Hugo L. Black: Number 430, Arrow Transportation Company and others, against the Southern Railroad Company and others.
John C. Lovett: Mr. Chief Justice, and may it please the Court.
Hugo L. Black: Mr. Lovett.
John C. Lovett: This case is before this Court --
Hugo L. Black: Just a moment.
John C. Lovett: Yes, sir.
Hugo L. Black: Mr. Lovett, you may --
John C. Lovett: Thank you, sir. I was waiting for the chart if the Court please. This case is before this Court on a writ of certiorari to the Court of Appeals for Fifth Circuit. I have agreed with the Government's counsel on the division of the argument in order to avoid any unnecessary duplication. I will present the factual picture, the history of the case and if time permits, I will briefly summarize our legal position and the Government's counsel will present the legal position in detail, the statutory history, and the statutory policies involved. The issue before this Court is both narrow and simple. Briefly stated, that issue is whether the Federal District Court has the power to prevent serious irreparable injury to competing carriers and to shippers, and the localities by putting into effect certain drastic rate reductions which the Interstate Commerce Commission has declared prima facie unlawful and in a situation where the Interstate Commerce Commission where its power to prevent these rates from going into the effect has been invoked and spent. To put the issue in perspective, let me present a brief background. We have attached a chart to our brief as Appendix B, and it tells most of the story. I've had it enlarged here for purposes of illustration. In the upper left hand corner of the chart is the breadbasket of America. This is the great grain surplus producing area. In the Southeastern part, in the lower right hand corner, the Southeastern part of the United States we have the great grain deficit area today and today, grain moves in tremendous volumes from the surplus area to the deficit area. It was not always so. The Tennessee River in its natural state, where the series of (Inaudible) and rapids, and was not completely navigable and the rail rates which were then in effect from the Midwest to the Southeast were prohibitively high. Consequently there was no major grain industry that developed in these Southeastern states. After the Tennessee Valley authority constructed a series of dams on the Tennessee River, the river became navigable the year around and it furnished it and its connecting waterways, furnished a natural, logical low cost route for grain to move from the surplus area to the deficit area. A large poultry industry developed in the Southeastern states, particularly in Alabama and Georgia, and the low cost water movement made this development possible. A number of elevators, feed mills and so forth were constructed at the Tennessee River ports. The grain would move by barge through or from St. Louis up to Tennessee River to such ports as Guntersville, which was the major one where the development occurred because it was the southernmost point on the Tennessee River. The result was that the demand for grain in the Southeast skyrocketed. Now this was a tremendous new movement of grain. The movement by barge to the Tennessee River ports, such as Guntersville then transshipped from Guntersville and the other ports to interior destinations in the Southeast, where the grain was consumed, used to feed the poultry, and for the other feed purposes. Very little of this grain is actually consumed at the river ports themselves. Over 80% of the grain which moves on the Tennessee River is later transshipped to interior destinations, either by barge -- by a trip or by rail and either as grain or as grain products. The high rail reshipping charges from the Tennessee River ports to the interior destinations impeded the barge-rail movement of grain into the Southeast, and the railroads persisted in the refusal to publish usable rail rates on the barge grain which arrived at the Tennessee River ports. These reshipping rates after nine years of litigation in the Commission and in the courts were declared unlawful in Arrow Transportation Company against the United States which this Court affirmed per curiam in 1960. Meanwhile, the barge-truck movement of grain in by barge, out by truck constantly increased. Then in July of 1961, about a year after this decision --
Potter Stewart: I missed something and if you can tell me briefly, what was declared unlawful in 1960?
John C. Lovett: The resh -- the rail reshipping rates from the Tennessee River ports to the interior destinations. The situation was that the railroads were charging two levels of rates here. They had a high level of rates which applied if the grain came to these ports by water and the low level of rates outbound --
Potter Stewart: They ride by --
John C. Lovett: -- that came by rail and this was declared unlawful. And in 19 -- in July of 1961, about a year after the Arrow decision, the Southern Railway Company acting independently and without any prior consultation with shippers or other rail carriers published the rates which are involved here. It proposed to reduce the all-rail rate from the Ohio and Mississippi River ports to specified destinations in the Southeast.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: Yes, sir.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: In July of 1961, yes sir.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: It has completed the hearings. It has not yet reached a decision.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: That's correct, sir.
Hugo L. Black: How long has it been pending now?
John C. Lovett: The hearings were concluded in -- on a date, August the 29th of last year. The briefs were filed on November the 5th and there has been no action since that time.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: Yes, sir. That's correct, sir.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: Yes, sir and I was explaining that right here. After -- about two weeks after the Southern Railway published these rates, the other railroads who operate in the Southeastern states published the same rates to apply on their lines. Now, this was done by them as a defensive measure, so as to prevent the loss of their traffic and their shippers to the Southern.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: Yes, sir. The Southern's petition to separate it was denied by the Commission.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: All of the carriers, yes sir. This publication of these rates created a storm of protest. Petitions to suspend were filed by barge lines, grain dealers, elevator operators, Tennessee Valley Authority and many others and the rate exhibits were submitted and cost data were submitted.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: The Tennessee Valley Authority is statutorily responsible for developing the Tennessee River and its tributaries and the areas surrounding it. Now, they have done that and they take the position that if these rates go into effect it will convert the Tennessee River from an important artery of commerce into just a recreational area. It will kill the barge service on the Tennessee River. Of these petitions --
Potter Stewart: Why would grain dealers object to a lower rate?
John C. Lovett: The grain dealers -- those who are geared to the low cost water movement are the ones who primarily object. The ones who were geared to all rail movement support these rates because they're going to inherit the business that the others lose.
Potter Stewart: You mean by geared by having their elevators next to the --
John C. Lovett: Yes.
Potter Stewart: -- docks [Inaudible]
John C. Lovett: Yes. That's correct, sir. Now there are a number of other issues involving these rates which I will discuss in just a minute but this is one of them, this damage to the water transportation of water movement. Well, the Commission suspended the rates for seven months from August the 8th, 1961. Southern twice asked that this be vacated and each time it was refused which means that the Commission has had three looks at this suspension and after these three looks, the Commission as adhered to its original finding which was, that there is reason to believe that these rates will be unjust and unreasonable in violation of the Interstate Commerce Act and will constitute unfair and destructive, competitive practices in violation of the National Transportation Policy. Now thereafter, the Southern twice asked that the hearings in the suspension proceeding be sus -- be postponed and it voluntarily extended the suspension period by a corresponding length of time. After this was done, the end of this suspension period became August the 7th of 1962 and the hearings before the Commission began on January the 8th of 1962.
Speaker: [Inaudible]
John C. Lovett: The seven months from August the 7th, 1961.
Speaker: I thought you said they had extended it?
John C. Lovett: The Southern extended it because it requested delays in the hearings before the Commission and they extended it for a corresponding time.
