United States v. Public Utilities Commission of Cal., No. 35101.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtLEMMON, Circuit , and OLIVER J. CARTER and HAMLIN
Citation141 F. Supp. 168
PartiesUNITED STATES of America, Plaintiff, v. PUBLIC UTILITIES COMMISSION OF the State of CALIFORNIA, Defendant.
Docket NumberNo. 35101.
Decision Date30 April 1956

141 F. Supp. 168

UNITED STATES of America, Plaintiff,
v.
PUBLIC UTILITIES COMMISSION OF the State of CALIFORNIA, Defendant.

No. 35101.

United States District Court N. D. California, S. D.

April 30, 1956.


141 F. Supp. 169
COPYRIGHT MATERIAL OMITTED
141 F. Supp. 170
Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for plaintiff

Everett C. McKeage, San Francisco, Cal., for Public Utilities Comm.

Gordon, Knapp & Gill, Los Angeles, Cal., for California Mfg. Assn.

Before LEMMON, Circuit Judge, and OLIVER J. CARTER and HAMLIN, District Judges.

LEMMON, Circuit Judge.

"To git thar fustest with the mostest men" was the recipe for victory announced by General Nathan Bedford Forrest, the Confederate cavalry leader.

There is as much military wisdom in that dictum today as there was a century ago. In this atomic age, speed in the movement of men and supplies is still necessary.

In the instant case, the theory of the plaintiff, as expressed in its complaint, is that if Section 530 of the Public Utilities Code of California, as amended in 1955, infra, hereinafter referred to as "Sec. 530", is held to apply to shipments made by the plaintiff, "it would greatly impede the discharge by the United States of its constitutional powers and responsibilities by inevitably causing delays in such shipments when time is of the essence and in many situations would expose to the public patterns of movement and traffic which would be subject

141 F. Supp. 171
to interpretation by the intelligence agents of foreign powers and might jeopardize the security of the United States."

At the trial, the plaintiff put on a parade of witnesses whom we have found to be impressive. Most of them were officers in the Department of Defense, one of them being a brigadier general of the Army. Those witnesses were most emphatic in declaring that the application of Sec. 530 to military freight shipments would be costly and time-consuming, and would have a "chaotic" effect upon the defense activities of the United States.

The defendant, on the other hand, both in its testimony and in a most solemn unilateral stipulation by its chief counsel, infra, insisted that it would apply Sec. 530 in a manner that would not impede the plaintiff's defense measures. We may point out in passing, however, that neither the defendant nor its learned chief counsel can bind their successors by even the most impressive testimony or the most solemn "stipulation". But we do not bottom our decision upon this ground.

We are convinced of the complete honesty and good faith of each party to this suit. We believe that the record contains not a single sentence of perjurious testimony. We think that each witness, in the language of the day "called it as he saw it".

But the crucial question here presented can be resolved by neither the assurance of responsible defense witnesses nor counsel's formal avowal that the statute would be "reasonably" applied to the plaintiff's shipments and the interests of the United States would in no wise be injured. The problem before us is not one of administrative discretion but of Constitutional power:

May a State statute empower a State Commission, however patriotic and well-intentioned that Commission may be, to "permit common carriers to transport property at reduced rates for the United States, state, county or municipal governments, to such extent and SUBJECT to such conditions as IT may consider just and reasonable"? Emphasis supplied

Reluctant as we are to declare invalid any part of a State statute, we are impelled to hold that, insofar as the plaintiff is concerned, that part of Section 530 which purports to limit the plaintiff's enjoyment of reduced freight rates according to the defendant's pleasure, is in contravention to the Constitution of the United States, as placing an improper restriction upon the plaintiff in the exercise of its sovereign powers related to the national defense.

1. Statement of the Case

On December 2, 1955, the plaintiff filed a complaint in the above-entitled cause, to have this Court declare that certain sections of the California Public Utilities Code, infra, are unconstitutional, and to have the California Public Utilities Commission permanently enjoined from taking any action under those sections.

