# Reply to Brief in Opposition to Petition for A Writ of Certiorari — Penn. R. Co. v. ILLS. BRICK CO. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0343%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply to Brief in Opposition to Petition for A Writ of Certiorari - **Published:** January 1, 1936 - **Citation:** 297 U.S. 447 ## Text FILE COPY a a “IN THE Bron Court of the Hrited States OcToBER TERM, A. D. 1935. No. 360 PENNSYLVANIA RAILROAD COMPANY, | Petitioner, vs. ILLINOIS BRICK COMPANY, : : Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE couRT OF Soy * FIRST DISTRICT. REPLY OF PETITIONER TO BRIEF FOR RESPONDENT IN OPPOSITION. \ ; Freperio D). McKenney, j Frank J. Loeson, } Epwarp M. Burke, Counsel for Petitioner. rea ‘. Ee ORR OM COmOA eo | Page Nc 56 oud bie s4aeeue sent beeeaeee ba eew kann 1 Ararat occ ccc cc re cers cccccccccesscseccccseues 4) Petitioner has complied with the rules of this DT. iss’ cin awewede Pereeeeeeeeeree oe Cases Crrep. Christy v. Elliott, 216 Ili. 31, 74 N. E. 1085............ 4 Home Insurance Company v. Dick, 281 U. S. 397, 74 'L. Ed. 926, 50 S. Ct. 338....... ecg eseeseaebensare 2 Maxcy-Barton Organ Co. v. ‘Glen ouneng Corp., 355 ie & 2S | are errr eee 4 National’ Can Co. v. Weirton Steel Co., 314 Ill. 280, 145 N. E. 399 ....... cae ee du NAee ANTES bSE NS 900 G40s 55 4 People v. Sandberg Company, 282 Ill. 245, 118: N.E. 7 OD gga 5 cd sap eedessenes see eeeccnsecegeceveesees 3 Pressed Steel Equipment Co. v. Thornburgh Pressteel: Co., 312 Ill. 359, 144 N. E.6 ........... eee eee eee 4 Welton v. Hamilton, 344 Ill. 82, 176 N. EB. 333.......... 2 Ruues or Court Crrep. Rule 38, Supreme Court of the United States......... 5 Rule 38, Supreme Court of Illinois.................. 5 IN THE Supreme Court of the Biter Hates OcToBER Term, A. D. "1935. No. 360. PENNSYLVANIA RAILROAD COMPANY, Petitioner, VS. ILLINOIS BRICK COMPANY, . Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE COURT | OF ILLINOIS, FIRST DISTRICT. REPLY OF PETITIONER TO BRIEF FOR RESPONDENT IN OPPOSITION. J URISDICTION. The first Federal question presented by this ded is _ whether the Illinois Commerce Commission had power under Federal statutes to enter an order contrary to a pre- vious mandatory order of the Interstate Commerce Com- . mission (Petition, pp. 2, 23; Petitioner’s Brief, pp. 29 and 37). Respondent contends this question was not properly raised in the trial court (Respondent’s Brief, pp. 13-15). Assuming, without conceditig, that this contention is cor-— 2 rect, still the Illinois Appellate.Court passed on the ques- tion by holding that respondent was not precluded from recovering reparation by any prior order of the Interstate Commerce Commission (R. 317). When the state appellate court passes on a Federal question, this court will not in- quire whether it was properly raised. (Home Insurance Company v. Dick, 281 U. S. 397, 407; 74 L. Ed. 926, 933; 50 S. Ct. 338.) Therefore, if all respondent’s statements - were true, this question is still before this court and is alone sufficient to confer jurisdiction. However, this Fed- . eral question was raised in the trial court by notice of spe- cial defense filed with petitioner’ s pleas, and in the other ways mentioned in our original brief (Petitioner’s Brief, pp. 29-30). | The remaining. Péderal questions are constitutional ones. Respondent (Respondent’s Brief, pp. 8-9) undertakes to classify the methods by which cemilibatenad questions may be raised under the Illinois practice. This classification omits the methods pursued by petitioner in this case, which are fully sanctioned by Illinois decisions. | The first constitutional question presented by the record is whether Illinois Commerce Commission had power under the commerce clause of the Federal constitution to award reparation contrary to a previous mandatory order of the Interstate Commerce Commission (Petition, pp. 2, 23; Petitioner’s Brief, pp. 32, 37). This question goes directly to the jurisdiction of the Illinois Commerce Commission over the subject-matter. It involves not only individual * rights, but matters of public policy. When an adminis- trative body thus: exceeds its jurisdiction, the constitu- tional question presented cannot be waived, under the IIli- nois praetice (Welton v. Hamilton, 344 Ill. 82, 95-98; 176 _N. E. 333, 338). Nevertheless, petitioner raised the ques- tion in the trial court by its notice of special defense, which 3 specifically, stated that the Illinois: Commission was ‘‘with- out power or jurisdiction’’ because of the Interstate Com- merce Commission’s decision, and by other methods. stated in petitioner’s brief (Petitioner’s Brief, p. 32). The second constitutional question is whether Illinois Commerce Commission had power under the due. process and commerce clauses to award reparation on a rate it had previously approved (Petition, pp. 3, 23; Petitioner’s Brief, pp. 32-33, 41). One way, among others, by which this question was raised was by introducing the previous - order of the Illinois Commission in evidence (Petitioner’s - Brief, pp. 32-33). Respondent says that the question was ‘ not raised in one of the ways he prescribes (Respondent’s Brief, p. 16). But offering evidence which would only be admissible if a certain statute is void raises the constitu- tionality of that statute (People v. Sandberg Company, 282 Ill. 245, 255 ; 118 N. E. 469, 473). . So here, offering evidence which was only relevant to show that: the reparation order was void, because in violation of the previous order, raises the constitutional question. The third constitutional question is whether Illinois _ Commerce Commission has imposed a confiscatory rate, and thus denied petitioner due process of law (Petition, pp. 3, 24; Petitioner’s Brief, pp. 33-35, 43). Respondent contends this. question was not properly raised (Respond- ent’s Brief, pp. 16-17). This question could only arise when the evidence before the Illinois Commerce Commis- _ sion was before the court. Respondent was not obliged to, « and did not, plead the evidence, and therefore petitioner could not raise the question in its pleas. After respondent _ had put the question before the court by introducing at the trial the entire record of the evidence and. proceedings before the Illinois Commerce Commission, and petitioner had also introduced the entire record in its defense, the 4 sufficiency of that evidence to support the award was in _ issue (See Petitioner’s Brief, p. 34). Petitioner presente the issue to the court for decision by its motion to find in its favor at the close of all the evidence (R. 266). “This motion raised the question of the sufficiency of the: evi- dence before the Illinois Commerce Commission and be- fore the court, and was an appropriate means of testing the constitutionality of the Commission’s award based on such evidence. It. is the general rule in Illinois that a mo- tion to find the issues in favor of a party, made at the close of all the evidence, presents all questions of law arising on — the evidence (Maacy-Barton Organ Co. v. Glen Building Corp. 355 Ill. 228, 230; 189 N. E. 326, 327. ‘National Can Co. v. Weirton Steel Co., 314 Ill. 280, 284; 145 N. E. 389, 390-391. Pressed Steel Equipment Co. v.: Thornburgh Pressteel Co., 312 Ill. 359, 366; 144 N. E. 6, 9). A motion presenting all questions of law raises questions of consti- tutional law, although it does not mention the constitution. ‘Thus. the Illinois Supreme Court has held, in the very case cited by respondent (Respondent’s Brief, p: 8), that ob- jections to instructions to the jury based on a statute chal- lenged the constitutionality of the statute, although the objections did not specify constitutional grounds (Christy v. Elliott, 216 Ill. 31, 36-39; 74 N. E. 1035, 1038). The contention of respondent (Respondent’s Brief, p. | 17) concerning the fourth constitutional ‘question is sufi- ciently answered in petitioner’s original brief (Petitioner’s Brief, p. 47)... » ARGUMENT. PETITIONER HAS COMPLIED WITH THE RULES OF THIS COURT. Respondent contends that the petition should be dis- ‘missed for failure to file a complete record, and cites Rule 38 of this Court (Respondent’s Brief, p. 19). Respondent has evidently overlooked Paragraph 7 of Rule 38, which provides that ‘‘where the record has been printed for the use of the court below and the necessary copies as so printed are furnished, it shall not be necessary to reprint _ - it for this court, but only to print such additions as may be necessary to show the proceedings in that court and the opinions there.’”? It has been the consistent practice of this court to accept abstract records, such as are used in Tllinois, as a basis for consideration of petitions for certi- - orari in this court. Furthermore, respondent has waived any objection to the sufficiency of the record by failing to file an additional abstract during the proceedings below. The constitutional questions urged here were presented to the Illinois Supreme Court by assignments of error. Rule 38 of that court makes it the duty of the appellant (petitioner here) to furnish a complete abstract of the.record.. This petitioner did, and that abstract is the record presented here. The rule further provides that the abstract ‘‘will be takén to be accurate and sufficient for a full understanding of the ques- | tions presented for decision unless the opposite party shall file a further abstract, making necessary corrections or ad- ditions. Such further abstract may be filed if the original abstract is incomplete or inaccurate in any substantial ‘part.’’ Respondent did not file any further abstract, either on the original appeal to the Hlinois Supreme Court or on petition to that court for certiorari, and therefore ac- 6 quiesced in the Illinois Supreme Court’s use-of petitioner’s abstract as a sufficient basis for consideration of the iden- tical errors now relied on. Respectfully submitted, Freperic D. McKenney, . Frank J. Logscu, Epwarp M. Bourse, Counsel for Petitioner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0343%3A03. Public record. Not legal advice.