Arrow Transportation Co. v. Southern Railway Co.
Opinion of the Court
delivered the opinion of the Court.
A schedule of reduced rates proposed by the respondent rail carriers was suspended by the Interstate Commerce Commission for the maximum statutory period of seven months pending a determination whether the reduction was lawful. The statute
I.
The Interstate Commerce Commission was granted no power to suspend proposed rate changes in the original
It cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to 1910 to suspend proposed rates. However, we cannot suppose that Congress, by vesting the new suspension power in the Commission, intended to give backhanded approval to the exercise of a judicial power which had brought the whole problem to a head.
Moreover, Congress engaged in a protracted controversy concerning the period for which the Commission might suspend a change of rates. Such a controversy would have been a futile exercise unless the Congress also meant to foreclose judicial power to extend that period. This controversy spanned nearly two decades. At the outset in 1910, the proposal for conferring any such power on the Commission was strenuously opposed. The car
There is, of course, a close nexus between the suspension power and the Commission’s primary jurisdiction to determine the lawfulness and reasonableness of rates, a jurisdiction to which this Court had, even in 1910, already given the fullest recognition. Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426.
II.
Our conclusion from the history of the suspension power is buttressed by a consideration of the undesirable consequences which would necessarily attend the survival of the injunction remedy. A court’s disposition of an application for injunctive relief would seem to require at least
Nor is the situation different in this case if it be suggested that a court of equity might rely upon the Commission’s finding of unreasonableness which preceded the Commission’s suspension ordfer. The Commission’s con
III.
The petitioners contend that in any event injunctive relief is authorized in this case to enforce the National Transportation Policy.
Affirmed.
49 U. S. C. §15 (7):
“Whenever there shall be filed with the Commission any schedule stating a new . . . rate . . . the Commission shall have . . . authority, either upon complaint or upon its own initiative without complaint, at once ... to enter upon a hearing concerning the lawfulness of such rate . . . 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 of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate . . . but not for a longer period than seven months beyond the time when it*660 would otherwise go into effect; and after full hearing, whether completed before or after the rate . . . 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 proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate . . . shall go into effect at the end of such period . . . .”
The petitioners are a barge line, Arrow Transportation Co., a competitor of the respondent railroads for grain carriage; a municipality, Guntersville, Alabama, served by Arrow; a grain merchant, O. J. Walls, located in that municipality; and a grain consumer, John D. Bagwell Farms & Hatchery, Inc., which receives its grain by truck from Guntersville. The rate reductions which respondents have filed cover the shipment of grain to various points in the Southeastern United States, but apply only to multiple-car shipments from certain Mississippi and Ohio River ports. The Commission, following a complaint by competing barge lines and other parties, and on the basis of a recommendation of its Suspension Board, made a tentative finding that the proposed rates would be “unjust and unreasonable, in violation of the Interstate Commerce Act,” and would “constitute unfair and destructive competitive practices in contravention of the National Transportation Policy.” After the full hearing, however, Division 2 of the Commission, on January 21, 1963, concluded that Southern’s rates at least were compensatory and reasonable, Grain in Multiple-Car Shipments — River Crossings to the South, I. & S. Docket No. 7656. That decision is now awaiting reconsideration by the full Commission.
The four petitioners have contended throughout this litigation that the application of the proposed new rail rates will irreparably injure their respective economic interests, particularly because they threaten to force Arrow out of business. Petitioners further contend that the proposed rates, being substantially lower than the competitive barge
In the course of the hearings before the Commission, the proposed rates were supported by representatives of the United States Department of Agriculture, the Southern Governors’ Conference, the Southeastern Association of Railroad and Utilities Commissioners, and by various receivers and users of grain throughout the Southeast. On the other hand, the rates were protested by certain barge lines besides Arrow, several receivers of grain by barge, the Tennessee Valley Authority, flour milling interests and certain boards of trade outside the Southeast.
The District Court concluded in its memorandum following an oral argument:
“. . . I have convinced myself that should this Court have jurisdiction of this matter, it should consider all of these matters most carefully and deliberately before denying injunctive relief to plaintiffs. At this time I am of the opinion that the ends of justice would be best served by granting temporary injunctive relief for a limited period of time, not to urge the Commission to greater speed in deter*662 mining this issue but to be sure that the parties conclude the hearings as speedily as possible. However, lacking jurisdiction, I find myself powerless to grant the relief sought; therefore, at this time it is the judgment of the Court that the motion for preliminary injunction be, and the same is hereby denied. At the same time I am denying defendants’ motion to dismiss this ease.”
