Baltimore & OR Co. v. United States

• Decision Date: 11 March 1947
• Docket Number: 24479.,Civ. No. 24435
• Citation: 71 F. Supp. 499
• Parties: BALTIMORE & O. R. CO. et al. v. UNITED STATES et al. CLEVELAND UNION STOCK YARDS CO. v. UNITED STATES et al.
• Court: U.S. District Court — Northern District of Ohio

71 F. Supp. 499

BALTIMORE & O. R. CO. et al. v. UNITED STATES et al.

CLEVELAND UNION STOCK YARDS CO. v. UNITED STATES et al.

Civ. Nos. 24435, 24479.

District Court, N. D. Ohio, E. D.

March 11, 1947.

Dwight B. Buss, (B. & O. R. R.) G. H. P. Lacey, A. P. Martin, (P. R. R.) Willis T. Pierson, (Erie R. R.) John A. Duncan, (W. & L. E. Ry.), and Robert R. Pierce, (N. Y. C. R. R.) all of Cleveland, Ohio, and Leo. P. Day, (N. Y. C. R. R.), of Chicago, Ill., for plaintiffs.

Case No. 24479.

M. S. Farmer, of Cleveland, Ohio, for plaintiff.

Don C. Miller, Dist. Atty., of Cleveland, Ohio, for the U. S.

Gordon C. Locke, I.C.C., of Washington, D. C., and John P. Staley and Ross D. Rynder, both of Chicago, Ill., for Swift & Co.

Before ALLEN, Circuit Judge, and JONES and FREED, District Judges.

JONES, District Judge.

These two cases, by stipulation of the parties and order of the Court, were consolidated for hearing and decision since they arise out of the same facts and circumstances, and in each case the same order of the Commission is challenged and sought to be enjoined. The plaintiffs in both cases were parties to the proceedings before the Commission and it was against both of them that the Commission issued its single order now under consideration.

The facts are not in dispute and are fully set forth in the Commission's opinion and in the several briefs of the parties.

For the purpose of decision the facts briefly may be summarized:

The Cleveland Union Stock Yards Company of Ohio has been engaged in the business of operating public stockyards and a public market, on its own lands, in the City of Cleveland since 1893. Since 1921 its stockyards have been posted as a stockyard under the provision of the Packers and Stockyards Act of 1921, 7 U.S.C.A. § 181 et seq. and from then until now it has operated under the jurisdiction of the Secretary of Agriculture. It has no railroad equipment and operates no trains or cars.

In May, 1899, the Stock Yards Company entered into agreement with The New York Central Railroad Company (then the Big Four) to construct track 1619 (1619 feet in length) upon lands of the Stock Yards Company to connect with a 132-foot spur from the Railroad Company's main track. The Railroad laid the track and maintained it at the Stock Yards' expense. The Railroad was given the right to use the track, without cost, for business other than that of the Stock Yards Company, provided such use did not interfere with the business of the Stock Yards Company. The agreement contained a 60-day termination clause. In June, 1924, that agreement was canceled and another private sidetrack agreement was executed by the Stock Yards Company and the Railroad for operation over lands of the Stock Yards Company and over the same track 1619. A 30-day termination clause was inserted in this second agreement.

Although Swift & Company earlier and successfully had negotiated for a spur and sidetrack directly from the Railroad Company's main track to its own siding (plaintiff's exhibit 11, with map and letters attached) this opportunity of securing direct service was abandoned by Swift & Company as too expensive, and Swift & Company continued to be served by the Railroad Company over the Stock Yards Company's private track and the Railroad's own switch track and "wye" beyond; and this with full knowledge on the part of Swift & Company of the Stock Yards' continued assertion of its complete ownership of track 1619 and the contractual reservation for the termination of its use.

In February, 1935, another contract superseded the agreement of June, 1924, prohibiting free use of track 1619 for competitive traffic, construed by the Railroad and Stock Yards to mean live stock shipments, a charge for which was to be the subject of separate agreement. No agreement as to the charge for such shipments being reached between the Railroad Company and the Stock Yards Company, on November 12, 1938, the Railroad's switching charge was made inapplicable to live stock. For some time prior to that date, and ever since, the Railroad has refused to deliver any live stock shipments to Swift & Company's private siding over Stock Yards' track 1619. After an ineffectual exchange of letters between the Railroad and Swift & Company the latter, on September 5, 1941, filed its complaint with the Commission.

We are mindful of the Commission's powers and of the effect to be given its findings in respect of matters within its jurisdiction. In this case we consider only the legality of its order upon the record. The Railroad complains that the Commission's order requires it to do an unlawful act and that it cannot comply with the order because it is without control over the Stock Yards' property and track 1619; that the contract for the use of the track excludes the transportation of shipments of live stock to Swift & Company and that it, the Railroad, is without the means of accomplishing what the Commission orders. The Stock Yards Company asserts that the Commission is without jurisdiction as to it and that even if it has jurisdiction and power to enter a lawful order against it the order made is unlawful in that it appropriates its property without due process of law.

There are various other allegations in the complaints urged by both plaintiffs to support their contentions that the Commission's order legally cannot stand.

We address ourselves to what we conceive to be the principal and fatal flaw in the Commission's order. We assume, without deciding, that under the Elkins Act, 49 U.S.C.A. § 41 et seq., the Commission has jurisdiction over the Stock Yards Company when made a party as in this case and has the power to enter a lawful order affecting the Stock Yards in respect of matters in which the Commission has authority.

Upon the hearing of the petition of Swift & Company seeking to require...