Motion of the ICC to Affirm — Dixie Carriers, Inc. v. United States

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puPREME C* COURT. Us es AUG LL 185

- No. 233,

_ Inthe Supreme Gourt ofthe Wnited States

Bice OCTOBER TERM, 1955 _ | ee

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Drxre Carriers, INC.,, ET AL., APPELLANTS —

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UNITED STaTes or AMERICA, INTERSTATE. Com MERCE 7

| ComMMISSION, a

APPEAL FROM THE UNITED STATES DISTRICT COURT —

FOR THE SOUTHERN DISTRICT OF TEXAS

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MOTION OF THE INTERSTATE COMMERCE COMMIS- ae

‘SION TO AFFIRM |

Pd:

INDEX

; : . Page

Statement in NI 8 944 Ce ahead os Neen ieee aa |

Argument —. re | bf be 4

_Argumen Fi : sk |

| | TABLE OF CASES © - ,” -

Bituminous Coal to Saitaihian: 163, Too. + 5

Board of Trade of Troy, Ala. v. A.M. Ry., 6 2 pre 1 5

Carr v. Yokohama Specie Bank Ltd., 200 F. 2d 251 if $.

Denver & R.G.W. R. Co. vy. Union Pacifie R. Co., 2877 1c. 611 9, 11

' Interstate’ Commerce Commission v. Mechling, 330 U.S. 567...) 4;6,7

Schilling v. Schwitzer-Clmmins Co., 142 F. 2d 82... -. a... °° 8

. Texas & Pacific Ry. v. 1.C.C., 162 US -197— Bia toe ; 5

Thompson v. United States, 343 US. 549, ete roe 10

United States v. Baltimore & O. R.R. Co., 231 U. S. 274 : | i

United States v. Capital Transit Co., 338 U.S. 286 pe se

United States v. Great Northern Ry. Co., 343 U. 5. 562. a 10.

Statutes: . ee = “ek

PS st Pee roe |

40 U.S.C., Section 3(4)) . ss. e ry pune : eee

.. 49U.S.C., Seetion 15(3) SOC SETS Serene eer eee |

Rania Section 307(d) ee ee ee elec rade Coan aoe

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_StheSopene Court of the id sins

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No. 93333

Dixitk CARRIERS, INc., ET AL. , APPELLANTS ©

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Unirep ‘STATES ¢ OF ’ Asie A, INTERSTATE Com tenc FE

Si COMMISSION, ET AL.

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MOTION TO AFFIRM th

Pursuant-to Rule 16, paragraph (c), of the Re-

~ vised Rules yf the Supreme: Court of the United. _

‘States, the Interstate Gommerce Commission moves

that the judgment of the District Court be affirmed.

This is a-direct appeal from the final judgment

. entered February 16, 1955, by a- specially consti-

tuted three-judge District Court converter pur-

snant to 28 U.S.C. 2284, dismissing appellants’

coniplaint seeking to set aside an order of the Inter-

state Commerce. Commission. Notice of Appeal

was filed on May ‘1%, 1955,.and the appeal papers

were rec ‘eived on July 13, 1955.

STATEMENT |

Appellants filed a complaint with the C ommis-

sion. on December 13, 1950, alleging that the refusal:

of certain railroads (defendants before the Com-

mission and intervening defendants herein) to-es- .

tablish and maintain reasonable through routes and

joint rates with appellants on’ sulphur from Gal-

veston, Tex., to Danville, Il., is in violation of Sec-

tions 1 and 307(d) of the Interstate Commerce Act,

and that said railroads are maintaining ‘rates and

- charges whith are discriminatory against appel-

7,

ging Crore.

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giving the Commission’ definite powers (which

theretofore had been uncertain) over divisions of

rates, it set forth in paragraph (6) of the present

section certain standards or criteria by which the

- Commission Was to be governed in preseribing just,

reasonable and equitable divisions. A search of the |

Act does not reveal similar provisions governing

- the-Commission’s prescription of other eharacters

of rates. In view of the foregoing, it is submitted

that the decisions ofthe’ Commission and the Dis-

trict Court are not contrary to the decision in the

satis ease as contended by appellants.

In regard: to appellants’ contention that the

‘District Court did not pass upon the question of

: discrimination under Section 3(4) of the Act, or-on

the question of whether a division of a joint rate

is a rate within the meaning of paragraph 4, it is:

; submitted that the conrt below did consider these

questions. eae?

- The Court specifieally found at page 33 of the’

opinion (129 F. Supp. 28) that:

- When the whole record is oa ee in the

light of all the provisions of the Act and the —

many cases construing ‘same, we think plain-

tiffs have. not po" n their claim to be meri-

torious.