The District Court’s formal order, entered the following day, denied both the petitioners’ motion for a preliminary injunction and the respondents’ motion to dismiss.
One judge of the Court of Appeals granted petitioners’ motion for a temporary restraining order on August 3, 1962, the day on which the order of the District Court issued. On August 8, however, a panel of the Court of Appeals denied petitioners’ application for a restraining order pending decision of the appeal. Thereafter, but before oral argument in the Court of Appeals, MR. Justice BlacK issued an order extending the Court of Appeals’ restraining order pending the presentation and disposition by this Court of a petition for certiorari. The Court of Appeals rendered its opinion on September 7, 1962, and we granted certiorari on October 15. We invited the Solicitor General to file a brief expressing the views of the United States, and he filed a brief for the United States as amicus curiae. Southern was the only railroad which opposed certiorari or argued the merits of the case before this Court.
36 Stat. 552.
The cases decided between 1906 and 1910 disclose the judicial uncertainty about the availability of any equitable relief. Compare, e. g., Northern Pac. R. Co. v. Pacific Coast Lumber Mfrs. Assn., 165 F. 1 (C. A. 9th Cir. 1908); Jewett Bros. & Jewett v. Chicago, M. & St. P. R. Co., 156 F. 160 (C. C. D. S. D. 1907) with, e. g., Atlantic Coast Line R. Co. v. Macon Grocery Co., 166 F. 206 (C. A. 5th Cir. 1909), aff'd on other grounds, 215 U. S. 501; and Wickwire Steel Co. v. New York Cent. & H. R. R. Co., 181 F. 316 (C. A. 2d Cir. 1910). See for a contemporary view that courts lacked such injunctive powers over proposed rates, 1 Drinker, The Interstate Commerce Act (1909), §243.
See In re Advances in Bates — Western Case, 20 I. C. C. 307, 313-314; Dixon, The Mann-Elkins Act, 24 Quarterly Journal of Economics, August 1910, p. 593, at 603; Crook, The Interstate Commerce Commission, 194 North American Review, December 1911, p. 858, at 867.
The Administration originally recommended a period of 60 days; congressional proponents of suspension urged in response an unlimited suspension power, see 45 Cong. Rec. 6409. The Commission itself originally proposed a period of 120 days; the Senate Committee which reported on the Senate version of the bill recommended 90 days, S. Rep. No. 355, 61st Cong., 2d Sess. 9. For other stages of the legislative give-and-take which finally produced a period of 10 months as the maximum suspension term, see 45 Cong. Rec. 3373-3374, 3472, 4109-4110, 6500-6501, 6503, 6509, 6510-6511, 6783-6784, 6787-6788, 6900-6901, 6915-6921, 8239, 8473.
36 Stat. 552.
41 Stat. 486-487. Section 418 of the Esch-Cummins Act also added an express provision that if the hearing had not been concluded at the expiration of the 30-day extension period, “the proposed change of rate, fare, charge, classification, regulation, or practice shall go into effect at the end of such period . . . .”
See, e. g., Statement of Commissioner Clark, Hearings on H. R. 4378 before House Committee on Interstate and Foreign Commerce, 66th Cong., 1st Sess. 91, 2944; H. R. Rep. No. 456, 66th Cong., 1st Sess. 20-21. President Taft’s 1910 message expressly adverted to
A recent summary indicates that only about three-fifths of the investigation and suspension proceedings are completed within the seven-month period, but only four percent of such cases require more than a year. Remarks of Commissioner Charles A. Webb, in Expedition of Commission Proceedings, A Panel Discussion, 27 I. C. C. Prac. J. 15, 16 (1959). Professor Sharfman is authority that at the time he wrote it was invariably the practice of carriers voluntarily to extend the period at least with respect to proposed increases. 1 Sharfman, The Interstate Commerce Commission (1931), 203.
Section 418 of the Transportation Act of 1920, 41 Stat. 484, 486-487, amending § 15 of the Interstate Commerce Act.
44 Stat. 1447-1448. See S. Rep. No. 1508, 69th Cong., 2d Sess. 4. Since the enactment of §15 (7), similar suspension provisions have been included in numerous other regulatory statutes. See 49 U. S. C. §§316 (g), 318 (c) (Motor Carrier Act); 49 U. S. C. § 907 (g), (i) (Water Carrier Act); 49 U. S. C. § 1006 (e) (Freight Forwarders Act); 47 U. S. C. § 204 (Federal Communications Act); 16 U. S. C. § 824d (e) (Federal Power Act); 15 U. S. C. § 717c (e) (Natural Gas Act); and 49 U. S. C. § 1482 (g) (Federal Aviation Act). The terms of these later statutes are virtually identical to those of § 15 (7), although the length of the prescribed suspension period varies. However, it should be apparent that nothing we hold with respect to § 15 (7) necessarily governs the construction and application of these other suspension provisions.
