Duquesne Warehouse Co. v. Railroad Retirement Board

• Decision Date: 11 June 1945
• Docket Number: No. 138.,138.
• Citation: 148 F.2d 473
• Parties: DUQUESNE WAREHOUSE CO. v. RAILROAD RETIREMENT BOARD (BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES et al., Interveners).
• Court: U.S. Court of Appeals — Second Circuit

148 F.2d 473 (1945)

DUQUESNE WAREHOUSE CO. v. RAILROAD RETIREMENT BOARD (BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES et al., Interveners).

No. 138.

Circuit Court of Appeals, Second Circuit.

March 12, 1945.

Writ of Certiorari Granted June 11, 1945.

Joseph H. Freehill, of Chicago, Ill., and Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, of Washington, D. C., David B. Schreiber, Asst. Gen. Counsel, of Chicago, Ill. (Jacob Abramson and Louis Turner, both of Chicago, Ill., of counsel), for appellant.

Burlingham, Veeder, Clark & Hupper, of New York City (George R. Allen, of Philadelphia, Pa., and Ray Rood Allen and Herbert Mayhew Lord, both of New York City, of counsel), for appellee.

Mulholland, Robie & McEwen, of Toledo, Ohio (Willard H. McEwen, of Toledo, Ohio, and Samuel J. Cohen, of New York City, and Frank L. Mulholland and Clarence M. Mulholland, both of Toledo, Ohio, of counsel), for intervening appellants.

Before CHASE, HUTCHESON, and FRANK, Circuit Judges.

Writ of Certiorari Granted June 11, 1945. See 65 S.Ct. 1558.

HUTCHESON, Circuit Judge.

Brought under Section 11¹ of the Railroad Retirement Act of 1937,² the suit was to set aside an order of the Railroad Retirement Board³ that plaintiff within the definition⁴ of the Act was an employer. The claim was that the undisputed facts⁵ establish as matter of law that plaintiff is not an employer as that term is defined by statute and that the Board's decision and order, that it is, is not in accordance with law. On the Board's motion for summary judgment made on the complaint, the answer and the record made before it, there was a judgment for plaintiff ordering the action and decision of the board set aside and annulled. The Board has appealed.

While we agree with the Board that the case presents no genuine issue as to any material fact, we cannot agree that these facts demanded a judgment in its favor. Indeed, we think it plain that they demanded a judgment for plaintiff. The facts on which Board and Court based their exactly opposite conclusions of law were furnished entirely by plaintiff in response (a) to the Board's questionnaire which formed the basis of the opinion originally issued by the Board's general counsel, and later adhered to by two members of the Board, that plaintiff is an employer; (b) plaintiff's additional memorandum filed with the Board September 15, 1939, and (c) its statement of facts filed February 14, 1940. These, without contradiction or inconsistency of any kind, establish that Duquesne is not a carrier but a commercial warehouseman, that it does not perform any transportation service of any kind, that the services it performs are not services which Pennsylvania, as a carrier, is obligated or has contracted to perform, and that, though Pennsylvania owns all of its stock, it is operated not as a department of Penn., but as a distinct corporate entity entirely and completely independent of Pennsylvania. It is conceded that but for the fact that Penn. owns its stock, there would not, there could not, be any claim made that the service Duquesne performs brings it within the statutory definition of "employer." The dispute between it and the Board turns on whether it operates its two warehouses "in connection with the transportation of * * * property by railroad or in receiving, delivery, storage, or handling of property transported by railroad." It is not disputed that, though it does a general commercial warehouse business, without restriction to goods which have moved or will move on the Pennsylvania lines, the major part of the goods handled by Duquesne have been, or are to be, transported on those lines, and that its operations are convenient and beneficial to the railroad and its patrons. Neither is it disputed that what Duquesne does is in discharge of its own obligations and not at all of any obligation imposed upon or assumed by the carrier. It thus appears that the point of difference between Duquesne and the Board is that the Board insists that though Duquesne, the warehouseman, operates entirely independently and not as a department of Penn., the statute is satisfied by proof, that its operations are availed of by Penn.'s customers, that they are concerned largely with goods which have been, or will be, transported, and that it is an advantage to Penn. to have a warehouse conveniently located with reference to its lines, while Duquesne insists that the statute is satisfied only when the storage, etc., is done by or for the carrier in discharge of the carrier's obligations. Coming more pointedly to it, Duquesne insists that the words of the statute, "in connection with the transportation of property by railroad or the receipt, delivery, etc. of property transported by railroad" require that the acts, which the statute sets out as definitive, be done by, or for, the carrier in discharge of the carrier's obligations imposed upon it, by law or by contract, in connection with its transportation of the property, that is, while the carrier's obligations are in course of being performed, while the Board reads the statute as though it covered acts done by or for the owner of the property before the carrier's obligation has attached or after it has been satisfied. If the Board is right, then mere ownership by a carrier of the controlling stock interest in a warehouse company which stores freight which has been or is to be transported by rail will convert that company into a carrier employer with the result that of two warehouse companies operating side by side performing the same service, storing freight which has been or is to be transported by rail, for the same customers, one will be an "employer," the other will not, according to whether its stock is, or is not, owned by a railroad company. We think it quite plain that the words of the statute considered in themselves and especially in the light both of its purpose and of the legislative history made in the course of its enactment, completely negative this view. They make it plain that the critical words "in connection with the transportation of property and of property transported by railroad" are used to denote transit and cover acts done only by or for the carrier while its obligations persist. We, therefore, agree with Duquesne that the judgment was right and that it should be affirmed. The same definition appears in the Carrier's Taxing Act⁶ and in the Railroad Unemployment Insurance Act.⁷ The Railway Labor Act,⁸ as amended, carries substantially the same definition. Yet no one has claimed that Duquesne is subject to its terms.