This finding or conclusion i is sdsquate. We know

| of no rule or law or decision-of the courts requiring

that a different kind of finding or conclusion should

be made or stated. |

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Furthermore, in regard to appellants’ conten-

ion that the Court below did not pass on the ques-

ion of whether a division of a joint rate is a rate

rithin te meaning: of paragraph (4) of Section

it is pointed eut that 'this question was not spe-

ifically raised in the complaint before the Com-

nission.. In any event it will be seen from the deci-

ion of the Commission that counsel for appellant’

vaived the question.” Therefore,. since:that, ques-

ion was not raised in the complaint and was

vaived at oral argument, the Court would have

een justified in giving no consideration .to it.

Tnited Statés v. Baltimore & Ohio R.R. Co., 231

1S. 274, 297). However, instead of ignoring this °

ssue the Court passed upon it by-making the find-

ng heretofore quoted that upon the record as a

vhole ‘ Plaintiffs have not shown their claim:to be

neritorious”’ (p. 33), and that the Vechling case

‘is not controlling here.’’ (p. 35.)

Even assuming that all the issues raised by ap-

2 The Commission stated in its report* on reconsideration,

91 1.C.C: 422, 423, that: @

At the oral argument counsel for complainants agreed

that one way the alleged discrimination could be removed

would be by the use of $2.26 as a proportional rate for

the. services of the defendants operating! from East St.

Louis to Danville, which is the amount received by them

‘as a. division of the joint barge-rail rate of $6.66 from

Port Sulphur to Danville. He stated, however, that, he

did not believe that hat was one of the issues of their

complaint. This belief appears to be correct. The com-

plaint in this respect is directed against the alleged dis-

crimination in favor of rail lines serving Galvestqn and

not Port Sulphur, and, what. the rail lines receive as their

share of the rate frotn Pert Sulphur is not helpful here.

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" pellants may not-have been discussed in the Court's

opinion, nevertheless this would be. similar to a

court saying | as this Court said in United States .,

C ‘apital Transit C 0., 3388 U.S, 286, 291:

We have cxmmiined other contentions urged

in support of the District Court’s judgments

and find that all are without merit. ° _

In Schilling v. Schwitzer-( Aummins Co., 142 F..

2d 82, 84, the Court said:

*** While.counsel may be disappointed that

findings do not discuss propositions sincerely -

contended for, that, atone, does not make them

‘inadequate or suggest that such propositions

_ Were not understood by the court.

We, therefore e, submit that it is not necessary

that the trial court. make findings asserting ‘the

- negative of each issue of fact raised. As the Court

said in Carr v. Yokohaia Specie Bank, Limited,

200 F. 2d 251, 255:

* * * Nor‘is it necessary that the trial court

make tindings asserting the negative of each

issue of fact raised. It.is sufficient if the spe-

cial affirmative facts found by the court, cone

strued as a whole, negative each rejected con-

tention. The ultimate test as to the adequacy

of. findings will always be wliether’ they are

safficiently comprehensive and pertinent to.

the issyes to provide a basis for decision and.

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whether they are ‘supported by the evidenée.

* * * Sy

Finally, we should like to say a word in regard

to appellants’ contention, that. the Commission’ g,

finding in Denver & R.GW. Roo. v. Union Pa-

cific R. Co., 287 LCL. 611, that the failure of the

Union Paeitie to intere ‘hange traffic with the Rie

Grande over through routes and at. joint rates, ,

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while makingQ&such intere hange with the Bamber- \——,

ger, subjected the Rio’ Grande to discrimination in

violation of Section 3(4) of the Act. This finding,

was approved by the three- judge court, District of

Nebraska, in Union. Pacific ¢ ‘om pany, et” @..%:'

United States, ct al?

That case is distingnishable, The Siueuen there.

were depriv ed of the right to route their shipments

via the Rio Grande except at the higher « combina-

tion rates whie h were substantialiy in excess of the

joint rates.

In the-instant case appellants alleged that the

failure and refusal of the railroads to establish

through routes and_ joint harge-rail ‘rates on sul-

phur from Galveston, Texas, to’Danville, IL, via

Kast St. Louis, Il., is in violation Sus wenn land

307(d) of the ‘Act and was diserimi latory against

the water carriers in violation of Section 3(4).

They requested the Commission to establish-such

Case not vet reported, opinion filed Octoher 22, 1954,

-appeal pending before this ‘ourt in Nos: 417, HIS and 149. In

another suit -heard before the three-judge court, District of

Colorado, Civil No. 4492, the same order Was set aside in

so far as it denied relief to plaintiff. Case not yet reported.

