Akron, Canton & Youngstown R. Co. v. United States

• Citation: 370 F. Supp. 1231
• Decision Date: 14 January 1974
• Docket Number: Civ. A. No. 72-1273-M.
• Parties: AKRON, CANTON & YOUNGSTOWN RAILROAD COMPANY, et al., Plaintiffs, and Freight Forwarders Tariff Bureau, Inc., et al., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and National Industrial Traffic League, Intervening Defendant.
• Court: U.S. District Court — District of Maryland

370 F. Supp. 1231

AKRON, CANTON & YOUNGSTOWN RAILROAD COMPANY, et al., Plaintiffs and Freight Forwarders Tariff Bureau, Inc., et al., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants and National Industrial Traffic League, Intervening Defendant.

Civ. A. No. 72-1273-M.

United States District Court, D. Maryland.

January 14, 1974.

COPYRIGHT MATERIAL OMITTED

Peter J. Hunter, Roanoke, Va., and Albert W. Laisy, Baltimore, Md., for plaintiff railroads.

Fenton L. Martin, Baltimore, Md., and Clarence W. Vandegrift, New York City, for intervening plaintiffs.

George Beall, U. S. Atty., and Andrew Jay Graham, Asst. U. S. Atty., Baltimore, Md., for defendant United States.

Theodore Compton Knappen, Washington, D. C., for defendant Interstate Commerce Commission.

William J. Little, Baltimore, Md., and John K. Maser, III, Washington, D. C., for intervening defendant.

Before BRYAN, Circuit Judge, and THOMSEN and MILLER, District Judges.

JAMES R. MILLER, Jr., District Judge.

This is an action to enjoin permanently an order of the Interstate Commerce Commission (ICC). The plaintiffs, consisting of most, if not all, of the major railroads in the United States, are required by 49 U.S.C. § 6 to publish or cause to be published schedules of rates or tariffs for the transportation of passengers or property in interstate and foreign commerce. Intervening plaintiffs, members of Freight Forwarders Tariff Bureau, Inc., are required by 49 U.S.C. § 1005 to publish or cause to be published schedules of rates or tariffs for their services relating to the transportation of property in interstate commerce. The defendants are the ICC and the United States. The National Industrial Traffic League, an organization of shippers, has intervened as a defendant. In their respective complaints plaintiffs and intervening plaintiffs seek a permanent injunction against the enforcement of ICC regulations which were entered August 28, 1972 (see pages 18550 et seq. of Federal Register, Sept. 13, 1972, Vol. 37, No. 178), namely, 49 C.F.R. — Transportation, Chapter X — Interstate Commerce Commission, Subchapter D — Tariffs and Schedules, Part 1300 — Freight Schedules, Railroads, Section 1300.30; Part 1303 — Passenger Service Schedules; Rail and Water Carriers, Section 1303.36; Part 1309 — Tariffs and Classifications of Freight Forwarders, Section 1309.5.

The challenged regulations in essence require the plaintiffs, the intervening plaintiffs, and certain other carriers of freight to transmit to subscribers copies of proposed new tariffs prior to the time that they are filed with the ICC.

Plaintiffs' challenge to the above order raises three basic issues: (1) Whether the ICC had the power to issue the above order; (2) Whether the procedures for rulemaking set forth in the Administrative Procedure Act apply to the promulgation of the above order; and (3) Whether the petitions for reconsideration filed by plaintiffs with the ICC satisfied the procedural requisites of the Administrative Procedure Act.

I. Whether the ICC had the power to issue the order entered on August 28, 1972.

The dispute with respect to this issue concerns the meaning of the term "published" as set forth in 49 U.S.C. § 6(6)¹ and 49 U.S.C. § 1005(b)² relating to tariff schedules. These sections authorize the ICC to prescribe by regulation the "form and manner" in which tariff schedules of the plaintiff railroads and the plaintiff freight forwarders respectively are to be ". . . published, filed, and posted . . . ."

The railroad plaintiffs argue that the meaning of the word "published" as it applies to them in 49 U.S.C. § 6(6) is synonymous with the word "posted" therein and that both words refer to the distribution of tariff schedules to railroad agencies for posting and public inspection at the railroad stationhouse door. For this proposition, a number of old cases are cited, among them Kansas City So. Ry. v. Albers Comm. Co., 223 U.S. 573, 594, 32 S.Ct. 316, 56 L.Ed. 556 (1912); United States v. Miller, 223 U. S. 599, 604, 32 S.Ct. 323, 56 L.Ed. 568 (1912); Texas & Pac. Ry. v. Cisco Oil Mill, 204 U.S. 449, 451, 27 S.Ct. 358, 51 L.Ed. 562 (1907); Hunter v. St. Louis & S. F. R. Co., 167 Mo.App. 624, 150 S. W. 733 (1912); International & G. N. Ry. Co. v. Carter, 180 S.W. 663 (Tex. Civ.App.1915); Virginia-Carolina Peanut Co. v. Atlantic Coast R. R., 166 N.C. 62, 82 S.E. 1 (1914), and New York, N. H. & H. R. Co. v. Salter, 104 Conn. 728, 134 A. 220 (1926).