On the same day, Judge CARTER signed an order to show cause and a temporary restraining order, supported by a "Verification and Affidavit" by Captain F. L. Haerlin, USN, together with an order to show cause why an interlocutory injunction should not issue during the pendency of the action.

On December 22, 1955, a motion to dismiss the complaint was filed. That motion was denied on February 17, 1956, and by agreement the temporary restraining order was continued in effect in lieu of an interlocutory injunction.

On January 27, 1956, a large group of common carriers filed a motion to intervene as defendants. That motion was denied, "without prejudice to the right of the applicants in intervention to appear amicus curiae in further proceedings in this case."

On February 3, 1956, the California Manufacturers Association filed a motion to appear as amicus curiae. That motion was granted.

On February 6, 1956 Major Generals Paul F. Yount and John P. Doyle, of the

141 F. Supp. 172
United States Army and the Department of the Air Force, respectively, filed affidavits to the effect that the allegations of the complaint are true, to the best of their information and belief. They are the transportation heads of their respective branches of the armed forces

The defendant filed its answer on February 27, 1956.

2. The Complaint

The plaintiff alleges that in July, 1955, the California Legislature amended Sec. 530 of the Public Utilities Code and deleted therefrom "the express exemption from the general provisions of the Code of Shipments of property" of the plaintiff. California Stat.1955, Ch. 1966. This amendment likewise expressly provided that carriers could grant reduced rates to the plaintiff only with the permission and under conditions determined by the defendant.

It is averred that insofar as Sec. 530 and related sections of the Public Utilities Code prohibit carriers from shipping property for the United States at rates different from those approved by the defendant, they are void under Article VI, par. 2 of the Constitution of the United States, in that:

1. For no valid reason within the police powers or other reserved powers of the State, they place an unreasonable burden and impediment on the United States in the discharge of its Constitutional powers and responsibilities.

2. They place an unreasonable burden on interstate commerce in an area under the exclusive jurisdiction of Congress, under the Constitution.

3. They contravene the policy of Congress implicit in the Federal Property and administrative Services Act of 1949, 63 Stat. 377, relating to the negotiation for the transportation of property for the plaintiff, and enacted pursuant to the power conferred upon Congress by the Constitution.

4. Insofar as the Public Utilities Code of the State imposes penalties upon common carriers for failure to ship property for the plaintiff at rates other than those approved by the defendant, it is repugnant to Amendment XIV of the Constitution, in that it is vague and uncertain because it imposes upon carriers the duty of resolving intricate questions of law and fact in determining what particular shipments of persons or property may be in intrastate or in interstate commerce.

Wherefore it is prayed that, on final hearing, judgment be entered declaring that insofar as Section 530 "and related provisions prohibit carriers within the State from shipping property" of the plaintiff "at rates other than those approved by the defendant, it sic is unconstitutional and void"; and that the defendant be permanently enjoined from making any effort to prohibit carriers within the State from negotiating and making arrangements and contracts for the carriage of property of the plaintiff at rates and charges other than those determined by such contracts and arrangements between the plaintiff and the carriers.

3. The Motion to Dismiss

The motion to dismiss and its supporting brief set forth that:

1. The Court lacks jurisdiction over the subject matter of the complaint, because:

(a) The complaint does not allege an "actual controversy" within the meaning of 28 U.S.C.A. § 2201, and the plaintiff therefore is not entitled to a declaratory judgment.

(b) The plaintiff has failed to exhaust the administrative remedy available to it in a proceeding before the defendant.

(c) The complaint involves a matter within the primary jurisdiction of the defendant as an administrative agency of the State.

(d) This Court is prohibited by the Johnson Act, 28 U.S.C.A. § 1342, from granting the relief requested by the plaintiff. The Johnson Act is as follows:

"The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a
141 F. Supp. 173
public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
"(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and,
"(2) The order does not interfere with interstate commerce; and,
"(3) The order has been made after reasonable notice and hearing; and,
"(4) A plain, speedy and efficient remedy may be had in the courts of such State."

(e) The plaintiff will not suffer irreparable injury in the absence of injunctive relief by this Court, but has an adequate remedy elsewhere. On the contrary, persons other than the plaintiff have suffered, and will continue to suffer, irreparable injury as a result of this Court's granting the plaintiff's request for injunctive relief. "* * * the Commission, in compliance with this Court's restraining order, indefinitely suspended the cancellation of a provision...

