The United States, as a shipper, having undertaken to provide
wharfage and handling services at certain piers, requested the
railroads to make an allowance for expenses thus incurred, since
the shipside rates allegedly included charges for wharfage and
handling services. The railroads refused to make an allowance and
to perform the services. The United States thereupon filed with the
Interstate Commerce Commission a complaint alleging that, in
refusing to make an allowance for wharfage and handling services,
the railroads had exacted payment of rates which were unreasonable,
unjustly discriminatory, and otherwise in violation of the
Interstate Commerce Act, and asking that the Commission find the
charges unlawful and award the Government reparations. The
Commission denied reparations, and ordered the complaint dismissed.
The United States then sued in the District Court to set aside the
Commission order. The Interstate Commerce Commission and the United
States itself were made defendants. The District Court, composed of
three judges, dismissed the suit. On direct appeal to this Court,
held: the dismissal of the suit was error, and the case
should have been considered on its merits. Pp.
337 U. S.
428-430.
1. Although the case be that of
United States v. United
States et al., the principle that a person may not maintain an
action against himself is inapplicable, since there are involved
here controversies of a type which are traditionally justiciable.
Pp.
337 U. S.
430-431.
2. Provisions of law making the United States a statutory
defendant in court actions challenging Commission orders do not
evidence a congressional purpose to bar the Government from
challenging such orders. Pp.
337 U. S.
431-432.
(a) Congress did not intend to make it impossible for the
Government to press a just claim which could be vindicated only by
challenging a Commission order in Court. P.
337 U. S.
431.
(b) However anomalous it may be for the Attorney General to
appear on both sides of the same controversy, nothing in the
Page 337 U. S. 427
Interstate Commerce Act indicates a congressional purpose to
amend prior statutes which imposed primary responsibility on the
Attorney General to seek judicial redress for the Government. Pp.
337 U. S.
431-432.
(c) The Interstate Commerce Act contains adequate provisions for
protection of Commission orders by the Commission and by the
railroads when, as here, they are the real parties in interest, and
the Commission and the railroads in this case have availed
themselves of the statutory authorization. P.
337 U.S. 432.
3. The District Court had jurisdiction of the action under 28
U.S.C. § 41(28) [now § 1336], and that jurisdiction was not barred
in this case by § 9 of the Interstate Commerce Act, 49 U.S.C. § 9.
Pp.
337 U.S. 432-440.
(a) Section 9 does not give complete finality to a Commission
order merely because a shipper elected to file a complaint with the
Commission. Pp.
337 U. S.
433-440.
(b) A Commission order dismissing a shipper's claim for damages
under 49 U.S.C. § 9 is an "order" subject to challenge under 28
U.S.C. § 41(28) [now § 1336]. Pp.
337 U.S. 440-441.
4. Judicial review of a Commission order denying reparations
does not require a three-judge court. Pp.
337 U. S.
441-443.
5. The fact that this case was heard and determined by a
District Court of three judges, rather than by one judge, does not
require dismissal here, and the cause is remanded to the District
Court for determination on the merits of the allegations of the
complaint. Pp.
337 U. S.
443-444.
78 F.
Supp. 580 reversed.
A District Court of three judges dismissed a suit brought by the
United States to set aside an order of the Interstate Commerce
Commission (269 I.C.C. 141) denying an award of reparations to the
Government as a shipper.
78 F.
Supp. 580. The United States took a direct appeal to this
Court.
Reversed and remanded, p.
337 U.S. 444.
Page 337 U. S. 428
MR. JUSTICE BLACK delivered the opinion of the Court.
It is contended here that the United States, as a shipper, is
barred from challenging in federal courts an Interstate Commerce
Commission order which denies the Government a recovery in damages
for exaction of an allegedly unlawful railroad rate. Other
contentions, if sustained, would deny federal courts all power to
entertain an action by any shipper challenging a Commission order
denying damages to the shipper.
During the war, existing tariffs of many railroads embodied
wharfage charges to compensate the railroads for moving goods from
railroad cars to piers and from piers to railroad cars. When the
United States took over certain piers at Norfolk, Virginia, it
began to perform these wharfage services for itself, and requested
the railroads to make the United States an allowance for the
expenses incurred in performing the services. The railroads refused
to make an allowance. Upon this refusal, the Government requested
the railroads to perform the services themselves. The railroads
refused to perform the services.
The United States filed with the Interstate Commerce Commission
a complaint against the railroads charging that exaction of pay for
unperformed services was unjust, unreasonable, discriminatory,
excessive, and in violation of certain sections of the Interstate
Commerce Act. [
Footnote 1]
The
Page 337 U. S. 429
Complaint asked the Commission to find the charges unlawful.
Further relief asked, under the Interstate Commerce Act, [
Footnote 2] was that the Government be
awarded damages (reparations) on account of the alleged unlawful
exactions. The Commission found that the charges were not unjustly
discriminatory, unreasonable, or otherwise in violation of the Act.
Accordingly, the Commission denied reparations and ordered the
complaint dismissed.
United States v. Aberdeen & Rockfish
R. Co., 269 I.C.C. 141(1947).
The United States brought this action in a United States
District Court to set aside the Commission order. The complaint
charged that the Commission's conclusions were not supported by its
findings, that the findings were not supported by any substantial
evidence, that the order was based on a misapplication of law and
was "otherwise arbitrary, capricious and without support in and
contrary to law and the evidence." The Interstate Commerce
Commission was made a defendant. The United States was also made a
defendant because of a statutory requirement that any action to set
aside an order of the Interstate Commerce Commission "shall be
brought . . . against the United States." 28 U.S.C. § 46. Railroads
that collected the wharfage charges intervened as defendants under
authority of 28 U.S.C. § 45a. The Attorney General appeared for the
Government as both plaintiff and defendant. Without reaching the
merits of the case, the District Court composed of three judges
dismissed the cause on the theory that the Government could not
maintain a suit against itself. The court also indicated its belief
that a three-judge court was without jurisdiction
Page 337 U. S. 430
of the suit.
78 F.
Supp. 580. The case is here on direct appeal under 28 U.S.C. §
47a, as amended 28 U.S.C. § 1253.
In this Court, the Commission and the railroad intervenor
defendants support the District Court's dismissal for the reasons
given by that court. Alternative reasons are also urged. We hold
that the dismissal was error, and that the case should have been
considered on its merits.
First. There is much argument with citation of many
cases to establish the long recognized general principle that no
person may sue himself. Properly understood the general principle
is sound, for courts only adjudicate justiciable controversies.
They do not engage in the academic pastime of rendering judgments
in favor of persons against themselves. Thus, a suit filed by John
Smith against John Smith might present no case or controversy which
courts could determine. But one person named John Smith might have
a justiciable controversy with another John Smith. This illustrates
that courts must look behind names that symbolize the parties to
determine whether a justiciable case or controversy is
presented.
While this case is
United States v. United States, et
al., it involves controversies of a type which are
traditionally justiciable. The basis question is whether railroads
have illegally exacted sums of money from the United States. Unless
barred by statute, the Government is not less entitled than any
other shipper to invoke administrative and judicial protection. To
collect the alleged illegal exactions from the railroads, the
United States instituted proceedings before the Interstate Commerce
Commission. In pursuit of the same objective, the Government
challenged the legality of the Commission's action. This suit
therefore is a step in proceedings to settle who is legally
entitled to sums of money, the Government or the railroads. The
order if valid would defeat the Government's claim to that
Page 337 U. S. 431
money. But the Government charged that the order was issued
arbitrarily, and without substantial evidence. This charge alone
would be enough to present a justiciable controversy.
Chicago
Junction Case, 264 U. S. 258,
264 U. S.
262-266. Consequently, the established principle that a
person cannot create a justiciable controversy against himself has
no application here.
Second. It is contended that the provisions of the Act
making the Government a statutory defendant in court actions
challenging Commission orders show a congressional purpose to bar
the Government from challenging such orders. Legislative history is
cited in support of this contention. If the contention be accepted,
Congress, by making the Government a statutory defendant in such
cases, has deprived the United States as a shipper of powers of
self protection accorded all other shippers. We cannot agree that
Congress intended to make it impossible for the Government to press
a just claim which could be vindicated only by court challenge of a
Commission order.
See United States v. San Jacinto Tin
Co., 125 U. S. 273,
125 U. S.
279.
In support of their contention that Congress did not intend for
the Government to press its claims as a shipper, the Commission and
railroads emphasize the anomaly of having the Attorney General
appear on both sides of the same controversy. However anomalous,
this situation results from the statutes defining the Attorney
General's duties. The Interstate Commerce Act requires the Attorney
General to appear for the Government as a statutory defendant in
cases challenging Commission orders. 28 U.S.C. § 46. The Attorney
General is also under a statutory duty
"to determine when the United States shall sue, to decide for
what it shall sue, and to be responsible that such suits shall be
brought in appropriate cases."
United States v. San Jacinto Tin Co., 125 U.
S. 273,
125 U. S. 279.
See also United
Page 337 U. S. 432
States v. California, 332 U. S. 19,
332 U. S. 26-29.
Nothing in the Interstate Commerce Act indicates a congressional
purpose to amend prior statutes which had imposed primary
responsibility on the Attorney General to seek judicial redress for
the Government.
Although the formal appearance of the Attorney General for the
Government as statutory defendant does create a surface anomaly,
his representation of the Government as a shipper does not in any
way prevent a full defense of the Commission's order. The
Interstate Commerce Act contains adequate provisions for protection
of Commission orders by the Commission and by the railroads when,
as here, they are the real parties in interest. For, whether the
Attorney General defends or not, the Commission and the railroads
are authorized to interpose all defenses to the Government's
charges and claims that can be interposed to charges and claims of
other shippers. In this case, the Commission and the railroads have
availed themselves of this statutory authorization. They have
vigorously defended the legality of the allowances and the validity
of the Commission order at every stage of the litigation.
Third. 28 U.S.C. § 41(28) [
Footnote 3] provides that
"The district courts shall have original jurisdiction . . . [o]f
cases brought to enjoin, set aside, annul, or suspend in whole or
in part any order of the Interstate Commerce Commission."
The legal consequences of this order if upheld will finally
relieve the railroad of any obligations to the Government on
account of the alleged unlawful
Page 337 U. S. 433
charges; the order thus falls squarely within the type made
subject to judicial review by § 41(28).