Speaker: Was it voluntary?
John C. Lovett: At one time their counsel became ill and it was necessarily that they terminate the hearings for 30 days.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: Yes, almost exactly 12 months.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: That's right. This involved the full exercise of the Commission's powers in the voluntary suspension by the Southern for five months. Well, the hearings began on January the 8th, 1962 and were not concluded until the end of August of 1962 which would have been -- which was in three weeks after the suspension period expired. Now, our motion which we made in March to the Commission, that the Commission order these rates canceled as unlawful on their face were denied by the Commission on the ground that the Commission lacked the jurisdiction to consider this relief until after a full hearing as provided in Section 15 (7). In July of last year, it became apparent to us that the Commission could not possibly act prior to the expiration of the suspension period on August the 7th. We had asked the railroads voluntarily to extend the suspension period again in order to permit the Commission to reach a decision in an orderly way, absent any atmosphere of prices. All of the other railroads agreed to do this provided that Southern would agree and the Southern refused, although this is customary in cases where the issues are complicated as this one.
Tom C. Clark: Is there --
John C. Lovett: We then --
Tom C. Clark: -- a season on shipping?
John C. Lovett: Pardon?
Tom C. Clark: Is the season when the shipping is heavier or what?
John C. Lovett: This shipping sir is practically the year around. It's a very constant movement.
Tom C. Clark: Not just -- not geared to the crops?
John C. Lovett: No sir, not particularly. Now, there is a slight variation when the grain in the Southeast is harvested. Sometimes this slows down the movement of grain but very little. We then were faced with an emergency situation. We knew that if these rates went into effect on August the 7th, months would elapse before these rates could be ordered canceled by a final order. We also knew that we simply could not survive that period and we knew that the Commission had fully exhausted its powers to help us. Our problem was one that was unprecedented. Never before had rates been published which were so drastically reduced, which were so widespread in application, which were so immediately destructive by a carrier so determined to put them into effect whether they have been approved or not. And we therefore sought the aid of the equity court, seeking to restrain these rates, alleging the traditional grounds for invoking equities jurisdiction and asserting our willingness to indemnify the railroads by bond against any provable damages that they might sustain in the event these rates should later be declared lawful. We asked a status quo injunction which would require the railroads to be content with the rates they established for themselves only a few years before, or the temporary period until the Commission could decide this case. Now let me briefly describe these rates. These are multiple-car rates which apply only to those grain dealers, grain receivers who are equipped to receive, unload, store and pay for a minimum of 450 tons or about 16,000 bushels of grain at one time. They apply -- they have a $2.40 minimum rate and this minimum rate is absolute up to a distance of 346 miles. Now, that means that the shipper who ships 10 miles pays the same rates as one who ships 346 miles and these rates do not apply from the Tennessee River ports to interior destinations. They apply only from the Ohio and Mississippi River ports. Now a single example will demonstrate the effect of these rates. And I have (Inaudible) Birmingham, Alabama, that one -- it is a major grain destination. It is served by petitioner O.J. Walls with barged grain which he receives at the Guntersville, which is one of the petitioners, and transships by rail to Birmingham. The present all-rail rate from St. Louis to Birmingham is $8.70 and it is being reduced to $3.12.
Potter Stewart: Now the $8.70 applicable no matter what quantity?
John C. Lovett: That is applicable to any quantity and I might add that this is the lowest applicable rate. This is what's called the coarse grain scale. Now the rate which applies to wheat for example is over $10 today, but it will likewise be reduced to $3.12 under this proposal.
Potter Stewart: And the $3.12 is applicable -- the rates that you had so much urged applicable only in large quantities?
John C. Lovett: That's correct.
Potter Stewart: But (Voice Overlap) --
John C. Lovett: Only in the 450 tons or more.
Potter Stewart: How much is 450 tons in terms of railroad cars?
John C. Lovett: This would be five of the jumbo hopper cars. This would be nine of the ordinary rail box cars and hopper cars. Now, the rates provide also that if they ship as much as 900 tons, the rate goes down 10 cents. If they have as much as 1800 tons in one shipment it goes down another 10 cents.
Potter Stewart: That's a whole train.
John C. Lovett: That's practically a whole train, yes sir. That would be -- well, of course 9 -- 900 tons would be about 32,000 bushels of grain. You can see --
Potter Stewart: The one -- this has to be the one consignee?
John C. Lovett: Pardon sir?
Potter Stewart: This has to be the one-to-one consignee?
John C. Lovett: Yes sir. To one consignee, shipped in one shipment (Voice Overlap) --
Potter Stewart: Or one shipment rate. Which is the test one shipper or one consignee?
John C. Lovett: It's both.
Potter Stewart: Both?
John C. Lovett: Both, yes. That's to go from one shipper to one consignee in that volume. The barge distance from St. Louis to Guntersville is 576 miles and the rail distance from Guntersville down to Birmingham is 71 miles. Now, this rate down to Birmingham from Guntersville of $2.20 is not going to be changed. And even if they should apply this new scale of rates to the Tennessee River ports, the minimum rate would make this rate $2.40 instead of $2.20. The present barge rail rate is $5.48.
William J. Brennan, Jr.: What is the rate [Inaudible] is applied?
John C. Lovett: Per ton.
William J. Brennan, Jr.: Per ton.
John C. Lovett: Per ton, these are rates per ton, yes. It's easy to see then that if Arrow Transportation Company wishes to compete on this barge mo -- on this movement to Birmingham, it must reduce its barge rate for this 576 mile haul from $2.39 a ton to 3 cents per ton. This is the --
Potter Stewart: The present barge rail rate of $5.48 and through the -- one of the two components that $2.20?
John C. Lovett: Yes, sir.
Potter Stewart: From Guntersville to Birmingham?
John C. Lovett: And the transfer charge from barge to rail at Guntersville plus the barge markup makes up the $5.40.
Potter Stewart: Those were the three components. Yes, I missed the transfer charges.
John C. Lovett: Yes, transfer charge.
Arthur J. Goldberg: Do you know when the barge is [Inaudible]?
John C. Lovett: Yes, sir. Some of it -- you asked about the trucking rates. Now some of the trucking rates are -- most of these trucking rates are not. Incidentally, since you brought that up, the trucking rate from Guntersville to Birmingham although there's not much grain truck to Birmingham because the receivers there are big grain companies but the trucking rate is $1.79. Now the barge trip haul to remain competitive would require that this rate, the barge rate be reduced to 44 cents a ton. To most of the destinations in the Southeast, Arrow Transportation Company could not remain competitive if it performs a barge leg of this service without any charge whatsoever. The rates which would inflict more immediate and more lethal injury on the water carriers and on the shippers and the port cities can scarcely be imagined.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: No, sir, not at all. So long as the competition is fair and is lawful under the Act. Now this is the issue of course which is pending before the Commission. I use this for an illustration simply for the purpose of showing the source of the irreparable injury which we claim. And it is not surprising then that Arrow which is the largest certificated common carrier by water on the Tennessee River would lose all of its grain traffic under this rate set up, would lose 80% of its revenues and could not survive on the other 20%, and would have to surrender its charter, a certificate and liquidate its assets and all in the matter of six months.
