1. The period for taking an appeal to this Court from a final
decree of a District Court of three judges in a suit to set aside
an order of the Interstate Commerce Commission is sixty days. P.
324 U. S.
776.
2. An appeal to this Court from a final decree of a District
Court of three judges may be allowed by a single judge. P.
324 U. S.
777.
3. It was improper for the District Court to reverse an order of
the Interstate Commerce Commission in respect of a provision
therein as to which the suitor had advised the Commission that it
no longer objected, but acquiesced. P.
324 U. S.
779.
Reversed.
Appeal from a decree of a district court of three judges which
set aside in part an order of the Interstate Commerce Commission,
42 M.C.C. 547.
Page 324 U. S. 775
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The appellee is a motor carrier. With the approval of the
Interstate Commerce Commission it acquired the operating rights of
Globe Cartage Company, another such carrier, which then had pending
before the Commission an application for a certificate of
convenience and necessity under §§ 206(a) and 209(a) of the
Interstate Commerce Act. [
Footnote
1] The appellee prosecuted the application as Globe's successor
to obtain a certificate authorizing the exercise of Globe's
so-called "grandfather" rights -- that is, to continue Globe's
operations as they were conducted July 1, 1935.
The Commission made an order awarding a certificate to appellee
as a common carrier, but for less than all the routes embraced in
the application and restricting appellee's operations to traffic
moving on the bills of lading of freight forwarders. [
Footnote 2] The record discloses that the
appellee filed a petition for reconsideration, in which it pressed
for amendment of the order as respects the routes permitted, but
waived objection to the restriction of its traffic to service of
freight forwarders. It stated: "We do not challenge, nor do we
complain against, the restriction to serve only freight
forwarders." There is more to the same effect. The Commission
denied the petition.
The appellee brought suit [
Footnote 3] to set aside and enjoin only so much of the
Commission's order as restricted its operations to traffic moving
on bills of lading of freight forwarders.
Page 324 U. S. 776
A district court of three judges heard the case, and issued a
permanent injunction as prayed. One of these judges allowed an
appeal to this court on a petition filed by the appellants more
than thirty, but less than sixty, days after entry of the decree.
The appellant in No. 449 intervened before the Commission in
opposition to the appellee's application, and was permitted to
intervene as a defendant in the court below. No circumstance
differentiates its status from that of the appellants in No. 448,
and what is said concerning that case may be taken as applicable to
No. 449.
The appellee moved to dismiss on the ground that the appeal was
not timely taken, and was improperly allowed by a single judge. We
postponed the question of our jurisdiction to the hearing on the
merits. After argument and upon consideration, we find ourselves in
the anomalous position that, whereas we hold we have jurisdiction,
we cannot pass upon the substantive question of the statutory power
of the Commission which is the ground of appeal.
First. Since the appeal is from the final decree of a
statutory court of three judges, and not from the entry of a
preliminary injunction the period for taking an appeal is sixty
days -- not thirty days, as appellee contends.
When, by the Act of October 22, 1913, [
Footnote 4] the Commerce Court was abolished and its
jurisdiction transferred to district courts, definite provision was
made for direct appeal to this court, within thirty days, from an
order granting or denying an interlocutory injunction in a suit to
set aside an order of the Commission. In a later sentence, the Act
declares "A final judgment or decree of the district court . . .
may be" likewise reviewed "if appeal . . . be taken . . . within
sixty days" after entry. The appellee's contention, as we shall
see, rests on the assumption that, when the Act speaks of a final
decree, it is addressed to final decrees in
Page 324 U. S. 777
cases other than those brought to set aside orders of the
Commission. But we think this reading incorrect. The paragraph as a
whole deals with the same type of suit.
On this erroneous assumption, the appellee insists that, when
the Act of February 13, 1925, [
Footnote 5] restricted direct review of district court
judgments in this field by repealing various earlier legislation,
but saving from repeal "so much" of the Act of 1913 "as relates to
the review of interlocutory and final judgments and decrees in
suits to enforce, suspend, or set aside orders" of the Commission,
the sentence of the earlier Act applicable to final judgment was
repealed, because it did not deal with judgments in suits to set
aside Commission orders. The argument is, to some extent, based on
the fact that, when the United States Code was compiled, the
sentence of the Act of 1913 dealing with appeals from interlocutory
injunctions became § 47 of Title 28, and the sentence dealing with
appeals from final judgments was omitted from the Title. The
omission was corrected in 1934 by inserting the latter sentence as
§ 47a. [
Footnote 6]
The face of the statutes, the uniform practice of this court,
[
Footnote 7] and the
legislative history [
Footnote
8] make against the contention that appeals from final decrees
in the class of cases in question must be taken within thirty
days.
