# Petition for Writ of Certiorari — Missouri Pacific Railroad v. United States (No. 126) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0363%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1958 ## Text LIBRA: | : tlie | SUPREME COURT. U. fF. JUN 25 1958 | JO HN T. rey, Chark | 2. ae IN THE Supreme Court of the Bait States OCTOBER TERM, a oe. apy Missouri PaciFic RAILROAD Company, Petitioner . | ° “UNITED STATES OF AMERICA, Respondent ” PETIT ION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Fifth Circuit Roy: L. ARTERBURY _ 1828 Bank of the Southwest: Blag. ; ' Houston 2, Texas. — - Attorney for Petitioner AcPHa Law Barter Co., 402 M & M Bioc., Houston 2 famaeeed ______ REASONS FOR_GRANTING THE WRIT . PAGE CITATIONS TO OPINION BELOW . : JURISDICTION... \. QUESTIONS PRESENTED STATUTES INVOLVED STATEMENT ... . IE SS ee. 10 Mi a a EG i SE eke es eee a - ™ . : LIST. OF AUTHORITIES "CASES | Northern Pacific Railway: Co. Vv. United States, 213 F: 2d Ee eer rrr a rere rere Ts Perr Tre Ter ye Tee 4,6, 7,10. Northwestern Auto Parts Co... v. Chicago, Burlington & Quincy Railroad Co., et al., 240 Fed. 2d 743 .:......... 4,6,10 - Union Pacific R. Co. v. United ‘States, {7 F. Supp. 483 . 8 United ‘States v. acii 346 U.S. 568, 98 L. Ed. 300, "14 United States of seadles v. Western —— Railroad .Co., | 353 U.S. 59, ‘TS. 3 ey ee re errr Perr ee 2, 4; 5, 10 a UNITED STATES STATUTES 5 US.C. 1001(a). eS ea cd A ee eee ee ise 5 U.S.C. 1004(d) | Ve ioe age ce MWUMG. TM, ccc cine oe 2, 4, 15 U\S.C. “714b(c)(g)(N)(K) o 1... eee eu lathe cence ee. 2, SB USL: WEG oor. eco feces Exe rae et ee me ods ww XS S . IN THE - Graceme Gaur of te Hated Pres OCTOBER TERM, 1957 _ Missouns PACIFIC ee ComPaNy, Petitioner. _Unrrep States OF /ASeERICA Respondent - cesta a > PETITION FOR WRIT OF CERTIORARI . To the United States Court of Appeals for the _ Fifth Circuit Petitioner, MISSOURI PACIFIC RAILROAD COM- PANY, prays that a. Writ of Certiorari, issue to revi¢w the judgment of the United States Court of Appeals for the Fifth Circuit, entered in the above entitled cause on’ Janu- ary 14, 1958: 7 Citations to Opinion Below The opinion of the Court of ‘Appeals (R. 32), printed | in Appendix “A” hereto, P. 11, is not officially reported but is printed in 250 Federal Reporter 2nd_ Series. at Page 805. The Court of Appeals wrote no opinion in- denying ip woah oe aa for Rehearing and Second Petition for Rehearing. yn teas ; vais fe a J urisdiction The Judgment of the Court-of Appeals was enveied on January 14, 1958 (R. 39). A timely Petition for Rehearing, - filed _on-February 1, 1958, was denied March 12, 1958 (R. 44). Leave.to. Pititioner to file a Second Petition for f Rehearing was granted (R. 62) and such Petition was filed March 21, 1958, and was dénied by the Court on May 22, 1958. Jurisdiction of this Court is invoked under 28 | — -US.C., Section 1254. /Court of Appeals decided ques- _ tions of substance probably not in accord with the applicable decisions. of this Court. ne 7 "Questions Presented | “ Whether under the doctrine of Primary Jurisdiction Ps issue as to -rate: applicable on the Shipments of Ai _ Force. Organization Equipment involved herein should have\ been referred to the Interstate Commerce mission. United States of America xy. Western Pacific Rai raae Com- pany, 352 U.S. 59,77 S, Ct. 161. - 2. Whether the set-off plead by Weatihidene to a por- tion, of ‘Petitioner’s complaint was barred by virtue of the limitation provision -in the Commodity Credit Corpora- - . tion Charter Act of 1948, °15 U.S.C. 714b (c), where the cause of action asserted in the sét-off arose. more than’ ten _years. before such set-off was exercised. @ Statutes Involved "The Statens provisions involved are 5 U.S.C. _Sec. 1001 * (A), 5 U.S.C. ‘Sec. 1004(d) and the Commodity Credit Corporation Charter Act, 15 U.S.C. Sec. 714b(¢c), (g), (h), and (k). They are oman in ——. “B”. a. | PP. 18- “a ar a eae bee de Fe ; ‘ ra | Statemient The two, questions arise: out of unrelated occurrenices. CF x The may, with reference to the first question. are 4s follows: Peg The ‘Respondent delivered to Petitioner, © a. common: carrier, nine carloads of air force ofganization * ‘shipping Cases to. be transported from St.. Louis, Missouri: to Hous-’ “-. ton, Texas. Each case .consisted of four nested. containers made 6f\3/8” plywood, the inside. and outside of each “ container” being “Covesed with .j glued to-the plywood with: ‘water ’ ‘Fesistant- glue. The Petitioner ‘attempted to’ collect charges) on the basis that these ‘items . were covered \ ‘by the: tariff’ covering “baskets (boxes) or Hampers: chemically hardened fibre.” The Re- spondent contended ‘that these itemsg,were within tlie tariff covering “boxes; ‘wooden, NOIB * NOIBN ‘means’ otherwise indexed’ by tame in the classification (R. 16 and 17). The District Court sustained Petitioner’s con- afention (R. 24) and the Court. of ‘Appeals sustained Re- spondent’s contention (R. 39). The Petitioner, by second :. Petition for’ Rehearing, requested the Court of Appeals to remand the case so that Petitioner might submit the issue - to the Interstate Commerce Commission. The- facts with reference to the second question are as follows: 7 During 1943 and prior chesaes the commodity al - corporation: delivered to Petitioner for transportation - 4pondent for what. it contended to be the applicable charges. .. These bills were paid and subsequently Respondent . de- seyeral freight cars containing food (R. 24). The Peti- tioner performed the transportation services and billed Re- ducted, from Bills presented by Petitioner for Shipments which moved in 1953, certain sums of money, alleging that v” inch), vulcanized fibre it had suataai Petitioner on the 1943 y diana. Petitioner ; contended that this set off was barred by Section 4c of the Commodity.Credit Corporation Charter Act of -1948, § U.S.C. Sec. 714b(c).: The Distgict Court sustained etitioner’s position and the Court of Appeals reversed the " District Court on this point. . The District Court had- joiiadiction of this cause under 28 U.S.C. Sec. 1346 (2), ‘since the action. is ‘a.suit against the United States: upon a claim not exceeding $10,000.00. fieneane for Granting _ the Writ \ A. With reference to the First Point. we wr. The dishes of the Court: of Afppeals on ‘this point is directly contra to the decision ofthis Court in the case , of the United States of America v. Western Pacific Rail-- ~ . road Company, 352 ‘U.S. 59, 77 S. Ct. 16, and the decision of Court of Appeals. in the cases of Northwestern Auto Parts Company v. Chicago, Burlington & Quincy Railroad _ Company, et al., 240 Fed. 2d. 743 and Northern Pacific Railway Company v. United States, 213 F. 2d 366. In the Western Pacific Case; Supra, this Court had under consideration the matter of which tariff should ‘apply to. a shipment of aerial bomb cases filled with napalm gel. The carrier in that case contended that the Commodity should be classed as “incendiary bombs”, even though the ~ burster and bomb fuse had not been added, while the gov- ernment contended that the commodity should be carried ~ at the: combination sate applicable to the components of : + the aerial bomb cases. | ‘We quote. from the opinion of this Court in the Western | Pacific Case from P. 166 of 77 S. Ct. as follows: ‘ ——— , ‘$ “Thus the first question presented i is whether eBecves- tion of the statutory purposes of the Interstate Com- merce Act. requires.that the Interstate Commerce Commission should first. pass on ‘the construction’ of the tariff in dispute here; this,-in turn, depends on whether the. question raises issues of transportation policy which ought to be considered by the Commis- sion in the interests of a uniform and.expert adminis- tration of the regulatory scheme laid down by that ‘Act. Decision is governed by two earlier cases in this . Court. In. Texas & Pacific R. Co. vs. American’ Tie & Timber Co. 234 U.S. 138, 34 S. Ct. 885, §8 L. Ed. 1255, a shipper attempted to ship oak railroad ties under q tariff for ‘lumber’, The carrier rejected them, © . urging that such ties were not lumber. In a damage _ - action-expert testimony was received on the question: This Court, however, held that the Interstate Com- merce Commission alone, could resolve the question. © The effect of the holding is.clear; the Courts must not only refrain from making tariffs, but, under cer-- tain a must decline. to construe them as . —well.”. al i - This Court further points out that the question of whether steel casings filled with napalm gel are incendiary bombs withinthe context of the tariff is more than simply . a question of reading the tariff language or applying ab- stract rules of construction. The basic issue is how far the . reasons “justifying a high rate for the carriage of extra- | ‘hazardous ‘objects ‘ate applicable to the shipment ‘in ques-. tion. That is the: issue involved i in this case. The basic issue, in the instant case, is how far. the reasons justifying a ov higher rate for the carriage of chemically hardened fibre. cases are applicable to the shipments in question. Certainly. — ‘there aré commercial reasons justifying a higher rate on _shopcally hardened fibre cases than on wooden