Rochester Telephone
Corp. v. United States, 307 U. S. 125,
307 U. S.
131-132,
307 U. S.
142-143;
El Dorado Oil Works v. United States,
328 U. S. 12,
328 U. S.
18-19.
The Commission and the railroads contend, however, that § 9 of
the Interstate Commerce Act, 49 U.S.C. § 9, bars the United States
or any other shipper from judicial review of an order denying
damages in reparation proceedings initiated before the Commission.
Section 9 provides in part:
"Any person or persons claiming to be damaged by any common
carrier . . . may either make complaint to the commission . . . or
may bring suit . . . for the recovery of the damages . . . in any
district court of the United States of competent jurisdiction; but
such person or persons shall not have the right to pursue both of
said remedies, and must in each case elect which one of the two
methods of procedure herein provided for he or they will
adopt."
The contention of the Commission and the railroads as to § 9 is
this. A shipper has an alternative. He may bring his action before
the Commission or before the courts. B ut he must make an election.
If he elects to "bring suit" in a court and is unsuccessful, he
retains the customary right of appellate review. If he elects to
"make complaint to" the Commission, as the Government did, and
relief is denied, he is said to be barred by the statutory language
of § 9 from seeking any judicial review of the Commission order.
Under the contention, the order is final and not reviewable by any
court even though entered arbitrarily, without substantial
supporting evidence, and in defiance of law.
Such a sweeping contention for administrative finality is out of
harmony with the general legislative pattern of
Page 337 U. S. 434
administrative and judicial relationships. [
Footnote 4]
See, e.g., Shields v. Utah-Idaho
Cent. R. Co., 305 U. S. 177,
305 U. S.
181-185;
Stark v. Wickard, 321 U.
S. 288,
321 U. S.
307-310. And this Court has consistently held Commission
orders reviewable upon charges that the Commission had exceeded its
lawful powers.
See, e.g., Interstate Commerce Commission v.
Louisville & N. R. Co., 227 U. S. 88,
227 U. S. 91-93;
Chicago Junction Case, 264 U. S. 258,
264 U. S. 266.
The language of § 9 does not suggest an abandonment of these
consistent holdings. It does suggest that a shipper who elects
either to "make complaint to" the Commission or to "bring suit" in
a court is thereafter precluded from initiating a § 9 proceeding in
the other. It may therefore be assumed that, after a shipper has
elected to initiate a Commission proceeding for damages, he could
not later initiate an original district court action for the same
damages. But forfeiture of the right to initiate his claim in the
court under § 9 is one thing; forfeiture of his right under 28
U.S.C. § 41(28) to obtain judicial review of an unlawful Commission
order is another. Section 9's language controls the forum in which
reparation claims may be begun and tried to judgment or order; it
does not purport to give complete finality to a court judgment or
to a Commission order merely because
Page 337 U. S. 435
a shipper elected to proceed in one forum, rather than the
other. So we can find nothing in the language of § 9 that bars a
court from reviewing a reparation order upon allegations by a
shipper that the order was entered in defiance of standards
established by Congress to determine when reparations are due.
Furthermore, the section's careful provision for judicial
protection of railroads against improper Commission awards argues
against interpretation of the same section to deny to shippers any
judicial review whatever. Under the suggested interpretation, a
shipper could recover nothing if the Commission decided against
him. But a Commission award favorable to a shipper is not final or
binding upon the railroad. Such an award
"only establishes a rebuttable presumption. It cuts off no
defense, interposes no obstacle to a full contestation of all the
issues, and takes no question of fact from either court or jury. .
. . Nor does it in any wise work a denial of due process of
law."
Meeker v. Lehigh Valley R. Co., 236 U.
S. 412,
236 U. S. 430.
And see Pennsylvania R. Co. v. Weber, 257 U. S.
85,
257 U. S. 90-91.
It hardly seems possible to find from the language of § 9 a
congressional intent to guarantee railroads complete judicial
review of adverse reparation orders while denying shippers any
judicial review at all.
What we have said would dispose of the § 9 contention but for
the argument of the Commission and the railroads that their
suggested interpretation of the section is required by this Court's
holding in
Standard Oil Co. v. United States, 283 U.
S. 235, and other cases that followed it. In that case,
the Standard Oil Co., a shipper, was denied the right to judicial
review of a Commission order denying reparations. Judicial review
was denied on four grounds: (1) The order in the
Standard
Oil case denying reparations was "negative" in form, and was
therefore beyond judicial appraisal under the
Page 337 U. S. 436
"negative order" doctrine. This doctrine was wholly abandoned in
Rochester Telephone Corp. v. United States, 307 U.
S. 125. (2) The decision in the
Standard Oil
case held that the Commission order was supported by substantial
evidence and was not otherwise in violation of law. The
Government's claim here is that this order cannot meet that test.
(3) The third ground for denial of judicial review was that, having
elected to test its damage claim before the Commission, Standard
was precluded from judicial review. (4) A three-judge court was an
improper tribunal to adjudicate damage claims under § 9.
The
Standard Oil interpretation of § 9 denying shippers
any judicial review was made by a court usually careful to protect
against arbitrary or unlawful administrative action. And, as shown,
the court there first satisfied itself that the Commission order
was not the product of an unlawful exercise of power by the
Commission. Furthermore, the negative order philosophy, then at its
peak, clearly barred review of all orders denying reparations.
Consequently, the
Standard Oil § 9 interpretation barred
judicial review of no class of Commission orders except orders
already immune from such review under the "negative order"
doctrine. The
Standard Oil holding was thus clearly
supported by and rooted in the now rejected "negative order"
doctrine. [
Footnote 5]
Another reason for the Court's construction of § 9 in the
Standard Oil case was that Standard's damage claim
Page 337 U. S. 437
could have been adjudicated by a district court since it
involved no question as to reasonableness of rates that called for
exercise of the Commission's primary jurisdiction. The importance
of this factor was emphasized by this Court in applying the
Standard Oil construction of § 9 in
Baltimore & O.
R. Co. v. Brady, 288 U. S. 448,
288 U. S.
458-459. First pointing out that there was no question
in that case "requiring the exercise of the Commission's
administrative powers," the Court said:
"It is to be remembered that, by electing to call on the
Commission for the determination of his damages, plaintiff waived
his right to maintain an action at law upon his claim. But the
carriers made no such election. Undoubtedly it was to the end that
they be not denied the right of trial by jury that Congress saved
their right to be heard in court upon the merits of claims asserted
against them. The right of election given to a claimant reasonably
may have been deemed an adequate ground for making the Commission's
award final as to him."
And see Terminal Warehouse Co. v. Pennsylvania R. Co.,
297 U. S. 500,
297 U. S.
507-508.
Thus, a crucial support for the Court's holding in the
Standard Oil and
Brady cases was that the
shippers in those cases could have commenced original § 9 actions
in the district court. But it has been established doctrine since
this Court's holding in
Texas & P. R. Co. v. Abilene Cotton
Oil Co., 204 U. S. 426,
that a shipper cannot file a § 9 proceeding in a district court
where his claim for damages necessarily involves a question of
"reasonableness" calling for exercise of the Commission's primary
jurisdiction. [
Footnote 6] The
Government's claim here does involve such a question of
"reasonableness." For the allowances
Page 337 U. S. 438
exacted from the Government were authorized in the railroads'
published tariffs, and were therefore not unlawful unless
"unreasonable." Consequently the Government here had no "right of
election" between Commission and court that could be "deemed an
adequate ground for making the Commission's award final. . . ."
Baltimore & O. R. Co. v. Brady, supra, at
288 U. S. 458.
[
Footnote 7]
Ashland Coal & Ice Co. v. United States, 325 U.S.
840, is the only case in this Court that relied on the
Standard
Oil decision after we had abandoned the negative order
doctrine. And it is doubtful if the shipper in the
Ashland Coal
& Ice Co. case could have sought reparations in a district
court under the primary jurisdiction doctrine. In affirming without
argument the judgment of a three-judge court in the
Ashland
Coal & Ice Co. case, this Court's per curiam opinion cited
two pages of the
Standard Oil opinion that support the
interpretation of § 9 urged here by the Commission and railroads.
It is a fair inference that the pages were cited for that
interpretation, although other grounds for the Court's decision
also appear there. One such ground was that a three-judge court is
an improper
Page 337 U. S. 439
tribunal for the review of such Commission orders. Another
ground was that there was
"nothing to suggest that the Commission acted arbitrarily or
without evidence to support its conclusions, or that it transcended
its constitutional of statutory powers."
The three-judge district court in the
Ashland case, in
sustaining the Commission order, had also held that a three-judge
court was not a proper tribunal, and that the Commission order was
supported by substantial evidence, and was in accordance with law.
Ashland Coal & Ice Co. v. United
States, 61 F.
Supp. 708, 713.
We cannot accept the
Ashland Coal Co. per curiam
holding, nor the
Standard Oil case on which it rested, as
requiring the interpretation of § 9 which the railroads and
Commission here urge. Our acceptance of that interpretation would
mean that a shipper who submitted to the Commission only a question
of the reasonableness of rates could have an adverse order reviewed
by a court,
Skinner & Eddy Corp. v. United States,
249 U. S. 557,
249 U. S.
562-563, while a shipper who asked for that
administrative determination plus reparations could get no judicial
review at all.
Terminal Warehouse Co. v. Pennsylvania R. Co.,
supra, at
297 U. S.
507-508. On any ground except the now discarded
"negative order" doctrine, this would appear to be an unsupportable
and totally illogical limitation of the congressional command for
judicial review. [
Footnote 8]
See Chicago
Page 337 U. S. 440
Junction Case, 264 U. S. 258,
264 U. S.
269-270;
Southern R. Co. v. Tift, 206 U.
S. 428,
206 U. S. 440.
Accordingly, we hold that § 9 does not impair the right of shippers
to obtain judicial review of adverse Commission orders under §
41(28) merely because the order is sought as a basis for
reparations.
Fourth. For reasons already stated, we hold that a
Commission order dismissing a shipper's claim for damages
Page 337 U. S. 441
under 49 U.S.C. § 9 is an "order" subject to challenge under 28
U.S.C. § 41(28). The remaining question is whether a district court
entertaining such a challenge shall be composed of one judge or
three judges, and whether the judgment of a district court in such
a case can be appealed directly to this Court.
