# Petition for Writ of Certiorari — TI ME Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0158%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 359 U.S. 464 ## Text Office - Supreme Court, US. | - " FILED - MAY 26-195 pOHM.T. FEY; Clock _In the- 4 _ Supreme Court of The. 2 aga OCTOBER TERM, 1 TL ME. InconPoRATED, AS Petitioner and Apeties! Below, . _* Unrrep States or AMERICA “PETITION FOR WRIT OF CERTIORARI TO THE ' ‘UNITED STATES COURT OF APPEALS _, FOR THE FIFTH CIRCUIT => a W. D.Benson, Jr. ee : a P: ©, Box 1120 3 a | . Lubbock, Texas peer a gh “Counsel for Petitioner - = - IN I A Opinions of the Court Below 0.00! I '. SUBJECT INDEX -...°»\: Jurisdiction oA Vek Sane Tira t MMMMOMMNINN We TUN noo Siceecceesteceriagsnterss Bae s Statutes Applicable |... re ee Statement of. the Case .............. Tioaae stata SSNS os 8 Reasons for Granting of Writ — aia Ze HOR iste i | TABLE OF CASES CITED — ad ‘ Pages % Montana-Dakota Utilities Company vs. Northwestern 3G Public Service Company, 341 U. Ss. RN ee 10, 13 United States vs. Western Pacific R Company, | ae MOT ic a ae TABLE OF STATUJES CITED eS Title 49 United States Code 15.(7) an ence al nae ; 34 “Title 49 United States Code a... ee ae fe 35, " Title 49 United States Code 304(a) ee ae oe ‘Title 49 United States Coda 316(e) Abt ; sae Riera . 5 ; Title 49 United States Code 317(a)-.....---cccccccencceeee Mee Title 49 United States Code 322( b) ( e). aoc eee Title 16 United States Code 824(d) Per Te pee re ner 36 | ‘Title 16 United States Code B24(€) oath a REGULATIONS - Interstate Commerce Commission Tariff ; é MF. 8, Rule 4, (i) 2.00000. pce aera No. tg ah cae : . In the Supreme Court of The United § States. 3 _ OCTOBER-TERM, 1954° Tl. M. E. INCORPORATED, Petitioner and ——- Below, vs. UntreD STATES OF AMERICA Respondent and resnacs’ Below. . PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEA@S | FOR THE FIFTH CIRCUIT TO THE HONORABLE EARL WARREN, CHIEF JUSTICE OF THE UNITED STATES, AND THE AS- SOCIATE JUSTICES OF THE SUPREME COURT OF . THE UNITED STATES: Your petitioner, TL. M. E. Incorporated, sicily _ shows:. ‘ rs i ‘4 1 OPINIONS OF THE COURT BELOW The opinion of the United States District Court for the Northern District’ of Texas is unreported, but is found in . the Record at Pages 31:38 and appended hereto (Ap- | 1 pendix P. 17). The opinion of the United States Court - of Appeals for the Fifth Circuit is reported in 252 Federal — Second Series, Page 178, and is found in the ecord ‘at Page 50 end is — mere. ( eehnrne ; 26). 2. JURISDICTION | The date of the judgment of the court below is tian ary 30th, 1958, motion for rehearing overuled February : 25, 1958 (R. 62). This Court has jurtediction under Title 28, Section’ 1254, (1) of the United States Code and is provided for. under the rules’ of this Court in Rule 19, 1(b). 8. QUESTIONS FOR REVIEW The basic question for review may be stated thus:. . (1) In a suit on past shipments instituted by a Motor Carrier operating in interstate commerce under the .au- thority of the Interstate Commerce. Commission against a shipper (United States of America) upon the applicable rate ‘provided for in its tariffs, may the sole defense by the shipper that the applicable rate is unreasonable, re- quire referral of the question of the reasonableness‘ of the applicable rate to the Interstate Commerce Commission. Restated: In the absence of snpaietion authority in the Interstate ’ Commerce Commission in Motor Carrier cases, may the defense, in.a suit upon an applicable rate, that the ap-- plicable rate is unreasonable and .being the sole issue F - . $ I bad : 2 : : Path e s \ . . ° ‘ > " . og involved, be referred to | the Interstate Couiiaieace: Com- mission for the determination of unreasonableness alone. | 2) The siciidiite for determining a réasonable rate, if referral is permissible, on past Motor Carrier shipments. 4. STATUTES APPLICABLE ee r= Tae: Se portion of ‘daction 917 of Part II of the: Interstate Commerce Act, August 9, 1935, c. 498, 49 Stat. 560, 49 US.C.A. Sec. Si7(s), (b) and (c) provides: =m “(a) nen common carrier by motor vehicle shall .. file with the Commission, and print, and keep open _to public inspection, tariffs showing all the rates, fares, and charges for transportation, and all services in connection therewith, of. passengers of property in interstate or foreign commerce between points on its own route and between points on its own. route and points on the route of any other such carrier,***” ’ “(b) .No common carrier by. motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or _ for any service in connection therewith between the _ points enumerated in such tariff than the rates, fares and charges specified’ in the. tariffs in effect at the _ imexénd no such carrier shall refund or-remit in any manner or by any device, directly or. indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so. specified, or exten” to any person any privileges or facilities for trans- portation in interstate or foreign commerce except — 8 - -~ such as are specified in its tariffs: Provided, that the provisions of Section 1 (7) and 22 of this title shall apply to common carriers by | motor vehicles subject to this cae. ? “(c) No ya shall be made in‘ any’ rate, fare, --charge, or..classification, or any rule, regulation, or - practice affecting. such rate,. fare, charge, or classi-. _ fication, or the value of. the service’ thereunder, specified in any ‘effective tariff of \a common catrier by: motor vehicle, except after 30 days’ notice of the - -_ proposed“change filed and posted in accordance with - . paragraph (a)- of this section. Such notice shall “ plainly ‘state, thé change proposed to be made and. the time when such change will take effect. The commission may, in its discretion. and for good cause - shown, allow such a change upor notice less than . ‘that herein specified or modify the requirements of this section with respect to posting and filing of tariffs ae either. in particular instances or by general order ap- | _ plicable to special or ‘pecular circumstances or con- . ditions.” : | a 3 Vit. “The relevant portion Section 999 af Part iT of the _ Interstate Commerce Act, August 9, 1935, -c. 498; 49 Stat. _ 564, 49 U.S.C.A. Sec. 322 (b) and (c), provides: -. “(b) If any motor carrier or broker operates : in - viclation-of any provision of this chapter (except as to the’ reasonableness of rates, fares, or charges and the discriminatory character thereof), or any rule, regulation, requirement, or order thereunder, or of any term or condition of any certificate or permit, -~ the Commission or its duly authorized agent- may apply to the district court of the United States. for any district where’ such motor . carrier or broker ap- erates, for the enforcement of such provision of this