Crancer v. United States

• Decision Date: 16 June 1938
• Docket Number: No. 12408.,12408.
• Citation: 23 F. Supp. 690
• Parties: CRANCER et al. v. UNITED STATES et al.
• Court: U.S. District Court — Eastern District of Missouri

23 F. Supp. 690

CRANCER et al. v. UNITED STATES et al.

No. 12408.

District Court, E. D. Missouri, E. D.

June 16, 1938.

Louis Mayer and Irl. B. Rosenblum, both of St. Louis, Mo., for plaintiffs.

Elmer B. Collins, Sp. Asst. to Atty. Gen. (Thurman Arnold, Asst. Atty. Gen., on the brief), for the United States.

Thomas M. Ross, of Washington, D. C. (Daniel W. Knowlton, Chief Counsel, Interstate Commerce Commission, of Washington, D. C., on the brief), for defendant Interstate Commerce Commission.

Before WOODROUGH, Circuit Judge, and DAVIS and MOORE, District Judges.

PER CURIAM.

Plaintiffs in this action seek to have enjoined an order of the Interstate Commerce Commission.

The plaintiffs, on September 14, 1936, filed a complaint against certain carriers before the Interstate Commerce Commission, in which it was alleged that the rates charged by the carriers for the transportation in car load lots of used thread protectors for iron pipe were inapplicable to certain shipments. Plaintiffs sought to have other rates prescribed for the future, and to have reparation for alleged unlawful charges exacted in the past.

The testimony was taken by an Examiner, and on August 6, 1937, the Commission entered its order, "that the complaint in this proceeding be, and it is hereby, dismissed." (Modified in immaterial respect, November 8, 1937). This is the order that plaintiffs now seek to enjoin, under the provisions of the Urgent Deficiencies Act of October 22, 1913, 28 U.S.C.A. §§ 41, 43-48.

Plaintiffs purchased used thread protectors for iron pipe principally in, or about, the oil fields of the Southwest, and shipped them to Saint Louis, Missouri, and East Saint Louis, Illinois. Plaintiffs did not remelt these used thread protectors, but reconditioned and resold them for the purpose for which they were designed. About fifty percent of the protectors purchased were capable of being thus treated and sold in the market.

"Scrap iron", as that term is used in railroad tariffs, means "iron or steel having value for remelting purposes only."

The Court is asked to review the evidence offered before the Commission for the purpose of determining whether or not the Commission entered the proper order.

This Court is not vested with authority to review generally orders of the Commission. The jurisdiction of the Court in such matters is granted by the statute, 28 U.S.C. A. § 41 (27), (28), in the following instances:

(1) Of all cases for the enforcement of any order of the Interstate Commerce Commission.

(2) Of all cases to set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission.

The Supreme Court has consistently ruled that these two paragraphs are to be read together. The Court is not vested, therefore, with authority to set aside and annul every order of the Commission, but only such orders as are affirmative in the sense that they command action by parties for which a suit to compel obedience may be maintained. It would be futile for a Court to set aside an order which does not require some action to be taken. Procter & Gamble Co. v. United States, 225 U.S. 282, 32 S.Ct. 761, 56 L.Ed. 1091; Hooker v. Knapp, 225 U.S. 302, 32 S.Ct. 769, 56 L.Ed. 1099; United States v. Griffin, 58 S.Ct. 601, 82 L.Ed. ___, decided February 28, 1938, and many cases therein cited.

The order here sought to be enjoined does not command anything of any party. It does not direct that the carriers raise, lower or maintain existing rates. It commands no action of any kind or character, but merely dismisses the complaint.

The statement made in argument that the order in question, "directed the railroads to charge as an applicable rate on the scrapped thread...