boxes. i i Sie goede a the North- western Auto. Parts Company Case, Supra, followed the " holding of this Court in 1 the Western Pacific Case. We quote from the opinion. of that case as follows (P. 740 of 240 F. 2d): | “The sibs of deciding in a. case haiilias gain > Ay ine many were ‘scrap iron or steel having value | foe*remelting purposes only’ involves ‘many of the considerations expressed by the Supreme Court in re- gard to the problem in the Western Pacific case. The “record here gives-us no inkling of: the factors that produce the scrap iron rates or the rate on ‘auto- | motive engine parts other than automobile bodies, old, . used, having value for reconditioning,’ or what it is that. justifies the difference between the rates. All that -the Supreme Court said in the’ Western Pavific case: . (77 S.Ct. 165) as to the necessity. for ‘expert and a specialized’ knowledge’ in that case is applicable here, | and it must.be held here in accord with’ the teaching. of the Western Pacific case, that the question of ‘the tariff construction, as well as that.of the reasonable- ness of the tariff as applied, are-within the exclusive primary jurisdiction. 6f the Interstate Commerce Com- mission. Respondent will no doubt So. here, is it did in _ ‘Court of Appeals, that Petitioner did not raise this point timely. In artswer to that contention we urge upon the _ Court the fact that the point was not raised by either _ party in this Court in the Western Pacific Case. Certainly ‘ the raising of this point_ by. Petitioner in the Court of - Appeals was more timely’ than was the action of either _- party in-the Western Pacific Case. ‘We also urge upon this Court the holding of, the Court of Appeals in the case of - Nerthers Pacific Railway i aia v. United States, 213 “ > . . * — ; 7 F, 2d 366.°The Court of Appeals, in that case, held that this point is jurisdictional and hencé could be—raised for. the first time in the Appellate Court.) B: With reference to the Second Question; 5 Since the transportation services on which Respondent contends it was overcharged were performed for the Com- modity Credit Corporation in 1943 and prior thereto and. the set-off made by Respondent was made from bills sub- mitted by Petitioner for services réndered in 1953' (R. 24), a period of ten years elapsed between the alleged over- charge and the set-off by the Respondent. The pertinent part of the statute 15 U.SC., Sec. 714b(c) is as follows, =, —o 3 ‘ oa No gui by or against the sicisies shall be - BA unless (1) it shall have been brought within - six years after the right accrued on. which suit is ‘brought, . . The Defendant in any suit by .or against the Corporation may plead, by way of setoff or counterclaim, any cause of action, whether arising “out of the same- transaction og..not, which would. — Maivation if the. claim otherwise be barred by such li upon which the Defendant’s cause of action .is based had not been barred prior to the date that the Plain- tiff’s cause of action! arose... . Any suit by or against the United ‘States as the real party in interest based tipon any claim by or against the Corporation shall be - “subject to the provisions of Subsection (c+). of. this seettOn to the same extent as though suit i by or against the Corporati ”. The wor ing of th ty quoted above, is plain. Con- gress..did’ not! overlook the matter of administrative settle- ments. It specifically provided for setoffs and counter- ? a in the statute. a —" and the Bai of - 2 mene ~ of claims erred when | it stated that: i : claims in Union Pac. R. Co. v. U. S., 147 F. Supp. 483, do not give proper consideration to- that portion. of the statute which reads as follows: / : “The Defendant in any suit by or against the Cor-’ poration may plead, by way of setoff or counter- claim, any -cause of action . .’, which would other- wise be barred by. such limitation if the claim upon which the Defendant’s cause of action is based had . . not been barred prior to the date Plaintiff's cause of action arose.”