chapter, or of such rule, regulation, requirement, order, term, or condition: °°°” ke) Any~ person, whether carrier, shipper, con- representative thereof, who ... . shall knowingly and willfully assist, suffer or eens ahy person or. persons, natural or artificial, to obtain transportation of :pas- sengers or property subject to’ this chapter-for less’ . _ than the applicable rate, fare, or charge; . . . shall be deemed guilty of a 'misdeameanor and upon convict: ion thereof be fined not more than $500 for the first © offense and not more than $2,000 for any subsequent offense.” | The relévant portion of Section 216 of] Part Il of the “Interstate Commerce Act, August 9, 1935, c. 4 % ee 2 558, 49 U.S.C.A. Sec. 316(e), (g) and (jy provi | “(e) Any person, state board, ‘dtganization, or. body: . politic may’make complaint in writing to.the Com- mission that any such rate, fare, charge, classification, rule, regulation or practice, in effect or proposed to be put into effect, is or will be in violation of this — section or of Section ‘317 of this title. - Whenever, after hearing . . . the. Commission: shall be of the opinion that. ay ‘tadividual or joint rate; fare, or_ charge, demanded, charged, or collected by any com- mon carrier or carriers by motor vehicle or ‘by any junction with any common carrier or carriers by -rail- road and/or express, and/or water for transportation in interstate or foreign commerce, or any classifica- ‘5 os signee, or broker, or.any officer, employee, agent, or . jon carrier or carriers. by motor vehicle in con- .. \ Pre r 4 mf ¥ ; / / rd A - tion, rule, regulation, or practice whatsoever of such _ carrieror carriers affecting such rate, fare or charge. _or the value of the service thereunder, is will be un- just or unreasonable; or unjustly — inatory or unduly-preferentia] or unduly prejudicial, it shall de-. termine and prescribe the lawful rate, fare,-or charge or the maximum or minimum, or maximum and ‘mini- mum rate, fare, or charge thereafter to be observed, or the lawful classification, rule, regulation, or- ata tice thereafter to be made effective:* °°” — “(g) Whenever there shall be filed with the Com. - mission any schedule stating a new individual ‘or _ joint rate, fare, charge, or ‘classification for. the trans- ' portation of passengers or property by.’ a common —x« earrier or carrigrs by motor vehicle,‘or by any such- carrier or carriers in conjunction with a common ' carrier or carriers by railroad and/or express, and/or water in interstate or forgign commerce, or any rule, regulation, or practice affecting such rate, fare, or charge, or the value of the service thereunder, the Commission is authorized and empowered upon complaint , of any interested party’ | Or .upon its , own initiative at once and, if it so orders, without answer or. other formal pleading by the interested — carrier or carriers, but upon reasonable notice, to enter. upon. a hearing concerning the lawfulness. of - such rate, fare or charge, or such rule, regulation, ot *’ practice, and pending such hearing and the decision - thereon the Commission, by filing with such schedule and delivering to the carrier or carriers affected there- _ by a.statement, in writing, of its reasons for such suspension, may from time: to time suspend: the. op- eration of such schedule and defer the use of such © 6 _ rate, bones or aie or sis rule, regulation, or prac- _ tice, but not for 4 longer period than seven months ‘beyond the time when it would, otherwise go into - ** effect; and after hearing, whether completed before or after the rate, fare, charge, classification, rule, re- - gulation, or practice goes into effect, the Commission _may make such ‘order with . reference theret6. as would be. proper in a proceeding instituted after it had become effective.. Ifthe proceeding has ‘not . been.concluded and an order made-within the period. of suspension, ‘the proposed change of rate, fare: ‘or P charge, or classification, rule, regulation; or practice, shall go into effect at the end of aaah period. Agee men) Nothing io ‘this ‘seetion’ shell “be held: t0 ex- 'tinguish any remedy or right a action not inconsistent —_ herewith.” The relevant portion. of Section: 204a of Part II of the Interstate Commercé :Act, June 29, 1949, c. 272, 68 Stat. MDa, . 280, ee Sec. 304a (2)(5), pewvices: | “For recovery of overcharges, ‘action at law shall ee begun: against common carriers by motor vehicle _ subject to this chapter within two years from the’ time the cause of action accrues, and not after, subject to Paragraph (3) of this section, except that if claim:for the’ overcharge has been presented in writing to the carrier within the two-year period of limitation said ; period shall be extended to:include six months from . the time notice: in writing is given by the carrier to’ the claimant of disallowance’ of’ the claim, or any part or parts thereof, specified in the notice.” _ . (5) “The term ‘ov ercharges as used jn this section. shall be deemed to:mean charges for transportation _ . services in excess.of: those applicable thereto ‘under _ the tariffs lawfully on file with the Commission.” _ Compare same provisions Federal Power Act 16 USC ‘824d-e (Appendix Page 36). Contrast provisions Part I - ae Interstate Commerce Act (Railroads) Sec. 15, as’ - _ * amended Feb. 28, 1920 ch. 91, 41: Stat. 486, 49 USC Sec. ~ 15(7) -(Appendix P. 34). Sec. 16 of Part. I Interstate Commerce Act, as amended June 7, 1924, ch. 325, 43 Stat. 633,. September 18, 1940; ch. 722, 54, Stat. 318, - bas USC See. 1 aaa Page 85). | oe | - STATEMENT OF THE. CASE > T his case was: brought by Petitioner. against Beeston for freight. charges under Tucker. Act 28 USC Art. 1346 (2). ¢ : The case was ‘mibmnitted upon itipul ted fi ce 17-30) As reflected by the stipulation? the poe issue is the following: . Respondent made a shipment of’ scientific instruments over the petitioner from Tinker Air Force. Base, Marion, Oklahoma to McClellan Air Force Base, Planehaven, Galifornia. This shipment was. ‘moved by’ petitioner. and its. connecting line from origin via El Paso, Texas to Los Angeles, California. (R. 18) Rocky. — - Mountain Motor Tariff Bueau Tariff: No. BA MICE: - ~~ No. 31*named a through rate from Marion, Oklahdma to: ’ os « ‘ ' > Lene Planehaven, California in the amount, of $10.74 per cwt., which is double first class. (R. 19) : There alo appeared a rate. in Southwestern Motor » Freight Tariff Bureau Tariff 1-5, M.F.-I.C.C. No. 141 : . ‘naming a rate from Marion, ‘Oklahoma to El Pano, Texas ae 2 oe On (R. ™ 3 There was also on file. a rate that appeared in Interstate oe. Freight Carriers Conferefice Tariff No. 1-C, M.F.