Potter Stewart: Does Arrow carry any other commodity except grain?
John C. Lovett: Yes, sir. The other commodities it carries furnishes 20% of its total revenues, grain furnishes 80%.
Potter Stewart: Is that fairly typical of the traffic down the Tennessee River, that 80% of its grain?
John C. Lovett: I would not say so, no sir. Now Arrow as I say is the largest certificated common carrier.
Potter Stewart: Grain carrier.
John C. Lovett: There are others operating on the Tennessee River whose proportion of traffic is not quite so high in terms of grain, but Arrow is the petitioner here who's -- who is going to be destroyed in a short period of time.
Potter Stewart: This grain -- eventually most of it ends up -- be fed to chickens, does it in Southern (Inaudible)?
John C. Lovett: A great more -- yes. Most of it does. In fact, down in the Alabama and Georgia they have a broiler industry which produces hundreds of millions of broilers per year.
Speaker: Mr. Lovett, are you talking about the [Inaudible]?
John C. Lovett: As I interpret your question, it has two parts. First, is our position predicated on the fact that these rates are unlawful? No, that isn't our position. Our position is that this is for the primary and within the primary jurisdiction of the Commission to determine the lawfulness of the rates. They have indicated a preliminary belief that these rates are prima facie on lawful, but there's still pondering the question of the lawfulness of the rates. Your second question is if these rates should ultimately be declared unlawful, would we have an adequate remedy at law? In my opinion sir, we certainly would not. In the first place there has never been a recorded case and the court below cited none and neither the Southern cited one where this remedy provided by Section 8 is available. In second the place, you'd have an impossible question of problem of proof, not the proof of your damages, but proving the identity of the carrier who caused it. You have lost your traffic which carrier took what part of the traffic you lost, this I think would be an inadequate remedy and finally if we were already in bankruptcy, a future action at law would be of no help to us.
Potter Stewart: Does the carry -- does the rail carriers to the Southern and the other rail carriers filed bonds or other privatized filed bonds on these rates for the new thing?
John C. Lovett: No, sir. They filed no bonds. These rates of course have not gone into effect.
Potter Stewart: No, they've been (Voice Overlap) --
John C. Lovett: They have been they have been restricted. But they are not required to file any bonds, no.
Potter Stewart: That's not the general practice in your state county?
John C. Lovett: No, sir. The right of the Commission to suspend these rates is an absolute right to do it summarily without requiring any security, without balancing the equities, without any showing of irreparable injury --
Potter Stewart: But for seven months only?
John C. Lovett: For seven months only, that's correct. This is the difference between (Voice Overlap) --
Potter Stewart: And there after there's a, there's a correlative right of the carrier I suppose with the rate from the effects subject only to Section 8 and whatever else there maybe if the rates turn out to be unlawful.
John C. Lovett: That would be correct unless the equity in this extreme --
Potter Stewart: Well, if you are right, the court can adjourn?
John C. Lovett: Yes, sir. In this extreme case the Court can adjourn.
William O. Douglas: Is this a problem that affects water carriers generally in the grain areas of the country?
John C. Lovett: Yes sir, it does.
William O. Douglas: Or it's just peculiar to this particular petitioner?
John C. Lovett: It's a -- it -- well, it's peculiar to this petitioner on the Tennessee River. This is a -- just another chapter in the history of the Tennessee River bank traffic, but it does apply to other sections of the country. For example, in this -- in the Pacific Inland case which we cite in our brief I think it's on page 29, you had a situation where the grain traffic was not actually involved, but you had petroleum rates were involved. Now the petroleum rates were reduced in an order to capture the upstream traffic of petroleum --
William O. Douglas: Was that on the --
John C. Lovett: -- because the grain was coming downstream. You see they lose the back haul.
William O. Douglas: That was the Columbia River?
John C. Lovett: Yes, sir. Now this, this destruction to us would come about so quickly within six months and Southern knew this, just as long as we do. The District Court knew it, and the District Court strongly recommended that the Southern voluntarily extend this period for a short time in order that the Commission might pass upon it. Southern again refused, referring to -- it inflicted its damage first and then discussed later the lawfulness of the means used. Now the District Court made every necessary finding for the issuance of the status quo injunction, save one; this one was the question of jurisdiction. He even went further and balanced the equities between the parties and said that the ends of justice is in his opinion would best be served if this temporary injunctive relief were granted, but lacking jurisdiction he found himself powerless to act. Now the Court of Appeals affirmed on the ground that Section 15 (7) of the Interstate Commerce Act, which authorized the Commission to suspend rates in the first instance as impliedly ousted the jurisdiction of the Federal District Court to exercise its ancillary jurisdiction in this matter. Now I will only briefly summarize our legal position. We think the legal question can be broken down into two parts. First, does the District Court have the inherent power to exercise ancillary jurisdiction to preserve the status of parties in a proceeding before another agency where that agency itself is powerless to act and where the preservation of the status is essential in order to permit that agency to make a decision which will be effective and not obligatory. Now, this question has been discussed in our brief at great length and we think clearly that the Federal District Courts have this inherent equity power. The more crucial question however, is whether Congress in enacting Section 15 (7) has impliedly taken this power away. The argument that Congress has impliedly withdrawn this power it seems to me to rest upon a misapplication of the primary jurisdiction doctrine. Here there is no potential conflict between the agency and the court. The court can do nothing which will either duplicate or anticipate or interfere with the primary responsibility of the Commission to decide the lawfulness and to carry out its statutory powers. The Commission has found these rates to be presumptively unlawful. The District Court did not find them to be unlawful. He merely accepted the Commission's decision on this point. The District Court did not change it. Judicial intervention here, far from making the Commissions' task more difficult, actually enables the Commission to make an effective decision, one that will be a more than a mere academic interest to my clients.
Hugo L. Black: Incidentally where is the case now?
John C. Lovett: The case is still before the Commission, as I said, the briefs have been filed and we frankly anticipate a decision from the Commission quite quickly.
Hugo L. Black: What page [Inaudible] to anticipate the Commission's decision?
John C. Lovett: The Commission has worked hard on this case. This is a very complicated case, sir. There are about 16,000 pages of transcript and about 575 exhibits and I think the Commission has had several examiners working on this case and I'm sure, confident in my own mind that the Commission is doing everything in its power --
William J. Brennan, Jr.: Well, is that the stage --
John C. Lovett: -- to resolve these issues.
William J. Brennan, Jr.: Is that the stage where the examiners [Inaudible]?