The Urgent Deficiencies Act from which § 41(28) was derived
contains provisions for a three-judge district court to hear and
determine suits brought to set aside a Commission "order," and
authorizes judgments rendered in such cases to be appealed directly
to this Court. [
Footnote 9] For
reasons now stated, we hold that judicial review of an order
denying reparations does not require a three-judge court.
The provisions of the Urgent Deficiencies Act here considered
derive from a 1910 congressional enactment creating the Commerce
Court, defining its powers, and providing for review of its
judgments. [
Footnote 10]
That court was given jurisdiction of all actions to enjoin, set
aside, and modify Commission orders. Section 2 provided for direct
appeals from the Commerce Court to the Supreme Court. The purpose
of creating the Commerce Court with such direct appeals was
expedition of final determination of the validity of certain types
of Commission orders. This expedition was sought for orders of
national or widespread interest, such, for example, as railroad
rate orders. Congress saw the necessity for an accelerated
appellate procedure to prevent railroads from nullifying the effect
of such orders in prolonged litigation. [
Footnote 11] The Commerce Act itself indicated that
the same expedition necessary in cases affecting the public
generally was not
Page 337 U. S. 442
necessary in other kinds of cases involving "local and isolated
questions which arise in the ordinary courts." [
Footnote 12] The Act's first section
excluded from the Commerce Court's jurisdiction power to enforce
"any order of the Interstate Commerce Commission . . . for the
payment of money." [
Footnote
13]
Provisions of the Urgent Deficiencies Act of 1913 abolished the
Commerce Court and transferred its jurisdiction to district courts
composed of three judges. In considering this Act, Congress was
urged to bear in mind the necessity for providing a forum that
could expeditiously review Commission orders of widespread
importance. [
Footnote 14]
But, in passing the 1913 Act, Congress denied power to three-judge
courts to enforce Commission orders for the payment of money.
[
Footnote 15] And in a case
not involving reparations, this Court held that orders relating
merely to the payment of money are not likely to be of sufficient
public importance to justify use of the three-judge procedure.
See United States v. Griffin, 303 U.
S. 226,
303 U. S. 233,
303 U. S.
234-237.
But cf. El Dorado Oil Works v. United
States, 328 U. S. 12,
328 U. S. 18-19;
United States v. Jones, 336 U. S. 641,
336 U. S. 647.
The Urgent Deficiencies Act, with 49 U.S.C. § 9, which requires
enforcement of Commission reparation awards in one-judge courts,
indicates the belief of Congress that such orders are not of
sufficient public importance to justify the accelerated judicial
review procedure.
Page 337 U. S. 443
While the Government here does no seek enforcement of a
Commission order for the payment of money, the root of the
controversy concerns the payment of money damages under 49 U.S.C.
§§ 8, 9. Had the Commission made an award to the Government, it
could have filed a civil suit to recover money damages under the
provisions of 49 U.S.C. § 16(2). That section provides that such a
suit "shall proceed in all respects like other civil suits for
damages . . . " -- that is, before one district judge. And an
appeal from a judgment in such a case goes to the Court of Appeals.
The same one-judge trial and appeal procedure available for
enforcement of an award order would appear to be an equally
appropriate and adequate tribunal for adjudication of validity of a
Commission order denying reparations. For actions to enforce
Commission orders awarding reparation and actions to challenge
Commission orders denying reparations basically involve the same
parties, the same disputes, the same claims for money damages, and
the same statutes. We think the orders in both instances should be
reviewed in the same one-judge tribunal.
We have frequently pointed out the importance of limiting the
three-judge court procedure within its expressly stated confines.
[
Footnote 16] We are
confident that, in holding the one judge, rather than three, should
entertain cases challenging Commission reparation orders, we
interpret the congressional expediting procedure and the Interstate
Commerce Act in accordance with their basic purpose.
Fifth. There remains the question of the proper
disposition of this case. Three judges heard it. This, however, is
no reason for dismissal of the cause.
See
Stainback
Page 337 U. S. 444
v. Mo Hock Ke Lok Po, 336 U. S. 368,
336 U. S. 381.
If the allegations of the bill are true, the Commission's order
cannot stand.
Chicago Junction Case, 264 U.
S. 258,
264 U. S.
264-266. Since the District Court did not pass on the
merits of the allegations of the complaint, the cause is remanded
to it for that purpose.
Reversed and remanded.
[
Footnote 1]
49 U.S.C. §§ 1(5)(a), 1(6), 2, 6(8), 15(13).
[
Footnote 2]
49 U.S.C. §§ 8, 9. The complaint also sought relief from future
exactions, but, prior to the Commission's final order, the piers
were returned to private ownership, and this prayer was
abandoned.
[
Footnote 3]
The substance of 28 U.S.C. § 41(28) of the 1946 United States
Code now appears as § 1336 of the 1948 Code. The provision for
judicial review of Interstate Commerce Commission orders first
appeared in 1910 in an Act creating the Commerce Court. 36 Stat.
539. Congress abolished the Commerce Court in 1913, and transferred
to district courts the Commerce Court's jurisdiction to review
Commission orders. Urgent Deficiencies Act, 38 Stat. 208,
219-220.
[
Footnote 4]
The Administrative Procedure Act, 60 Stat. 237, 243, 5 U.S.C. §§
1001(d), 1009, provides:
"Sec. 2. . . ."
"
* * * *"
"(d) ORDER AND ADJUDICATION. -- 'Order' means the whole or any
part of the final disposition (whether affirmative, negative,
injunctive, or declaratory in form) of any agency in any matter
other than rulemaking but including licensing. 'Adjudication' means
agency process for the formulation of an order."
"
* * * *"
"Sec. 10. Except so far as (1) statutes preclude judicial review
or (2) agency action is by law committed to agency discretion
--"
"(a) RIGHT OF REVIEW. -- Any person suffering legal wrong
because of any agency action, or adversely affected or aggrieved by
such action within the meaning of any relevant statute, shall be
entitled to judicial review thereof."
[
Footnote 5]
Mr. Justice Cardozo so treated the
Standard Oil holding
in
ICC v. United States, 289 U. S. 385,
289 U. S. 388,
a case decided prior to this Court's repudiation of the negative
order doctrine. He there said that, in denying reparations,
"the Commission speaks with finality. Its orders purely negative
-- negative in form and substance -- are not subject to review by
this court or any other."
Authorities for this statement were "negative order" cases.
These same cases were relied on by the court in a later case that
referred with approval to the
Standard Oil § 9
interpretation.
Terminal Warehouse v. Pennsylvania R. Co.,
297 U. S. 500,
297 U. S.
507-508.
[
Footnote 6]
See cases collected in
Rochester Telephone Corp. v.
United States, 307 U. S. 125,
307 U. S. 139,
n. 22, and
Armour & Co. v. Alton R. Co., 312 U.
S. 195;
Skinner & Eddy Corp. v. United
States, 249 U. S. 557,
249 U. S.
562.
[
Footnote 7]
The Commission argues that § 9 does authorize a shipper to
initiate damage claims in a district court even though the claim
necessarily involves questions upon which the Commission's primary
jurisdiction must be invoked. The railroads more cautiously say
that such suits can be filed upon an initial showing by a shipper
that it might work a hardship on a shipper for the court to refuse
to entertain the case. Both contentions run counter to this Court's
previous cases. Particular circumstances were held sufficient in
one case to justify a court in staying further judicial proceedings
to await Commission action.
Mitchell Coal & Coke Co. v.
Pennsylvania R. Co., 230 U. S. 247,
230 U. S.
266-267. The same course was followed in another case,
over the Commission's objection, where the action was in assumpsit,
and the administrative problem did not emerge until the case was in
course of litigation.
General American Tank Car Corp. v. El
Dorado Terminal Co., 308 U. S. 422,
308 U. S.
432.
[
Footnote 8]
The negative order doctrine was first adopted by this Court in
Procter & Gamble Co. v. United States, 225 U.
S. 282, decided in 1912. A shipper there brought action
in the Commerce Court to set aside a Commission order dismissing
the shipper's complaint. The complaint was that the charges were
unjust and unreasonable. The Commerce Court was asked to annul the
Commission's order of dismissal, to enjoin future collection of the
charges, and to require the railroads to repay sums alleged to have
been wrongfully collected from the shipper. The Commerce Court
reviewed the action of the Commission and, on the merits, declined
to grant the shipper the requested relief. This Court held that
this "negative" order was not reviewable at the instance of the
shipper. The Court's ruling brought sharp criticism in Congress.
Corrective legislative was proposed, exhaustive committee hearings
were held, debate was taken to the floor of Congress. In spite of
the strenuous efforts to get Congress to repudiate the "negative
order" doctrine, Congress in 1913 declined to act. But, in all of
the congressional hearings and debates on the subject, the critics
of the
Procter & Gamble "negative order" rule urged
without contradiction that repudiation of the "negative order" rule
would afford shippers the same judicial review of reparation and
other orders then afforded to railroads. Not once do we find the
argument suggested that 49 U.S.C. § 9 would bar shippers from
judicial review of adverse reparation orders by the Commission,
although this section was at the time part of the original
Interstate Commerce Act, enacted in 1887, more than a quarter of a
century before this congressional consideration.
This Court nevertheless abandoned the negative order doctrine in
1938, and, in doing so, effectively overruled a host of prior
decisions.
See cases collected in footnote to Mr. Justice
Butler's concurring opinion in the
Rochester case,
307 U. S. 146,
307 U. S. 148. The
effect of today's decision is merely to recognize that the
Standard Oil doctrine, barring judicial review to
shippers, cannot stand consistently with the
Rochester
case, which itself overruled the
Procter & Gamble and
other negative order decisions. It was therefore the
Rochester case, not today's decision, that overruled a
line of cases and granted relief where Congress had declined to
afford any. H.R.Rep. No.1012, 62d Cong., 2d Sess. 1-4 (1912);
Hearings before Committee on Appropriations on H.R. 7898, 63d
Cong., 1st Sess. 140-148 (1913); Hearings before subcommittee of
the Committee on Appropriations on H.R. 7898, 63d Cong., 1st Sess.
305-343 (1913); Hearings before Committee on Interstate and Foreign
Commerce on H.R. 25596 and H.R. 25572, 62d Cong., 2d Sess. 1-298
(1912); 50 Cong.Rec. 4532-4537, 4542-4545 (1913).
[
Footnote 9]
38 Stat. 208, 219, 220; 28 U.S.C. § 2325 (1948 ed.).
See
also 28 U.S.C. § 47 (1946 ed.).