*” —~ AVE apse By enactment of the above sentence, Congress Sis ‘stated what setffs and’ coynterclaims may. be pled in a suit against the Corporation. Such provision certainly eliminates the sida of any other setoffs or. counterclaims. The court » 9 “Congress idid not, * by Section 4(c), mean more than __ it said, which was that no suit could be brought upon. claims more than six years old.” ee brief P. 41). Congniis said more than that. It said further that seis or counterclaims could be pled if they were not barred when the Plaintiff's. cause of action arose. Certainly when Congress lays down a specific condition which must be met before a: setoff or counterclaim can be asserted, ‘it meant that such &toffs and counterclaims which did not meet that condition could not be asserted. Under Ap- pellant’ $ construction and” under. the interpretation given “the statute-by the court of claims, there was no need for the saving provision enacted by Congress. Congress ex- pected all setoffs to be barred by the limitation provision — and evidently thought i it necessary to insert the one saving | provision. — eae. a , ‘ / + A F 9 The supposedly inequitable features noted by the court of claims. are not in fact so inequitable. While we ggub- mit the’ equities of the matter should be passed upon by Congress rather than the courts, United States v. Lindsay, 346. U.S. 568, 98 L. Ed. 300, 74 S. Ct. 287, we respect- fully. submit that it certainly places no undue burden upon the Government to require it to audit its claims dufing a six-year period. Indeed, no reason appears why the Com- modity Credit Corporation claims cannot be given. prefer- _ ence, if such be necessary to receive an audit within ‘six ° years, Congress, in other sections, 15 U.S.C.,. Section 714b(g) and (h), has given the Corporation the power to enter into the usual business contracts in order to carry out “its purpose. No doubt, Congress thought that since the Corporation was going to be engaged in the usual business — transactions, it should be subject to some of the require- ments to which other corporations are subject. No good reason appears why it should not be so subjected. . The argument of the Court of Claims in ‘the Union ‘Pacific Supra, is not a valid one.“Congress in Sec. 4c was not dealing with the problem of administrative settlement of claims. It was speaking of a set-off or counterclaim. (And it is a set-off as counterclaim which the government is contending for in this situation (R. pps. 10-11)). No doubt the Government in considering claims against’ it " which are barred from suit because of limitation does take _ into consideration, in making its administrative settlements, — ‘Claims which the. Commodity Credit Corporation has against the same person which are also barred from suit by limitation.. But that ‘isn’t’ the situation present in this oa In this situation there is no contention that Peti- tioner’s Claim is barred by limitation, Under the express | |. eos wording of Sec. 4C, quoted’ above, “the only set-off or - counterclaims which cah be asserted against this Claim are. those which were not barred at the time Petitioner’s cause - of action arose. The Respondent’s counterclaim was barred at that time and hence it can not be asserted in this action. The act upon which Appellant: relies is a general statute’ passed in 1940. It will be noted that the statute makes no mention of services rendered to Corporations whose stock _ is owned by the Government. Contrast: this general statute ' with the specific statute- upon which Appellee relies. This Statute was passed in 1949, nine years subsequent to. the . enactment of the general statute. It is axiomatic that ‘a specific statute will control over a general statute. Es- pecially is this true when the specific statute was enacted subsequent to the enactment of the general statute. Conclusion The judgment of the Court of Appeals is erroneous. It is directly contra to the holding of this Court in the Western Pacific Case and the Court of Appeals in the Northwestern. Auto Parts Company and Northern Pacific ~ Railway Company, cases with reference to the submitting to the Interstate Commerce Commission thé question of which tariff covers the item in quéstion. On the limitation _ issue the judgment of the Court is directly contra to the - plain express provisions of the act. For: these’ reasons the ‘Petition for Writ of Certiorari should be granted. ve incenecctl submitted, \ Roy ‘ss ARTERBURY | 1828 Bark of the Southwest Bldg.. Houston .2,.Texas _ Attorney for Petitioner ~~ . ‘ a APPENDIX cA” “IN THE | UNITED STATES COURT OF APPEALS - FOR THE FIFTH CIRCUIT mes 16777 te *“UNrTeD StaTEs oF AMERICA, Appellant, © : ‘VERSUS | Missouri Paciric RarLroap Company, Appellee @° * Appeal from the United States District Court ‘for the Southern District of Texas - (January 14, 1958) ince | * a “Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges _HUTCHESON, Chief Judge: This suit arises out of the action of the government in deducting, under the authority - of Sec. 322 of the Transportation Act of September 18, 1940, 49 U.S.C. 66, from freight bills admittedly due, sums which it claimed as: overpayments on other