Second. We hold the objection that appeal was allowed
by but one of the three judges who composed the district court is
untenable. The Act of October 22, 1913 (
supra) requires
that, in a case such as this, both the hearing in respect of an
interlocutory injunction and the final hearing shall be by three
judges. [
Footnote 9] It says
nothing as to who shall
Page 324 U. S. 778
allow an appeal. Since appeal is of right, allowance would seem
to be but a ministerial act which might be performed by any member
of the court. Our past practice has apparently sanctioned such an
allowance. But, if the proper procedure was formerly a matter of
doubt, such doubt has been removed.
Section 3 of the Act of April 6, 1942, [
Footnote 10] provides that, in such a case as
this, a single judge may "enter all orders required or permitted by
the Rules of Civil Procedure for the District Courts of the United
States in effect at the time," with a proviso not here relevant.
There is a further proviso that his action shall be subject to
review "at any time prior to final hearing," by the court as
constituted at final hearing. This, however, is obviously
inapplicable to action taken subsequent to final hearing. Rule 72,
Rules of Civil Procedure, states that an appeal to this court from
a district court shall be allowed "as prescribed by law and the
Rules of the Supreme Court of the United States governing such an
appeal." Rule 36 of this court authorizes a single judge of a
district court to grant such an appeal.
Third. The court below held that the Commission erred
in granting appellee a certificate as a common carrier and limiting
its right thereunder to carriage of goods consigned by freight
forwarders. This is the holding the appellants challenge. We are of
opinion that the record precludes consideration and decision of the
question.
As has been stated, the appellee, in its petition for
reconsideration by the Commission, expressly waived objection to
that portion of the order which limited operations to traffic
moving on bills of lading to freight forwarders. The Commission's
answer to the complaint in the district court recited the filing of
that petition and alleged that, in it,
"the plaintiff limited its objections to said report and order,
to the Commission's prescription of the routes over which
Page 324 U. S. 779
operating authority was granted therein, expressly waived
objection to, and did not challenge or complain against, the
restriction of the transportation authorized to commodities
consigned by freight forwarders, and gave up all claim to the right
to transport general commodities not so consigned."
To this answer the appellee filed a reply consisting of one
paragraph, in which it denied the allegation above quoted without
explanation or elaboration.
The Commission and the United States filed in the court below a
request for findings of fact which included a requested finding
reciting the filing of the petition for reconsideration, and stated
the
"sole error alleged against the Commission was that it granted
authority for operation only as to a portion of the routes and
between some of the points and places specified in the application.
In said petition, the plaintiff further stated that it did not
challenge nor complain against the restriction of the service
authorized to the transportation of commodities which are moving on
bills of lading of freight forwarders."
The court made no such finding.
The only assignment of error which may be said to attack the
failure so to find is one couched in general terms. It is: "The
District Court erred . . . 4. In refusing to adopt the findings of
fact and conclusions of law submitted by the defendants."
Putting to one side the question whether such an assignment is
too general and broad to support a challenge to the court's failure
to find as requested, and despite the fact that neither on brief
nor in oral argument did the appellants' counsel press for reversal
on that ground, we think the district court committed reversible
error, of which we must take note, in passing on the merits of the
case made by the appellee.
It was manifestly improper to reverse the Commission's order in
respect of a provision therein as to which the suitor had advised
that body it no longer objected, but
Page 324 U. S. 780
acquiesced. The record disclosed this situation, the defensive
pleading relied upon it, and the court was asked to dismiss because
of it. The complaint should have been dismissed. The judgment
is
Reversed.
MR. JUSTICE BLACK concurs in the result.
* Together with No. 449,
Regular Common Carriers Conference
of American Trucking Associations, Inc. v. Hancock Truck Lines,
Inc., also on appeal from the District Court of the United
States for the Southern District of Indiana.
[
Footnote 1]
49 U.S.C. §§ 306(a), 309(a).
[
Footnote 2]
41 M.C.C. 313; 42 M.C.C. 547.
[
Footnote 3]
Pursuant to 28 U.S.C. §§ 41(28), 43-48.
[
Footnote 4]
38 Stat. 208, 219, 220.
[
Footnote 5]
43 Stat. 936.
[
Footnote 6]
A like correction was made in § 345,.
[
Footnote 7]
Reference to the records of the court discloses that it has
repeatedly entertained appeals taken more than thirty but less than
sixty days after entry of final judgment.
[
Footnote 8]
Hearings H.R. 8206, 68th Cong., 1st Sess., p. 15; Senate Report
on S. 2060, 68th Cong., 1st Sess., p. 16.
[
Footnote 9]
See 28 U.S.C. § 47.
[
Footnote 10]
56 Stat. 198, 199, 28 U.S.C. § 792.