[
Footnote 10]
36 Stat. 539.
[
Footnote 11]
See President's Message to Congress, 45 Cong.Rec.
7567-7568 (1910).
[
Footnote 12]
Sen.Rep. No.355, 61st Cong., 2d Sess. 1-2 (1910).
[
Footnote 13]
See Procter & Gamble Co. v. United States,
225 U. S. 282;
Texas & P. R. Co. v. Abilene Cotton Oil Co.,
204 U. S. 426.
[
Footnote 14]
Hearings before Committee on Appropriations on H.R. 7898, 63d
Cong., 1st Sess. 293-299, 300 (1913).
[
Footnote 15]
It is also significant that the new judicial code does not give
a three-judge court jurisdiction to adjudicate the validity of
commission orders "for the payment of money." 28 U.S.C. § 2321.
[
Footnote 16]
United States v. Griffin, supra, 303 U.S. at
303 U. S.
234-237;
Ayrshire Collieries Corp. v. United
States, 331 U. S. 132,
331 U. S.
136-137;
Stainback v. Mo Hock Ke Lok Po,
336 U. S. 368,
336 U. S. 378,
n.19;
Phillips v. United States, 312 U.
S. 246,
312 U. S.
250.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE JACKSON and MR.
JUSTICE BURTON join, dissenting.
Four times shippers have asked this Court to recognize the right
to review orders of the Interstate Commerce Commission denying
claims for reparations against carriers; four times the United
States resisted the right to such judicial review; four times this
Court sustained the United States and held that the courts were
without jurisdiction to review orders of the Commission denying
reparations. Twice the decisions followed full argument:
Standard Oil Co. v. United States, 283 U.
S. 235, in which the bar of the Interstate Commerce Act
to such review was expounded, and
Brady v. United States,
283 U. S. 804,
which relied on the
Standard Oil case decided only a few
weeks before. Twice thereafter the dismissal by district courts,
for want of jurisdiction, of attempts to review such reparation
orders was summarily affirmed without argument, so definitely had
the
Standard Oil case settled the matter.
Allison
& Co. v. United States, 296 U. S. 546,
aff'g 12 F. Supp. 862;
Ashland Coal & Ice Co. v.
United States, 325 U.S. 840,
aff'g 61 F. Supp.
708, decided less than four years ago. In order to recover a
money claim of its own, the Government in this case has suddenly
shifted a position in this case maintained by it for nearly twenty
years against all other shippers and urges the right to review an
order denying reparations. Indeed, at the very same time that the
Government
Page 337 U. S. 445
was arguing before the District Court for the District of
Columbia for the right to review an order denying it reparations,
the Government successfully resisted precisely the same argument by
a private shipper in a suit in the District Court for the Eastern
District of Michigan.
Great Lakes Steel Corp. v. United
States, 81 F. Supp.
450. And the Government did so on the basis of the controlling
series of cases in this Court decided on grounds which we are now
asked to disregard. [
Footnote
2/1]
We are vouchsafed no explanation for the fact that the United
States should have urged four times upon this Court, and
contemporaneously with these proceedings in another district court,
that an order resulting from a reparation proceeding before the
Interstate Commerce Commission is not reviewable, and yet seeks
review in this instance. The only explanation that lies on the
surface is that, in all the other cases, the United States was
resisting the claims of private shippers, while, in this case, the
Government itself is the shipper. No doubt enlightenment sometimes
comes through self-interest. But this Court's construction of the
Interstate Commerce Act, long matured in a series of cases, ought
not to shift with a shift in the Government's interest. The
Interstate Commerce Commission rightly protests against it. To
yield to the Government's new contention is not only to reverse a
settled course of decision. To do so is to mutilate the whole
scheme of the Interstate Commerce
Page 337 U. S. 446
Act by disregarding the distribution of authority Congress saw
fit to make between the Commission and the courts for the
enforcement of that Act.
One would suppose that four uniform decisions of this Court,
rendered after thorough consideration of a statutory scheme,
constitute such a body of law as not to be overruled, wholly apart
from any argument that this Court's construction of legislation is
confirmed by Congress by reenactment without change. The
Transportation Act of 1940 [
Footnote
2/2] reenacted the relevant provisions of the Interstate
Commerce Act after this Court had ruled three times that a shipper
who has unsuccessfully asked the Commission for damages is bound by
its determination, and cannot thereafter have another go at it in
the courts. The construction which these decisions have made should
be adhered to not only because the precise issue has already been
decided by this Court, but because the Interstate Commerce Act
requires it.
"When judicial review is available and under what circumstances,
are questions (apart from whatever requirements the Constitution
may make in certain situations) that depend on the particular
Congressional enactment under which judicial review is
authorized."
Labor Board v. Cheney California Lumber Co.,
327 U. S. 385,
327 U. S. 388.
It will hardly be suggested that the Constitution requires judicial
review of a reparation order by the Commission. Such a notion is
precluded by
Cary v.
Curtis, 3 How. 236, and the whole unfolding of
administrative law during the hundred years since that decision.
This is not one of those exceptional cases where "the sanction
afforded by judicial proceedings" is implied in the guaranty of due
process of law.
Ng Fung Ho v. White, 259 U.
S. 276,
259 U. S.
284-285. Therefore, it is as true of the Interstate
Commerce Act as it is of the National Labor Relations Act that
"Congress was entitled to determine what remedy it would
provide, the way
Page 337 U. S. 447
that remedy should be sought, the extent to which it should be
afforded, and the means by which it should be made effective."
Mr. Chief Justice Hughes, speaking for the Court in
Amalgamated Utility Workers v. Consolidated Edison Co.,
309 U. S. 261,
309 U. S.
264.
In the reticulated scheme for enforcement of the new rights and
obligations created by the Interstate Commerce Act, Congress
clearly indicated where the judiciary comes in and where the
judiciary is to keep out. More particularly, Congress has provided
in detail for judicial review in certain aspects of reparation
claims that come before the Commission; it has afforded an
alternative procedure as between Commission and courts in some
instances; it has specifically precluded resort to judicial review
where the shipper has chosen resort to the Commission. If the
scheme of legislation that Congress has devised is to be respected,
judicial review of the Commission's order denying it reparations is
not open to the Government.
A summary of what this case involves should precede a detailed
analysis of the Act, so far as relevant to its disposition.
At the time this controversy arose, it had long been the
practice for railroads reaching Atlantic ports to absorb the cost
of wharfage and handling services furnished by them for goods
destined for shipment overseas. This applied only to services
rendered on so-called public wharves, excluding, that is, services
so required on wharves operated by a shipper himself. The wharves
in question were piers owned by the Government, but leased by it
for commercial peacetime operations as public terminal facilities
of the railroads. Up to June 15, 1942, these piers were operated by
the Transport Trading and Terminal Corporation, as agent of the
defendant railroads. War conditions made it necessary for the
Government to cancel its leases with the Terminal Corporation and,
on June 15, 1942, it took over the operation of these piers for the
movement of
Page 337 U. S. 448
military freight, almost entirely outbound. The railroads
refused allowances for the cost of services which they had
theretofore absorbed, and declined a later request of the Army to
perform the handling services because the Army, not the railroads,
controlled the piers.
Claiming to be damaged by the refusal of the railroads to grant
allowances for the Government's handling of its goods on its own
piers, when it excluded the Terminal Corporation and took over the
piers, the Government initiated these proceedings before the
Commission for reparations under § 8 of the Interstate Commerce
Act. [
Footnote 2/3] It filed its
complaint under §§ 9 and 13 of that Act. [
Footnote 2/4] Claiming that the rates under the existing
tariffs were unjust and unreasonable, and that it was discriminated
against because other shippers were furnished wharfage and handling
services which it performed at its own expense, the Government
sought relief against continuance of alleged violations of §§
1(5)(a), 1(6), and 15(13) of the Interstate Commerce Act. The
complaint was sustained by Division 2, with one Commissioner
dissenting.
United States v. Aberdeen & Rockfish R.
Co., 263 I.C.C. 303. The full Commission reversed the findings
of Division 2 and ordered the complaint dismissed, four
Commissioners dissenting. 264 I.C.C. 683. On reargument, the full
Commission adhered to its findings, five Commissioners dissenting.
[
Footnote 2/5]
Page 337 U. S. 449
269 I.C.C. 141. At the time of its final report, it was assumed
that the operation of the piers reverted to the situation existing
prior to June 15, 1942, so that the purpose of the proceeding
before the Commission was deemed to be for reparations only. 269
I.C.C. at 147.
Invoking the procedure of the Urgent Deficiencies Act of 1913,
the Government then sought to set aside the order of the Commission
dismissing the Government's complaint. Act of October 22, 1913, 38
Stat. 219-221, now 28 U.S.C. §§ 1253, 1336, 2101, 2284, 2321-2325,
(1948 ed.). A duly constituted district court, with three judges
sitting, found itself without jurisdiction to review the
Commission's order.
78 F.
Supp. 580. This judgment should be affirmed, insofar as it held
that an order of the Commission denying damages by way of
reparations in proceedings brought before the Commission is not
reviewable in the courts.
To ascertain whether an order of the Interstate Commerce
Commission is open to judicial review, it should rigorously be
borne in mind that jurisdiction to review such an order must have
been conferred by Congress. To assume that an order of the
Commission for which reviewing power is not conferred is presumably
reviewable by the courts is to start with the answer of the problem
to be solved. Unless Congress has chosen to give the courts
oversight of a determination by the Commission, the courts have not
the power of oversight where, as here, the Constitution does not
require it. If Congress has made no grant of power to courts to
review the Commission's order denying a claim for reparation, and,
in fact, has explicitly withheld resort to the courts after such
denial by the Commission, it is wholly immaterial that, as to other
types of orders, the right to review has been given to the courts,
or that a determination by the Commission closely related to
reparations, but not in fact a claim for damages, does not bar
access to the courts.
Page 337 U. S. 450
When dealing with the Interstate Commerce Act, we are dealing
not with an episodic bit of legislation to which the general
jurisdiction of the federal courts presumably applies. We are
dealing with the oldest regulatory scheme which, by successive
amendments and enlargements, established a comprehensive,
self-contained regime both of administration and adjudication. The
scheme as a whole ought not to be dislocated to meet the exigencies
of a particular situation.
