Atchison, T. & S. F. Ry. Co. v. I. C. C.
| Decision Date | 22 October 1979 |
| Docket Number | No. 78-2184,78-2184 |
| Citation | 607 F.2d 1199 |
| Parties | ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Christine N. Kohl, I. C. C., Washington, D. C., for respondents.
Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and JAMESON, Senior District Judge. *
In this action for review, filed pursuant to 28 U.S.C. §§ 2321 and 2342, petitioners (a number of railroads and the Association of American Railroads) seek to set aside an order of the Interstate Commerce Commission requiring railroads to publish tariffs setting forth operating schedules between major terminals and interchange points. 1
I. Proceedings Before Interstate Commerce Commission
In 1970 and 1971 various railroads sought and obtained increases in their tariffs. In these "general rate" cases, 2 numerous shippers complained of rail service deficiencies. In response to the shipper complaints, the Interstate Commerce Commission (ICC), on November 5, 1971, instituted a massive investigation into all aspects of railroad carrier service. (Ex Parte No. 270, (Sub No. 2)). All railroads subject to the jurisdiction of the Commission were made respondents in this proceeding. A former member of the Commission was appointed Coordinator of the investigation. Written statements were solicited and received from rail carriers, shippers, and other interested parties, including the Special Projects Staff (SPS) of the Commission's Bureau of Enforcement. In 1975 the proceeding was reopened to receive additional comments.
On April 2, 1976, the Coordinator filed a comprehensive report, 3 in which he made 14 findings, including as Finding No. 3 that the railroads "should be Requested to prepare and publish service schedules . . .". 345 ICC at 1310. 4 (Emphasis added.) Exceptions to the Coordinator's Report were filed by petitioners, shippers, and the SPS. The full Commission then considered the Coordinator's Report, the exceptions thereto, and prior reports.
The Commission in its decision of July 19, 1978, provided, Inter alia, that "tariff" publications of railroad operating schedules involving transportation of nonperishable commodities between major terminals and interchange points be Required. 5 If carriers did not comply by publishing their operating schedules within 210 days, the Commission would take "such further action as may be necessary". 345 ICC at 2969-70. It is this portion of the Commission's order petitioners seek to set aside.
II. Contentions on Petition for Review
Petitioners contend that (1) the Commission is without jurisdiction to require railroads to publish operating schedules in "tariff form"; (2) if the ICC did have jurisdiction to require tariff publication of operating schedules, there is no rational basis in the record to support this requirement; and (3) if the ICC did have jurisdiction, it has lapsed because of the failure to conclude the investigation within the time prescribed by Section 17(14)(b) of the Interstate Commerce Act, 49 U.S.C. § 17(14)(b). 6
III. Section 6 of Interstate Commerce Act
Petitioners argue that Section 6 of the Interstate Commerce Act, 49 U.S.C. § 6, is the only section of the Act which deals with the scope and content of tariffs, and that under this section "tariffs" apply only to "rates, fares and charges" and may not be extended to include operating schedules. The Commission contends that section 6 merely sets minimum standards and that under the "modern view" of agency powers tariff publication of schedules is permissible, since it is not expressly prohibited by section 6.
It is well settled that . Lowden v. Simmonds, etc., Grain Co., 306 U.S. 516, 520, 59 S.Ct. 612, 614, 83 L.Ed. 953 (1939). 7
Section 6 provides in pertinent part:
(1) Every common carrier subject to the provisions of this chapter shall file with the Commission . . . and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. . . . The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. . . .
(3) No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public . . . Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions: Provided further, That the Commission is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges or classifications not changed if, in its judgment, not inconsistent with the public interest.
(6) The schedules required by this section to be filed shall be published, filed, and posted in such form and manner as the Commission by regulation shall prescribe; . . . .
In construing a statute, absent persuasive reasons to the contrary, the words used in the statute are to be given their ordinary meaning. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); United States v. Hooper, 564 F.2d 217, 220 (7 Cir. 1977). Petitioners contend that the explicit wording of Section 6 requires the publication and public posting of "rates, fares, and charges" and gives no authority to the Commission to require in addition the tariff publication of operating schedules. It is true, as petitioners argue, that section 6 refers repeatedly to "rates, fares, and charges". The authority granted the Commission to issue regulations is limited to the "form and manner" of publication and posting. Clearly no authority is granted by section 6 to make substantive changes in the requirements for publication and posting of tariffs. 8
We find nothing in the legislative history of section 6 to indicate that Congress intended to grant the Commission authority to require tariff publication of operating schedules. Rather it supports the conclusion that section 6 relates solely to the compulsory publication and posting of rates, fares, and charges.
The purpose of section 6 was explained in the House of Representatives when the predecessor to the present Act was first enacted in 1887:
These, I think, are the leading features of this section, and in them, are embodied notice to all shippers as to what they are to pay upon any given commodity or quantity. It will prevent fluctuating rates, high rates today, low rates tomorrow, or vice versa and the business of the country will be conducted with absolute knowledge as to the cost of transportation, and purchases and sales can be made and agreements entered into without speculating as to the cost reaching market. 9
Courts examining the legislative intent of section 6 have concluded that it was "thought that notoriety of rates would militate against discrimination and preferential treatment" 10 and that the purpose of the Act in requiring tariffs containing the rates of carriers to be filed was "to secure uniformity, to secure the same treatment to all shippers alike by requiring them to pay one rate as established, published, and posted". 11
In one of its own assessments the ICC examined the Congressional intent behind section 6.
In the accomplishment of the chief purpose of the act to secure uniformity of treatment to all, to suppress unjust discrimination and undue preferences, and to prevent special and secret agreements in respect of rates for interstate transportation, Congress required that such rates be established in a manner calculated to give them publicity to make them inflexible while in force, and cause them to be unalterable save in the mode prescribed. 12
IV. "Modern View" of Agency Powers
Respondents recognize that section 6 does not expressly authorize the Commission to require tariff publication of operating schedules, but argue that the exercise of this authority is not prohibited by section 6 and that (1) the Commission's action is authorized by other provisions of the Interstate Commerce Act and "national transportation policy", and (2) petitioners' position is "out of step with the 'modern view' that if a problem is within the purview of an agency, Congress intended that the agency have the power to remedy it...
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