In the Miller case, however, in discussing the meaning of the word "publishing" as it was used in what is now 49 U.S.C. § 6(3), the Supreme Court held that "posting" and "publishing" are essentially distinct. The Court said at 223 U.S. page 604, at 32 S.Ct. page 325:

"This is the import of the provision that the requirements relating to `publishing, posting, and filing' may be modified by the Commission in special circumstance, for if publishing included posting, mention of the latter was unnecessary. And from all the provisions on the subject it is evident that the publication intended consists in promulgating and distributing the tariff in printed form, preparatory to putting it into effect, while the posting is a continuing act, enjoined upon the carrier, while the tariff remains operative, as a means of affording special facilities to the public for ascertaining the rates in force thereunder."

Nor is the meaning of the word "published" in § 6(6) limited to a process of printing and distribution of rate schedules to the stationhouses or depots where the schedules were later to be posted. Although several of the old cases cited by the plaintiffs might tend to indicate such a meaning for the word in § 6(3), these cases were decided prior to the advent of modern modes of transportation and communication and prior to the 1940 revisions to the Act.

In 1940, the ICC Act was rewritten in substantial part. Sept. 18, 1940, c. 722, Title I, § 8, 54 Stat. 910. While the language of § 6(1) and § 6(3), which was the subject of the interpretations of the old cases cited by the plaintiff railroads, was retained in substantially its original form, Congress added § 6(6). In § 6(6), the word "published" is not limited or restricted by any qualifying words whereas in § 6(3) the word "published," as it initially appears in that section, is limited by the qualifying words "as aforesaid," referring apparently to the posting and tariff schedule distribution process described in § 6(1) and § 6(2). By 1940, with the advent of trucks and vastly improved mail, telephonic and other forms of communication, the era had ended in which shippers walked down to the local railroad depot to look at the freight rates posted at the stationhouse door as was the procedure when the precursers of §§ 6(1), 6(2), and 6(3) were enacted. As would seem reasonable, Congress by enacting § 6(6) in broad language without limiting the use of the word "published" to its prior usage, gave broad authority to the ICC to prescribe the "form and manner" in which the required tariff schedules would be "published," as well as filed and posted, in order to meet changing conditions and times.

In 1942, the services of freight forwarders were subjected to ICC regulation by Congress, and the ICC was given authority to prescribe the "form and manner" in which the required tariff schedules were to be "published, filed and posted." May 16, 1942, c. 318, § 1, 56 Stat. 287. This statute is now codified as 49 U.S.C. § 1005(b), and its operative language relevant to the present discussion is substantially the same as that in 49 U.S.C. § 6(6).

The practice of mailing or otherwise delivering tariff schedules to subscribers has been extant for decades according to the pleadings herein. This practice is certainly an integral part of the process utilized by the plaintiffs for publishing their required schedules to prospective shippers and others. Section 6(6) and its counterpart, § 1005(b), authorize the regulation by the ICC of the "form and manner" of publication of the required tariff schedules. Since the subject of the new regulations is one method utilized by plaintiffs for the publication of their tariff schedules, the regulations, dealing with the "form and manner" of tariff schedule publication, are authorized by § 6(6) and § 1005(b).

Even if the authority of the ICC were not so explicit, the Supreme Court has upheld the promulgation of rules by administrative agencies based upon generalized statutory grants of regulatory authority less specific than the one here.

In American Trucking Associations, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953), the Supreme Court upheld the ICC's promulgation of rules effectively abolishing a practice known as "trip-leasing." After reviewing the abuses the rules were intended to stop, the Court noted that (id. at 311-312, 73 S.Ct. at 315):

"So the rules in question are aimed at conditions which may directly frustrate the success of the regulation undertaken by Congress. Included in the Act as a duty of the Commission is that `to administer, execute, and enforce all provisions of this part, to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration'. § 204(a)(6). And this necessary rule-making power, coterminous with the scope of agency regulation itself, must extend to the `transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation,' regulation of which is vested in the Commission by § 202(a). See also § 203(a)(19)."

* * * * * *

"We hold then that the promulgation of these rules for authorized carriers falls within the Commission's power, despite the absence of specific reference to leasing practices in the Act. See General Tank Car Corp. v. Terminal Co., 308 U.S. 422, 432 60 S.Ct.

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