First. Judicial review of an order by the Commission
dismissing a complaint for reparations has heretofore been urged
exclusively on the basis of the Urgent Deficiencies Act. The
jurisdiction of the district court in this case was invoked under
that Act. This is the sole basis of jurisdiction urged by the
Government here in its comprehensive brief and argument, and the
Court rejects it. It rightly rejects it. But the compelling
considerations for this rejection demand a further analysis of the
structure and details of the jurisdictional provisions relating to
orders of the Interstate Commerce Commission. Such analysis is
essential to lay bare the equally compelling considerations against
jurisdiction under the general equity powers of the district
courts.
Section 8 of the Interstate Commerce Act created a civil
liability of carriers for damages caused by violation of the new
obligations imposed by that Act. In the absence of specific
remedies, it would be fair to assume that these new rights were
enforceable in the district courts under their general jurisdiction
over suits "arising under any Act of Congress regulating commerce."
28 U.S.C. § 1337 (1948 ed.). But the Interstate Commerce Act did
not stop with a mere declaration of liability. It defined a
specific course of procedure; it particularized the remedies
available to those to whom new rights were given and the way in
which they were to be pursued. "In such a case the specification of
one remedy normally excludes
Page 337 U. S. 451
another."
Switchmen's Union of North America v. National
Mediation Board, 320 U. S. 297,
320 U. S. 301.
For charging more than the tariff rate or charging a discriminatory
rate, the Act provides alternative procedures set forth in detail
in § 9. These are the relevant provisions:
"any person or persons claiming to be damaged by any common
carrier . . . may either make complaint to the commission as
hereinafter provided for, or may bring suit . . . in any district
court of the United States of competent jurisdiction; but such
person or persons shall not have the right to pursue both of said
remedies, and must in each case elect which one of the two methods
of procedure herein provided for he or they will adopt."
24 Stat. 379, 382, as amended, 49 U.S.C. § 9. With
qualifications shortly to be noted, a suit begun in the district
court follows the course of any other action there. On the other
hand, if the shipper prefers to pursue the alternative course --
the administrative route -- to obtain damages for a violation of
the Act, he files his complaint with the Commission.
As to a proceeding before the Commission, whether for damages or
for a rate adjustment, § 13 defines the procedure; [
Footnote 2/6] the role of the courts in relation to
the Commission's orders is defined by §§ 16 [
Footnote 2/7] and 17(9). [
Footnote 2/8] Section 16 fixes the time for filing a
complaint either in the courts or before the Commission; it also
provides for the enforcement of an order awarding damages, limiting
the time within which such an action must be brought, and stating
the effect to be given to the Commission's award. Since 1940, the
provisions of the Urgent Deficiencies Act of 1913, 38 Stat.
219-221, conferring on the district courts the jurisdiction in
suits on orders of the Commission theretofore vested in the
abolished Commerce Court, were
Page 337 U. S. 452
incorporated in § 17(9). A few years previous, the procedural
provisions of the Urgent Deficiencies Act of 1913 became part of
Title 28 of the United States Code.
By this scheme of law enforcement, carefully apportioned between
Commission and courts, Congress has provided that, insofar as any
order, provided it is not one for money damages, can be enjoined,
set aside and enforced, it must be under the provisions dealing
with suits to enforce, enjoin, or set aside orders of the
Commission, "but not otherwise." 54 Stat. 916, 49 U.S.C. § 17(9).
By this limitation, Congress has made it as clear as language can
that, if an order is not within § 16, because not one for money
damages, if review is available, it must be under § 17. If the
Commission action does not fall within § 16 or § 17, it is not
reviewable at all. Orders under § 17 are reviewable only as
provided for in the Urgent Deficiencies Act. But the Urgent
Deficiencies Act furnishes only procedural details; it merely
defines the method of review, and not the kinds of cases for which
review is available. It did not make reviewable actions previously
unreviewable. 50 Cong.Rec. 4536, 4542.
Cf. Standard Oil Co. v.
United States, 283 U. S. 235,
283 U. S. 241;
United States v. Jones, 336 U. S. 641,
336 U. S.
647-648. It is the body of law constituting the
Interstate Commerce Act which determines whether and under what
circumstances review may be had. A long course of judicial
application in a field of law, fairly to be called technical, has
gradually ascertained from the context of the comprehensive scheme
of legislation the kind and the characteristics of orders that are
reviewable.
If the dismissal of a reparation complaint is not within the
phrase "any order" in § 17(9) of the Interstate Commerce Act, it is
also not with the "any order" phrase of the sections of Title 28, §
41(28) and § 46 of the 1940 ed., and §§ 1336 and 2324 of the
present Title 28 (1948 ed.), which embody the review provisions
formerly in
Page 337 U. S. 453
the Urgent Deficiencies Act of 1913, which provisions, in turn,
were taken from the Commerce Court Act. 36 Stat. 539. Although §
2321 of Title 28 of the Revised Code requires that "any order" of
the Interstate Commerce Commission other than one "for the payment
of money" should be reviewed according to the procedure under the
provisions providing for a three-judge court, it is clear that
"there are many orders of the Commission which are not
judicially reviewable under the provisions now incorporated in the
Urgent Deficiencies Act."
United States v. Los Angeles & S.L. R. Co.,
273 U. S. 299,
273 U. S.
309.
In the
Los Angeles & S.L. R. Co. case, it was held
that the district court had no jurisdiction to review a final
valuation order -- neither by virtue of the Urgent Deficiencies Act
nor under its general equity powers. This result was reached partly
because of want of equity, but also because it was found, upon full
consideration, that not every order of the Commission is "any
order" within the jurisdictional authorization of the Interstate
Commerce Act and the applicable provisions of the Urgent
Deficiencies Act. So also an order refusing to increase the
allowance for railroad mail compensation is not reviewable under
the Urgent Deficiencies Act.
United States v. Griffin,
303 U. S. 226;
see also Great Northern R. Co. v. United States,
277 U. S. 172. The
ground given in the
Griffin case was that, although there
was a case or controversy and final action, this type of order was
not within the Urgent Deficiencies Act -- and this, as we
reaffirmed the other day, quite apart from the obsolete "negative
order" doctrine.
United States v. Jones, 336 U.
S. 641,
336 U. S. 647.
Finally -- and it ought to be decisive -- on four occasions, this
Court has held that the Commission's refusal to award reparations
when the shipper, as here, proceeded under § 13 of the Act is not
reviewable.
Standard Oil Co. v. United States,
283 U. S. 235;
Brady v. ICC, 43 F.2d
847,
aff'd per curiam
Page 337 U. S. 454
after argument, Brady v. United States, 283 U.
S. 804;
Allison & Co. v. United States, 12
F. Supp. 862,
aff'd per curiam, 296 U.
S. 546;
Ashland Coal & Ice Co. v. United
States, 61 F. Supp.
708,
aff'd per curiam, 325 U.S. 840. These decisions
were based upon the fact that the Interstate Commerce Act precludes
review by the courts when the shipper had first sought damages
before the Commission.
The extraordinary consequences of jurisdiction under the Urgent
Deficiencies Act -- direct appeal to this Court, a district court
of three judges, precedence over other cases on both trial and
appeal -- were to come into play in strictly limited situations.
These can be fairly summarized as covering only the kinds of
administrative orders which generally are "of public importance
because of the widespread effect of the decisions" rendered by the
Commission.
United States v. Griffin, supra, at
303 U. S. 233.
The reparation orders here involved, as is true of all reparation
orders, since the shipper much show actual damages, concern only
the shipper and the common carrier which charged the rate. An
underlying legal issue which may be of wider public importance can,
of course, be adjudicated in a way which permits judicial review.
Thus, an order dealing with future rates is reviewable under the
provisions for a three-judge court.
But there is another reason why reparation orders are not
reviewable under the three-judge court provisions. Section 17,
incorporating the Urgent Deficiencies' mode of review, is not
concerned with reparation claims, but with a wholly different
matter. Reparation claims have been specifically dealt with in
other sections of the Act, and, to the extent that review was
intended, it is specifically provided for. By the original Act,
orders for the payment of money were enforceable in equity.
Interstate Commerce Act of 1887, § 16, 24 Stat. 379, 384-385.
Page 337 U. S. 455
On the suggestion that this was a denial of the common carrier's
right to trial by jury guaranteed by the Seventh Amendment,
see 19 Cong.Rec. 5149-50, Congress promptly provided that
a successful shipper before the Commission had to sue at law on his
award. 25 Stat. 855, 859-860, as amended, 49 U.S.C. § 16(2). But
there was no occasion for court review of a rate order, because the
original Interstate Commerce Act, while giving the shipper a right
to damage for past violations, did not give the Commission
ratemaking authority.
Interstate Commerce Commission v.
Cincinnati, N.O. & T. Pac. R. Co., 167 U.
S. 479. The ratemaking power was first conferred by the
Hepburn Act of 1906. 34 Stat. 584, 586-587. For the review of such
rate orders, Congress enacted what is now § 17(9). Then, for the
first time, the courts were given jurisdiction over a suit "to
enjoin, set aside, annual, or suspend any order or requirement of
the Commission," and "jurisdiction to hear and determine such
suits" was thereby vested in the circuit court of the district in
which the common carrier was located. 34 Stat. 592;
see
H.R. Rep. No. 591, 59th Cong., 1st Sess. 4-5 (1906); H.R. Rep. No.
4093, 58th Cong., 3d Sess. 2, 5 (1905);
United States v. Los
Angeles & S.L. R. Co., 273 U. S. 299,
273 U. S.
309.
In 1910, this identical jurisdiction was transferred from the
circuit courts and conferred upon the newly created Commerce Court,
but it was expressly provided:
"Nothing contained in this Act shall be construed as enlarging
the jurisdiction now possessed by the circuit courts of the United
States. . . ."
36 Stat. 539. This provision was inserted in the legislation
so
"that the creation of this court shall not be construed as
giving to the Commerce Court any greater jurisdiction than is now
possessed by the circuit courts of the United States over similar
matters."
H.R. Rep. No. 923, 61st Cong., 2d Sess. 7 (1910);
see
S.Rep. No. 355, 61st Cong., 2d Sess.