-I.C.G. Texas to Planehaven, Cilitor TI MLE. Incorporated was a party to each of these three tariffs.” | 3 " Southwestem Motor Freight Tariff Bureex tariffs do. . not name a rate between Marion, Oklahoma, on the one _ hand,. and between Planehayen; California, on ty other . hand. (R.'20) The Interstate Freight Carriers Confer- ence tariffs do not name a rate between Marion, Oklahoma and Planehaven, California (R. 20) The Reeky Mountain Motor Tariff Bureau tariff does name a through rate be- tween Marion, Oklahoma 4nd Planehaven; California, but | -. doés not name dtrate between Planehaven; California and — _EI Paso,’ Texas nor between Marion,. Oklahoma and El Paso, Texas. (R. 20). i : : ‘The District Court applied the asplicabie're rate. i. 41 ) Thie ia of Appeals directed the District Court. to refer _ the question of reasonableriess to the Interstate Commerce — ° 4 Commissi6n.. (R. 58) : i Petitioner’s Petition for Behearing, (R 59) was 5 denied applicable rate is unreasonable. . REASONS FOR GRANTING OF WRIT. - 4 This case presents an bnpottant Federal csc: not, . __ heretofore passed on by this Court concerning the law on — —— rates named in Motor Carrier — and, No. A-5 naming ‘a rate at $4.3 dae wt. from El Paso, ae _(R. 62) The sole defensive issue presented was ¢hat the - ’ equally important, the Federal Court procedure for the ; determination of:.a reasonable rate if the applicable rate ‘is attacked. } (1) The. Interstate Gicicincs Commission, in: Wibo Carrier cases; is without reparation authority. The pro; cedure directed in this case by the’ Court of Appeals _ would indirectly grant authority to the Interstate Com- merce Commission by aig of a. Federal Court ‘to grant ‘reparation on past shipments moving on the ‘applicable _ gate, which authority and jurisdiction to so grant was with- . held by Congress. The Court of Appeals relied on. the announced doctrine by this Court'stated in United States _ vs. Western Pacific R. .Co0., 352 U.S. 59, and applied it to _ the facts in this case; the Court below sets up a procedure _ granting possible reparations on past shipments. not au-- ~ thorized by Congress (specifically withheld). The Court \ — below is in direct conflict with the holding of this Court in ©.” Montana-Dakota’ Utilities co, bs. Northwestern -Public : service Co: 341 U.S. 246. (2). This ‘important Federal sttioiduie: question, that ‘is, the reasonableness of ‘an applicable rate being attacked .« by a shipper, the advisability or lawfulness of holding a case in abeyanée in a Motor Carrier case for the sole purpose of submission of the reasonableness of the rate - ~ to the Interstate Commerce Commission; the question of granting the Commission, by the directed procedure in _.the Court, below, to indirectly authorize —_— on past e shipments. 3 (8) The. direct conflict between the holding of the’ Court below in this case and the holding of ‘this Court in ‘the Montana-Dakota case. . _.; ‘None of. these questions have been sealed on by this Court. ° of OG TT tena ae ee ee és ae) soNe < wii ie Age roa, ages“ b Ts thee hae ar x. aie So el asia techie ve Soin 2 an a pe BS ag tia " rien ates 10 Aten ih Sea gta a, Be ey = ARGUMENT The. official issue of the Interstate Commerce Com- mission Tariff M. F. -8, Rule 4 (i) reads: ~~ : “When. a carrier or carriers establish a Moai: ‘or joint _ rate for the application over any route from point of origin to destination; such rate is the applicable’ rate _ of such cartier or carriers over the authorized route, notwithstanding that it may ‘ke higher than the ag-. gregate of the intermediate rates over such route.” _€R. 20) | | Petitioner ietinnded that the Fiona rate (aoe in ‘Rocky: Mountain Motor Tariff Bureau tariff applies. (R. 20) The respondent; on the dther hand, contended. that the combination of local or intermediate rates from Marion, Oklahoma to E] Paso, Texas and from El Paso, Texas to Planehaven, California applies. ( R' 20) The District ‘Court found that the through rate was applicable. ( R. 81) - This finding. ‘was not appealed from. The respondent filed ‘its Motion to. Hold Judgment in Abeyance based upon: Naja the Uhited States of America now desires to commence an action before the Interstate Com- ~ merce Commission for a determination of the quest- ~ ion, which is within\ the exclusive jurisdiction ‘of the. . Commission.” (The question. being, the alleged un- - reasonableness of the rate applied). -(R“85). _ §=«-'‘The District: Court overruled this motion, (R. 38), and entered its judgment applying the through rate as the ‘applicable rate. (R. 41). :The sole question on appeal was the reasonableness of the applicable rate. (R. 44-45) The Circuit Court of ‘ho reversed and remanded. hn. | é ts vu “On ocala el it is now Heard, Ordered > . _ and Adjudged by this Court that the judgment of _ the said District Court in this cause be, and the same is hereby, ‘reversed; and that this cause be, and it is hereby remanded, to the said District Court with di- rections to grant the Motion to Hold. the Judgment - in Abeyance to enable the. Government to obtain a | _ determination. from the Interstate Commerce Com- ‘ mission with respect to-the reasonableness of the rough rate as applied to the transportation services Mee involved.” (R. 58) “In the view of petitioner, the opening of our Federal Courts to suits to raise the issue of the reasonableness of applicable rates will create a chaotic. condition in the ~ .Motor Carrier industry in applying its tariff rates. The . suggested procedure by the Court below will still leave’ _ __ the question that. if the applicable rate is unreasonable: "what is a reasonable rate and how can it be determined? > This Court may take judicial knowledge that there’ are ec scedis dake 1,100 .carriers members: of the Rocky Mountain Motor Tariff Bureau. Sec. 1, Page 4-58, Rocky .- Mountain Transcontinental Territorial Directory No. 20-B, -\MF-ICC No. 101. ‘Many of these carriers are not parties to the Southwestern Motor Freight Bureau tariff No. 12-J, ; MF-ICC No. 255, Page 8-11. Théir combination of trans- continental rots are not all via El Paso. - Is the rate ap- plicable over one route reasonable by one group of carriers. - and over another route unreasonable? ~The suggested procedure will create an impossible economic condition in applying and collecting applicable rates now on file or approved by the Interstate Commerce — Commission; i.e., merely the expense of prosecuting . or defending. The ordered procedure will create a multi- © 4g . plicity joe most times on insignificant amounts, or _ the accumilation of. insignificant amounts to reach the jurisdiction of the Federal Court, in amount, or ona Fed- - . eral question. The suit will then go to the Federal Court; | as ordered it will be held in abeyance for referral to the Interstate Commerce Commission and under the doctrine announced by the Fifth. Circuit,. the Commission could make a finding