freight bills : earlier paid. . ~/ 12 Submitted on a stipulation of facts: and decided by the district judge in favor -of, the plaintiff railroad, three © questions are presented, | The first question is: Was the railroad, which lt for the admitted freight due it on later shipments, entitled to. - recover from the government the. amount deducted 2 as _in actater audit on the claim that, while the shipment was. . first billed to it as weighing 9290 pounds, a correction . bill was later ‘sent and ‘it was paid for as. weighing over ‘ 35,000 pounds? The. primary point. here, since no proof was - offered as to the correct weight, is whether the plaintiff railroad company had the burden of proving that the _ government’s. deduction, based upon its assertion that the shipment weighed 9290 instead of the 35,000 pounds it paid for, was wrong, or whether the burden was upon ~ the defendant so prove. the correct weight. : e The district judge found with the plaintiff that the baal was on the government, and, in addition, without — any ‘evidence to ‘support the finding, since the correct — weight was not testified’ to and the only part of the ' . stipulation having’ any bearing on the question was that two bills of lading, the first stating the weight as 9290 and the second one-stating it as over 35,000, were issued by the - railroad, he categorically found that the weight . was 35,360 pounds. i. The second question is whathing, as the plaintiff claims, < _ shipments of Air Force cases’ shipped from’ St. Louis to Houston, of nine carloads of a commodity described on each of the bills of lading as “Item No. 1, Case, Shipping. - Air Force Organization Equipment (Shipping boxes, wooden, arial erste fibre bones)"; were Properly f 13 _ charged the rates petal for in Comsaltdeeed Freight Classification No. 15 ‘Baskets (boxes) or hampers chemi- cally hardened fibre”, or whether, as the . defendant claims, the articles are ratable arid were properly charged’ - - as within exceptions to the classification in. §.W. Lines “Tariff 173 Q ICC'No. 3584, under the description “Boxes, .wooden noibn”, “noibn”. meaning not otherwise indexed by name in the classification. im : It was stipulated that each case consisted of four nested containers made of 3/8 inch plywood The inside and outside of each container was covered with .018 vulcanized _ ane fibre glued to the. plywood with a water resistant glue.. It was further stipulated that .if the plaintiff’s contention is correct, the plaintiff is due judgment for $2,487.57 on the item in this paragraph, and that if the defendant’s contention is correct, the plaintiff is -due nothing on * this item. : : : The district judge found ‘with the plaintiff railway a : * The third question is whether, a _= withholding action #hs taken after the running of the period set forth "in Section Four of the Commodity Credit Corporation ‘Charter, Act of June 29, 1948, as amended, 15 U. S: C. Sec. 714(c), the United States was without authority to deduct freight charges paid from funds of the Commodity © Credit Corporation on shipments made from Beaumont, Texas, for export for its account. The government con- tends that the statute’ did not come into play and was not effective because ‘the dedugtion was merely an ad- ‘ ministrative act under the lawful exercise of the au- —_ granted i in Sec. 322. i \l4- . oot ; . \ ge district jeiles held with plaintiff that the Statute barred the deduction... ? As to its first chiiek, the government is here aie out that, though the decision of the district judge is supported by United States v. New York, New Haven 8 Hartford, 236 F(2) 201 (1st Cir.), a writ of certiorari has been granted in it, and arguing with what has gurned . out to be prophetic vision’ that the decision will be re- versed and the position. of the United States sustained. As a matter’ of original viewpoint, as well as on the authority of United States v. New York, New Haven and . Hartford Ry. Co,, note 1, supra, we find ourselves in . agreement with the government’ $ position. When it comes to ‘the second question, the tariff to be applied to the shipment of Air Force Organizatio’ equip- ment, we think the rule which should govern such con- struction is no better stated than in United States v. Missouri, Kansas & Texas Railroad £-, 194 F(2) 777, at pages 778-9: 3 “The construction of a printed railroad tariff presents a question of law and. does not differ in character “from that presented when the con- struction of any othér document is in dispute. ~ The ‘four corners of the instrument must be vis- udlized and all the pertinent provisions con- sifered together, giving effect so far as possible to every—word, clause, and sentence therein contained. The cogstruction should be that meaning -which. the words fe might reasonably carry to the shippers to whom they: aré addressed, and any ambiguity or 1 United States of America. ‘petitioner, v. New York,.New Haven ‘and Hartford Ry. Co US... . (12-1657). 