Powell v. United States

• Citation: 12 F. Supp. 938
• Decision Date: 31 May 1935
• Docket Number: No. 325.,325.
• Parties: POWELL et al. v. UNITED STATES (POLLARD, Intervener).
• Court: U.S. District Court — Southern District of Georgia

12 F. Supp. 938

POWELL et al. v. UNITED STATES (POLLARD, Intervener).

No. 325.

District Court, S. D. Georgia.

May 31, 1935.

Chas. T. Abeles and W. R. C. Cocke, both of Norfolk, Va., and J. Randolph Anderson, of Savannah, Ga., for plaintiffs.

J. Saxton Daniel, U. S. Atty., of Savannah, Ga., for the United States.

T. Mayhew Cunningham, of Savannah, Ga., for intervener.

Before SIBLEY, Circuit Judge, and DEAVER and BARRETT, District Judges.

PER CURIAM.

This is a proceeding before a statutory court organized under 28 U.S.C.A. § 47, to set aside an order of the Interstate Commerce Commission by authority of 28 U.S. C.A. § 41 (28).

The order of the commission is as follows:

"This case being at issue upon complaint and answers on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the Commission having on the date hereof made and filed a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof; and said Commission in said report having found the provision of the Seaboard Air Line Railway Company schedules, I.C. C. No. A-6826, Sixth Revised Page 139, effective December 4, 1933, that `Fort Benning Junction, Ga., switching limits include the receiving and delivery tracks at Fort Benning Military Post' to be unlawful:

"It is ordered, That Sixth Revised Page 139 of said schedules, be, and it is hereby stricken from the files of this Commission."

The schedule ordered stricken from the files reads:

"Switching at Fort Benning Junction, Ga. "Reciprocal Switching.

"Fort Benning Junction, Ga., switching limits will include the receiving and delivery tracks at the Fort Benning Military Post."

Jurisdiction.

The United States challenges the jurisdiction of this court in this cause because (a) the action of the commission in ordering the Seaboard tariff "stricken" from its files is an accomplished fact and that the only remedy is by mandamus, (b) such order is negative in that it does not direct the Seaboard to do or not to do anything and that such an order is not reviewable under the act, and (c) there is an adequate remedy at law.

If the objection that the order is not reviewable because the act complained of is an accomplished fact and cannot be enjoined be well founded, no order of the commission canceling a tariff could be ever attacked. It should be remembered that this court has power not only to "enjoin" but also to "set aside annul, or suspend in whole or in part any order of the Interstate Commerce Commission." The prayer is not only to enjoin, but that such order "be set aside and forever annulled."

It is urged that because the order does not order the Seaboard to do anything it is negative and is not reviewable. Cases are cited holding that orders negative in form and substance are not reviewable, but where negative in form but have an affirmative effect they are reviewable. United States v. New River Co., 265 U.S. 533, 44 S.Ct. 610, 68 L.Ed. 1165; Alton R. Co. v. United States, 287 U.S. 229, 53 S.Ct. 124, 77 L.Ed. 275; U. S. v. Atchison, T. & S. F. R. Co. (Inter-Mountain Rate Cases), 234 U.S. 476, 34 S.Ct. 986, 58 L.Ed. 1408. The contention that this is a negative order is not sustainable even if it be limited to the very terms of the order, for that is affirmative in form and substance. If it be claimed not reviewable because there is no order directing the Seaboard what to do or refrain from doing, such contention falls, because it does by necessary implication forbid the Seaboard from continuing the use of such tariff. While there is no affirmative specific authority in the statute empowering the commission to "strike from its files" tariff schedules, it is clear that taking into consideration the requirement of the statute, 49 U.S.C.A. § 6 (1), that a tariff in order to be lawful must be filed with the commission and the prayer of Pollard, receiver of the Central of Georgia Railway (hereinafter called Central), that such tariff "may be declared unlawful, null and void; and that the said receivers may be required to cancel it," such order fairly interpreted is that such tariff is null and void and is canceled. The judgment of this court declaring such order to "strike from its files" void would have the effect of leaving the tariff unaffected by said order of the commission.

The fact that Congress has provided that remedy is proof conclusive that the remedy at law of disproving the legality of the order is not adequate and that there is equity in the bill.

Findings of the Commission.

Has the commission made sufficient findings of fact to justify a judgment that the order of the commission is valid?