Further, in litigation over the meaning of the definition when used in the Carriers' Taxing Act, the courts have uniformly repudiated the construction now placed by the Board in favor of the one we take.⁹ But, says the Board in effect, the question is not what the courts think the act under construction here means, it is what the Board thinks it means, and the Board has spoken. Thus by virtue of being constituted the Board to administer the act, the Board has been endowed with a prescience, invested with a prepotence, in respect of statutory construction to which the courts must bow, though the facts are undisputed and the question is entirely one of law. Thus by the simple expedient of having a lawyer, under the dignified name of General Counsel for the Board issue an opinion and then adhering by a bare majority to that opinion, the Board is enabled to read the statute as it will. When the same general course was pursued by the administrator, and the same heresy was advanced in Fleming v. Belo,¹⁰ the Courts had no difficulty in rejecting the claim. We find no difficulty in rejecting it here. None of the authorities¹¹ the Board cites sustain its position. National Labor Relations Board v. Hearst Publications one of the cited cases, 322 U.S. 111 at page 130, 64 S.Ct. 860, 88 L.Ed. 1170, correctly states the rule:

"Undoubtedly questions of statutory interpretation, especially when arising in the first instance in judicial proceedings, are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty it is to administer the questioned statute. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796; United States v. American Trucking Ass'n., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345; Niagara Falls Power Co. v. Federal Power Commission, 2 Cir., 137 F.2d 787."

In Fleming v. Belo, the Fifth Circuit Court of Appeals pointed out the great fallacy in the doctrine pressed in that case and generally by administrative absolutists that recent administrative construction of a statute, consisting of the legal opinion of the administration's general counsel, is entitled to great weight. This court, in Niagara Falls Power Co. v. Federal Power Commission, 137 F.2d at page 792, spoke to the same effect:

"The conventional reason for the deference exacted from courts for such rulings has always been the advantage possessed by such tribunals in the background of specialized experience and understanding, gathered from a long acquaintance of the members with the subject matter, either while they are in office or before. The continuity of this experience is assumed to build up an acquaintance inaccessible to others — courts included. If so, a single ruling, made shortly after the tribunal has been set up, should have far less weight than a series of repeated rulings over a course of years."

The very structure of our institutions, the very sources from which they derive the judicial section of the Constitution itself all concur to make it crystal clear why Congress has never given, why it could not constitutionally give to the construction of a statute by the General Counsel of an administrative body or by the body itself, controlling weight, and that the "appropriate weight" which the courts give to such construction is that...