Great Northern held only that the District Court lacked power to enjoin intrastate rates which had been duly prescribed by a state regulatory agency and which the railroads were protesting before the Interstate Commerce Commission as discriminatory against interstate commerce. Although, unlike this case, the situation there involved a danger of direct conflict between federal and state regulation, see 281 U. S., at 426-430, the reasoning there does suggest the Court was of the view that even in the absence of such a direct conflict, the federal courts might not enjoin proposed rates when the Commission lacked either the inclination or the power to do so.
E. g., M. C. Kiser Co. v. Central of Ca. R. Co., 236 F. 573 (D. C. S. D. Ga.), aff’d, 239 F. 718 (C. A. 5th Cir.); Freeport Sulphur Co. v. United States, 199 F. Supp. 913, 916 (D. C. S. D. N. Y.); Luckenbach S. S. Co. v. United States, 179 F. Supp. 605, 609-610 (D. C. D. Del.), vacated in part as moot, 364 U. S. 280; cf. Manhattan Transit Co. v. United States, 24 F. Supp. 174, 177 (D. C. D. Mass.). See also Director General v. Viscose Co., 254 U. S. 498, 502, recognizing on similar grounds that under the Transportation Act of 1920 the District Courts lacked power to enjoin the action of the Director General of Railroads in instituting changes of commodity classifications and similar terms: “[T]here was ample and specific provision made therein for dealing with the situation through the Commission, — for suspending the supplement or rule . . . .” 254 U. S., at 502. Cantlay & Tanzola, Inc., v. United States, 115 F. Supp. 72 (D. C. S. D. Calif.), upon which petitioners rely, is not contrary. There the District Court found no need to enjoin or suspend the proposed rates because, pendente lite, the carriers had voluntarily restored the previous schedule. But the
See, e. g., Professor Sharfman’s view that “[u]pon failure of the Commission to issue an order within this prescribed period, the proposed changes in rates were automatically to become effective, although the Commission might continue its investigation and bring it to decision.” 1 Sharfman, The Interstate Commerce Commission (1931), 202. A contemporary commentator’s view of the operation of the new statute was as follows: “In other words, the Commission may suspend rates for ten months beyond their effective date but no longer, and if the investigation is not then complete, the rates automatically go into effect.” Dixon, The Mann-Elkins Act, 24 Quarterly Journal of Economics, August 1910, p. 593, at 604. For a current view, see Brooks and Daily, The Commission’s Power of Suspension and Judicial Review Thereof, 27 I. C. C. Prac. J. 589, 599 (1960).
See also Board of Railroad Comm’rs v. Great Northern R. Co., supra, at 429-430; Director General v. Viscose Co., 254 U. S. 498, 504; In re Advances in Rates — Western Case, 20 I. C. C. 307, 313-314; Brooks and Daily, supra, note 16, at 605.
See Commissioner Eastman’s description of the evolution of this competition, Petroleum Products from New Orleans, La., Group, 194 I. C. C. 31, 44.
See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., supra, at 440-441; Director General v. Viscose Co., 254 U. S. 498; Baltimore & O. R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 493-495. It has been pointed out that “the agencies, through their power to suspend or deny suspension, often make final determinations of what the rates shall be during the suspension period . . . .” 1 Davis, Administrative Law (1958), 442.
28 U. S. C. § 2325 requires the convening of a three-judge District Court pursuant to 28 U. S. C. § 2284 to enjoin even temporarily the operation or execution “of any order of the Interstate Commerce Commission
The Court of Appeals also suggested — though the suggestion has not been challenged before this Court — that § 16 of the Clayton Act, 15 U. S. C. § 26, might independently bar the injunctive relief sought here. 308 F. 2d, at 185. That section restricts to the United States, in suits for violations of the antitrust laws, the right to seek injunctive relief against any common carrier “in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission.” Its applicability would, of course, depend upon whether or not the petitioners’ action rests upon claimed violations of the antitrust laws. Cf. Central Transfer Co. v. Terminal Bailroad Assn., 288 U. S. 469.
