Garden City Floral v. United States, No. 1858.

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtPER CURIAM
Citation143 F. Supp. 609
PartiesGARDEN CITY FLORAL, a corporation, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
Docket NumberNo. 1858.
Decision Date25 August 1956

143 F. Supp. 609

GARDEN CITY FLORAL, a corporation, Plaintiff,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants.

No. 1858.

United States District Court D. Montana, Great Falls Division.

August 25, 1956.


143 F. Supp. 610

Leo Graybill, Jr., Great Falls, Mont., for plaintiff.

Victor R. Hansen, Asst. Atty. Gen., James E. Kilday, Frederica S. Brenneman, Attys., Dept of Justice, Washington, D. C., Krest Cyr, U. S. Dist. Atty., Butte, Mont., for defendant, United States of America.

Robert W. Ginnane, Gen. Counsel, C. H. Johns, Isaac K. Hay, Asst. Gen. Counsel, Interstate Commerce Commission, Washington, D. C., for Interstate Commerce Commission, defendant.

Leo Graybill, Jr., Great Falls, Mont., for Montana Florists Assn., plaintiff in intervention.

John H. Weaver, Great Falls, Mont., Elmer F. Slovacek, Chicago, Ill., for Railway Express Agency, intervener.

Before POPE, Circuit Judge, PRAY, Chief Judge, and BOLDT, District Judge.

PER CURIAM.

This is an action brought for the purpose of enjoining the operation or enforcement of a so-called "report" issued by the Interstate Commerce Commission on March 5, 1956. The report was issued in proceedings initiated before the Commission by petition filed by Railway Express Agency, Inc., seeking an investigation as to whether intrastate rates and charges on express traffic within the State of Montana were such as to cause an undue, unreasonable, or unjust discrimination against interstate commerce contrary to the provisions of Sec. 13, paragraph (4), of the Interstate Commerce Act,1 in that such intrastate rates were not contributing their fair share of the revenues required by the Express Agency to enable it to render adequate and efficient express service. The report found and determined that the intrastate rates within the State of Montana were abnormally low and insufficient to cover the full cost of the service; that they were not contributing their fair share of the revenues required to enable the rendition of adequate and efficient express service; that this imposed an undue burden on interstate commerce and caused unjust discrimination against such commerce in violation of that section of the Act; and that rates and charges on intrastate traffic increased to the same extent as was authorized by the Commission on interstate traffic would remove the unjust discrimination against interstate commerce which the Commission found to exist.

In bringing this action the plaintiff treated the report as an order allowing the increases mentioned. A three judge court was assembled for the hearing of the case pursuant to 28 U.S.C.A. § 2325.

The final paragraph of the order provides: "An order requiring the establishment of tariff changes in accordance with the findings herein made will be entered unless we are informed by the Board of Railroad Commissioners of the State of Montana within 30 days from the day of service of this report that changes as contemplated by these findings will be permitted." It is asserted that the quoted language discloses that the plaintiff has sought to challenge what is not a final order or one reviewable by this court on the ground that the report sought to be reviewed "does

143 F. Supp. 611
not of itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action", citing Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 59 S.Ct. 754, 83 L.Ed. 1147. Defendants say that the report is a mere tentative determination, interlocutory in character, and that it is not a coercive order commanding that the rates be increased by a certain date

The order mentioned in the quoted last paragraph has not been entered but following the report the State board permitted the changes in rates contemplated by the report and the Railway Agency filed its revised rates and gave ten days notice of its intention to put them into effect.2

This challenge to our jurisdiction to entertain the suit is one which we must first consider for if we lack jurisdiction we may not decide the merits of the action. Mansfield C. & L. M. Railway Co. v. Swan, 111 U.S. 379, 381, 4 S.Ct. 510, 28 L.Ed. 462; United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263. Although the question of reviewability of the report as a final order is not without difficulty, we are of the opinion that upon the authority of Frozen Food Exp. v. United States, 351 U.S. 40, 76 S.Ct. 569, the report and determination of the Commission here under attack is subject to review under the provisions of Title 28 U.S.C.A. § 1336 and Title 5 U.S.C.A. § 1009, cited in that case.

In our view the report and determination of the Commission here sought to be reviewed, in the language of the case last cited, "has an immediate and practical impact on carriers who are transporting the commodities, and the shippers as well". The "order" of the Commission operates to bring about consequences which are not conjectural and which will have a real impact upon the shippers. The order of the Montana board permitting the Express Agency to file the schedules of rates making the changes contemplated by the order of the Commission shows on its face that it was made in compliance with and solely because of the Commission's "Order", and was in no sense the result of any independent hearing or determination by the Montana board. Without the injunction here prayed for plaintiff will have to pay the increased rates and that will be the consequence solely of the Commission's action. It is plain that under the provisions of the Acts referred to, as well as the generally established rules relating to review of administrative orders, it must have been within the contemplation of Congress that a determination by the Commission that certain intrastate rates would not contribute their fair share of the revenues required for adequate service and are imposing an undue burden upon interstate commerce should at some time be subject to review by the courts. If this "order" be not presently reviewable it is difficult to perceive when it would become reviewable.

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2 practice notes
  • Utah Citizens Rate Association v. United States, Civ. No. C-58-60.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 6 Enero 1961
    ...Trucking Ass'ns v. United States, 1960, 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527; Garden City Floral v. United States, D.C.Mont.1956, 143 F. Supp. 609. What already has been said largely disposes also of the question of the exhaustion of administrative remedies raised by the defendants. Th......
  • Howard Terminal v. United States, No. 15258.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 19 Diciembre 1956
    ...yet brought about consequences which will have an immediate impact upon the petitioner. Cf. Garden City Floral v. United States, D.C., 143 F.Supp. 609, 611.2 For this reason we think the present case differs from that of Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51, 56......
2 cases
  • Utah Citizens Rate Association v. United States, Civ. No. C-58-60.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 6 Enero 1961
    ...Trucking Ass'ns v. United States, 1960, 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527; Garden City Floral v. United States, D.C.Mont.1956, 143 F. Supp. 609. What already has been said largely disposes also of the question of the exhaustion of administrative remedies raised by the defendants. Th......
  • Howard Terminal v. United States, No. 15258.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 19 Diciembre 1956
    ...yet brought about consequences which will have an immediate impact upon the petitioner. Cf. Garden City Floral v. United States, D.C., 143 F.Supp. 609, 611.2 For this reason we think the present case differs from that of Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51, 56......

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