Eastern Freight-Ways, Inc. v. United States

• Decision Date: 23 January 1959
• Docket Number: Civ. A. No. 535-58.
• Citation: 170 F. Supp. 848
• Parties: EASTERN FREIGHT-WAYS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of New Jersey

170 F. Supp. 848

EASTERN FREIGHT-WAYS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. 535-58.

United States District Court D. New Jersey.

January 23, 1959.

Jules E. Tepper, Newark, N. J., J. Stanley Payne, Samuel H. Moerman, Washington, D. C., for plaintiff Eastern Freight-Ways, Inc.

Colin A. Smith, Atty., Dept. of Justice, Washington, D. C., for defendant U. S. A.

B. Franklin Taylor, Jr., Associate Gen. Counsel, Washington, D. C., for defendant Interstate Commerce Commission.

Charles H. Hoens, Jr., Asst. U. S. Atty., Newark, N. J., for U. S. A. and I. C. C.

Before HASTIE, Circuit Judge, and HARTSHORNE and MORRILL, District Judges.

HASTIE, Circuit Judge.

This statutory District Court of three judges has been impaneled pursuant to the disclosures and the prayer of a complaint seeking to set aside the report and order of the Interstate Commerce Commission in its proceeding No. MC-C-1937, Hewitt-Robins, Inc. v. Eastern FreightWays, Inc., 302 I.C.C. 173. The nature of that proceeding has been stated as follows by the Commission in its dispositive opinion.

"The complainant, a corporation engaged in the manufacture and sale of foam rubber products, with its principal office at New York, N. Y., by complaint filed on March 8, 1956, alleges that the defendant motor common carrier, between January 1, 1953, and February 1, 1955, transported numerous less-than-truckload shipments of foam rubber upholstering pads, in cartons, tendered unrouted, from Buffalo, N. Y., to New York, N. Y., and also from New York City to Buffalo, on which the defendant collected charges based on rates applicable over its interstate route instead of lower rates applicable over its intrastate routes, and that the defendant's action in misrouting the shipments was unjust and unreasonable in violation of section 216 of the Interstate Commerce Act 49 U.S.C.A. § 316. We are asked to determine the just and reasonable rates.

"A suit filed in the United States District Court for the Southern District of New York, for recovery of the alleged unlawful charges, is being held in abeyance pending disposition of this proceeding."

The Commission decided that the carrier's choice and use of an interstate route, to which a comparatively high freight rate applied, constituted unreasonable and illegal action, and that a reasonable procedure would have been to send the shipments over the carrier's authorized intrastate route, charging its lower published rate for such routing.¹ The Commission also ordered the carrier to cease and desist, and in the future to abstain, from such illegal action.

After this three-judge court had been constituted to hear and decide this case, the Commission filed its answer asserting therein the unquestioned fact that, after the present complaint had been filed, the Commission had amended its disposition of the administrative proceeding by striking out the cease and desist order, leaving only a declaratory ruling that the route used and the rate charged for specific shipments of foam rubber in 1953, 1954 and 1955 had been unreasonable. In this connection, the parties admit that before the administrative proceeding was decided the carrier by proper procedure had equalized its rates for interstate and intrastate carriage of foam rubber between the same terminal points with the result that there was no occasion, and no desire of the parties, for a cease and desist order or for any mandate as to future conduct.

In these circumstances the Commission and the United States have asserted in their answers and now contend that there is nothing before us which is appropriate for decision by a statutory court of three judges. We address ourselves to that question.

It is recognized in the portion of the Commission's opinion quoted above and by all parties in this court that the proceeding before the Commission was brought in aid of a civil suit previously filed in the District Court for the Southern District of New York by the shipper to recover alleged overcharges collected by the carrier between 1953 and 1955 on shipments of foam rubber between New York and Buffalo. The sole purpose of the administrative proceeding was to provide the New York court — which had stayed the civil suit pending administrative guidance — with expert judgment as to the rate the carrier should have charged for the shipments in question. The Commission formally declared its judgment as to this matter and this suit seeks judicial abrogation of that administrative ruling.

In these circumstances we think the law does not require or permit decision by a statutory three-judge court. It is argued that the controversy is justiciable either under Section 17(9) of the Interstate Commerce Act, 49 U.S.C.A. § 17(9), or as "final agency action for which there is no other adequate remedy in any court", under Section 10 of the Administrative Procedure Act. 5 U.S.C.A. § 1009 (c). Cf. Frozen Food Express v. United States, 1956, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 730; El Dorado Oil Works v. United States, 1946, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053. But though the cited cases lend support to the claim that the agency action is judicially reviewable, ...