Page 337 U. S. 456
4, Pt. 2, 4-5 (1910);
see S.Doc. No. 606, Vol. 54, 61st
Cong., 2d Sess. 2 (1910). By this legislation of 1910, Congress
merely provided for a shift of jurisdiction from the old circuit
courts to the new centralized Commerce Court, and not an
enlargement of jurisdiction. When, in 1913, the Commerce Court was
abolished, the same jurisdiction was revested in the district
courts, the circuit courts having been abolished in the
meantime:
"[the jurisdiction] vested in said Commerce Court . . . [was]
transferred to and vested in the several district courts of the
United States."
38 Stat. 219. Indisputably, Congress did not make reviewable
orders which could not have been reviewed by the Commerce Court.
[
Footnote 2/9]
Therefore, even putting to one side § 9, the dismissal of the
reparation complaint was clearly not within the words "any order"
in § 17(9): (1) if it were within § 17(9) it would be reviewable
only by a three-judge court,
Page 337 U. S. 457
but that reviewing device is not applicable to reparation
claims; (2) reparation claims are not within § 17(9) because they
have been treated by a different scheme throughout the history of
the Act. If review is to be found within the Act, it must be
because of provisions other than those in § 17(9).
Second. The only other provision in the Interstate
Commerce Act which affords judicial review of an order is § 16.
That section, however, comes into force only when an award for
damages is made. Rejection by the Commission of a money claim is
outside the express terms of that section, and not within what can
fairly be implied from any language in it. A general argument of
fairness is made that, since this section provides for court review
when an award is made where the carrier loses, the shipper is
entitled to review when the carrier wins. Leaving aside,
temporarily, the fact that what Congress has written in § 9
forecloses court review, to yield to such an inference in favor of
a shipper whose claim is denied raises insuperable difficulties
once we leave the text and scheme of the Act and go at large as to
court review. Thus, there would be no limit on the time in which
review of the Commission's dismissal of the reparation claim could
be brought, whereas § 16 fixes a time limit for suits against the
carrier on awards by the Commission. 43 Stat. 633, as amended, 49
U.S.C. § 16(3)(f). This is just one of the obstructions if we are
to imply court review of orders disallowing reparation claims
because Congress has seen fit to allow suits on orders granting an
award. In other respects, the Court would have to legislate for
Congress. What effect is to be given to the Commission's finding?
If the shipper receives an award of damages and sues the carrier
thereon, § 16(2) provides that the Commission's findings are
prima facie evidence. 41 Stat. 491, as amended, 49 U.S.C.
§ 16(2). Are we to create the same rule judicially, though
Congress
Page 337 U. S. 458
has not done so, when the shipper fails before the Commission?
May the shipper introduce new evidence in the district court? When
the shipper sues the common carrier, the Commission's action in
making an award
"cuts off no defense, interposes no obstacles to a full
contestation of all the issues, and takes no question of fact from
either court or jury."
Meeker & Co. v. Lehigh Valley R. Co., 236 U.
S. 412,
236 U. S. 430.
But if the unsuccessful shipper can save up evidence until he gets
in court, the advantages of a Commission hearing are destroyed.
What will be the scope of the Court's jurisdiction? Would the
district court determine only liability, or also the amount to be
recovered, or only that the Commission acted without justification
in fact, or contrary to law? The answer to none of these questions
can be found in § 16. Yet, one would suppose, if review in this
situation is to be derived from § 16, some guides for its exercise
should also be found in that section, considering the
particularities with which it defines review in the instances
authorizing court action. Therefore, this Court has held: "Section
16(2) does not permit suit in the absence of an award, and, if the
Commission denies him relief, a claimant is remediless."
Baltimore & Ohio R. Co. v. Brady, 288 U.
S. 448,
288 U. S.
458.
Money damages are part of the regulatory scheme.
Mitchell
Coal & Coke Co. v. Pennsylvania R. Co., 230 U.
S. 247,
230 U. S. 258.
But while the Commission may determine that rates for the future be
reduced, it is not required to award damages for the higher rates
in the past. Thus, it is not at all strange that its action be not
subject to court review where the shipper has failed to persuade
the Commission to award damages.
Baltimore & Ohio R. Co. v.
Brady, 288 U. S. 448,
288 U. S. 458.
Especially is this true when Congress has provided for an
alternative procedure whereby the shipper would have been able to
go to court. Therefore, even without any explicit provision, it
would be a reasonable inference that Congress did not intend
Page 337 U. S. 459
to grant a review where the shipper has decided to seek his
damages before the Commission.
Even though Congress provided alternate methods of securing
damages, and authorized court review when the Commission sustained
a money claim, but not when it denied such a claim, Congress did
not leave merely to rational inference that, upon denial of a money
award by the Commission, the shipper could not again try his luck
in court. By § 9, Congress gave the shipper his choice of forum: he
could ask for damages either from the Commission or a court, but
could "not have the right to pursue both of said remedies;" he
"must in each case elect which one of the two methods of procedure
herein provided for he . . . will adopt." 24 Stat. 382, as amended,
49 U.S.C. § 9. If the shipper asks the Commission to award him
damages, and it goes against him, Congress has barred review of the
denial or revision of the amount of the award.
Baltimore &
O. R. Co. v. Brady, 288 U. S. 448,
288 U. S.
458-459. Since Congress gave the shipper the alternative
of administrative or judicial relief, there can be no question but
that Congress was constitutionally free to make final the
administrative choice.
Third. Since access to court review of an order denying
reparations was barred by the Interstate Commerce Act, such review
is not available under the general jurisdiction of the district
courts. 28 U.S.C. § 1337 (1948 ed.). It has never been suggested,
during some sixty years of active litigation over this problem,
that, for review of such an order, resort may be had to a court of
equity outside the framework of the Interstate Commerce Act. Even
the Government does not now suggest it, and naturally so. Due
regard for the explicit provisions of the Act precludes it. And for
these reasons:
(1) The specific terms of § 17(9) which alone give reviewing
power to the courts, save in cases where the carrier has been held
to owe money, do so
"under those provisions
Page 337 U. S. 460
of law applicable in the case of suits to enforce, enjoin,
suspend, or set aside orders of the Commission, but not
otherwise."
54 Stat. 916, 49 U.S.C. § 17(9). It is obvious that review would
be "otherwise" if the unsuccessful shipper be permitted to bring an
action under 28 U.S.C. § 1337 (1948 ed.). This reason exists
independently of the fact that § 9 also prohibits court action
after an attempt to recover damages is made before the Commission.
It is also independent of the fact that provisions of Title 28 do
not make reviewable orders for which the Interstate Commerce Act
does not provide review.
(2) Because of these provisions, review of reparation claims
differs from the situation in
Shields v. Utah Idaho Cent. R.
Co., 305 U. S. 177.
There, the Court was not confronted with an enactment which said
that, if a person sought the Commission's aid, he could not
thereafter go to court. The
Shields case is inapposite on
another ground. By determining that a certain railroad was subject
to the Interstate Commerce Act, the Commission placed the railroad
under the active hazards of criminal sanctions. Equity was invoked
for one of its ancient functions of staying a multiplicity of
criminal prosecutions to avoid irreparable harm.
See 305
U.S. at
305 U. S. 183,
and
Switchmen's Union of North America v. National Mediation
Board, 320 U. S. 297,
320 U. S. 306.
Here there is not the remotest ground for appeal to equity. It is
merely a matter of dollars and cents -- not the hazards of criminal
prosecution -- and an insistence on having two modes of recovering
money damages when Congress has given shippers the choice of one or
the other. There is a total absence of any of the traditional
grounds for equitable relief.
Cf. United States v. Los Angeles
& S.L. R. Co., 273 U. S. 299,
273 U. S.
314-315.
Nor is review permitted under § 1336 of Title 28 (1948 ed.) if
it is determined that the type of order involved is not of the
nature calling for a three-judge court. The
Page 337 U. S. 461
Government relied on the special scheme of the Urgent
Deficiencies Act as incorporated in the Interstate Commerce Act
conferring jurisdiction to review orders of the Commission. This
scheme requires review by a three-judge court. The court rejects
that claim on the ground that a reparation order is not the type of
order so reviewable. Instead, the Court finds jurisdiction in the
district court to entertain a petition to review an order of the
Commission denying reparation in § 41(28) of Title 28 (1940 ed.),
now § 1336 of Title 28 (1948 ed.). But jurisdiction under § 41(28)
carries also the requirement of a three-judge court.
See
§§ 41-47, now c. 157 of Title 28 of the 1948 Code. No jurisdiction
can be derived from § 41(28) of Title 28 unless the order is of the
type that is reviewable by a three-judge court. To reject the
latter is necessarily to hold that no jurisdiction of the district
court is derivable from § 41(28) of Title 28, now § 1336 of Title
28 (1948 ed.). [
Footnote
2/10]
Page 337 U. S. 462
Moreover, a suit filed under the jurisdiction of § 41(28) of
Title 28 is one against the United States with the Interstate
Commerce Commission as a party only if it chooses to intervene. 28
U.S.C. §§ 2322, 2323 (1948 ed.). Congressional consent is required
to authorize such a suit, and congressional consent has been
authorized only under the conditions requisite for a three-judge
court proceeding for which this Court finds no jurisdiction, 28
U.S.C. §§ 2321-2325 (1948 ed.). On the basis of the result in this
case, the decision in the
Great Lakes Steel case, 337 U.S.
952, must, of course, be reversed. And so this Court would direct
the allowance of a suit against the United States, although
Congress has not given consent thereto. The only possible escape
from this conclusion is that jurisdiction is to be denied when a
private shipper seeks to go into court after the Commission has
dismissed his complaint for damages, as in the
Great Lakes
Steel case, but jurisdiction somehow or other should be
acknowledged when the Government is the shipper. The defense of
sovereign immunity, moreover, cannot be avoided by directing that
the suit proceed only against the Interstate Commerce Commission.
There is no claim that the Commission acted unconstitutionally, or
that it proceeded under an unconstitutional statute, or that it
acted beyond the authority conferred by a valid statute. It merely
acted within the scope of its authority, and made a determination,
as it was legally bound to do, based upon the law and the facts.
The difficulty of
Page 337 U. S. 463
sovereign immunity forcibly demonstrates again why a method or
court review cannot be found outside the provisions of the
Interstate Commerce Act.
Fourth. We now turn to § 9. The language leaves no room
for doubt. But it is now urged (though the Government has not so
argued in the four decisions that went against private shippers)
that, where the damage claim was based on other than a mere
arithmetical overcharge, the election afforded by § 9 is illusory.