John C. Lovett: A stage will be a deport -- a report by Division 2. We have asked for the initial reports by the full Commission and thus far this has been denied, although we have asked for reconsideration.
William J. Brennan, Jr.: Well, if you don't get it and get only a Division 2 before it, I gather then that may be preceded before the full Commission.
John C. Lovett: There may well be. It would of course depend on what these reports --
William J. Brennan, Jr.: This may take quite a while.
John C. Lovett: It could take quite a while, yes sir.
William J. Brennan, Jr.: Well, because I think procedures devised for rehearing [Inaudible]
John C. Lovett: There are more provisions for the rehearing, yes and the Act reads of course that you cannot go into court for review until the petition for rehearing has been disposed off. There has been one or two cases which said that this is not invariably true, but they conceivably could last for several more months.
Tom C. Clark: And the hearings are closed in August.
John C. Lovett: Yes sir, on August the 29th. I believe it was.
Tom C. Clark: [Inaudible] -- you haven't heard anything since then?
John C. Lovett: No sir, the briefs have been filed. Well, we have heard this, the Southern asked the Commission to first set the matter for oral argument. And second, asked the Commission to have the initial decision by the full Commission. Now this motion was denied as to the oral argument before the Commission and it was also denied as to the initial decision by the full Commission. We then asked the Commission to reconsider this decision which is in do far as it applies to the initial decision. We did not want oral argument. We didn't think it would be helpful when you had 16,000 pages of transcript but we did. We would like to have the initial decision by the full Commission. Now this --
Tom C. Clark: Now that would expedite it?
John C. Lovett: Yes sir and our motion has not been passed upon.
Potter Stewart: Its clear isn't it that if -- well, if and when the Commission decides that this present case before us now will be moot or (Voice Overlap)?
John C. Lovett: Yes, sir. If the decision is a reviewable one, if it is ripe for review by the Federal District Court or the three-judge court then that court has jurisdiction to enter in a temporary restraining orders to preserve the status [Inaudible]
Tom C. Clark: Well, let's see --
Potter Stewart: Wouldn't it reviewable by a three-judge court?
John C. Lovett: If it is a final order. Now, if they put -- there's a conflict in the statute here. If the order of the Commission is under reconsideration, the Act says that you cannot go into court, one part of Act says that. Another part says that if you -- well, the Pacific Inland case and the Cantlay case, both said that if you have an order of the Commission then you can seek review of that order by the three-judge court, yes.
Tom C. Clark: How did the Court of Appeals get around that in the Arrow case?
John C. Lovett: They got around the order -- there had been a final decision by the Commission in the Arrow case.
Tom C. Clark: I thought they held it up, and ask to be passed on it, and they passed on it, asserted by the fact?
John C. Lovett: Well, that's correct. You see, in the Arrow case the three-judge court in effect told the Commission that if you don't change this, we're going to change it for you and they --
Tom C. Clark: You don't [Inaudible]
John C. Lovett: The Commission said, if you don't -- the Commission had entered an opinion in the Arrow case. This was taken to the three-judge court in Alabama. The Commission asked the three-judge court not to pass on that until they could reconsider it in light of the -- this Court's decision in the Dixie Carrier's case. And then there was another --
Tom C. Clark: [Inaudible]
John C. Lovett: -- opinion by the Commission which went to the court up in Kansas, you may recall the Atchison, Topeka and Santa Fe.
Tom C. Clark: [Inaudible]
John C. Lovett: This sir, incidentally --
Tom C. Clark: I don't understand there. I thought the -- originally the court issued an injunction enjoining the Commission from vacating its orders which they'd already done apparently, I thought. Then they dissolved that injunction and told the Commission that they had like -- they're going to hold it up until its -- just quite a time and they hope it would be able to pass on it, but if -- is that right?
John C. Lovett: That -- that's right. As I recall that was in March. They said you'd -- we'll hold it up until March. And if you don't pass on it by that time we will in effect --
Tom C. Clark: Well, they passed on it and a court said, “Well, can go ahead now”, and went on to decide it. That's a three-judge court?
John C. Lovett: That's correct. That was a three-judge court in Alabama.
Ralph S. Spritzer: Mr. Chief Justice, may it please the Court. The United States was not a party to this litigation in the lower courts. The Solicitor General has filed a brief here at the invitation of this Court and we there suggest that there is no absolute bar, jurisdictional or statutory, to the relief which petitioners are seeking. We also suggest the petitioners have perhaps an unusually heavy burden in order to show that equity ought to intervene. Let me also note at the outset that the Interstate Commerce Commission has a different view of the matter and is of the opinion as are the respondents here, the rail carriers, that the courts are without jurisdiction until the Commission has entered a final order in the administrative procedure.
Potter Stewart: The question is not filed a --
Ralph S. Spritzer: It has not.
Potter Stewart: -- brief (Voice Overlap).
Ralph S. Spritzer: Its --
Potter Stewart: Not allowed to without the permission of the Solicitor General, isn't it?
Ralph S. Spritzer: No. That may well be, I should add that there has been no -- there would've been certainly no attempt to impede the Commission from making a fuller statement of its views and it was content to state the conclusion which appears at the beginning of the Government's brief.
Tom C. Clark: They held this in other cases?
Ralph S. Spritzer: There are one or two Commission opinions in which their dicta on this matter -- yes. The proposition with which we begin as do petitioners is that it is a traditional function of equity, one which is certainly been performed for many years in Anglo-American history. To intervene in order to protect a situation from a drastic change while another proceeding is pending elsewhere, the early common laws of course, the other proceeding was ordinarily an action in the lower courts or perhaps from the ecclesiastical courts. But in more recent times one finds more than a fair sprinkling of cases in which the other proceeding is one awaiting adjudication before an administrative tribunal. Certainly all things being equal, equity may intervene in the latter situation no less than in the former and a line of cases involving the Maritime Commission most sharply illustrates the practice which has grown up. That Commission has no apparent authority at all to issue an injunction or a stay order or a suspension order while it is investigating the legality of the disputed [Inaudible] statutes. But the courts have, several Courts of Appeals of several Circuits have agreed I think without exception, that equity may step into the breach when necessary and preserve the status quo during the tendency of the Commission proceeding.