To continue reading

Request your trial
13 practice notes
  • Public Utilities Commission of State of California v. United States, No. 23
    • United States
    • United States Supreme Court
    • 3 Marzo 1958
    ...than those approved by the Commission and requesting relief by injunction. The District Court rendered judgment for the United States, 141 F.Supp. 168. The case is here by appeal, 28 U.S.C. §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). We noted probable jurisdiction. 352 U.S. 924, 77 S.Ct......
  • Hawaiian Telephone Co. v. Public Utilities Com'n of State of Hawaii, Nos. 85-1907
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Septiembre 1987
    ...Telegraph Company, 358 F.Supp. 498, 504 (N.D.Ga.1972), aff'd, 478 F.2d 700 (5th Cir.1973); United States v. Public Utilities Commission, 141 F.Supp. 168, 188 (N.D.Cal.1956), aff'd, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 HawTel does not dispute that the final three conditions are met. 23 ......
  • DeKalb County v. Southern Bell Tel. & Tel. Company, Civ. A. No. 16776.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 30 Octubre 1972
    ...to be present before the Act can apply and thereby limit the court's jurisdiction. United States v. Public Utilities Comm. of Cal., 141 F.Supp. 168, 183 (N.D.Cal.1956); aff'd, 355 U.S. 534, 78 S.Ct. 446, 2 L. Ed.2d 470 (1958). From the plaintiff's complaint, it is clear that jurisdiction is......
  • Zucker v. Bell Telephone Company of Pennsylvania, Civ. A. No. 72-2460.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 29 Marzo 1974
    ...David v. New York Telephone Company, 341 F.Supp. 944, 947 (S.D.N.Y.1972); United States v. Public Utilities Commission of Cal., 141 F.Supp. 168, 183 (N.D.Cal.1956), aff'd, 355 U.S. 534, 78 S.Ct. 446, 2 L. Ed.2d 470 It is clear that the Commission's December 14, 1971 order herein challenged ......
  • Request a trial to view additional results
13 cases
  • Public Utilities Commission of State of California v. United States, No. 23
    • United States
    • United States Supreme Court
    • 3 Marzo 1958
    ...than those approved by the Commission and requesting relief by injunction. The District Court rendered judgment for the United States, 141 F.Supp. 168. The case is here by appeal, 28 U.S.C. §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). We noted probable jurisdiction. 352 U.S. 924, 77 S.Ct......
  • Hawaiian Telephone Co. v. Public Utilities Com'n of State of Hawaii, Nos. 85-1907
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Septiembre 1987
    ...Telegraph Company, 358 F.Supp. 498, 504 (N.D.Ga.1972), aff'd, 478 F.2d 700 (5th Cir.1973); United States v. Public Utilities Commission, 141 F.Supp. 168, 188 (N.D.Cal.1956), aff'd, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 HawTel does not dispute that the final three conditions are met. 23 ......
  • DeKalb County v. Southern Bell Tel. & Tel. Company, Civ. A. No. 16776.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 30 Octubre 1972
    ...to be present before the Act can apply and thereby limit the court's jurisdiction. United States v. Public Utilities Comm. of Cal., 141 F.Supp. 168, 183 (N.D.Cal.1956); aff'd, 355 U.S. 534, 78 S.Ct. 446, 2 L. Ed.2d 470 (1958). From the plaintiff's complaint, it is clear that jurisdiction is......
  • Zucker v. Bell Telephone Company of Pennsylvania, Civ. A. No. 72-2460.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 29 Marzo 1974
    ...David v. New York Telephone Company, 341 F.Supp. 944, 947 (S.D.N.Y.1972); United States v. Public Utilities Commission of Cal., 141 F.Supp. 168, 183 (N.D.Cal.1956), aff'd, 355 U.S. 534, 78 S.Ct. 446, 2 L. Ed.2d 470 It is clear that the Commission's December 14, 1971 order herein challenged ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT