CINCINNATI, NEW ORLEANS & TEXAS PAC. RY. CO. v. United States, Civ. A. No. 5393.

• Decision Date: 20 May 1964
• Docket Number: Civ. A. No. 5393.
• Court: U.S. District Court — Southern District of Ohio
• Parties: The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

229 F. Supp. 572

The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Civ. A. No. 5393.

United States District Court S. D. Ohio, W. D.

May 20, 1964.

James G. Headley, Cincinnati, Ohio, John F. Donelan, William D. McLean, James L. Tapley, Washington, D. C., James W. Hoeland, Elbert R. Leigh, Louisville, Ky., Thomas S. Calder, James W. Farrell, Jr., James O. Coates, Dinsmore, Shohl, Barrett, Coates & Dupree, Cincinnati, Ohio, James W. Hoeland, Elbert R. Leigh, Louisville, Ky., Philip J. Schneider, Waite, Schindel, Bayless & Schneider, Cincinnati, Ohio, John C. Lovett, Benton, Ky., Gray, Freiberg & Davis, Topeka, Kan., for State Corporation Commission of the State of Kansas, Donald Macleay, Macleay, Lunch, Channing & Bernhard, Washington, D. C., Joe Starnes, Jr., City Atty., Guntersville, Ala., W. G. Burnette, Lynchburg, Va., Nuel D. Belnap, Chicago, Ill., Leonard D. Slutz, Robert F. Reckman, Cincinnati, Ohio, James D. Knudson, Washington, D. C., for plaintiffs.

Joseph P. Kinneary, U. S. Atty., Cincinnati, Ohio, Robert W. Ginnane and Interstate Commerce Commission, I. K. Hay, Interstate Commerce Commission, Washington, D. C., Robert H. Marquis, Tennessee Valley Authority, Knoxville, Tenn., for defendants.

Before PHILLIPS, Circuit Judge, WEINMAN, Chief District Judge, and PECK, District Judge.

JOHN W. PECK, District Judge.

This suit is brought to set aside and annul an order issued by the Interstate Commerce Commission on July 1, 1963. The statutory basis of the action includes the provisions of Sections 1336, 1398, 2284, and 2321-2325 of the Judicial Code (28 U.S.C. §§ 1336, 1398, 2284 and 2321-2325), Section 10 of the Administrative Procedure Act (5 U.S.C. § 1009), and Section 17(9) of the Interstate Commerce Act (49 U.S.C. § 17(9)). A temporary restraining order was granted on August 21, 1963, and has remained in effect since that time. Cincinnati, New Orleans and Texas Pacific Railway Co. v. United States, 220 F.Supp. 46 (S.D.Ohio 1963).

The point of departure in judicial review of an Interstate Commerce Commission determination must always be a recognition of the fact that negative resolution is not to be countenanced in the absence of compelling considerations, but that the existence of such considerations is a possibility. Abundant authority exists in support of each of these two propositions.

Orders of the Interstate Commerce Commission (hereinafter usually referred to as the Commission) when issued within the scope of the Commission's statutory authority and based upon adequate findings supported by substantial evidence are not to be disturbed on review even though the Court might reach a different result on the record. Rochester Telephone Corp. v. United States, 307 U.S. 125, 138-140, 59 S.Ct. 754, 83 L.Ed. 1147 (1939); Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-287, 54 S.Ct. 692, 78 L.Ed. 1260 (1934); Virginian Railway Co. v. United States, 272 U.S. 658, 663-666, 47 S.Ct. 222, 71 L.Ed. 463 (1926); Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268, 271, 46 S.Ct. 500, 70 L.Ed. 941 (1926); Illinois Central Railroad Co. v. Interstate Commerce Commission, 206 U.S. 441, 454-455, 27 S.Ct. 700, 51 L.Ed. 1128 (1907). The credibility of witnesses and evaluation of the evidence are determinations to be made by the Commission alone (United States v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 66 S.Ct. 75, 90 L.Ed. 38 (1945); Alton Railroad Co. v. United States, 315 U.S. 15, 23, 62 S.Ct. 432, 86 L.Ed. 586 (1942); United States v. Illinois Central Railroad Co., 263 U.S. 515, 524, 44 S.Ct. 189, 68 L.Ed. 417 (1924), and it is to be presumed that the Commission has properly performed its official duties; and such presumption supports the Commission's acts in the absence of clear evidence to the contrary. (Interstate Commerce Commission v. City of Jersey City, 322 U.S. 503, 512, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944); Baltimore & Ohio Railroad Co. v. United States, 298 U.S. 349, 358-359, 56 S.Ct. 797, 80 L.Ed. 1209 (1936)).