that the applicable rate was unreasonable - and still leave open the question of what is*’a reasonable. rate. The es Court of the United States, through its majority; said in Montana-Dakota Utility ae VS. Northwestern P.S.C. 341 U.S. 246: “. _-Iteis admitted, however, that a utility pon not institute a suit in a Federal Court to recover a portion of past rates which it simply alleges were unreasona- ble. - It would be out of Court for failure to exhaust administrative remedies, for, at any time in’the past, ‘it could have applied for and secured a review and, perhaps, a reduction of the rates by the Commission It also said: “".... Petitioner cannot separate what Congress has joined together. It cannot litigate in a judicial forum _its general right to*a reasonable rate, ignoring the . qualification that it shall be made specific only by -— exercise of the Commission’s judgment, in.which there is some considerable element of discretion. It can claim no rate as a legal right that is other than the _ filed rate, whether fixed or merely accepted by the _ Commission, and not even a.-Court can authorize commerce in the commodity on. other terms. 18 “We hold that the right toa reasonable rate is the right to the rate which the Commission files or fixes, — and that, except for. review of. the -Commissi s- orders, the courts can assume no right to a different one on the ground that, in its opinion, it is the only - or the more reasonable. cae, ‘6 It also said:. ean It is true ihcab: ti iione cases a: ourt has dic : rected lower federal courts to stay their hands pend- ing reference to an administrative body of a subsidi- © ary question. Smith vs. Hoboken’ R.W. & S.S. C. Co.. 328 US 123, 90 L ed 1128, 66 S Ct 947, 168 ALR-497; Thompson vs. Texas Mexican R. Co. 328 US 184, 90 “L ed 1182, 66 S Ct. 987; General American Tank Car Corp. vs. El Dorado Terminal Co. 308 US 422, 84 L ed 361, 60 S Ct. 325. But in all those cases the plaint- iff below concededly stated a federally. cognizable causé of action, to which the referred issue was sub- sidiary. In no instance have we directed a court to ‘retain a case in which it could not determine a single - ‘one of its vital issues . It also said: * If the Court is presented with a case it can ' decide but some issue is within the competence of -an administrative body, in an independent proceed- "ing, to. decide, comity and avoidance of conflict as well as other considerations make it proper to refer that issue. But we know of no case where the court has ordered reference .of an issue which the admini- strative body would not itself have jurisdiction to de- termine in a proceeding for that purpose. The fact that the Congress withheld, from the Commission — | 14° | ~,, . 3. peal to grant reparations does not require courts to_ entertain proceedings they cannot-themselves decide tr order indirectly to obtain Commission action which - Congress did not allow to be taken directly. There is no indication in the Power Act that that was Cong- ‘Tess’ intent. “Fe pees ne acer BH PRON $) a “i 2 7 2% ij ; : ? “It is urged that this leaves patitionce without a remedy under the Power Act. We agree. In that respect, petitioner is no worse off. after losing its lawsuit than its customers are if it wins. Unless we are to assume that this company failed to include its | ’ . buying costs in its selling rates, we must assume that any unreasonable amounts it paid suppliers it col- — lected from consumers. Indeed, this is the assump- tion made by the Commission in its brief as amicus curiae here. . It is admitted that, if it recoups again _ what it has already recouped from the public, there is no machinery in or out of court by which others . who have paid unreasonable charges to it ean re-. — ‘cover. } “Under such circumstances, we conclude that, since « the case irivolves orily issues which 4 federal cqurt . eannot decide and éan only refer. to a body which also would have no independent jurisdiction to decide,*it- must decline the case forthrightly rather’ than resort ‘to such improvisation . . . = | The minority said: 7h Despite the unqualified statutory declaration that unreasonable rates are unlawful, we think it clear _ that Congress did not intend either court or Com-_ - mission to have the power to award reparations on - the ground that a properly filed rate or charge has 15 -* volved the highly technical question of “what was the — 7 a7 = inane _ in fact been unreasonably high or low. If that were ‘all the complaint before us showed, we would. agree that recovery of damages in a civil action would not be an-appropriate remedy, and that i” Kia should have been dismissed . . . .”. In United States vs. Western Pacific R. Co. 852 US. 59 followed by the Court below is distinguishable from, and is different from, the facts in the case at bar. This © case may be distinguished from Montana-Dakota (1) It * applied to rail rates, (2) It involved two limitation -stat- utes, a two-year statute in seeking reparations (Lawfully allowed in Part I of the Interstate Commerce Act), and the limitation upon filing actions: in the Court of Claims, and, (3) the issue in the Western-Pacific case was not the reasonableness of the applicable rate: It in- applicable rate?”, and, (4) the Court directed the referral | of a question to the Interstate Commerce Commission which had jurisdiction by original action to determine. _ _ The case at bar involves solely the issue of the reasona- ‘leness of the applicable rate. 7 7. ~ CONCLUSION For the reasons. setforth above it is respectfully submit- ted that this Petition for Writ of Certiorari should be 7) granted. S AR + 'W. D. Benson, Jn. 7) Attorney at Law — -: P.O.Box1120 Lubbock, Texas Coie aa . ¥ A ¢ . > ‘ 5 ie . c \ f ; : : y APPENDIX Opinion of District Court: “THE APPLICABLE RATE The through rate from Marion, Oklahoriia, to Plane- haven, California published in "the Rocky Mountain Motor Tariff Bureau, Tariff 5-A, M.F.