Arthur J. Goldberg: [Inaudible] There is no doubt that in the [Inaudible]
Ralph S. Spritzer: There are two parts to my argument. The first part is an attempt to canvass briefly the inherent powers of the court of equity in situations of the type which are presented here. The second part will necessarily have to take into account the particular statutory scheme with which we're dealing and the statutory history in order to ascertain whether exercise of this general equity power would be consistent with the -- with what might be called the equity of the statute, the policy that Congress has to plan and I would therefore say in relation to the mediation question which your -- Your Honor presented that that would certainly turn on consideration peculiar to the statutory structure of the Acts which are there relevant just as this case is doing the turn ultimately I suspect on analysis of the scheme of Section 15 (7) and the history of that Section. I was going to suggest in relation to the general equity power that the Court may recall the Isbrandsten case, a Maritime Commission case which was here in the 1957 term. That involved the question whether an association or conference of water carriers could adapt the so-called the dual rate system, a system whereby shippers paid rates at one level if they signed an exclusive patronage contract with the Conference of Water Carriers, but had to pay rates at a much higher level to all members of the conference with whom they place shipments, if they fail to sign that exclusive agreement. Isbrandsten, a lonely, independent in the ocean trade that was involved in that case, challenged the practice and ultimately prevailed here. What maybe forgotten is that back in 1948, almost a decade earlier, Isbrandsten had first questioned that system by a suit in the District Court which sought a temporary injunction to restrain the conference lines from putting it into operation. The injunction was granted in that case on Isbrandsten's representations that it could not long survive if it had to await the prospect of securing relief from the Commission. And Judge Rifkind's opinion in that case stated, I'm going to quote a line or two because it had some pertinence here, “where the defendant carriers to institute their exclusive patronage system pending the Commission's decision in a complaint proceeding, the plaintiff would be gravely prejudiced since the Commission disclaims the power to afford temporary relief and the equitable power of the court to preserve the status quo has not been withdrawn by statute, an injunction as prayed should issue conditioned on the plaintiff diligent prosecution before the Commission. Are their complaints challenging the validity of the agreements?” Now, that passage I think brings us to the next question here.
Hugo L. Black: Where is that?
Ralph S. Spritzer: That's recorded in 81 F. Supp., Your Honor of the passage I read at 546. I say that that leads to the next question which is whether as the rail carriers in this case argue, the Interstate Commerce Act did withdraw comprehensively as they say and without any possibility of exception, the inherent equitable power to grant relief pending the completion of the administrative proceeding.
Speaker: Have you considered if there's any power, any question as to the power of Congress to do that if they wished to?
Ralph S. Spritzer: I -- I do not think so.
Speaker: You don't think there's any constitutional question.
Ralph S. Spritzer: I think the -- I think the policy of Congress in -- expressed in the statute which -- would be one which this Court would certainly be obliged to regard. I think the standard involved here is perhaps similar to that in the recent view with Robin's case. And I think the Court has stated in that case that a judicial remedy may coexist, may coexist with a comprehensive regulatory scheme when the exercise of the judicial remedy supports the Act's overall purposes and I think the Court's language was -- is and is in nowise inconsistent with the congressional scheme. If the scheme here was inconsistent I would assume that the Court would have stay its hand. Now, Southern argues in -- well, it relies on Section 15 (7) which defines the Commission's powers to suspend the rates. And that section provides in the substance as Your Honors know that when a carrier files a new or changed the rates, the Commission may upon a written statement of its reasons suspend them for a period, I will now talk about this, I will mention the period in the statute that now stands, for period not to exceed seven months, that period has changed a several times during the history of the Act. If the administrative proceeding has not then been concluded, the provision continues, the rates shall go into effect. The succeeding sentence of Section 15 (7) goes on to authorize the Commission to require the carrier to keep detailed accounts of all moneys collected under the new rate schedule and the section then concludes with the direction to the Commission to decide these cases as early as possible. Now Southern regards the words, “Shall go into effect,” as working a complete ouster of federal court jurisdiction. The hitch in that argument as we view it is that we are dealing here with a section which in its entirety is seeking to define the powers of the Commission. It does not in terms address itself at any point to the question, what if any powers may exist outside the Commission. This is not a statute --
Potter Stewart: But there were -- if there were no -- now, the Commission has creature of statute -- if there were no Commission, that there were no Interstate Commerce Act, would the Court have power -- would the Court have power to enjoin these rates, you think?
Ralph S. Spritzer: That would depend I think on initial determination as to whether there was a legally protected interest being asserted by the particular --
Potter Stewart: Do you think there is --
Ralph S. Spritzer: -- contestant or plaintiff.
Potter Stewart: You know that's -- I know that but --
Ralph S. Spritzer: That comment (Voice Overlap) --
Potter Stewart: I'm just stating the question a different way.
Ralph S. Spritzer: Yes. Well, I think there's no dispute but under the statute, there is a legally protected interest in water carriers to realize whatever inherent cost advantages they may have.
Potter Stewart: But the statute is clear that after seven months the rates go into effect and so you have to rely on something beyond the statute, different from the statute. And I'm now asking if there were no statutes which we -- would there be power, would there be a power (Inaudible) --
Ralph S. Spritzer: The in --
Potter Stewart: -- to enjoin this [Inaudible] --
Ralph S. Spritzer: I think the interest of the water carriers depends upon the statute. That does not the answer I would submit, the question whether the statute that precludes any ancillary judicial relief which will serve to make the agency's statutory role an effective one. In -- it may be, I suppose it would be that so far as the competing water carrier is concerned it would have not had standing at common law to be free from competition, maybe quite different as to the shipper or as to shippers or other party.
Potter Stewart: Might have standing, be free from unfair competition but that had quite a different meaning as we both know.
Ralph S. Spritzer: Yes. I was about to state that this is not a statute, which like many federal statutes in one form or work -- of words or another, says that the remedy provided in the Section shall be exclusive for the sole relief and remedy shall be provided by the Act. On the contrary, this is an Act which has a different philosophy expressed in Section 22 which states that the remedies provided by the Act shall not bridge or alter any remedies which existed at common law.
Speaker: Was there a refusal of the Commission to issue a stay to be reviewable with the court's findings?
Ralph S. Spritzer: To which -- to suspend, I would say not, Your Honor.
Speaker: Clearly now, wouldn't they, under the Act?
Ralph S. Spritzer: I would agree -- agree with you.
Earl Warren: We'll recess now.