See, e. g., Carlsen v. United States, 107 F. Supp. 398 (D. C. S. D. N. Y.); Bison S. S. Corp. v. United States, 182 F. Supp. 63 (D. C. N. D. Ohio); Luckenbach S. S. Co. v. United States, 179 F. Supp. 605 (D. C. D. Del.). But cf. Amarillo-Borger Express, Inc., v. United States, 138 F. Supp. 411 (D. C. N. D. Tex.), vacated as moot, 352 U. S. 1028; Seatrain Lines, Inc., v. United States, 168 F. Supp. 819 (D. C. S. D. N. Y.). Compare generally Goodman, The History and
Thus we do not reflect in any way upon decisions which have recognized a limited judicial power to preserve the court’s jurisdiction or maintain the status quo by injunction pending review of an agency’s action through the prescribed statutory channels. Cf., e. g., Scripps-Howard Radio, Inc., v. Federal Communications Comm’n, 316 U. S. 4; West India Fruit & S. S. Co. v. Seatrain Lines, Inc., 170 F. 2d 775; Board of Governors v. Transamerica Corp., 184 F. 2d 311. Such power has been deemed merely incidental to the courts’ jurisdiction to review final agency action, and has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act.
It has also been suggested that a judicial power of this sort may have survived by reason of the “saving clause” of the statute, 49 U. S. C. §22 (1). That conclusion would, of course, follow only if prior to the adoption of the Act there had been a clearly recognized equitable power to enjoin proposed rate changes. This, as we have already indicated, was not the case. Moreover, we have generally rejected such constructions of this and similar saving clauses, see, e. g., Texas & Pacific R. Co. v. Abilene Cotton Oil Co., supra; T. I. M. E., Inc., v. United States, 359 U. S. 464, 472-474.
See North Carolina Natural Gas Corp. v. United States, 200 F. Supp. 745, 750 (D. C. D. Del.). The Commission’s regulations and rules contemplate only an informal hearing before the Suspension Board upon a protest, of which no transcript is to be made, although reconsideration may be requested. She 49 CFR §§ 1.42,1.200; see also 1 Davis, Administrative Law (1958), 441: “Although a hearing cannot be held on the question whether to suspend pending hearing, in many cases hurried conferences are held, which provide substantial safeguard against arbitrary action.” The practice of the Civil Aeronautics Board under a virtually identical suspension statute appears to be more formal, 14 CFR § 302.505; see Air Freight Forwarder Assn., 8 C. A. B. 469; 474.
We suggest no lack of congressional power to grant either administrative or judicial authority to extend a suspension period prior to completion of the administrative proceeding. Under other statutes Congress has evinced a clear intention to vest the courts with such power. The National Labor Relations Board, for example, has expressly been authorized to apply to the courts for “appropriate temporary relief or restraining order” pending the Board’s decision of an unfair labor practice case. 29 U. S. C. §160 (j). Cf. Transpacific Freight Conference v. Federal Maritime Board, 112 U. S. App. D. C. 290, 295, 302 F. 2d 875, 880.
54 Stat. 899, which has been inserted before .Part I of the Interstate Commerce Act.
Schaffer Transportation Co. v. United States, 355 U. S. 83, 87-88; Arrow Transportation Co. v. United States, 176 F. Supp. 411, 416 (D. C. N. D. Ala.), aff’d per curiam sub nom. State Corporation Comm’n v. Arrow Transportation Co., 361 U. S. 353.
Dissenting Opinion
with whom The Chief Justice and Mr. Justice Black join, dissenting.
The Court by its action today sounds the death knell for barge transportation on the Tennessee River. The war of extermination between the railroads and barge lines began years ago, and, as Chairman Eastman said in Petroleum Products From New Orleans, La., Group,
I.
The conclusions below that the proposed rate reductions will likely force the barge line out of business are not disputed. As the District Court found, there was “grave danger that irreparable injury, loss or damage may be inflicted ... if the proposed rates go into effect” and that petitioners “will have no adequate remedy at law.” On its face the rate reduction is but a continuation of the old policy found by Chairman Eastman to paralyze barge operations — activity to which the Court now gives its blessing — by a drastic reduction in the present all-rail rate on multiple-car grain shipments while maintaining the higher rate on the ex-barge traffic. The new rate for the haul from St. Louis to Birmingham, reduced from $8.70 per ton to a mere $3.12, is an example which illustrates the effect of the proposed rate reduction. Arrow’s present rate for shipments between those points is $5.48, including expense to Arrow of $2.20 for the 71-mile rail leg from Guntersville, Alabama, to Birmingham and 890 for transferring the grain from the barge to the rails at Guntersville, which leaves it only $2.39 for transportation by barge. In order to meet Southern’s new rate Arrow would have to reduce by $2.36
II.