-I.C.C. No. 31, ‘is the proper charge for the- shipments in question, % not only,in conformity with the Interstate Commerce Commission, Tariff M.F. 3, Rule 4 (i), but also upon the authority of the only case coming to my notice, which seems directly in point,-that is, ‘T. & M. Trans- . | portation Co. vs. $. W. Shattuck Chemical Company/ 148 Fed. 2d 777. The suggestion of counsel that the _ aforesaid Tariff M.F. 3, Rule 4 (i), is not applicable to the Government, in view of 31 U. S. C. 71, does not.. seem sound. There is no such explicit provision in the. | cited statute. The rule recognized in the decisions is that, in making contracts for the transportation of property by common carriers, the Government stands in the same attitude as any other shipper. Hughes . Transportation, Inc. vs. United States, 121 F. Supp. ee 212. . “THE PLASTIC DOMES. The proper covering classification for this ‘engin : is that describing ‘Airplane Parts, NOI, made of plastics, synthetic gums or resins, in boxes or crates’, published in Rocky Mountain Motor Tariff Bureau, Tariff No. 5-A, M.F.?I.C.C. No. 31, Item 120, com- *. bined with Rule 15, which is a subject covered in the filed — oa & “AIRCRAFT. AILERONS é * The proper covering classification for this property “is that describing ‘Wing panels or sections; in boxes ,. or crates’, published in National Motor Freight, Classification No. 11, Item 2940, which is a subject covered in the filed stipulations. The Encyclopedia ‘ Britannica says that-an aileron ‘is a movable part of ‘the wing of an ee “The brief of adic counsel has forecast that. presumably, said counsel will now request. that _ judgment herein be held in abeyance while they file an action with the Interstate Commerce Commission to.determine the reasonableness or unreasonableness of the through rate herein mentioned, and, ordinarily, in instances somewhat similar, that course has been approved. General American Tank Car Corp. vs. Eldorado Terminal Co., 308 U.S. 422; U. S. vs. Kansas ° City Southern Ry. Co., 217 Fed. 24-763. But, in this — instance, plaintiff's counsel seems to contend that, in respect. to motor carriers, the Interstate Commerce Commission has no authority to decide the reasona- bleness or unreasonableness of a rate retrospectively. as a basis for a reparation ordered by the Commission, . or in support of a suit to recover an alleged overcharge - by judicial judgment. .This seems doubtful to me, just on the face of it, but I have not gone into the question closely, and if Government counsel do move to hold this case at rest, pending action before thé - Commission, then I would want to know whether ~ such an order would serve: any useful purpose, and, consequently, a thorough brief should be presented on the question above mentioned. » 18 Wisc. replies from respective counsek I am, “Aw ic x : | Sica at ake Sincerely yours, .— 7 3 _/s} Jos..B. Dooley = 2 re ; Po | _ United. States District Judge: ay “DEFENDANT'S MOTION TO HOLD JUDG. _ MENT IN ABEYANCE: ys. “Filed: July 18, 1956 - “Comes now, United States of denice. ‘defendant ; and cross plaintiff in the above numbered. and en- | _titled cause and respectfully moves the Court to hold in abeyance the entry of judgment herein for the — length of time hereinafter set out, and for the follow- ing reasons: } | | Ey * &> Sogeene*. 1. “This action, was commenced by T.L M. E. Incorpora- ted, plaintiff, @o recover from the United States of America, defendant, certain transportatian charges on shipments originating at Marion, Oklahoma, and transported by. plaintiff through El Paso, Texas, to Planehaven, California. In its answer defendant al- _ leged that the. e aggregate of intermediate rast and . from El Paso is the applicable rate to said shipments rather than the through rate contained in Rocky - Mountain Tariff Bureau as applied by T.I.M.E. In- corporated. The Court has determined this question - adversely to the Government. “In- addition to its contention as to the: applicable. rate, defendant alleged that such through rate is _ prima facie unreasonable and, therefore, unlawful 19 to the extent that it scale the aggregate ‘of the intermediate rates to and from El Paso. Since this Court does not have jurisdiction to determine the _ reasonableness or unreasonableness of the rate to be — applied, the United States of America now desires to commence an action before the Interstate Commerce - Commission for a determination of that. question,. which i is within: the exclusive jurisdiction of the Com- mission. x - a 2. “The United States of. ‘America. as ae filed an action before the Commission for such determination because of its contention that the only rate applicable to the forms in question is the aggregate of. the in-' _ termediates, and no action before the Commission | could be corhmenced until this Court had determined the applicable rate. 3. \ “No hardship will fall on plaintiff by the Court’s de- lay since even under the Court's adverse decision the Government will be: entitled toa money judgment. | “WHEREFORE. the United States of America re- ; spectfully moves the Court: to hold the entry of judg- . iment in this case in abeyance for a “period of sixty | |. Sdays from the granting of this motion,to afford-her _ - ‘. “an opportunity to apply to the Interstate Commerce ~ Commission for a determination of the reasonable- ness or.unreasonableness of the rate which the Court ” 3 deems applicable to the shipments involved herein and: if such proceeding is commenced within such sixty day period then to continue to hold the judg- ment in abeyance until the Commission has finally . - determined the reasonableness or unreasonableness of -° the oo rate.. Respectfully submitted, Heard L. Floore . States Attorney _ /s/ John A. Lowther, John A. Lowther, Assistant -. United States Attorney” fete | Ry “OPINION OF DISTRICT COURT ON MOTION TO HOLD AN ABEYANCE: ie aX, “The defendant's motion to hold the entry of judg-. ment in abeyance pending proceedings before the Interstate Commerce. Commission is overruled and such an order should be presented Peanety. “This cle results from the ‘conieSeision, that Mont- ana-Dakota: Utilities Co. vs. Northwestern. Public Service Co., 341 U. S. 246, and McClellan vs. Mon-. - tana-Dakota Utilities ‘Co., 104 F. Supp. 46, affirmed — 204 F. 2d 166, certiorari denied 346 U. _S. 826, are decisive against said motion. “Ordinarily the Literstate Commerce Commission, ' like the United State Maritime Commission (Shipping . -' Act, U. Ss. Code, Title 46, Para. 817 and eee), in con- 21 : ‘nection with reparation authori, ‘may review the __ reasonableness of rates charged: in past shipments. | This is true in respect to railroads, (Intérstate Com- ® merce Act, U.,S. Code, Title 49, Para. 18/(1) ), and. with respect to water carriers, (Interstat¢ Commerce Act, U. S. Code, Title 49, Para. 907 (b) and 908 (b). - ~ (e), (d) ), but that jurisdiction is lacking ig respect to motor carriers (Interstate Commerce Act, U. S.. ' Code, Title 49 Para. 316 (e) ). The Civil Aeronau- tics Board, as the administrative ‘agency over the air carriers, has no reparation authority nor. jurisdiction to review rates as ‘to past transportation, (Civil Aero- nautics Act, U. S. Code, Title 49, Para. 642 ( d) ). The same limitation of authority is found in the. Natural Gas Act, U. S. Code; Title 15, Para. 717d fa), - and/in the Federal Power Act, U. S. Code, Title 16, Para. 824e (a}. The legislative policy for these dif- ferences may not be evident, but~there can be ho doubt that the distinction is - clearly manifested. . “The Montana-Dakota Utilities Co! vs. Northwestern Public Service'Co. case arose under