Ralph S. Spritzer: The essential problem as we view it is not one of jurisdiction in any strict sense, but rather one of accommodation. Assuming as we do the inherent powers of an equity court in situations of the type here presented, the power to preserve legally protected interests during the pendency of an administrative proceeding, one must ask the question to what extent is this power limited or qualified by policies which have been determined by Congress, that is to say implicit in the statutory scheme or in the legislative history. We have no quarrel with respondent's view certainly that the Court must show a fair regard for that statutory scheme and respect those congressional policies which may be discerned. Let me go back to 1910 and consider the situation as it then existed, 1910 of course being the year that the Mann-Elkins Act accorded suspension powers to the Commission. Southern's brief states quite accurately at page 19 and I quote it, “That the Commission was empowered to act only upon complaint and as to a rate that was then in effect.” They are speaking there of the pre-1910 situation, this matter of course that any relief from possibly disastrous consequences pending a commission determination of the legality of the rate had to come from the courts. There was however, division and confusion in the lower federal courts as to how they should proceed and as the Interstate Commerce Act then stood there was considerable reason for this uncertainty. For a court to enjoin a rate before there was any determination, even a preliminary one by the Commission as to its probable unlawfulness which seemingly involved the Court at least in a measure in the rate making or at least the rate judging process. And some of the lower courts feared that enjoining a rate from taking effect might conflict with the spirit of this Court's early Abilene decision which had held that the courts could not grant damages to shippers who had allegedly been charged unreasonable rates in advance of an agency determination, a Commission determination of the issue of reasonableness. I might note parenthetically that this Court in the Tift case in 1909, that's Tift against Southern Railway, had left open the question whether the grant of injunctive relief to prevent a rate from taking effect might be distinguished from the bringing of an action at law for damages. The fear of possible intrusion on the primary jurisdiction of the Commission apart, there was a second apparent impediment in the pre-1910 period to a grant of injunctive relief for under the literal language of the statute as it then stood, the Commission could take action only in a -- in relation to a rate which was currently demanded, charged or collected. If a shipper therefore succeeded in securing an injunction against a carrier's putting a rate into effect, the consequence seemingly would be a permanent injunction rather than mere temporary relief. That is to say, if the Court prevented the rate from taking effect the Commission which has the ultimate job under the Interstate Commerce Act of determining the legality of the rates might have been its timing because under a literal language -- under the literal language of the Act the Commission's jurisdiction wouldn't attach. It wouldn't have any power to take any action until the rate was being demanded, charged or collected. A few courts, notwithstanding these problems, did grant injunctive relief in the pre-1910 period whereas others concluded that the grant of injunctive relief would interfere with the primary jurisdiction of the Commission. It was in this posture with the equity decisions of the day in a highly confused state that the shippers, shippers went to Congress with a request that the Commission be accorded powers to grant suspensions. The administration, the Taft administration supported this idea and an administration measure was introduced, though it proposed merely a power to suspend for a 60-day period. The shippers, at least at their most extreme, sought suspension of every rate and suspension for an unlimited period; that is until the administrative proceeding was completed however long that might be. The carriers on the other hand understandably wished to confine the suspension power if it were granted as narrowly as possible and to have it for a short period.
William O. Douglas: Was there any proposal made that a court could enlarge the time?
Ralph S. Spritzer: I will come to that in this legislative history, Your Honor. There was at one point an amendment which would have had that as one of several consequences. The shippers advanced the arguments by and large that damages represented a delayed and a sometimes inadequate remedy. The carriers took the position that to the extent rates were held up or delayed that they would suffer a loss which could not be recouped, that loss of course occurring if the rates ultimately proved lawful. Congress ultimately compromised. As the debate shaped up in both Houses, the principal controversy became one between the advocates of a limited period of suspension and the proponents of unlimited suspension and as I say a bargain was reached. Congress did not provide either for an unlimited period of suspension or for automatic suspension of every rate. It did give the Commission discretion and it did extend the period for which the rates might be suspended from 60 days which was the original proposal to ten months. Most Congressmen apparently believed and this was repeatedly stated in the debates that this ought to be a sufficient period within which to complete proceeding. A number of the legislators expressly noted that they opposed unlimited suspension because they wished to put some pressure on the Commission to get cases out of the way. They did not want to give the Commission carte blanche to stay the rates indefinitely, a possible prejudice as to carriers but to make every effort to accelerate the disposition of these cases. Now, there was some discussion, it was not extensive, as to whether equity could intervene if the Commission failed to complete its task during the suspension period. Several Congressmen said that there would be equitable power and several others said equally clearly that they doubted it. I suppose the statements on this point are something of a standoff. There is certainly no consensus on the point. We do suggest, however, that this is significant that neither those who thought there was power nor those who doubted it suggested that Congress should take away or preclude the exercise that any power that equity might have. I think the only fair inference one can draw from the debates on this point is that Congress was content to leave this question in the lack of support.
Arthur J. Goldberg: The question was flushed now, was it?
Ralph S. Spritzer: It was and there were statements both ways. Some said Congress -- equity of course can intervene to prevent irreparable injury and some referring to some of the cases which are denied of injunctive relief expressed a doubt in the cases itself.
Potter Stewart: And you say there was or it's going to be apparent consensus upon the proposition that the Act did not destroy any power that the court might already have.
Ralph S. Spritzer: Or might otherwise have.
Potter Stewart: Yes. Well, that brings in (Voice Overlap) --
Ralph S. Spritzer: The doubts, I think arose largely from confusion as to what the existing case law was then.
Potter Stewart: That brings me back in my mind at least to the other question as to the -- my other question as to what power would the court have if there were no Interstate Commerce Act in this situation?
Ralph S. Spritzer: The rights of the particular complainants here may well depend upon their being an Interstate Commerce Act, except to the extent that they are making some relia -- that some reliance upon a claim of discrimination which has been -- which was recognized in the early common law pre-Interstate Commerce Act cases. Assuming as I do that the water carriers' rights depend -- their legally protectable interest depends upon the Interstate Commerce Act --
Potter Stewart: These are statutory rights that are being asserted (Voice Overlap) --
Ralph S. Spritzer: Yes. That to me does not answer the question whether there is any equity power of the traditional kind to grant relief ancillary to the conduct of the administrative proceeding in order to enable that proceeding to reach its intended destination and to prevent the case perhaps from becoming moot in one sense. If there's the public interest, as I take it there is and the preservation of any medium of competition which enjoys inherent advantages and if it be assumed as in the present posture of the case one must, that these rates might destroy certificated water carriers which have an inherent advantage, then in those circumstances I would -- they have the view that the court acting on the finding of the Commission itself, that these rates appeared to or at least, has reason to believe that they're unlawful.
Speaker: [Inaudible]
Ralph S. Spritzer: It is a --
Speaker: [Inaudible]
Ralph S. Spritzer: It is a necessary agency determination before the agency has the power to stand if they would -- I would -- if the preliminary finding or determination to be sure. But it avoids any possibility of there being a conflict or interference by virtue of the court speaking in the first days as to a matter to which the Commission has not addressed itself. Now, Southern makes the point and this brings me back to the question of Just -- Mr. Justice Douglas a few moments ago. Senator La Follette proposed an amendment during the -- while this was on the Senate floor which would have given the commerce court which was created in 1910, the power to grant the kind of relief that petitioners were seeking here and that is so. But Senator La Follette's proposal would have gone much, much further. It would have authorized the commerce court to duplicate the Commission to review the Commission's exercise of its suspension power and what if suspension even when the Commission had refused to suspend. His proposal as a result was objected to on the ground that it would usurp the Commission's primary jurisdiction and give parties the right to litigate before the commerce court, the very issues which were simultaneously pending before the Commission. Moreover, in opposing this proposal, Senators Burton and Elkins, the latter of course the co-sponsor of this measure and certainly his views are therefore entitled to great weight here, Senators Burton and Elkins stated that the power to invoke the court of equity in a proper case was already available and hence this amendment was not necessary. Pardon?