Opinions of the Supreme Court have repeatedly emphasized that the limitation of the scope of judicial review of Commission determinations is particularly applicable in rate proceedings (Mississippi Valley Barge Line Co. v. United States, supra.; Atchison, Topeka & Santa Fe Railway Co. v. United States, 232 U.S. 199, 221, 34 S.Ct. 291, 58 L.Ed. 568 (1914); Interstate Commerce Commission v. Illinois Central Railroad Co., 215 U.S. 452, 470, 30 S.Ct. 155, 54 L.Ed. 280 (1910)), and for reasons which will hereinafter become obvious the caution of the following quotation must remain in mind:

"We would depart from our competence and our limited function in this field if we undertook to accommodate the factors of transportation conditions, distance and competition differently than the Commission has done in this case. That is a task peculiarly for it. In fashioning what the Commission called a differentially related and finely balanced rate structure for this coal, there is no place for dogma or rigid formulae. The problem calls for an expert, informed judgment on a multitude of facts. The result is that the administrative rate-maker is left with broad discretion as long as no statutory requirement is overlooked." Ayrshire Collieries Corp. v. United States, 335 U.S. 573, 593, 69 S.Ct. 278, 289, 93 L.Ed. 243 (1949).

In spite of the foregoing, as is indicated by the very existence of the machinery for judicial review of Interstate Commerce Commission determinations, it is not the function of a court sitting in such review merely to apply a rubber stamp of approval regardless of whether or not criteria for affirmance are established by the record. On the contrary, to merit judicial approbation the Commission must have made certain basic, essential findings (Atchison, Topeka and Santa Fe Railway Co. v. United States, 218 F.Supp. 359, 363-364 (N.D. Ill.1963)), and such findings cannot be upheld unless they are clear and precise (Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); United States v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 294 U.S. 499, 510-511, 55 S.Ct. 462, 79 L.Ed. 1023 (1935); United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 488-489, 62 S.Ct. 722, 86 L.Ed. 971 (1942). See also, Colorado-Wyoming Gas Co. v. Federal Power Commission, 324 U.S. 626, 634, 65 S.Ct. 850, 89 L.Ed. 1235 (1945); Secretary of Agriculture of United States v. United States, 347 U.S. 645, 653-654, 74 S.Ct. 826, 98 L.Ed. 1015 (1954)). It thus here becomes our responsibility, giving full recognition to the expertise of the Commission and according to its order all of the presumptions to which it is by law entitled, to make a determination as to whether the Commission's findings are supported by substantial evidence, are clear and precise, and are not arbitrary, capricious, or an abuse of discretion.

When this matter was earlier before this Court on plaintiffs' motions for a temporary restraining order (Cincinnati, New Orleans and Texas Pacific Railway Co. v. United States, 220 F.Supp. 46, 47 (S.D.Ohio 1963)), we made this observation concerning the mass of material presented:

"The record before the Interstate Commerce Commission * * * consists of 15,815 pages of testimony and 766 exhibits. Approximately 150 witnesses were called in 139 days of proceedings, and the Commission in its brief says that the record is `perhaps the most voluminous' ever made before it."

In view of the negative nature of some of the essential findings which hereinafter appear, mention is made of the fact that before determining that substantial evidence on any point required to be proved did not exist, a diligent and painstaking search of the massive record was made and every lead suggested in the voluminous briefs of counsel was carefully pursued. Support in the record therefore exists for the negative as well as the affirmative findings of fact which appear below and upon which the conclusions of law which follow are based.

FINDINGS OF FACT

1. This cause arises upon a complaint filed by the Cincinnati, New Orleans & Texas Pacific Railway Company and other corporate members of the Southern Railway System seeking to set aside the Report and Order entered by the Interstate Commerce Commission in Grain in Multiple Car Shipments — River Crossings to the South, I & S Docket No. 7656, decided on July 1, 1963, by the entire Commission of eleven members, with the three members of Division No. 2 dissenting.

2. The Southern Governors Conference, the Southeastern Association of Railroad and Utilities Commissioners, the City of Cincinnati, and the Secretary of Agriculture of the United States intervened as plaintiffs and adopted the position of Southern. The Department of Justice filed an answer in which it admitted certain of the allegations of Southern. The Louisville and Nashville Railroad Company and other principal railroads serving the southeastern states of the United States filed an intervening complaint seeking review of the Commission's Report and Order in part.

Numerous protestants in the proceedings before the Commission intervened in this action as defendants including Archer-Daniels-Midland Company; Cargill, Incorporated; Central Soya Company, Inc.; The Merchants Company, Morris Grain Corporation; State Corporation Commission of Kansas; Tennessee Valley Authority; City of Guntersville, Alabama; O. J. Walls, doing business as O. J. Walls Company; John D. Bagwell Farms & Hatchery, Inc.; Southeastern Association of Local Grain Producers, Processors, Merchandisers and Consumers; Tennessee River and Tributaries Association; Waterways Freight Bureau; and The American Waterways Operators, Inc.

3. The proceedings before the Commission arose from the proposal of Southern to reduce rates on shipments of grain by an average of sixty (60%) percent to...