The Court seems to say that because Congress, by § 15 (7), gave the Commission the power in its discretion to suspend rates for a short period, a power which it never previously had, it ipso facto foreclosed the federal courts from exercising a power they had always possessed, i. e., equity jurisdiction to preserve the status quo and prevent irreparable injury. The two powers are of an entirely different character. The suspension power granted the Commission under § 15 (7) is primary and is exercised in its discretion while the validity of a proposed rate is under consideration, but it is limited under present law to a period of seven months. No criteria or guidelines are laid down for the Commission, the only prerequisite be
Prior to 1910 the Commission had the power neither to suspend proposed rates nor “to prevent by direct action excessively low rates,” Skinner & Eddy Corp. v. United States, 249 U. S. 557, 566 (1919), and its earliest suspensions of proposed rate reductions occurred subsequent to 1910. See Suspension of Rates on Packinghouse Products, 21 I. C. C. 68 (1911); Board of Trade of Chicago v. Illinois Central R. Co., 26 I. C. C. 545 (1913). It was not until 1920 that the Commission was given power to exercise direct action and prescribe minimum rates. Transportation Act of 1920, 41 Stat. 484, 49 U. S. C. §15 (1); see United States v. Illinois Central R. Co., 263 U. S. 515, 525 (1924). At the time of the enactment
It can hardly be said that the granting of this primary jurisdiction with power to suspend for seven months totally ousted the equity courts of their traditional power to grant injunctive relief to preserve the status quo and prevent irreparable injury while the case is in progress in another forum. The cases do not support this conclusion where the other forum is either a court of law, Erhardt v. Boaro, 113 U. S. 537 (1885); Louisville & N. R. Co. v. Western Union Telegraph Co., 207 F. 1 (C. A. 6th Cir. 1913), or an administrative agency. Trans-Pacific Frgt. Conf. of Japan v. Federal Maritime Bd., 112 U. S. App. D. C. 290, 295, 302 F. 2d 875, 880 (1962); Board of Governors v. Transamerica Corp., 184 F. 2d 311 (C. A. 9th Cir. 1950); West India Fruit & Steamship Co. v. Seatrain Lines, 170 F. 2d 775 (C. A. 2d Cir. 1948); Isbrandtsen v. United States, 81 F. Supp. 544 (D. C. S. D. N. Y. 1948). Moreover, whenever Congress wanted to oust the jurisdiction of the courts it not only knew how to do it but did so in no uncertain terms. See, e. g., Internal Revenue Code of 1954, § 7421; Norris-La-Guardia Act, 29 U. S. C. §§ 101-115. In addition to these considerations, I submit that the Interstate Commerce Act itself supports the conclusion that the courts retained their traditional jurisdiction. Section 22 (1)
Finally, in 1940, the Congress adopted the National Transportation Policy (54 Stat. 899, 49 U. S. C. preceding § 1) in which it enjoined the Commission to
“foster sound economic conditions in transportation and among the several carriers; . . . encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discrim-inations ... or unfair or destructive competitive practices; ... all to the end-of developing, coordinating, and preserving a national transportation system by water, highway/and rail, as well as other means, adequate to meet the needs of the commerce of the United States .... All of the provisions of [the Interstate Commerce Act] shall be administered and enforced with a view to carrying out the above declaration of policy.”
The policy of “developing, coordinating, and preserving a national transportation system by water, highway, and rail . . . adequate to meet the needs of the commerce of the United States” (emphasis supplied) will be completely thwarted if Arrow and other barge lines on the Tennessee River are forced out of business. It is, indeed, a sad day for our judicial processes when our courts are rendered powerless to prevent this miscarriage of the clear policy of our Government, the frustration of the admitted duties of the Interstate Commerce Commission and the destruction of an entire system of transportation.
In addition, while it would be inappropriate to discuss the constitutional questions raised as to § 15 (7), the opinion of the Court evokes grave doubt about the constitutionality of the statute, as interpreted. See Porter v. Investors Syndicate, 286 U. S. 461, 470-471 (1932); Pacific Tel. & Tel. Co. v. Kuykendall, 265 U. S. 196, 201, 204-205 (1924)
I dissent.
We note that on January 21, 1963, while the case was pending here, the Division of the Commission which had previously considered the case concluded that some of the rates proposed by Southern were lawful but still found most (88%) of the entire rate package of all of the railroads unlawful. Even this finding, however, is not final, for it is subject to and is in fact pending reconsideration before the full Commission.
In 1910 Congress enacted § 4 (2) of the Act, the provisions of which evidence an awareness that railroad rate reductions could be destructive competitive practices, see Skinner & Eddy Corp. v. United States, 249 U. S. 557, 566-567 (1919), but §4 (2) clearly does not prohibit such practices. Not until the Transportation Act of 1920, as we have noted, was the Commission given the power to prescribe minimum rates.
Reference
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