Hugo L. Black: [Inaudible]
Ralph S. Spritzer: Burton, Your Honor.
Hugo L. Black: Burton from Ohio?
Ralph S. Spritzer: No, not -- not Mr. Justice Burton.
Hugo L. Black: No, OI am asking about Mr. Justice Burton, why would he [Inaudible], it's alright you don't --
Ralph S. Spritzer: I don't recall, Your Honor. Senator Elkins' statement or at least a portion of it is quoted in our brief at page 35. I can't take the time to read it. Your Honor's will note that he stated very broadly that anyone can go into a court in a case where irreparable injury is about to be perpetrated and get an injunction. Senator Burton to whom -- to whom I just referred stated that -- we quote him briefly on the preceding page. That Senator La Follette's amendment was unnecessary because there was already in his words ample opportunity for the shipper –
Byron R. White: Where are you reading from?
Ralph S. Spritzer: I'm reading on page 34, about two thirds, 3 to 4 to the way down, ample opportunity he said for the shipper to seek relief and I quote, “Both before the Interstate Commerce Commission and the general courts of the country.” Senator Heyburn whom we also quote and his remarks appear on our brief at page 32 in the long note similarly stated that under the statute, the shipper may still go into court. Now, there were as I have stated earlier, statements by other Senators and Congressmen, that they doubted that there was equity power. Summing up the Congressional policy as we view it was this. Congress recognized certainly that there were certain -- let me call them ordinary hardships to be anticipated on both sides. For the carriers, suspension meant a delay in the loss of the rates ultimately proved to be lawful. For the protestants, a failure to suspend would entail if the rates ultimately proved unlawful, the interim burden of paying higher charges and the possibility that damages might prove incomplete. A shipper for example presumably would be able to collect the excess payments he made to the carrier if the rates proved unlawful, would he be able to prove consequential damages, such as lost business during the period that he was required to ship goods even in a fixed rate. As we see it, Congress reached a compromise, it struck a balance between these competing considerations to which it referred. This ordinary hardship associated with having rates in effect during an interim period before there legality is finally determined would've fall upon the carriers for the first period, it's a seven months period if the statute now stands. Thereafter, if the proceeding were not completed, those burdens would be shifted to the shipper or to the competing carriers as the case might be. We don't find any evidence in the history that Congress' countenance, the prospect, that the carriers might be free to shift a burden calculated to destroy the other party or that it was of the view that equity should be precluded in such extreme circumstances from guarding against consequences of this kind. In short the petitioners here were alleging simply a threatened loss of profits, not the threatened extinction of the business, but the business which itself is affected with the public interest and operates under a certificate of convenience and necessity. If they were merely claiming possible losses, we would say in the light of the statutory history that they should be relegated to the remedy of damages under Section 8, even if that might prove less than 100% adequate.
Potter Stewart: And it can't be a -- as I understood the co-counsel, Section 8 has never have been successfully utilized. Is that an overstatement? Did I misunderstand it?
Ralph S. Spritzer: I know of no case. I think that is what we -- you expect correct but no case in which a competing carrier has obtained damages before the -- I know of no case in which a competing carrier has obtained a damage award or reparations award before the Commission. That does not imply that the Commission has held that that remedy is unavailable. I don't know how many proceedings had been brought under such a theory. There appeared to be no reported cases of such. We are suggesting that different considerations apply, considerations to which equity need not be blind. There is ground for believing that the petitioners may have sunk from site before the administrative proceedings concluded and I say that's particularly true. We believe where public interests which are involved, the public interest in having various modes of transportation is at stake. The respondents finally suggest that the Government's view is in conflict with a comment, a dictum which appears in this Court's Great Northern opinion in 1930. The Court there did state that Congress in 1910 have entrusted suspension power only to the Commission. The significance of that dictum must be appraised in terms of the issue that was actually before the Court and it's worth taking a moment I think to state it. A state regulatory authority in that case had prescribed certain intrastate rates. The rail carriers were -- reviewed these were too low. They brought a proceeding therefore before the Interstate Commerce Commission under Section 13 invoking the Shreveport doctrine, asking the Interstate Commerce Commission to raise the level of the intrastate rates by finding as is required under the Section that those intrastate rates imposed a discriminatory burden upon interstate commerce. And while the ICC was considering that matter, but before it had made any finding whatever if there was any burden on interstate commerce, the carriers also went into court to secure an injunction against the rates prescribed by the State Commission while the federal administrative proceeding was pending. Quite properly we think, this Court stated that the judiciary could not interfere with the undoubted regulatory authority of the State which could be overridden only in the manner provided by Congress. That is to say after a finding by the Interstate Commerce Commission which had not been made, that interstate commerce was being prejudiced. Now the instant case, in striking contrast to Great Northern, involves no conflict either between federal and state or more pointedly here between judicial and administrative authority. When Southern filed its rates in this case there were two issues presented to the Interstate Commerce Commission. First, the preliminary issue whether there was reason to believe that the rates were unlawful and should therefore be suspended. The Commission has answered that question affirmatively, for a court to accept that determination and to proceed upon the basis of it obviously can work no interference with the administrative process. And the second issue before the Commission is the ultimate one on the merits whether the rates are lawful. And again, no one can suggest that if the status quo is maintained until the Commission can make its final decision on that issue, that they'll be an interference with the agency. Stating it bluntly, it can hardly interfere with the Commission's duty to decide whether these rates are going to result in the unlawful destruction of the barge lines, a danger which the Commission itself has at least apprehended by its suspension order, if the courts undertake to keep the barge lines alive until the Commission can write its opinion. Before closing and I don't know want to trench on my colleague's time any further, I'd like to emphasize that in our view, one seeking an injunction after the statutory suspension period has been exhausted has a very exacting standard to meet. We would suppose that he must show injury of a magnitude and gravity which go far beyond the ordinary hardships which might be associated, which Congress we think associated, with having to pay a rate of questionable validity during the interim period.
Arthur J. Goldberg: [Inaudible]
Ralph S. Spritzer: No, I'm only suggesting that the Court in exercising those functions must have a fair regard for what we conceive to be the balance that Congress was attempting to strike. We don't think that the mere fact of delay and which maybe involved in a damage remedy, the near possibility that one might have difficulties of proof of damages would in light of this entire scheme warrant equitable intervention. We think problems of the different order are presented in a case --
Arthur J. Goldberg: [Inaudible]
Ralph S. Spritzer: Yes and I would suppose that I would say that adequacy is relative then has to take in to account the statutory policies and the congressional judgments that are involved.
Potter Stewart: If you are away as Mr. Justice Goldberg suggests adding a new equitable test, not irreparable damage but extremely irreparable damage or something like that?