the’ Federal * Power Act and it will be noticed that the frucial _. Statutory article cited in’ that decision in the presently material part is virtually word for word the same.as - parallel statutory article dealing with motor carti- - ars. -In other words, I am unable to see any substant- a diffessiice in principle between that case and the L.. present suit. “Moreover, the denial of the present — ‘ motion is also ‘supported in Slick Airways. vs. Ameri- can Airlines, 107 F. Supp. 199, 212, where the court . - said ‘if the instant complaint merely sought to recover / 22 ; dama Funder the Civil Aeronautics Act on account a ° of unfair competitive practices committed, or un- “ | ~ yeasonable, rates charged, by defendants, I would | ’ agree that it would not state a cause of action in this court.” . . “It is true that the action-on the present motion is: . contrary to the decision in Bell Potato Chip Co. vs. ' Aberdeen: Truck Lines, 43 M. C.C. 337, which was 2 decided before the: Montana-Dakota case, and.. like- | ‘ wise, contrary to the decision in ‘New York-New ° * g - notice . the Court. a -“JUDGMENT OF DISTRICT COURT: Brunswick Auto Express Co. Inc. vs. The United _- States; 126 F.. Supp. 215, cited by Government coun-. ~ sel, as well as the. strongest case for the Government, - United States vs, Garner, 134 F. Supp. 16, but the Montana- Dakota case was not mentioned in either. of the two. opinions and probably did not came to the 4, }. oe: Sincerely yours, 4 ~/s/ Jos. B. Dooley ‘ United, States District Judge” G. \ “On this. day came ‘on to zbe considered the above styled cause; the Court having tried the case in June of 1956 and having considered the evidence, the . stipulation and contentions of the respective parties, and the defendant having filed its motion to hold the entry of judgment in abeyance pending the instituting Pa . 93 | - is the only proper chargé for the shipments in ques-. « ' Cellulose, ... Rocky Mountain Motor Tariff Bureau 5A, M.F. -.CC,, ae “defendant to hold the.entry of the judgment in abey- / ik \ of proceedings before the fiterstabe Ciaitiaent ry - mission, and it. appearing that such motion‘ should _ be overruled, the Court finds: : “That the ‘uccnaghs rate: ‘ia Marion; Oklahoma to. | ‘ Planehaven, California published in Rocky Mountain : Motor ‘Tariff Bureau,-Tariff.5-A, M.F:-I.C.C. No. ‘31, tion, in conformity with the- Interstate Commerce Commission Tariff Circular M.F. No. 3, Rule 4(i), and that Ruile 4(i) is applicable-to the Government. “The Court further finds that the proper covering. classification fArya shipment of “Domes, Airplane, eg. Plastic and Metal Combined’ is ‘Airplane- , NOI; made of plastics, siaiietic! -gums'or reins, in’ boxes .or crates’, as published in 16 No. 81, Item 120; combined with Rule. 15, : “The Court further finds that the proper. covering “ classification on a shipment billed as'‘8 boxes aircraft - ailerons’ is co¥ered in the tariff described-as “ wing - panels or sections; in boxes or. crates’, as published i _——. ~ National ail sisal Classification No. 11, tem 2040. ue 3 | “The Court is < the opinion ‘that she motion -of ‘the ance pending proceedings to be instituted before the Interstate Commerce Commission should’ be. over- ruled. and that jurisdiction is lacking in the Interstate ~ ? Commerce Commission in respect to Motor Carriers . to. review. the reeasonableness | of rates charged on past shipments. eer - = . ey e 24 . . es . ‘ . . n, . ? 9 : a & . a ” . 4 Y . ¢ aS +) " : 2 “Tt is, therefore, ORDERED, AD}#UDGED AND oe DECREED BY THE et AS. hese ith Z a) Thatithe moti of the difendant to hold the sae entry of the judgment in abeyance. pending proceed- ings to be instituted before the Interstate Commerce | Commission is overruled. (b) That the dabesiiint. United States of Acneioa, 7 owes plaintiff, T.LM.Ey Incorporated the sum of . $14,414.82, and that plaintiff, T.I.M.E. Incorporated . _ is indebted to the defendant, United States of Ameri-_ ca, in ‘the sum.of $16,942.03, and accordingly the - f defendant, United ‘States of America, on_ its cross action against’ T.I. M-E. Incorporated . is “awarded judgment against plaintiff, T:I.M.E. Incorporated for ee the sum “of $2, 527. 21.. <(e) That each arty hereto pay the costs incurred by. it. — (d) That all pee relief hadi prayed for i is ; here- by. specifically denied. Entered this the 5th day of March, 1957. Shes /s/ Jos. B. Seles United States District Judge" ree —_ . ee Se ; In ne United States Court of Appeals ‘FOR THE FIFTH CIRCUIT No. 16738 UniTED STATES OF AMERICA, Appellant, ” . + oe " : o 4 versus . | % " * 2 é ‘ ~ '_ T.LM.E., INCORPORATED; ; rae — a : rs , he . - ee ; .’ | ars "Appeal ee the United States District Court ve the Northern Dap of Texas. a petits 0, 1958. ) . Mais” TOES : . 7 2 © Before HUTCHESON; Chief Judge, and RIVES eae -JONES, Circuit Judges: T.I.M.E., Incorporated, — ‘motor carrier, suéd the United States under the Tucker Act' for unpaid transportation charges on shipments of ' freight. The United States asserted counterclaims up- on which the district court held that it was entitled. to $16,942.03, and that holding is not contested on appett. ' BUSCA Sec. 1346 (8)(2) This appeal pee to obs the question. i the coivectnees of the. district, court's determination that T.I.M.E. _ was: entitled toa total of $14, 414.82 on its claims, _The facts were stipulated. - - TLM.E. was a common ’ carrier motor carrier operating generally between Okla- homa City, Oklahoma and Los Angeles, California via El Paso, Texas, under authority of the Interstate Com- “merce Commission: It ‘transported some twenty ship- ments of scientific instruments. under af fesse d bills | of lading. A typical shipment illustrates the issues with 7 ~ respect to all of the shipments: it driginated at Tinker 7 _.Air Force Base, Marion, Oklahoma, and was transported ‘ over the lines of T.I.M.E. and a connecting carrier to — McClellan Air Force Base at Planehaven, California. e At the time, . there’ were on file with the Interstate Commerce Commission the © following. tariffs to which T.I.M.E. was subject: (1) Rocky Mountain Motor Tariff Bureau Tar- iff No. 5-A, M.F.-ICC No. 31, providing a double first-class through rate of $10.74 per cwt. on scientific instruments N.O.I.. from Marion, Okla- 3 homa to Planehaven; California. — (2). Southwestern Motor Freight Bureau Tar- iff Ng, 1-F, M.F.-ICC No.-141, providing a rate of - $2.56. per ‘cwt. on scientific instruments N.O.I. from, Marion, Oklahoma to E] Paso, Texas. (3) Interstate Freight Carriers Conference Tariff No. 1-C, N.F.-ICC No. A-5, providing a rate of $4.35 per cwt. on scientific instruments . N.O.I. from E] Paso, Texas to Planehaven, Cali- fornia. a The unas rate, go 74, was thus considerably in excess of the sum.of the intermediate rates, $6.91.. There © was, however, on file with the Commission the official issue of-the Interstate Commerce Commission Tariff. M.F.