10, F _ ne

through routes and joint rates, with reasonable

differentials wider the all-rail rates.’ |

@e Asa matter of fdet in the instant vase ihe all

rail rate on sulphur from Galveston to Danville,

via East St. Louis, HL. of $9.184 per ton, is higher

than the present combination harge-rail. rate of:

$8.27 hy 91.4 ceists, and the evidence shows: that the

rate over the all-rail route is already on ‘a tepressed

basis (291 1.C.C, 422, 423: Tr. 39-40). |

Attention issealled to the fact that insofar as the

instant pase i is concerned, Section 34) of the Act

‘deals shlely with *‘rates, fares and charges,”’ and

no metition i is made therein of through routes. This

Court held i in Thompson v. U nited States, 343 U.S

49, 558, that the existence or non-existence of a

through: ‘route does not depend on the applicable |

rates; and that the establishment of joint. rates is

an entirely. separate and distinct matter from the

3 establishment of through routes. l'nited States v.

Great Northern Ry. Co., 343 U.S. 562 at page 573.

Since a through route must be established he fore

Opinion filed January 13, 1955. Notice of appeal to this |

Court filed Tune 22, 1955.

* Division 8 of the C ominission found that the ost: phichoneet’

of the through routes and joint rates sought had not been

shown to be‘necessary or desirable: in the publie interest: and

> that a Sectigh 314) violation had‘not been shewn (287 LOC.”

403, 407). “<The entire Commission, on reconsideration, art

proved this finding: (291 1.C.C. 422, 425) and. found also that

the record affords no support for finding that “the present -

combination barge-rail rate 91.4 cents lower than the present

all-rail rate, is unreasonable for the through .service «offered

thereunder”: (p. 423) “It further found that there was no

evidence affording a‘basis for a conelusion that the proposed

difference Y! $1.514 between the present all-rai rate from

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a joint rate comtd be prese wribed and no | thréugh |

harge-rail route exists, the Commission could tot

prescribe a through route, because, as: it found,

there was ne showing ° from the evidence that. |

through routes wer? neg essary. or desirable in the

ease. Each case’ must stand-on its own facts, and

the Cotumission in the instant ¢ ase found from the

facts that a violation of See tion 3(4) had not been

- shown. On different facts and under different cir-

‘cumstances, it found there was a Violation of Sec-

tion 3(4) in the Union Pacifie case.

For the’ foregoing reasons, it is evident that this °

appeal presents no substantial questi

therefore, respectfuliy submitted that the judg-

ment of the District Court isitersy he affirmed.

_ Respectfully submitted, © ea

Samven R. Howetn,

Acting General Counsel,

Fnterstate Commerce Commission,

| Ww ashington 25, D.C.

JULY, 1950.9 - | 3

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Galvesten: (whieh appellants sought), or any y other partic ular

differeniial, is required to remove the alleged discrimination

against the barge lines. The record shows that no-shipper ap-

peared. or evidencéd any interest in the rate sought, and that

the rate over the all-rail route was, in fact, on a depressed

basis, The Commission then stated that it could not find that

‘the publie interest requires the establishment of the joint

barge- rail rate sought. ([bid.)

‘Section 1513) contains the following applicable provision:

- The Commission may, and it shall whenever deemed

“by it to doe necessary or desirable in the. public interest,

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public interest.” “i is thus believed clear that the

instant case is ‘different from the 1 nion Pivrfie -— -

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CERTIFICATE OF SERVICE

I, Samuel R. Howell, counsel for appellee Inter-

state Commerce e Commission, and a member of the

Bar of the Supreme Court of the United States,

hereby certify, that on ‘the lith day of August, 1955,

‘T serv ed copies ‘of the foregoing Motion tt Affirm

. Ou the parties to this proceeding ‘as follows:

1. On appellants, by mailing copies in duly

_ addressed envelopes, with air-mail postage

prepaid, to its attofiieys of record, as follows:

Nuel | ;

Belnap, Esq., . |

One North La Salle Street,

~ Chieage, UL 3

Kenneth McAuliffe, Esq.,

233 Broadway,

New York 7, N.Y.

and with first-class postage prepaid to:

Donald Macleay, Esq.,

1625 K St., N.W.,

Washington 6, D. C.

¢

2. On the United States’ of America, by -

mailing .copies in duly addressed envelope

-with first-class postage prepaid to:

Honorable Simon E. Sobeloff,

Solicitor General of the United States,

Department of Justice,

Washington 25, WD. C.

tive without complaint, establish through reutes * * *

and joint rates * * *.

Section 307 (d} contains an identical prov ision.

after full he ‘aring upon complaint or “upon its own intia-

13.

3. On the intervening. railroad defendants,

by mailing copies in duly addressed enyelopes,

with air-mail postage prepaid, to their attor-. .

neys of record, as follows:

John A. Daily, Esq.,

1225 La Salle Street Station,

Chicago 5, Ll.

2almer (. Hutchenson, Jr., Esq.,

Rooni 1720 Niels Esperson Bldg.,

Houston, Texas.

This, the 11th day of August, 1955.

SAMUEL R. Howe ut.

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Cou S SOVENNMENT PRINTING Office ‘555 4Sbses me