Nothing in the record or in the petition for rehearing requires
decision in the present proceeding of the contention that, as a
result of changed conditions after the case was submitted to the
Commission, the spotting service as now performed is not in excess
of the carriers' obligation under their tariff rates, and that its
performance by the carriers without charge is therefore not
unlawful. The petition for rehearing is denied without prejudice to
appellees' presentation of the question in any appropriate
proceeding before the Commission and the courts. P. 322 U. S.
Page 322 U. S. 199
Petition for rehearing in the case of United States v.
Wabash R. Co., 321 U. S. 403
MR. CHIEF JUSTICE STONE.
In its petition for rehearing appellee Staley Manufacturing Co.
for the first time calls to our attention certain alleged changes
in the location and arrangement of tracks on which are placed cars
moving to and from the tracks of the line-haul carriers from and to
Staley's industrial tracks. The changes are alleged to have
occurred after the submission of the case to the Interstate
Commerce Commission, and are said to call for a different
conclusion than that reached by the Commission as to whether the
spotting service now performed by Staley is a part of the service
covered by the line haul tariffs.
The Commission's report considered in detail the circumstances
attending the placing of cars at what are termed the Burwell
tracks, which it found to be located within the Staley plant area
and to have been leased by Staley to appellee Wabash Railroad Co.
Its report states that, in general, cars delivered to Staley were
initially placed by the carrier on the Burwell tracks and thence
switched to appropriate unloading points at the Staley plant, while
cars received from Staley were generally placed on the Wabash
Railroad's general or storage tracks, but were also sometimes
placed on the Burwell tracks. The Commission found, on sufficient
evidence then before it, that
"the movements between points of loading or unloading within the
plant area of the Staley Company and the Burwell yard, the storage
yard, or the general yard of the Wabash . . . in all instances are,
and must be, coordinated
Page 322 U. S. 200
with the industrial operations of the Staley Company, and
conform to its convenience."
And, in its second conclusion of law, it stated that
"all services between the Burwell yard or the storage or general
yard of the Wabash and points of loading or unloading within the
plant area of the Staley Company are plant services for the Staley
Company, and not common carrier services covered by the line-haul
rates and charges of respondent carriers."
By their petitions for rehearing addressed to the Commission,
appellees alleged that, since March 1, 1941, three months after the
case had been submitted to the Commission and about two months
before it rendered its decision, the use of the Burwell tracks had
been discontinued, and that those tracks had thereafter been
disconnected and were being dismantled. They further alleged that
appellee Wabash Railroad was in course of constructing new tracks
on its own property "adjacent to its yard tracks north of the
Staley plant" and "immediately north of the so-called Burwell yard"
for use in the interchange of cars with Staley and other shippers,
and that, meanwhile, the interchange was being performed from its
general or storage yards. Appellees moved respectively that the
Commission reconsider its decision "upon such further proceedings
as may be appropriate and necessary," and that "the case be set
down for a further hearing, and that . . . the Commission
reconsider its order." No evidence was specified or tendered to
prove before the Commission the allegations of the petitions for
rehearing, and no opportunity to introduce evidence was in terms
requested. The Commission denied the petitions for rehearing
Before the District Court, appellees set out the substance of
their petitions to the Commission for rehearing and urged that the
Commission erred in denying them. The
Page 322 U. S. 201
United States in its answer admitted only that appellees had
alleged in those petitions for rehearing the matters set forth; the
truth of the matters alleged was not admitted by either appellant.
No new evidence was taken in the District Court. 51 F. Supp. 141.
That court did not pass on this question, and made no findings as
to the extent or effect of the alleged change of conditions.
Nothing in the petitions to the Commission for rehearing or in
the petition here affords any basis for saying that the alleged
changes in conditions are of a character which would require any
modification of the Commission's order, or that appellees could
not, with due diligence, have brought the changes to the attention
of the Commission before it made its report. They were not referred
to in appellees' briefs in this Court. Compare
paragraphs 4 and 6; I.T.S. Rubber Co. v. Essex Rubber Co.,
272 U. S. 429
272 U. S.
-432; Flournoy v. Wiener, 321 U.
. Neither the Commission nor the District Court
have made findings with respect to them, and they were not
considered by this Court or referred to in its opinion.
We find nothing in the record or in the petition before us which
calls on the Court in the present proceeding to pass on the
question now sought to be raised. Our decision is accordingly
without prejudice to appellees' presentation, in any appropriate
proceeding before the Commission and the courts, of their
contention that, as a result of changed conditions after the case
was submitted to the Commission, the spotting service as now
performed is not in excess of the carriers' obligation under their
tariff rates, and that its performance by the carriers without
charge is therefore not unlawful.
The petition for rehearing is denied.