15° reasonable doubt as to their meaniigg must be résolved against the carriers. But. claimed ambiguities or doubts as to the meaning of a rate tariff must -have a sub- ‘ stantial basis in the light of the ordinary meaning of the words used and not a mere arguable basis. Hohenberg v. Louisville & N. R.R. Co., 5 Cir.,- 6 F(2) 952; Christensen v. Northern, Pac. Ry. . 8 Cir.. 184 F(2) 534; Norvell-Wilder Supply - — Co. v. Beaumont, Sour ‘Lake & Western Railway Co., 274 ICC 547.” Applying that rule to the tariffs in question here, we agree with the position of the government that the dis- trict judge wrongly construed them and the wrong rate was’ applied. In reaching this conclusion, we’ primarily put it on the ground that-the tariffs under construction ~ ‘oh their face admit of no other reasonable conclusion. — But, if we are wrong in this, we think the same result — is requi the application of the ‘principle thus, stated in the eve ee n: “The construction should be that meaning which the words uséd might reasonably carry to the shippers to whom they are addressed, and any ambiguity or reasonable doubt as to their meaning must be resolved against the carriers.” Other statements and applications of this rule are to be found in Hohbenberg v. Louisville & N. RR. Co., supra, at page 955, Am. Ry. v. Price, $4 F(2) 67, and. Atlantic Coast Railway v. Atlantic Brid ge Co.,. 57 F(2) 654. In the Hobenberg case, at page - 955, the court said: | “Where there is no. ambiguity in the language used, a rate may be unjust and yet be enforced as .the -established one, but in doubtful cases, in- the construction of a tariff, as of a law, in order to arrive at the intent of its framers, a court is 16 4 warranted in ‘considering how the rates claimed | would operate as a matter of justice.” / ° while in, the. Atlantic Coast Line case, the principle was thus. stated: “Tariffs, like statutes, have the’ force of. — like statutes they must) be expressed in clear and plain terms, so -that those dealing with . and governed by them may understand them and act advisedly *.* * If they. are ambiguous or per- mit of two meanings, the shipper may construe © them. in the most favorable -way to himself . which the terms: — Of the third point, that it was error to hold that thet re- covery of the alleged overpayment made by ‘the Com- modity Credit Corporation on appellee’s bills. was. barred by Section 4(c) of the Commodity Credit Corporation - Charter Act of 1948, it is sufficient to say that we agree with the position of the United States that the precise. question here. involved was correctly decided by the ‘Court of Claims adversely to the carrier in Union Pacific — R.R. Co. v. United States, 147 F. Supp. 483, and, without laboring the matter further, we hold that upon the con- siderationg and for ‘the reasons stated in that opinion, the finding and conclusion of the district judge was wrong. _ The judgment seneaiad from is, Habitiits REVERSED and the cause is REMANDED with directions (1) to deny appellee recovery: of the ,deductions arising out of its - charges for the transportation of the airplane fusilages and Air Force boxes, and (2) to put appellee to its proof on the question of the correctness of its charges for the Drm | = oe 17 cf transportation of the Casiainiiai Credit Corporation faod- _ stuffs. REVERSED and: REMANDED. A true copy Test: “EDWARD * W. WADSWORTH Edward W. Wadsworth ' Clerk, U. S. Court of Appeals; Fifth ie Circuit; New Orleans, Louisiana \ (Seal) us JUDGMENT ‘Extract. from, the - Minutes of January 14, 1958. “UNITED STATES. OF AMERICA pela MISSOURI PACIFIC RAILROAD ‘COMPANY \ No. 16777 | This cause came on to be heard on the transcript of the record from the United States District Court for the | Southern District of Texas, and was’ argued by counsel; On consideration whereof, It is now: here ordered and adjudged by this: Court that the judgment of the said District Court appealed from 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 directions ° (1) to deny appellee recovery of the deductions. arising out of its charges for the transportation. of the airplane — _ fusilages and Air Force boxes, and (2) to put appellee to . / its proof on the question of the correctness of its charges