Jurisdictional Statement — Shannahan v. United States

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Mei ? 2 a 4

EE A ee 5 aS

INDEX.

Suspsect Inpex.

Statement as to jurisdiction. ;

Statutory provisions sustaining jurisdiction. .

Statute involved .... ES Re Pree eC ee :,

Date of decree and date of application for ap-

peal tee BEL ee

Nature of case nen’

Cases believed to sustain jurisdiction betiavathe a

Exhibit ‘‘A’’—Opinion of the District Court of.the

United States for the Northern District of In-

| __ S WER Ons Pa aie Aneel AI te pie ge ke

a TaBLe or Cases CITED.

Alton v. U. S., 287 U. S. 229, 77 L. Ed. 275..........

~ B. &é O. Railway v. U. S., 264 U. 8. 258, 68 L. Ed.

ON et ge a kas er ee a 2

Claiborne-Annapolis Ferry Co. v. U.S., 285 U. S. 382,

ST OU nay et eee eee eG ety bb

- Colorado v. U. 8., 271 U.S. 153, 70 L. Ed. 878 Fin oe

- Powell v. U.S., 300 U. 8. 276, 81 L. Ed. 423........

~ Shannahan et al. v. U. 8. et al., 214 I. C. C. 167......

u. S. v. ted River Co., 265 U. 8. 533, 68 L. Ed. 1165.

Sratrutres Crrep.

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In THE

DISTRICT COURT OF .THE UNITED STATES FOR

THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION 3

In Egurry. |

No. 622

JOHN N. SHANNAHAN anp CLAUDE J. JACKSON,

as TRUSTEES OF THE Property or Cuicaco, Sourn SHore

anp Soutn Benn Ramzoap anp CHICAGO, SOUTH

SHORE AND SOUTH BEND RAILROAD

ia Petitioners,

UNITED STATES OF AMERICA,

Defendant, .

AND

INTERSTATE COMMERCE COMMISSION,

Intervening Defendant.

STATEMENT AS TO JURISDICTION ON APPEAL.

Pursuant to Rule 12 of the Supreme Court of ‘the United

States, the petitioners in support of the jurisdiction of the

- Tare ; |

ts or ere

_

2

Supreme Court to review the judgment, order and decree

in question, respectfully represent:

A.

The Judicial Code, Section 238 (Section 345, Title 28,

U. S. C. A.) and the Urgent Deficiencies Act of October

22, 1913, Chapter 32, 38 Statutes at Large 220 (Section 47,

Title 28 U. S. C. A.) provide that an appeal may be Shoes

direct to the Supreme Court of the United States from

the final decree in any suit brought to set aside, annul or

suspend an order of the Interstate Commerce Commission.

: —

meu

In a proceeding under Section ‘1 of the Railway Labor

_ Act (Title 45, U. S. C. A., Section 151) the Interstate Com-

merce Commission on February 14, 1936 (214 I. C. C. 167,

173) ordered, found and determined as follows:

‘‘We find that the line of the Chicago South Shore

and South Bend Railroad is not a street, interurban,

or suburban electric railway within the meaning of the

exemption proviso in the first paragraph of section 1 of

the Railway Labor Act, as amended June -21, 1934,

and it is therefore subject to the ——— of that

act.’’ ar

C.

~The decree sought to be reviewed was entered on the

17th day of September, 1937.

The application and petition for Pcs fer was Peg

on the 17th day of September, 1937

; Pouits D. - .

Pursuant to Section 209 of the Judicial Céde (Title 28,

ae

-§.C. A, ‘Section 45) a petition was filed in the District.

Yourt ‘of the United — for the Moyers District of

Indiana, South Bend Division, invoking its juris@iction un-

der subdivision 28 of Section 41 of Title 28/U. S. C. A., to

set aside, annul and suspend the said order, finding and

determination ‘of the Interstate Commerce Commission

made February 14, 1936.

A three judge statutory court was convened pursuant to

the provisions of the Urgent Deficiencies Appropriation

Act of October 22, 1913, Chapter 32, 38 Statutes at Large

220 (Title 28, U. S.C. A., Section 47). The case was heard |

in the District Court iy three judges and a final decree

entered on the 17th day of September, 1937, dismissing the

suit for want of jurisdiction, one judge dissenting.

BE.

The following decisions are believed to sustain juris

diction of this appeal: ¥.

Claiborne-Annapolis Ferry Co. v. U. S., 285 U. 8. 382,

. at 390-391, 76 L. Ed. -808 at 814;

Colorado v. U. §., 271 U. S. 153, 161, 70 L. Eid. 878, 882;

Alton v. U. 8., 287 U. 8. 229, at 237, 77 L.. Ed. 275, 281;

U.S. v. New River Co., 265 U. 8. we, 539, 640, 541, 68 .