This is so, it is argued, because, when complaint is made that
rates were unfair, prejudicial or unreasonable, the doctrine of
Texas & Pac. R. Co. v. Abilene Cotton Oil Co.,
204 U. S. 426, is
brought into operation. It is said that the Government never had an
opportunity to go into court until the Commission dismissed its
complaint. Sufficient respect is given to § 9, so the argument
runs, by reading it to bar "initiating" another action in the court
after it has failed before the Commission, not to reviewing the
Commission's action. So to argue is to rewrite what Congress has
written. Congress did not bar "initiating;" it barred "the right to
pursue." The Court concedes that § 9 is a bar when a shipper could
have gone in the first instance to the courts. This was so ruled in
Baltimore & O. R. Co. v. Brady, 288 U.
S. 448. But what language affords a basis for a
distinction when a determination of a transportation issue must be
made by the Commission before the case can proceed to judgment?
Moreover, the result of the Court's decision is to make the
Commission's decision final in those instances where the Commission
is acting purely judicially -- merely a matter of applying the law
to the facts -- but not final when the Commission, acting in the
realm of its administrative expertness, found a practice legal, and
therefore denied damages. Adjudication and settled practice before
the Commission likewise disprove this discovery that the choice
given by Congress in § 9 is a sham.
Page 337 U. S. 464
The Commission must often pass on the legality of a particular
practice of a carrier; such proceedings may serve as the basis for
reparations. Under Part I of the Transportation Act, relating to
rail carriers, the shipper may ask the Commission for a declaration
that a practice has been illegal and base a claim of damages on
such illegality under § 8 of the Act. His other course is to secure
a Commission determination only as to the illegality of the
practice, and not ask for an award, reserving the claim of damages
for court action. This may be done in one of two ways. He may begin
by filing his suit in court and ask the court to hold the case
until he has obtained an administrative determination from the
Commission. [
Footnote 2/11] There
is no jurisdictional bar to such a procedure. In
Texas &
Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.
S. 426, the Court said the case should be dismissed, but
preoccupation was with the necessity for prior administrative
determination, not with whether there was jurisdiction in the sense
of power to hold the case until there had been a Commission
determination. Cases -- decided after the
Abilene case --
have clearly recognized
Page 337 U. S. 465
that there is jurisdiction to hold the case, and this procedure
has been suggested in a number of them. [
Footnote 2/12]
Mitchell Coal & Coke Co. v.
Pennsylvania R. Co., 230 U. S. 247,
230 U. S. 267;
Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.
S. 304,
230 U. S.
314-315;
see Smith v. Hoboken R. Co.,
328 U. S. 123,
328 U. S. 133;
Thompson v. Texas, Mexican R.
Co.,
Page 337 U. S. 466
328 U. S. 134,
328 U. S. 151,
see also Bell Potato Chip Co. v. Aberdeen Truck Line, 43
M.C.C. 337, 343.
The other method open to a shipper who desires to avail himself
of the court remedy given by § 9 is to initiate proceedings before
the Commission and to ask merely for a declaration regarding the
legality of a past practice, but not for damages. This course is
manifested by the complaints before the Commission, asking merely
for a declaration without any and damnum. For the period between
July, 1947, and February, 1949, 46 such cases were filed under Part
I of the Act. Under Part II, 22 complaints have been filed since
January 1, 1948, requesting such a declaration as to the legality
of a practice. [
Footnote
2/13]
Page 337 U. S. 467
The Government thus had a real choice.
Terminal Warehouse
Co. v. Pennsylvania R. Co., 297 U. S. 500,
297 U. S.
507-508. But, having first sought the advantages of a
Commission award, it foreclosed itself from pursuing a judicial
remedy when its expectations failed. A double remedy which Congress
denied this Court ought not to grant. The Government
"had a choice . . . between a remedy at the hands of the
Commission and a remedy by suit, but, by express provision of the
statute, it could not have been both."
Terminal Warehouse Co. v. Pennsylvania R. Co., supra,
at
297 U. S.
508.
The conclusion reached by a reading of the statute is reenforced
by the adjudicated cases. In
Standard Oil Co. v. United
States, 283 U. S. 235,
three distinct grounds were given for affirming the district
court's dismissal for want of jurisdiction of a suit to review an
order of the Commission dismissing a claim for damages. One reason
was that the order was "a negative order;" that reason has been
displaced by
Rochester Telephone Co. v. United States,
307 U. S. 125. But
the
Standard Oil decision was left intact by the
Rochester decision, for the opinion in that case
explicitly pointed out that "the main basis" of the
Standard
Oil decision "was not the
negative order' doctrine, but
[that] the statutory scheme dealing with reparations" precluded
review of an order denying money damages. 307 U.S. at 307 U. S. 140,
n. 23. The "statutory
Page 337 U. S.
468
scheme" was thus defined in the Standard Oil
case:
"Having elected to proceed and having proceeded to a
determination before the Commission, appellant was, by force of
this provision [§ 9], precluded from seeking reparation upon the
same claims by the alternative method of procedure."
283 U.S. at
283 U. S. 241;
see also Mr. Justice Cardozo for the Court in
Terminal
Warehouse Co. v. Pennsylvania R. Co., 297 U.
S. 500,
297 U. S.
507-508. The Standard Oil Company, as a shipper, was
precisely in the same situation as the United States in this case;
the United States pursued the same course in this case as did the
Standard Oil Company. The Standard Oil Company was not "initiating"
an action in the district court, but was seeking judicial review of
the Commission's action, and this is precisely what the United
States is doing in this case. The only difference between the
Standard Oil case and this case is that, in the earlier
case, the Standard Oil Company was the plaintiff, and, in this
case, it is the Government. What the Court said in the
Standard
Oil case is equally applicable here.
"It is of no importance that the adjudication sought is to take
the form of a direction to the Commission to grant the prayer of
the complaints filed before that body, etc., instead of a plenary
judgment to the same end, for the prayer in that form is nothing
less than an attempt to avoid the statute by indirection."
283 U.S. at
283 U. S.
241.
In view of the fact that the
Rochester case expressly
saved that phase of the
Standard Oil decision which is
decisive of the problem before us now -- "the statutory scheme
dealing with reparations" -- the Court's holding that the
Rochester case impliedly overruled the
Standard
Oil case means, of course, that, to this extent, the Court
today overrules the
Rochester case, not that the
Rochester case had overruled the
Standard Oil
case, wholly apart from the fact that the
Standard Oil
decision was the
Page 337 U. S. 469
basis of a decision long after the
Rochester case.
[
Footnote 2/14]
Ashland Coal
& Ice Co. v. United States, 325 U.S. 840.
And to what end these dislocations of so many decisions? We have
been vouchsafed no considerations of policy, no revealed injustice
flowing from the construction thus far placed upon the reparations
provision of the Interstate Commerce Act, no difficulties in their
administration,
Page 337 U. S. 470
no disclosure of new materials for the proper construction of an
old statute. And the current of settled judicial construction, as
well as administrative practice, is now reversed against the
vigorous protest of the agency charged with the administration of
the law, although, only a week ago, we greatly relied on
administrative practice as the basis of judicial
interpretation.
The result reached in the
Standard Oil case was not
limited to controversies which did not involve the primary
jurisdiction doctrine. The district court in that case did assume
arguendo that the issue involved nothing which required
administrative determination before it addressed itself to the
basic jurisdictional question.
See Standard Oil Co. v. United
States, 41 F.2d 836. On appeal, however, this Court did not
confine in any way the bar imposed by § 9 to resort to a district
court after an unsuccessful resort to the Commission for
reparations. It read § 9 as it was written, as a provision for a
choice of tribunals, so that, if damages are sought from the
Commission and denied by it, the courts are closed to a further
consideration of such a claim.
The suggestion at this late date that the election so
specifically defined by § 9 applies only to those instances in
which no need for Commission determination of transportation issues
may be required is completely dispelled by
Brady v. United
States, 283 U. S. 804. In
the
Brady case, damages were based on the claim that the
carrier's practices were unjust, unreasonable, and unduly
prejudicial -- the exact grounds urged in this case. The Commission
refused to award reparations in the amount claimed by Brady, and
the shipper brought precisely the same kind of suit that the United
States as shipper brought here. Brady argued that, since the
controversy was within the Commission's so-called primary
jurisdiction, he never had the choice of proceeding in court rather
than
Page 337 U. S. 471
going to the Commission. The district court dismissed his suit
for want of jurisdiction to review the action of the Commission,
and this Court sustained that denial of jurisdiction. It did so on
the basis of the
Standard Oil decision, which had been
rendered a month before, for the
Standard Oil case, as did
the
Brady case, and as does this case, involved questions
which, as such, required preliminary Commission determination.
The scope of the
Standard Oil and
Brady cases
is made unambiguously clear by reliance on them for the decision in
Allison & Co. v. United States, 296 U.
S. 546, 664, and
Ashland Coal & Ice Co. v.
United States, 325 U.S. 840. In each case, issues were
involved which indubitably fell under the requirement of the
"primary jurisdiction" doctrine. In each of these cases, the
shipper relied on the claim that their cases were distinguishable
from the
Standard Oil and the
Brady cases. The
same distinctions which are now advanced by the Government were
then advanced by the shipper but resisted by the Government. The
Government then rightly insisted that the
Standard Oil and
the
Brady cases could not be restricted to situations
where the primary jurisdiction doctrine was inoperative, and that
the decision in those cases -- that § 9 is unqualified in
precluding resort to judicial review in all cases where damages had
first been denied by the Commission -- was compelled by a proper
construction of § 9. This position of the Government was considered
so incontestable that the Court deemed oral argument needless, and
granted the Government's motion to affirm. The Government's
interest has changed, but not the force of its position when it was
without self-interest.
I would affirm.
[
Footnote 2/1]
Compare Brief for United States and Interstate Commerce
Commission, pp. 7-22,
Great Lakes Steel Corp. v. United
States, 81 F. Supp.
450,
with Brief for United States, pp. 14-39,
United States v. Interstate Commerce
Commission, 78 F.
Supp. 580. Since the argument of this case, the
Great Lakes
Steel case has been brought here on appeal, No. 749, this
Term, and the Government has acknowledged the conflict.
See Motion to Defer Consideration of the Statement of
Jurisdiction,
Great Lakes Steel Corp. v. United States,
No. 749, this Term, 337 U.S. 952.