for the transportation of the Commodity Credit Corpora- . tion foodstuffs. ~~ 18 7 APPENDIX “BY ; Aileen Procedure Act - 5 .US.C. Sections 1001 (a) and 1004 (d): | oo ae “Section 1001(a) - “Agency” means. each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress, the courts, or the govern- _ments of the possessions, Territories, or the District of - Columbia. Nothing in this chapter shall be ‘construed to repeal delegations of authority as provided by law. Except as to the requirements of Section 1002 of this title, there sliall be excluded “from the operation of this chapter. (1) agencies composed of representatives of the parties’ or of representatives of organizations’ of the parties to the disputes determined by them, | (2) courts martial and military commissions, (3) military or naval authority exercised in the field in _ time of war or in occupied territory, or (4) functions - ‘which by law expire on the termination. of present _ hostilities, within any ‘fixed period thereafter, or be- fore July 1, 1947, and the. functions conferred by sections 301-303, 304, 305, 306-309, 310, 311-318, 1881-1884 and 1891-1902. of Appendix to Title 50, and sections 739 and 1744 of Title 12; sections: 1611- 1614, 1615-1646, and 981-985 of Appendix ‘to Title §0, and sections 101-125 of Title 41; and sections 1738, 1739, and 1743 of Title 12, and sections 1821- 1833 of Appendix to Title 50.” - “Section 1004(d) - The agency is authorized in its - sound discretion, with | like: effect as in the case of other orders, ‘to issue. a declaratory order ‘to terminate a controversy’ or remove uncertainty. June 11, 1946, 4 C. 32% P. §, 60 Stat. 239.” 19 - Commodity Credit Corporation ‘Charter Act 15 U.S.C. Sections 714(b), (c), (g), (h), and (k): ~ « ware “Section 714 b (c) - May sue and be sued,: but no attachment, injunction, garnishment, or other similar process, mesrfe of final, shall be issued against the Corporation or its property. The district courts of the United States, includimg the district courts of — any Territory or possession, shall have exclusive orig- inal jurisdiction, without regard to the amount in the . controversy, of all suits brought by or against. the ‘ Corporation: PROVIDED, That the Corporation may intervene in any court in any suit, action, or pro- ceedings in which it has an interest. Any suit against the Corporatior® shall be. brought in the District of _ Columbia, or in the district wherein the plaintiff re- sides or is engaged in business. No suit, by or against the Corporation shall be allowed unless (1) ‘it’ shall - have been brought within six years after the right accrued on which suit is brought, cr (2) in the event that the person bringing such suit shall have been under legal disability or beyond the seas at the time. the right accrued, the suit shall have been brought - ‘ _ within three years after the disability shall have ‘ceased or within six years after..the right accrued on which suit is brought, whichever period is longer. The de- feridant in any stit by opagainst the corporation may - - plead, by way of set-off or counterclaim any cause of action, whether arising out of the same transaction ’ or not, which would otherwise be barred by such limi- - tation if the claim upon which the defendant’s cause of action is based had not been barred prior to the date that the plaintiff’s cause of action arose: PRO- VIDED, That the defendant shall not be awarded a judgment: on any such set-off or counterclaim for any amount in excess of the amount of the plaintiff’s claim established in the suit. All suits. against the cor- ener > "poration shall’ be tried ‘by the Court without a jury. y Notwithstanding any other provision of sections 714- | 7140 of this title, the Federal Tort Claims Act shall be applicable to the Corporation. ‘Any suit by or - against the United States as the real party in interest based upon any claim by,or™ against the Corporation - shall be subject to the provisions of the subsection (c) of this section to the same extent as though such suit were by or against the corporation, except that ° (1) any such suit against the United States based upon any claim of the type enumerated in section 149t of Title 28,. may be brought in the United States Court, of Claims, and (2) no such suit against the United States may be brought itt a district court unless such suit might, without regard ‘to the proyisions of sections 714-7140 of this a be brought: in such : f court.” | “Section 714 b io May enter tale and carry out such contracts or agreements as are Mecessary in the- _ conduct of its business. State.and local