-3, Rule 4(i), which reads: "(Gib ‘When a carrier or carriers establish ; a local or joint rate for application over any route from point of ofigin to. destination, such rate is the applicable rate of such carrier or carriers ~ over the authorized route, notwithstanding that ’ _” -it may be higher than the aggregate of the inter-' | mediate rates over such route.” beard The Someone had paid the inberthdtigid rates. a ee district court held that T.I.M. E.. was entitled on its. - claims to a total of $14,414.82, the difference between. through rate and the aggregate. of the intermediate -rates.2- The ‘Government: made some contention at the trial that the combination of the intermediate rates is ‘ applicable, but that position is not urged on: appeal. en The Government’ S main defense, which it continues to urge in this Court, is that the through fate is prima facie unreasonable and unlawful to the extent that it exceeds the aggregate of the. interniediate. ratés,. and that the proceedings should be stayed to enable the Government to obtain a determination from the Inter- state Commerce Commission as to the reasonableness or | unreasonableness, of the rate to be applied. ‘ _-2 > . Because of the ‘larger amaoink of the. Government's _ -gounterclaims, $16,942.08, not now in issue, judgment was __ entered in favor of the United States in the amount of $2,527.21. @ : er ; oe : 28 ‘ . : c . : x ‘ . ’ 5 . é , Under Tariff M.F.-3, Rule 4(i); quoted supra, the fact _ that’ the through rate is higher than the aggregate .of ’ the intermediate rates does not prevent it from “being - the applicable rate of the carrier. The Commission has often ruled, however, that through rates are prima facie _ unjust and unreasonable to the extent that they exceed _the combination .of local rates from and: to. the same . points. * ‘Sevtion 216 (c) of the Interstate Commute Act, 49 UU; S.C:A. 316(c), provides that: “Common carriers of — property by motor yehicles may establish reasonable ' through: routes ahd joint. rates, charges, and classifica- tions” with other carriers. Section 216 (d), 49 U.S. C.A. 316(d), provides that: all carges of motor carriers _ for services covered by the Act “shall be just and reason- ' able, and every unjust ‘and unreasonable charge for such service or any part thereof, is prohibited and declared | to be unlawful.” Section\204(c), 49 U.S.C.A: 304 (c), provides that: upon complaint or upon its own initiative the Commission may *investigate.. whether any motor - - earrier has failed to comply with any provision of: the chapter or with any Tequirement established pursuant thereto, and issue an ‘appropriate order to compel | com- | pliance. - Section 18, et seq. of the Act, 49 U.S.C.A. 13, et seq., dealing with’ railroads, gives the Commission authority to. award reparations, subject to a two-year limitation ~. period, Section. 16 (3), 49 US.C.A. 16(3); but part II 3 : See ‘ian & Co. v. “Olson; "Transportation Co., 32 M.C.C. 10; Stokely Foods, Inc. v. Foster Freight Line,, Inc., » 62 M.C.C. 179; United States v. Davidson Transfer & Storage. Co., Inc., No. MC.C- 1849, decided October 14, 1957. 29 | of the Act covering motor ¢arriers “contains no similar provision. Nevertheless, the Commission has consistent- ly held that the general powers conferred upon it in the sections already mentioned and in other sections furnish authority to determine the reasonableness of a past rate, . _ the Jawfulness of which is brought into issue in a judi- — proceeding. ; Holdings to that effect had been made in a long line of decisions by divisions of the Commission.4 In ®Bell Potato ‘Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 387, | the full Commission undertook a “thorough re-examina- _tion” of. its authority to “make an-administrative deter- mination of the lawfulness of rates charged.on past ship- ments, and concluded that the ‘earlier decisions of .-its divisions were correct. The opinion in the Bell Potato Chip Co. case, .suipra, was reconsidered at length’ and approved by the Commission in the very recent case of United States v. Davidson Transfer & Storage Co., Inc., No. M-C- 1849, decided Octoher 14, 1957. This construction a thé Act by the body charged with primary résponsibility for its administration is, of course, - entitled to great weight by -the courts.> Following such © 4 See W. A. Barrows Porcelain Enamel Co. v. Cushman M. Delivery, 11 M.C.C. 365, 367; Hausman Steel Co. v. Sea- board Freight Lines, Inc., 32 M.C.C. 31; Dixie Mercerizing - Co. v..ET and WNC Motor Transp. Co., 21 M.C.C. 491, af- firmed on reconsidération, 41 M.C.C. 855; Koppers Co. v. Langer Transport Corp., 12 M.C.C. 741;. Hi Clarke Ma- .. Chinery Co. v. Webber Cartage. Lines, Inc., 26 M.C.C. 144;: Patten Blinn Lbr. Co. v.. Southern Ariona Freight Lines, 31 . @ MCC. 716; - 5S — See United States v. Bergh, 1956, 952 USS. 40, 47: Adams v. United States, 1948, 319 U.S. 312; 314-315; United States v. Citizens:-Loan & Trust Co., 1942, 316 U.S. 209, 214; Inland _ Waterways Corp. v. Young, 1940, 309 U.S..517; United States. le ‘ 30° , @ ° ‘construction, ‘the Court of Claims: ‘and another district eourt have looked to the Commission for aid in the. dis- position of suits invonving past motor carrier Tates al- leged to be unreasonable. ® The. district court in the present case thought that the case of Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341.U.S. 246, precluded it from hold- ing the entry of judgment in abeyance pending proceed- ings before the Interstate Commerce Commission. That was a five-to-four decision in which the majority held that the complaint stated no federally cognizable cause of’ action to which’ the referred issue was subsidiary. After full discussion, that case was distinguished in the report of the Commission in United States v. David- son Transfer & Storage Co., Inc., ney. with the con-, clusion that: | “9 © © However, we ‘ao not interpret the Mon- tana-Dakota case as holding that where a cause of action to which the’ issue of reasonablenéss is subsidiary is maintainable:in the court in which it is brought, reasonableness issue may not be determined by. the ‘Proper administrative body.” In United ‘Sales: v. Western Pacific R. Co., 1956; 352 U. s 59, 72, it was argued that; because Section 16 (3) _ y. American Trucking Associations, Inc., “1940, 310 U.S. 534, 549; United States v. Madigan, 1937, 300 U.S. 500, 506; Nor- . wegian Nitrogen Co. v. United States, 1933, 288 U.S. 294, 315; United States v. Jackson, 1930, 280.U.S. 183, 193; Ed- wards’s Lessee v. Darby, 1827, 12 Wheat. (25 U.S.) 207, 210, 6 = New.York & New Brunswick Auto Express Co. v. United — States, Ct. of Cl. 1954, 126 Ky Supp. 215; United States v. Garner, E.D.N.C. 1955, 134 siete taal | Teese Saas ca oo of the Act niacin the Commission from considering complaints for overcharges against railroad carriers not filed within two years from the time the cause of: action accrued, that the Commission was barred absolutely from hearing questions as to the reasonableness of rates arising in suits brought after two years, whether such questions came to the Commission by way of referral. ~ or an original.suit. _The Supreme Court held: _ “*.