Los Angeles & SLR Co. v. United States

• Decision Date: 07 December 1925
• Court: U.S. District Court — Southern District of California
• Parties: LOS ANGELES & S. L. R. CO. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION et al., Interveners).

8 F.2d 747 (1925)

LOS ANGELES & S. L. R. CO. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION et al., Interveners).

District Court, S. D. California, S. D.

December 7, 1925.

A. S. Halsted, of Los Angeles, Cal., and H. A. Scandrett and J. M. Souby, both of Omaha, Neb., for petitioner Los Angeles & S. L. Ry. Co.

Blackburn Esterline, Asst. Sol. Gen., of Washington, D. C., and J. E. Simpson, Asst. U. S. Atty., of Los Angeles, Cal., for the United States.

P. J. Farrell and E. M. Reidy, both of Washington, D. C., for the Interstate Commerce Commission.

Ralph H. Kimball, of Washington, D. C., for the Western Union Telegraph Co.

Before ROSS, Circuit Judge, and JAMES and McCORMICK, District Judges.

ROSS, Circuit Judge.

This suit was brought in this court, at the time, as now, consisting of one Circuit Judge and two District Judges, by petition (subsequently amended), for the purpose of obtaining the annulment of an order of the Interstate Commerce Commission reporting the "final valuation" of the petitioner's property under section 19a of the Interstate Commerce Act. The defendant and intervening defendants objected to the jurisdiction of this court in the matter, which objection was disposed of by its decision, rendered March 16, 1925, and reported in 4 F.(2d) at page 736, where will be found reference to the acts of Congress conferring jurisdiction upon the court, which need not be restated here, but only such provisions of the statutes as are pertinent to the matters we have now to decide.

On the hearing before the court of the petition as amended, a large amount of evidence was introduced on the part of the petitioner, which was not submitted to or heard by the Commission, before or at the time of its report and order complained of. Congress on March 1, 1913 (37 Stat. 701 Comp. St. § 8591), passed an act entitled "An act to amend an act entitled `An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, and all acts amendatory thereof," providing for a valuation of the several classes of property of carriers subject thereto, and securing information concerning their stocks, bonds, and other securities, the enacting clause of which added to the act of 1887, as amended, a new section to be known as section 19a, and to read as follows:

"Sec. 19a. That the Commission shall, as hereinafter provided, investigate, ascertain, and report the value of all the property owned or used by every common carrier subject to the provisions of this act. To enable the Commission to make such investigation and report, it is authorized to employ such experts and other assistants as may be necessary. The Commission may appoint examiners who shall have power to administer oaths, examine witnesses, and take testimony. The Commission shall make an inventory which shall list the property of every common carrier subject to the provisions of this act in detail, and show the value thereof as hereinafter provided, and shall classify the physical property, as nearly as practicable, in conformity with the classification of expenditures for road and equipment, as prescribed by the Interstate Commerce Commission.

"First. In such investigation said Commission shall ascertain and report in detail as to each piece of property owned or used by said common carrier for its purposes as a common carrier, the original cost to date, the cost of reproduction new, the cost of reproduction less depreciation, and an analysis of the methods by which these several costs are obtained, and the reason for their differences, if any. The Commission shall in like manner ascertain and report separately other values, and elements of value, if any, of the property of such common carrier, and an analysis of the methods of valuation employed, and of the reasons for any differences between any such value, and each of the foregoing cost values.

"Second. Such investigation and report shall state in detail and separately from improvements the original cost of all lands, rights of way, and terminals owned or used for the purposes of a common carrier, and ascertained as of the time of dedication to public use, and the present value of the same, and separately the original and present cost of condemnation and damages or of purchase in excess of such original cost or present value.

"Third. Such investigation and report shall show separately the property held for purposes other than those of a common carrier, and the original cost and present value of the same, together with an analysis of the methods of valuation employed. * * *"

The last-mentioned act also contained various provisions not pertinent to the present inquiry, and thereafter proceeded as follows:

"Every common carrier subject to the provisions of this act shall furnish to the Commission or its agents from time to time and as the Commission may require maps, profiles, contracts, reports of engineers, and any other documents, records, and papers, or copies of any or all of the same, in aid of such investigation and determination of the value of the property of said common carrier, and shall grant to all agents of the Commission free access to its right of way, its property, and its accounts, records, and memoranda whenever and wherever requested by any such duly authorized agent, and every common carrier is hereby directed and required to co-operate with and aid the Commission in the work of the valuation of its property in such further particulars and to such extent as the Commission may require and direct, and all rules and regulations made by the Commission for the purpose of administering the provisions of this section and section twenty of this act shall have the full force and effect of law. Unless otherwise ordered by the Commission, with the reasons therefor, the records and data of the Commission shall be open to the inspection and examination of the public.

"Upon the completion of the valuation herein provided for the Commission shall thereafter in like manner keep itself informed of all extensions and improvements or other changes in the condition and value of the property of all common carriers, and shall ascertain the value thereof, and shall from time to time, revise and correct its valuations, showing such revision and correction classified and as a whole and separately in each of the several states and territories and the District of Columbia, which valuations, both original and corrected, shall be tentative valuations and shall be reported to Congress at the beginning of each regular session.

"To enable the Commission to make such changes and corrections in its valuations of each class of property, every common carrier subject to the provisions of this act shall make such reports and furnish such information as the Commission may require.

"Whenever the Commission shall have completed the tentative valuation of the property of any common carrier, as herein directed, and before such valuation shall become final, the Commission shall give notice by registered letter to the said carrier, the Attorney General of the United States, the Governor of any state in which the property so valued is located, and to such additional parties as the Commission may prescribe, stating the valuation placed upon the several classes of property of said carrier, and shall allow thirty days in which to file a protest of the same with the Commission. If no protest is filed within thirty days, said valuation shall become final as of the date thereof.

"If notice of protest is filed the Commission shall fix a time for hearing the same, and shall proceed as promptly as may be to hear and consider any matter relative and material thereto which may be presented in support of any such protest so filed as aforesaid. If after hearing any protest of such tentative valuation under the provisions of this act the Commission shall be of the opinion that its valuation should not become final, it shall make such changes as may be necessary, and shall issue an order making such corrected tentative valuation final as of the date thereof. All final valuations by the Commission and the classification thereof shall be published and shall be prima facie evidence of the value of the property in all proceedings under the act to regulate commerce as of the date of the fixing thereof, and in all judicial proceedings for the enforcement of the act approved February fourth, eighteen hundred and eighty-seven, commonly known as `the act to regulate commerce,' and the various acts amendatory thereof, and in all judicial proceedings brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission.

"If upon the trial of any action involving a final value fixed by the Commission, evidence shall be introduced regarding such value which is found by the court to be different from that offered upon the hearing before the Commission, or additional thereto and substantially affecting said value, the court, before proceeding to render judgment shall transmit a copy of such evidence to the Commission, and shall stay further proceedings in said action for such time as the court shall determine from the date of such transmission. Upon the receipt of such evidence the Commission shall consider the same and may fix a final value different from the one fixed in the first instance, and may alter, modify, amend or rescind any order which it has made involving said final value, and shall report its action thereon to said court within the time fixed by the court. If the Commission shall alter, modify, or amend its order, such altered, modified, or amended order shall take the place of the original order complained of and judgment shall be rendered thereon as though made by the Commission in the first instance. If the original order shall not be rescinded or changed by the Commission, judgment shall be rendered upon such original order."

June 7, 1922 (42 Stat. pt. 1, p....