Atlantic Coast Line R. Co. v. Interstate Commerce Commission

Decision Date05 December 1911
Docket Number3.
Citation194 F. 449
PartiesATLANTIC COAST LINE R. CO. et al. v. INTERSTATE COMMERCE COMMISSION (UNITED STATES et al., Interveners).
CourtUnited States Commerce Court

Alfred P. Thom, R. Walton Moore, Frank W. Gwathmey, and John K Graves, for petitioners.

James A. Fowler and Blackburn Esterline, for the United States.

P. J Farrell, for Interstate Commerce Commission.

William A. Wimbish, for M. C. Kiser Co. and J. K. Orr Shoe Co.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Associate Judges.

CARLAND Judge.

March 31, 1910, petitioners filed their bill in the United States Circuit Court for the Eastern District of Virginia against the Interstate Commerce Commission for the purpose of having an order of said commission, dated November 27, 1909, and effective April 1, 1910, wherein it was found that the rail and water rate of Central of Georgia Railway Company Southern Railway Company, Seaboard Air Line Railway Company and the receivers thereof, Atlantic Coast Line Railroad Company, Ocean Steamship Company, and Merchants' &amp Miners' Transportation Company of $1.05 per 100 pounds for the transportation of less than car load shipments of boots and shoes from Boston and New York to Atlanta, Ga., to the extent that it exceeded 95 cents per 100 pounds, was unreasonable, unjust, and unduly discriminatory, suspended, and annulled. The order also required the said companies to cease and desist on or before April 1, 1910, and for a period of not less than two years thereafter abstain from charging, collecting, or receiving the rate so held to be unlawful, and to establish on or before April 1, 1910, and maintain for a period of two years thereafter, a charge for the transportation of less than car load shipments of boots and shoes by water and rail from Boston and New York to Atlanta, Ga., a rate which should not exceed 95 cents per 100 pounds.

The commission answered the bill in the United States Circuit Court, and the M. C. Kiser Company and the J. K. Orr Shoe Company, having been allowed to intervene, filed their several demurrers in said court. Subsequently the case was transferred to this court, and the United States, having here been allowed to intervene, filed its motion to dismiss under the statute. The case is now, after argument, submitted for decision upon the demurrer of the M. C. Kiser Company and J. K. Orr Shoe Company, and the motion of the United States to dismiss. The motion to dismiss so far as it goes covers the same grounds as the demurrer. The demurrer, however, being both general and special, specifies as grounds of demurrer other matters not specifically mentioned in the motion to dismiss. It would seem proper, therefore, to consider the motion to dismiss and the demurrer together.

Speaking in a general way, the bill presents two grounds of attack upon the order of the commission: First, that the rate of 95 cents per hundred pounds established by the order for the transportation of boots and shoes from Boston and New York to Atlanta is so unreasonably low as to deprive petitioners of a right guaranteed to them by the fifth amendment to the Constitution of the United States in that their property will be taken for a public use without just compensation; and, second, that said order, while in form within the powers of the commission, was such an irregular and unreasonable exercise of authority as to render it void. The demurrer being special and directed to particular paragraphs of the bill, it will be necessary to consider the grounds of the demurrer separately.

It is specified as a ground of demurrer that the Georgia Railroad, the Norfolk & Western Railway Company, Clyde Steamship Company, and Old Dominion Steamship Company were not parties to the proceeding before the commission which resulted in the making of the order complained of, and that, therefore, there is a misjoinder of petitioners. It is alleged, however, in paragraphs 4 and 11 of the bill that the petitioners are and have been for at least 10 years participating in the rail and water transportation of boots and shoes from Boston and New York to Atlanta, and the manner in which this traffic moves is pointed out. It is also alleged that the volume of traffic to which the reduction of rates required by the order complained of, if enforced, will by the terms thereof apply, is very large, and will necessarily and inevitably cause corresponding reductions not only by such of the petitioners as are named in said order, but by the other petitioners as well, in all such less than car load rail and water rates on boots and shoes from all the other New England and Eastern ports to Atlanta and practically to all other Southeastern points, and that the volume of such traffic to which such reductions will necessarily apply is tremendous in amount, and that the revenues of all of the petitioners will be greatly and seriously impaired if the order is allowed to remain in effect.