regulatory laws or rules shall not be applicable with respect to con-- ‘tracts or agreements of the corporation or the parties - thereto to the extent that such contracts or agree- ménts provide that such laws or rules are inconsistent with such ‘contracts or agreements.” — . . “Section 714b (h) May contract Po the use, in . accordance with -the usual customs or trade and com- merce, of. plants. and facilities for the physical -hand- ling, storage, processing, servicing, and. transportation of the agricultural commodities subject to its control. _ The Corporation shall have power to acquire personal property nécessary td the conduct of its business but shall not have power. to acquire real property or any interest therein except that it may (a) rent or lease. ‘office space necessary for the conduct of its. business and (b) acquire real property or any interest therein : : C4 for the purpose aé eciviliine storage adequate to carry — jout effectively and efficiently any of the corporation’s programs, or of securing or discharging obligations owing to the corpogation, or. of, otherwise protecting _ the financial interests of the corporation: PROVIDED, . That the authority contained. in this subsection shall ~ not be utilized by the Corporation for the purpose of acquiring real property, or dny interést therein, in order to provide storage facilities for any. commodity unless the Corporation determines. that existing pri- vately owned storage facilities ‘for such commodity in’ the area concerned are not adequate: PROVIDED FURTHER, That no refrigerated cold storage facili- ties shall be constructed or purchased excépt with funds specifically provided by Congress for that pur- “ pose: AND PROVIDED FURTHER, That nothing contained in this subsection. shall limit. the duty of the Corporation, to the maximum extent practicable consistent with the fulfillment of the Corporation’s _ purposes and the effective and efficient conduct of its business, to utilize. the’ usual and customary chan- - nels, facilities, and arrangements of trade’ and com- merce in the warehousing of commodities: AND-PRO- * VIDED FURTHER, That to encourage the storage - of grain on farms, where it can be stored at the lowest cost, the Corporation make loans to grain growers .. needing storage facilities when such growers shall ap- ply to the Corporation for financing the construction or purchase of suitable storage, and these loans shall _ . be deducted from the proceeds of price support loans . or purchase agreements made between the-Corpora- tion and the growers. Notwithstanding any other pro- vision of law, the Commodity Credit Corporation is authorized, upon terms and conditions prescribed ‘or approved by the Secretary of Agriculture, to accept strategic and critical materials produced abroad in ~ ——— for (eee commodities: acquired by — oe 5D a : / such exchange of goods, normal commercial easily storable and thosg which serve as prime. incentive goods to stimulate production of critical and: strategic ma-° terials. The determination of the quantities and quali- ties of such materials which are desirable for stock piling and the determination of which materials are strategic and critical shall be made in the manner. pre- _scribed by section 98 a of Title 50.: Strategic and da "critical materials acquired by Commodity Credit Cor- poration in exchange for agricultural commodities. “shall, to the extent approved by. the Munitions Board’ of the National Military Establishment, be transferred . to the stock pile provided for by the Strategic and Critical. Materials Stock Piling A¢t; and when trans- ‘ferred to the stock pile the Commodity Credit Cor- poration shall be reimbursed for the strategic and ‘critical materials so transferred to the stock pile’ from the funds made available for the purpose of the Strate- — gic and Cfitical. Materials: Stock Piling Act, in an “ amount ‘equal to the fair market value, as determined by the Secretary of the Treasury of the material trans- . ferred to the stock pile. Nothing contained hercin shall ° limit the authority of the Commodity Credit Cor- poration to-acquire, hold, or dispose.of such quantity of strategic and critical materials as it deems advisable in carrying out its functions and protecting its assets.” “Section 714 b (k) -Shall have authority to make final and conclusive settlement and adjustment of any claims by of against the Corporation or the agcounts of its fiscal officers.” the Corporation. wee as- practicable, in effecting ~ - S, oo --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0363%3A2. Public record. Not legal advice.