicago, Milwanke

& St. Paul Railway Company, as a delivering carrie

participating in the through movement of coal to point

in Illinois north and west of Chicago, it necesgari}

follows that it may similarly regulate the rates of al

’ other delivering carriers participating in through rate

on coal delivered at points in Illinois on their rails nort)

and west of Chicago. If a State Commission may inter

fere at Chicago with the rate adjustment in a way to dis

criminate against or control interstate rates, it follow:

that State Commissions may take similar action at vari.

ous points and in various States.

For all of these reasons we submit that this case is of

sufficient importance to be considered on the regular

docket in the regular course and that it is altogether too

important to be summarily disposed of in accordance with

the pending motion of defendant in error.

aY.

THE SUFFICIENCY OF EVIDENCE AND SPECIFICATIONS OF ERRORS,

On page seven of opposing counsel’s brief they say:

‘‘The question of the sufficiency of the evidence on

which to base the order is not here for review. That

question is not embraced in the specifications of

errors, and is no longer open.’?

We dispute the correctness of the language quoted. The

question we raise in this connection is embraced in the

seventh, eighth and tenth specifications of errors. (Ree,

50, 51.)

The seventh specification of error relied upon is as

follows:

“7. The order of the Railroad and Warehouse

Commission of the State of Illinois appealed from

Rr Sa ee oe ce en ee Ror

in this case is unreasonable and unlawful in that

without finding the through rate excessive or dis-

criminatory and without facts before it on which to

make such finding, it reduces, solely for the benefit

of Illinois shippers and producers of coal, the

charges for a factor of the service involved that is a

common factor in interstate and Illinois movements

of coal and which common factor the Interstate Com-

merce Commission had held, on the same record, was

not shown to be subject to separate regulation, and

the Supreme Court of Illinois erred in sustaining

said order of said Railroad and Warehouse Commis-

sion.”’

The eighth and tenth specifications of errors present

our contention that the Interstate Commerce Commission,

having expressly found the evidence insufficient to war-

rant a reduction or regulation of a rate common to state

and interstate traffic alike, it is beyond the power of the

State Commission to overrule or nullify the conclusions

of the Interstate Commerce Commission and regulate

such a rate in its intrastate application and in a way that :

burdens or discriminates against interstate commerce. :

The specifications of errors, above referred to, are per-

tinent to our contention that Congress, having declared e

through the Interstate Commerce Commission in what

way and to what extent a given rate may or may not be 4

regulated, the Illinois Commission, in dealing with the :

same rate in so far as both interstate and intrastate g

commerce may be affected by its action, must follow with- :

in the lines laid down by Federal authority. This court :

has so held in the following language: 7

‘‘The power to deal with the relation between two :

kinds of rates, as a relation, lies exclusively with &

Congress. It is manifest that the State cannot fix e

the relation of the carrier’s interstate and intra- e

state charges without directly interfering with the i

former, unless it simply follows the standard set by 5

poke ee —

Lo pee SAR Sa ee ea

PES rai Rue th a cee, te Pee ie tc ye a ra ae he ee

Federal authority.”’ (Houston & Texas Ry. Co. y

U. §., 234 U. S., 342, 354.) ;

We ask that each of defendant in error’s three pending

motions be denied.

Respectfully submitted,

Burton Hanson,

O. W. Dynes,

Attorneys for Plaintiff in Error.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.