[
Footnote 2/2]
54 Stat. 899, 49 U.S.C. § 1
et seq.
[
Footnote 2/3]
24 Stat. 382, as amended, 49 U.S.C. § 8.
[
Footnote 2/4]
24 Stat. 382, as amended, 49 U.S.C. § 9, 24 Stat 383, as
amended, 49 U.S.C. § 13.
[
Footnote 2/5]
It held that the rates for export tariff applied only when the
wharves were public, which these wharves were not. The Commission
also pointed out that the railroads had made other concessions to
the Government; that the rates charged, together with a reasonable
allowance for the services not provided, were still below the upper
limits of reasonableness; that the wharfage charges had been
absorbed because of competitive conditions. 264 I.C.C. 683, 269
I.C.C. 141.
[
Footnote 2/6]
24 Stat. 383, as amended, 49 U.S.C. § 13.
[
Footnote 2/7]
24 Stat. 384, as amended, 49 U.S.C. § 16.
[
Footnote 2/8]
54 Stat. 916, 49 U.S.C. § 17(9).
[
Footnote 2/9]
There was no Committee Report on this legislation; it was added
to an appropriation bill.
See 50 Cong.Rec. 4527-8. Mr.
Fitzgerald, the sponsor of the amendment, said that its sole
purpose was to abolish the Commerce Court and make provision for
the litigation over which that court had jurisdiction. "It does not
give any new right to any party." 50 Cong.Rec. 4532, 4536, 4542.
There was an attempt to enlarge the review provision so as to give
shippers review where previously it did not exist, but this
amendment was defeated after debate. 50 Cong.Rec. 4532, 4543-44. It
was said:
"The legislation contained in this bill simply abolishes a court
that ought never to have been created and vests the jurisdiction
which it now exercises in the district courts of the United States.
That is all of it, and that is all there ought to be of it. There
ought not to be any attempt to enact substantive law in this bill.
There ought not to be any attempt to have an increase or decrease
of the powers of the commission, and there ought not to be any
attempt to increase or decrease the jurisdiction of the district
courts over that of the Commerce Court. The only reason why the
district courts are designated instead of the circuit courts is
that the circuit courts have been abolished since the Commerce
Court was created."
50 Cong.Rec. 4536.
[
Footnote 2/10]
In
United States v. Griffin, 303 U.
S. 226, it was held that, because the type of order
there involved was not the type reviewable by a three-judge court,
the phrase the
"district courts shall have jurisdiction 'of cases brought to
enjoin, set aside, annul, or suspend in whole or in part any order
of the Interstate Commerce Commission'"
did not confer jurisdiction on the district court. 303 U.S. at
303 U. S. 228.
The quoted words are the provision in the Urgent Deficiencies Act
and are precisely the same provision that was carried over to §
41(28). When we had this general problem here the other day in
United States v. Jones, 336 U. S. 641, it
was not suggested that there was jurisdiction to review an order of
the Commission under § 41(28), now § 1336 of Title 28 (1948).
Instead, the Court agreed with the
Griffin case that the
order there involved was not of a type calling for a three-judge
court, and therefore that the jurisdictional provisions of §
41(28), now § 1336, of Title 28 (1948 ed.), were not applicable.
The Court significantly referred to the provisions of § 41(6), now
§ 1339 of Title 28 (1948 ed.), the section giving general
jurisdiction over suits arising under the postal laws, as the only
possible source of jurisdiction. In the context of this case, the
comparable provision is § 41(8), now § 1337 (1948 ed.). The only
reason why the Court now seeks to warp the whole structure of Title
28, rather than to rely on the only section which conceivably gives
jurisdiction to a one-judge court, is in order to escape the
embarrassing fact that such a suit would be squarely in the face of
§ 9 of the Interstate Commerce Act. Of course, even the procedure
adopted is in the face of § 9 of the Interstate Commerce Act as
interpreted in four previous decisions of the Court. But reliance
on § 41(8), now § 1337 (1948 ed.), would at least have the virtue
of only mutilating one Act -- that is, the Interstate Commerce Act
-- rather than both that Act, and § 41(28) of Title 28 (1940 ed.),
now § 1336 and c. 157 of Title 28 of the 1948 edition.
[
Footnote 2/11]
For the period since April 28, 1948, although there have been no
instances in which the shipper has asked for a determination of the
legality of a practice under Part I of the Act, in a complaint
which also stated that a court action was being held in abeyance,
there have been thirteen instances where complaints were filed
before the Commission asking only for a determination of the
legality of a practice because the complainant there was the
defendant in a civil action in the courts. Since January, 1948,
there have been five proceedings under Part II of the Act in which
the shipper first instituted suit in the courts and then asked that
the suit be held in abeyance until the Commission made a
determination as to the legality of a particular practice. It
should be pointed out that, under Part II of the Act, the
Commission has no power to award damages; the doctrine of primary
jurisdiction, however, is nevertheless applicable.
Bell Potato
Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 342-343.
[
Footnote 2/12]
The
El Dorado Terminal Co. litigation did not involve a
claim by a shipper for recovery of an overcharge by a carrier.
Therefore, the decisions in
General American Tank Car Corp. v.
El Dorado Terminal Co., 308 U. S. 422, and
El Dorado Oil Works v. United States, 328 U. S.
12, did not involve the statutory scheme relating to
reparations. The cases have no bearing on the problem here --
namely the jurisdictional requirements of § 9 in the context of the
Interstate Commerce Act. The
El Dorado litigation was an
ordinary action on a contract. Entangled, however, in the proper
construction of that contract was the ascertainment of a
transportation fact, which, with due regard to the
Abilene
doctrine, made prior determination by the Interstate Commerce
Commission appropriate. To that end, it was held in the first
El Dorado case that the action in the District Court
should be held for such administrative determination.
General
American Tank Car Corp. v. El Dorado Terminal Co.,
308 U. S. 422.
That ruling does establish that simply because a prior
determination by the Interstate Commerce Commission is required
before a litigation can proceed to judgment does not deprive a
district court of jurisdiction. This circumstance merely calls for
the suspension of the exercise of jurisdiction until the
appropriate fact is established by the Interstate Commerce
Commission and then introduced in evidence in the pending court
case, instead of being established independently in court, as is
usually the case.
"While we rejected the Commission's contention that the District
Court had no jurisdiction to hear the case, we accepted its
contention that determination of the validity of the challenged
past practices was for the Commission."
El Dorado Oil Works v. United States, 328 U. S.
12,
328 U. S. 17.
The order made by the Interstate Commerce Commission in response to
the requirement of the first El Dorado case was not an order of
dismissal in a reparation suit. Procedurally, it did not make very
much difference therefore whether this order of the Interstate
Commerce Commission should have been entered in the pending
litigation or was allowed to be considered in a new proceeding
before the District Court. As a matter of procedural elegance, it
was more appropriate for it to have formed part of the then pending
litigation which was suspended precisely for the purpose of
obtaining such an order.
In
Armour & Co. v. Alton R. Co., 312 U.
S. 195, the essential question was whether a particular
issue could be determined by the court or, in conformity with the
Abilene doctrine, required Commission determination. The
preoccupation of the case was with that issue. After holding that
the doctrine of the
Abilene case was applicable, the Court
affirmed the judgment below requiring a ruling fr in the Interstate
Commerce Commission, without considering whether there was
jurisdiction in the sense of power to entertain but hold the
case.
[
Footnote 2/13]
These figures are not given to imply that in every instance, or
even in most instances, that Commission action is followed by a
suit in the court for damages. Their sole purpose is to show that,
by not seeking damages from the Commission, a complaint leaves
himself free, under § 9, to go to the courts.
The Commission prefers that the shipper first file a suit in the
court before asking the Commission for a declaration. This
procedure has the advantage of preventing the statute of
limitations from running on the shipper while awaiting Commission
decision. Also,
"In circumstances such as described, it is apparent that
precautions should be taken to prevent the filing of frivolous or
moot complaints. Without attempting at this time to devise a
precise rule, we think it pertinent to point out that, generally
speaking, adversary proceedings involving past unreasonableness,
unjust discrimination, or undue prejudice under part II should not
be brought before us prior to the institution of a suit in court in
which damages are sought predicated upon the unlawfulness alleged
in the complaint. The complaint should show that such suit has been
brought within the period allowed by the applicable statute of
limitations. There may be other situations in which we should
exercise this jurisdiction. In this connection, it may be noted
that it is a recognized practice to hold in abeyance court
proceedings pending the determination by the Commission of
administrative questions."
Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C.
337, 343.
[
Footnote 2/14]
No decision of this Court has ever expressly or impliedly
overruled the decision in
Standard Oil case. Least of all
can it be said that
Rochester Telephone Co. v. United
States, 307 U. S. 125,
overruled the case, for the opinion with great care stated that the
Standard Oil case was not overruled in its holding that
orders dismissing a claim for reparations were not reviewable
because of § 9 of the Interstate Commerce Act.
See 307
U.S. at
307 U. S. 140,
n. 23. The Court there did only what the Court the other day did in
United States v. Jones, 336 U. S. 641,
336 U. S.
647-648 -- that is, it decided that for reasons wholly
unrelated to the "negative order" doctrine an order of the
Commission was not reviewable. If anything, the conclusion in the
Standard Oil case was reinforced by the
Rochester
decision in that it was reaffirmed by the very decision that put
the "negative order" doctrine and decisions dealing with it under
the strictest scrutiny. That examination revealed that only one
case out of the whole series of cases examined was really
determined by the "negative order" doctrine. That was the only case
the Court overruled. And even the concurring opinion did not say
that other cases were being overruled. It objected, essentially, to
their reexamination. The concurring opinion said:
"the case presents no debatable question as to the jurisdiction
of the district court. A statement of the facts alleged
conclusively shows that, in purpose, terms, and effect, the final
order constitutes not mere determination or declaration, but
affirmative commands. There is no occasion to review earlier
decisions dealing with affirmative and negative administrative
orders, and obviously none to overrule any of them or to repudiate
or impair the doctrine they establish."
Rochester Telephone Co. v. United States, 307 U.
S. 125,
307 U. S. 146,
307 U. S.
147-148. That the
Rochester case did not
overrule
Standard Oil is conclusively proved by the fact
that his Court relied on that case less than four years ago to
affirm a judgment dismissing a petition to review an order
dismissing a claim for reparation.
Ashland Coal & Ice Co.
v. United States, 325 U.S. 840.