L. Ed. 1165, 1171-2;¢ =

Powell v. U; S., 300 U. 8. 276, a, 285, 81 L. Ed. 423,

at 427-8;

_&B. d O. Railway v. U. Ser 264 U: S. 258, at 262, 264-5,

68 L. Ed. 667.

We respectfully submit that the United States fnitcans v

. Court has’ jurisdiction of this appeal.

r Pitesti —: eer

A ua JE Joun C. Lawyer, ~

~ Counsel for Petitioners.

4 so Hes)

EXHIBIT ‘‘A”’.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF INDIANA,

- SOUTH BEND DIVISION.

Filed at — M. Aug. 16, 1937. Margaret Long, Clerk U. S.

District Court.

Equity No. 622.

Joun M. SHannawan and Ciaupe J. Jackson, as Trustees

of the Property of Chicago South Shore and South Bend

Railroad, and Cuicaco SourH SHore anp Sour Baxp

RatroaD, Petitioners,

vs.

Unrrep SrarEs or America, Defendant.

Before eats Circuit Judge, and Baltzell and Slick, District

Judges.

Views of the Majority of the Court, Evans and Baltzell.

On February 14, 1936, the Interstate Commerce Commis-

sion filed its report in writing which contained, among other

things, the following paragraph:

| ‘*We find that the line of the Gite South Shore

and South Bend Railroad is not a street, interurban,

or suburban electric railway within the.meaning of the

- exemption proviso in the first paragraph of section 1

of the Railway Labor Act, as amended June 21, 1934,

and it is therefore subject to the provisions of that act.’’

The report appears in 214 I. C. C. 167-173.

_Preceding this finding is a statement which sets forth the

proceedings of the Interstate Commerce Commission and a

resume of the evidence. received on the h

The petitioners brought suit against the United States to

‘enjoin, by temporary restraining order .and interlocutory

preliminary: injunction, the “Interstate Commerce Com-

mission from ee or — the aforesaid: — find-

5

ing, and ‘determination that the line of the Chicago South

Shore and South Bend Railroad is not a street, interurban, 3

or suburban electric railway within the meaning of the ex- d

emption proviso in the first paragraph of section 1 of the

Railway Labor Act, as amended, and that said order be set

aside, annulled and suspended.”’ |

The Interstate Commerce Commission intervened.

The determinative question is one of jurisdiction.

Is the case one for the determination of a three judge

statutory court? “The answer to this question turns upon the

character of the ruling which was made by the Interstate

Commerce Commission. . ;

A three judge statutory court is one of limited jurisdic-

tion. Procter & Gamble w. United States, 225 U. S. 282;

United States v. Atlanta, Birmingham & C. R. Co., 282 U. S.

522; United States v. Los Angeles & S. R. R. Co., 273 U. S.

299; Great Northern Ry. Co. v. U. S., 277 U. S. 172; Pitts-

burgh & West Va. Ry. Co. v. U. S., 281 U. S. 479.

Its jurisdiction is limited to ‘‘cases brought to enjoin, set

aside, annul, or suspend in whole or in part any order of the

Interstate Commerce Commission.’’ Section -207 of the

Judicial Code, U. 8. C. Title 28 Sec. 41 (27) and (28).

We are therefore first called upon to determine whether ®

the report of the Interstate Commerce Commission was an

order of that body. :"

It may be readily conceded that it is not the name which

the Commission gives to its action or to the document which

evidences its action that determines whether it is a finding, a

report, or an order. For example, the Interstate Commerce

Commission may call am order a report or the report may

call an order a finding. Likewise, counsel may calla finding . ;

an order or a conclusion, a finding. Courts are not interested .

in the names used, but in the action taken by the Interstate

Commerce Commission:

The Supreme Court cases cited above apply to instances

where a report was held not to contain an order. In United

States v. Los Angeles R. R. Co., supra, it is said:

‘The final report on value, like the tentative report,

is called an order. But there are many orders of the

. .

. ~ , + ie —— ———

6

Commission which are not judicially reviewable under

the provision now incorporated in the Urgent Defi-

ciencies Act.”’ :

An examination of the entire report fails to show wherein

the Interstate Commerce Commission made any order or di-

rection to the’carrier. It made a finding. Later it may make

an order upon that finding. Likewise, it may modify its

finding or withdraw it. Until an order, however, is made

upon the*finding, a three judge court is without jurisdiction

to act.: Such a court may ‘‘enjoin, set aside, annul, or

suspend’? only an order of the Interstate. Commerce

Commission.

Having no jurisdiction of the cause, it (a three judge

court) cannot even determine whether an equitable cause of

action is stated which may entitle the plaintiff to relief in the

United States District Court for the Northern District of

Indiana, South Bend Division. Such question is for the

District Judge of that court to determine.

For the reasons stated this three judge statutory court

must decline to take jurisdiction of the cause or grant the

relief sought. ae 4

= dissenting, in a separate seaman

a

Upon the filing of this memorandum the port are di-

rected to present a proper order and special ees ‘of fact

and conclusions of law.

Suck, Judge ( dissenting)?

The matter “tuivobved’1 in this cuieoweiesy i appears so im- .

portant to me that, notwithstanding the great respect I

have for the majority opinion filed by my worthy Associate

Judges, I am constrained to briefly express my views in

this dissenting opinion. |

In United States et al. v. Los Angeles and Salt Lake

Railroad Company, 273:U. 8. 299, relied upon by defend-

a

.

ants, the Supreme Court seéms to fix a rule for determin-

ing the question of jurisdiction of a three judge court,

depending upon whether the Interstate Commerce Commis-

sion in making its finding was exercising a quasi-judicial

function to determine controversies. ;

In this case the Interstate Commerce Commission func.

tioned in a quasi-judicial manner. The Railway Labor Act

' . puts certain duties and obligations upon carriers, and in

defining ‘‘carriers’’, the act provides that there shall not

be included any street, interurban or suburban electric

railway, unless such railway operates as part of a general

steam railway system. The act authorizes and directs the

Interstate Commerce Commission upon request of the

Mediation Board to ‘‘determine' after hearing whether any

line operated by electric power falls within the terms of

this proviso.’”’ The Mediation Board made such a request

and this was in the nature, under the statute, of a suit.

Notice was required and given. A hearing was had. Evi-

denee- was taken. Arguments were made and briefs. filed.

Then followed a final determination or order as follows:

‘“‘We find that the line of the Chicago South Shore and

' South Bend Railroad is not a street, interurban or sub-

urban electric railway within the meaning of the exemption

proviso in the first paragraph of Section 1 of the Railway

Labor Act as amended June 21, 1934, and it is therefore

' subject-to the. provisions of that act.’’ |

_. In United States et al. iv. Los Angeles and Salt Lake

_ Railroad Company, supra, which involved an appraisal of

property only, the court in deciding that the case was not

. triable by a three judge court, said that the so called order

did not ‘‘grant or withhold any privilege or license’’; that

the finding did not ‘‘extend or abridge any power or facil-

_ ity’’; that the order did not ‘‘subject the carrier to any

_ liability, civil or criminal’’; that the finding did not ‘‘change

» the carrier’s existing or future status or condition.”

- . The finding or order in this case does withhold a privi-

lege; that accorded electric interurbans to exemption from

_ the operation of the Railway Labor Act. It does abridge’

_ .the rights and powers of the Chicago South Shore and

et aelaliae _— — wa ne .

ne ee ee wR Cone aE re | +

8

South Bend Railroad. It subjects the company to civil,

possibly criminal, liability, and is so treated by the Media.

tion Board in demanding a compliance with the order. It

changes the company’s existing-and future status from an

electric interurban to a carrier, as defined under the Rail-

way Labor Act, and determines the company’s status and

fastens upon it an obligation. It was in effect and for the

purpose of the hearing, an order fixing and determining

the status of the company and deciding that the er

is ‘‘subject to the provisions of the act.’’

The act of Congress giving this court pee keer pe “ome

not define or limit the nature of an order to render it

reviewable. The order here is the final determination and

finding that the South Shore is a carrier, and that it is

therefore subject to the provisions of the Railway Labor

Act.

The proceeding before the Interstate Commerce Com-

mission was an adversary one, contested, tried, and decided

like any other suit. It was a quasi-judicial proceeding fix-

ing the status of the South Shore, fastening upon it cer-

tain obligations, rendering it subject to certain civil lia-

bilities. What more could a final order do?

I cannot avoid the conclusion that here was an order

within the intent and purpose of Congress, and that this

three judge court has jurisdiction. ‘‘We find’’ that the

company is not an electric interurban and ‘‘that it is sub-

ject to the provisions of the Railway Labor Act’’. How

much stronger would it have been had the Interstate Com-

merce Commission preceded its final decree by the formal

words usually found in a court. order ‘‘it is. therefore

ordered’’? The real meaning of the Commission’s finding

is that the plaintiff is not an electric railway, and that it

comes under the provisions of the Railway Labor Act, and

that it shall be governed accordingly and submit to the

regulations of the Mediation Board.

If this is not an order affecting the existing and future

status of the Chicago South Shore and South Bend Rail-

road, it is hard to understand what it really is. Equity

does not regard form and should not regard technicaiities.

. Pi .

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ad .

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It looks through the form to discover the merits. The real

merits of this controversy are whether or not the Chicago

South Shore and South Bend Railroad is to be governed

as a carrier and compelled to comply with all the require-

ments of the state and federal acts applicable to carriers,

or whether it is in truth and in fact an electric interurban

- or suburban railway.

In my opinion the Interstate Sidnieas Commission was

acting.as a quasi-judicial body in making this ruling and

. order, and that therefore this court has jurisdiction.

(1729)