* * that the limitation of Sec. 16 (3) does not ~ bar a reference to the Interstate Commerce Com- _ . mission of questions raised by. way. of defense and. within the Commissions’ primary jurisdic- _ tion, as were these questions relating to the ap- plicable . tariff.” United States v. Western Pacific R. Co., supra at p. ‘74° ‘Thes case of United States «. Chesapeake & Ohio R. Co., 1956, 352 U.S. 77, 81;- decided on the same day, is to, the same'effect. From those decisions, it would seem to follow that the Commission’s lack of power to award. reparations does not negative its authority to deter- - mine the reasonableness of a filed rate, when that issue is incident to a federally cognizable cause of action pend- ing in court. Congress oe ee in terms, to save existing com-— mon law and statutory rights and remedies. “Section 216 of the Act, 49 U.S.C.A.-816, relating to the duty to es- . - tablish reasonable rates, concludes with a provision. that: “Nothing in this section shall be held to extinguish "any remedy or right of action not inconsistent here-- 32 with.” Very clearly, the district court could not it- self .undertake an independent investigation into the reasonableness of the rate. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co.,.204: ,U.S. 426. The. court, then, had the alternative either of denying ‘the ‘shipper any _ remedy against a filed rate, which on its face was prima facie unreasonable and- unlawful, or of holding its judg- ment in abeyance to permit a determination of the rea-— sonableness of the rate by the Interstate Commerce Com- mission. In our opinion, the second, alternative is more consistent with justice, with the terms of‘ the Interstate Commerce Act, and with the cases. The judgment of the district court is, therefore, reversed and the cause re- manded with directions to grant the motion to hgld the : judgment in abeyance to enable the Government to ob- tain a determination from the Interstate Commerce Corh- mission with respect to the reasonableness of. the through _ tate as applied to the transportation services here in- volved. REVERSED AND: REMANDED WITH DIRECTIONS. - 2 : ‘ e ‘Part I, LC.C. Act (Rail Carriers): ‘The relevant portion of Section 15 of Part I of the 1a * terstate Commerce Act, as amended February 28, 1920, — c. 91, 41 Stat. 486, 49 U.S.C.A. Sec. 15 (7) provides: “(7) Whenever there shall be filed -with the Com- mission any schedule stating a new individual or _ joint rate, fare or charge, or any new individual or joint classification, or any new individual or joint regulation or practice affecting any rate, fare, or charge, the Commission shall have, and it is hereby given, authority,-either upon complaint. or upon its’ own initiative without complaint, at once, and if it so orders without answer or other formal pleading — . . by the interested carrier or carriers, but upon teasona- ble notice, to enter upon a hearing concerning the lawfulness of such rate, fare, charge, elassification, regulation, or practice; and pending such hearing and . the’ decision thereon the Commission, upon filing with such schedule and delivering to the carrier or. carriers, affected thereby a statement in writing or its reasons for such suspension, may from time to . time suspend the operation of such schedule and . defer the ‘use of such rate; fare, charge, classification, - regulation or practice, but not for a longer period _ than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, charge, classification, regulation, or practice goes into effect; the Commission may make such order with . reference thereto as would be proper in a proceeding. initiated. after it had become. effective. ‘ If the. pro- - ceeding has not been concluded and an order made SH within the period of suspension, the proposed change of rate, fare, charge, classification, regulation, or practice shall go into effect at the end of such period; but in case of a proposed increaséd rate or charge for or in respect to the transportation of property, the. Commission may by order require the interested - carrier or carriers to keep accurate account.in detail, of all amounts received by reason of such increase, specifying by whom and. in’ whose behalf stich amounts are paid, and upon completion of the hear- ing.and decision may by further order. require the interested carrier or carriers to refund, with interest, | to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. coon The relévant portion of Section 16 of Part J of the ‘In- _ terstate Commerce Act, as amended June 7, 1924, c. 325, 48 Stat. 633, September. 18, 1940, c. 722, 54 Sfat. 913, 49. U.S.C. 16 (3)(b) provides: ( )(b) “All complaints against carriers ‘subject. to this chapter for the recovery of damages not based on overcharges shall be filed with the Commission with- in two years from the time the cause of action accrues, and not after, ‘subject’ to subdivision (d) of this para- graph. | (c) “For recovery of overcharges action at law shall ne be begun or complaint filed with the Commission ‘ against carriers subject to this chapter within two . years from the time the cause of.action accrues, and ~ not after, subject to subdivision ( d) of this para-- graph, except that if claim for the overcharge has been presented i in writing. to the carrier, within the | . 35 \ < | two-y ear’ sail of limitation said period shall bi extended to include six months from the ‘tinie noti in writing is given by the carrfer'to the claimant of disallowance of. the claim, or any part or parts there- _of, specified in the notice. “(g) “The. term ‘overcharges’ as ‘wed in this sectioal” ry shall be deemed to mean charges for transportation. — services in excess of those applicable thereto under the tariffs Jawtully on file with the commission. ° POWER ACT: The. ‘relevant portion. Sec. 205a et seq. of the Act. 49 Stat. 851, ch: 687, 16 USC, Sec. 824d ( és etseq (16 USCA 7 824d (a) - (c) P. 624): My “824d. Rates and charges; schedules; suspension of . Ne new rates, 3 a) All rates and - charges made, demanded, or. received by. any public utility for or in. connection with the transmission or ‘sale of electric energy sub- - ject to the jurisdiction of the Commission, and all tules and regulations affecting or pertaining to such rates or charges shall