From these allegations admitted by the demurrer it appears that the petitioners last above named have sufficient interest in the rail and water rate to be made parties to the suit. Peavy v. Union Pacific Company (C.C.) 176 F. 409, affirmed by Supreme Court November 13, 1911, 222 U.S. 42, 32 Sup.Ct. 22, 56 L.Ed. . . . .

Another ground of demurrer is that the Ocean Steamship Company of Savannah and the Merchants' & Miners' Transportation Company were parties defendant to the complaint and proceedings before the commission which resulted in the making of the order complained of, and therefore this court can grant no relief without their presence.

It is a sufficient answer to this contention to say that this case is not an appeal or writ of error where all parties against whom the decree or judgment is rendered must join in the appeal or writ, or in lieu thereof a summons or severance must be had, but it is a plenary suit in equity, and certainly any party against whom an order establishing rates is made may petition this court for redress without joining other parties to the order; the injury, if any, being several, and not joint. Peavy v. Union Pacific Company, supra.

Paragraph 10 of the bill is demurred to upon the ground that the petitioners therein named, to wit, the Georgia Railroad, Norfolk & Western Railway Company, Clyde Steamship Company, and Old Dominion Steamship Company were not necessary parties to the complaint before the commission; and if they, as carriers participating in the traffic affected, have any just cause of complaint, such complaint may and should be presented to the commission, which is authorized by law to grant rehearings and to modify its orders. While we think it is entirely proper for parties against whom an order has been made to apply to that body for a rehearing, we know of no rule that makes it a condition precedent to the bringing of a suit in this court for the purpose of setting aside the order. Peavy v. Union Pacific Company, supra.

Paragraph 11 of the bill is demurred to upon the ground that it fails to state the volume of the traffic affected, the revenues derived therefrom, and to what extent these revenues will be affected by the enforcement of the order complained of, and upon the further ground that the bill fails to state what reductions in other rates will necessarily and inevitably follow the enforcement of the order, by what carriers, and between what points such reductions would be made, and the extent of such reductions. The only purpose of paragraph 11 is to show that the carriers which are complainants in this proceeding and which were not parties before the commission have such an interest in the controversy as entitles them to be made complainants, and we think the paragraph is sufficiently specific for that purpose.

Paragraph 13 of the bill is demurred to upon the ground that no facts are stated to support the conclusion that in establishing the rates and charges condemned in the order complained of the complainants were not making or giving any undue or unreasonable preference or advantage to any shipper, locality, or description of traffic, or subjecting any special locality or description of traffic to any undue or unreasonable prejudice or disadvantage.

As the commission condemned the rates which were complained of only because they were unreasonably high, the allegations in paragraph 13 would seem to be irrelevant, and for this reason we do not stop to consider whether it is sufficiently specific or not, but will sustain the demurrer thereto.

Paragraph 16 is demurred to upon the ground that a mere conclusion of law is pleaded, and no facts are alleged showing wherein the enforcement of the order in question will deprive the complainants or either of them of any right guaranteed by the Constitution of the United States. An inspection of said paragraph shows that it is mere argument and therefore is bad on demurrer.

Paragraph 18 is demurred to upon the ground that it is hypothetical, and upon the further ground that in order to support the general conclusion therein pleaded the bill should show the amount of revenue necessary and sufficient for the maintenance of complainants as common carriers in the discharge of their duties to the public, and to what extent such revenue would be affected by the readjustment of rates upon a basis as low as that prescribed by the order complained of. We think the demurrer is well taken, as there is nothing to show the extent to which the carrier would be compelled to construct and apply its other rates upon the basis of the rates named in the order complained of.

Paragraphs 20 and 21 are demurred to upon the ground that no facts are alleged in support of the general conclusion therein pleaded. An examination of said paragraphs has convinced us that the demurrer...

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