The "basic or essential findings required to support the commission's orders" are necessary. State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291. Lack of express findings by an administrative agency cannot be supplied by implication. Atchison, T. & S. F. Ry. Co. v. United States, 295 U.S. 193, 55 S.Ct. 748, 79 L.Ed. 1382 — citing Panama Ref. Co. v. Ryan, 293 U.S. 388, 483, 55 S.Ct. 241, 79 L.Ed. 446; Beaumont, etc., Ry. Co. v. United States, 282 U.S. 74, 86, 51 S.Ct. 1, 75 L.Ed. 221; Interstate Commerce Commission v. Chicago, etc., R. Co., 186 U.S. 320, 341, 22 S.Ct. 824, 46 L.Ed. 1182.

But "it is true that formal and precise findings are not required, under section 14 (1) of the Interstate Commerce Act (49 U.S.C.A. § 14 (1), which declares that the report `shall state the conclusions of the commission, together with its decision.' * * * That provision relieves the Commission from making comprehensive findings of fact similar to those required by Equity Rule 70½ (28 U.S.C.A. following section 723). But Section 14 (1) does not remove the necessity of making, where orders are subject to judicial review, quasi jurisdictional findings essential to their constitutional or statutory validity." United States v. B. & O. R. Co., 293 U.S. 454, 55 S.Ct. 268, 273, 79 L.Ed. 587.

In the hearing before the commission resulting in the order herein complained of, and to which hearing both the Seaboard and the Central were parties, the entire record in Finance Docket 9709 relating to the application of the Fort Benning Railroad for a certificate of public convenience and necessity was introduced by agreement. This is affirmatively set forth in the report of the commission dealing with the tariff complained of. There were thus three reports of the commission upon which the order complained of was founded, it affirmatively appearing that they all were considered by the commission, and it would have been inexcusable tautology to have repeated findings already made and already a part of the record.

Such findings are:

1. The United States has established on some 98,000 acres of land near Columbus, Ga., Camp Benning, and through such camp built railroad tracks connecting at Fort Benning junction at a distance of some 6.8 miles from the delivery tracks of the Fort with both the Central and Seaboard. For a while the United States hauled freight from the junction to the delivery tracks and did the intra Fort switching and then for some years the Central did such work. A contract was then made by the government with Page and Harris by which the government's railroad tracks were to be leased to them, they were to be paid $1,000 a month for the intra switching and $5 a car for the haul from the junction to the delivery tracks. Such lessees were to organize a railroad, procure a certificate of public convenience and necessity from the Interstate Commerce Commission, and thereafter there would be no charge for the haul from the junction to the delivery tracks, Page and Harris expecting, when organized as a railroad, to be able to make arrangements with the trunk line carriers for a division of through rates. There were certain charges to be made for commercial shipments, not necessary to detail here. The application by the Fort Benning Railroad for a certificate of public convenience and necessity was first granted (193 I.C.C. 223), but upon a rehearing was refused (193 I.C.C. 517). Page and Harris continued the hauling and switching as private carriers. Thereafter on November 3, 1933, effective December 4, 1933, the above-quoted tariff was filed by the Seaboard. The result of this was to relieve shippers over the Seaboard of all cost of hauling from the junction to the delivery tracks at the Fort. "The Seaboard employed Page and Harris as its agents to perform the transportation service in hauling cars between Fort Benning Junction and the receiving and delivery tracks at Fort Benning, and pays them therefor $12.50 per car when the revenue is $25.00 or more per car, and when the revenue is less than $25.00 one half thereof." "The Central, however, has not established a tariff similar to that of the Seaboard, and since it does not publish rates to Fort Benning proper it accepts and delivers traffic intended for the Fort, except on traffic moving under government bills of lading, at Fort Benning Junction." Such freight via the Central must pay for the haul from the junction to the Fort.

2. "While the facilities may have the physical aspect of a plant facility, the circumstances of their purpose and ownership clearly distinguish them from industrially controlled and operated railroad properties in the application of regulatory policies."

3. Estimated earnings of the Fort Benning Railroad would be "the equivalent of an average of about $15 a car for the short movement between the reservation and the junction. This revenue would accrue from divisions of joint through rates, and, therefore, would operate as a reduction, pro tanto, of the Central's or the Seaboard's revenue for the line haul." "Here the applicant (Fort Benning Railroad) and its sponsors would be the sole beneficiaries of such practices and at the expense of established carriers...