Ralph S. Spritzer: Well, one of the factors, which is extremely important here --
Potter Stewart: Absolutely (Voice Overlap) --
Ralph S. Spritzer: -- and in which I place great stress is not only that its absolute and final but that there are public as well as private interests at stake and I take it, public interests are not compensable at all in damages.
Potter Stewart: Like the no smoking sign, whether it says no smoking or positively no smoking?
Ralph S. Spritzer: That wouldn't have been my choice [Laughter]. I assume of course that the duty of appraising the equities must take place in the first instance in the lower courts.
Potter Stewart: But what I'm trying to understand was in the -- your argument as I do understand it is that in the ordinary case which absent all these problems might be one for the exercise of equitable jurisdiction an injunction should not issue. It's only in the ex -- extremely extraordinary (Voice Overlap) --
Ralph S. Spritzer: And I'm not fashioning that as a new principle of equitable jurisdiction in the abstract. What I'm saying is --
Potter Stewart: Balancing the equity in this kind of a situation.
Ralph S. Spritzer: That I think it -- well, not only that. I'm saying and I think it's fairly inferable that Congress may have made a judgment that these ordinary hardships should be borne seven months by the carriers and the remaining period by the other parties, but it contemplated throughout that there would be an ultimate remedy and that the shipper or competing carrier would be around and in existence viable there to enjoy the benefits of the final order in the case.
Speaker: Could I ask you a question before you sit down? Have any efforts made [Inaudible] to extend the seven month period?
Ralph S. Spritzer: Well, actually it's gone both ways, Your Honor. When Congress in 1920 created the Transportation Board, it thought hopefully that by relieving the ICC of very many duties was a creation of that board, that the ICC would not need as much time. I think the ICC objected to the reduction of it then made. In any event it was -- the suspension period at that point was cut down to five months. The Commission repeatedly went back to Congress and finally secured congressional approval of seven months in 1927 and it stood there for the last 35 years although the Commission with the increasing pressure of business and the increasing difficulty of cases since 1940 because of all of the problems of intermodal competition has been, I think having more -- has been having more and more difficulty in meeting its deadline.
Speaker: [Inaudible]
Ralph S. Spritzer: I would have to check on that, Your Honor. There's certainly no legislative change since then. Whether any bills have been introduced, I not -- I don't know.
Arthur J. Goldberg: [Inaudible]
Ralph S. Spritzer: I have not considered it in relation to that. I have considered it in relation to all of the statutes which have similar provision for a suspension of rate. That would be the Natural Gas and Federal Power Act, Communications Act and the Aviation Act.
Potter Stewart: Has the -- under the Securities Act of 1933, is there any time limitation of Commission's power, Securities Exchange Commission's power to hold up the registration fee? Do you happen to know?
Ralph S. Spritzer: I'd --
Potter Stewart: I don't, I'm just asking for information.
Ralph S. Spritzer: I don't have it. You know, I've looked at the provisions which are now, I guess in the sense they are ratemaking statutes. They are -- the ones I just mentioned are modeled pretty much on the -- on Section 15 (7). The other agencies have not had this kind of problem in by and large and it's understandable that there is not because the most difficult and time consuming cases are the ones which involved the very difficult economic problems of competition between different molds and the ICC having water carriers, rail carriers and trucking interests under its jurisdiction is vexed to a degree I think that the other [Inaudible]
Speaker: It's probably not as much as the Power Commission.
Ralph S. Spritzer: Well, in the -- the Power Commission of course has a tremendous burden of rate proceedings. I'd never known any Power Commission case however, in each it was suggested that an increase in gas rates is going to put the pipelines out of business.
Byron R. White: Well, Mr. Spritzer, do you -- you don't limit your suggestion for -- whether it's extraordinary rule, you don't limit it just to -- where another mode of transportation is involved?
Ralph S. Spritzer: No. I was merely attending to convey that I thought that that has been the practical problem. That is the type of case which is apt to present a claim of destruction of a public interest. It's also the type of case which is characteristically a long and hard fought case.
Byron R. White: And a -- well, there -- is there any legal basis for limiting it to this kind of a situation? The structure of the Act or the Commission or --
Ralph S. Spritzer: I think the policy of the Act as I intended to develop earlier would lead one to the conclusion that equity or not intervene, where damages were available and ought not to intervene perhaps even if there was a threatened loss of profits and there would be grave difficulties of proof. I draw this from the consideration that Congress balanced the equities, one might say in that type of situation. But certainly, as we view the history, it did not preclude equitable intervention in an extraordinary situation where only equitable intervention could in effect make the proceeding meaningful and preserved the parties who were involved in the public interest which where at stake.
Arthur J. Goldberg: [Inaudible]
Potter Stewart: Is that fair to say?
Ralph S. Spritzer: I would say that it's certainly fairly to say in 1910.
Potter Stewart: And that the only -- that the people who were damaged would be shippers not competitors?
Ralph S. Spritzer: I think that is so. And I think in the shipper case, it would be much more unusual where one could present as compelling a claim upon equities that seems to be available on the allegations here.
William O. Douglas: What [Inaudible] the lines of railroads?
Ralph S. Spritzer: No, not to my knowledge.
William O. Douglas: I suppose your -- the rule that you're arguing although would be available to rail carriers?
Ralph S. Spritzer: Yes. Certainly, the Act undertakes to prevent the inherent advantages of every mode of transportation whichever one may happen to have it. Now, we don't know on this record yet which mode has the advantage. Maybe Southern will establish these rates perfectly lawful, that they represent nothing more than improve the transportation techniques, that they're not as Arrow suggests far below their fully distributed costs. They should be entitled to charge these rates because they reflect an economic advantage and improvement in transportation.
Hugo L. Black: Do you not refer Mr. Spritzer to the allegations in connection with this application of the antitrust [Inaudible]? Do you think it has anything to do with them?
Ralph S. Spritzer: We have placed no reliance on it and I'm --
Hugo L. Black: This Court has held at the antitrust law provides for railroads.
Ralph S. Spritzer: Well, there are -- there's of course the problem there as to whether it applies at the instance of a private suitor.
Hugo L. Black: Why? I think we held it applies so far as your view was concerned representing the interest of private suitors?
Ralph S. Spritzer: That I believe was as to whether there was a conspiracy to establish the rates, they preceded the ratemaking process.
Hugo L. Black: Well, if there -- if there were conspiracy to -- part of the railroad could be filed together the fixed rates to get in effect -- temporarily to take advantage of a lap -- gap in the law --
Ralph S. Spritzer: That of course was also --
Hugo L. Black: -- to put them out of business, would that not charge antitrust violations?
Ralph S. Spritzer: Well, the Georgia case was before the Rebulink last year if Your Honor will recall and subject to certain limitations there's now an immunity for agreement among carriers of those rates. I'm going to leave it to the petitioner's counsel to develop his antitrust theory.
Hugo L. Black: Well, I was just asking if the Government has taken (Voice Overlap) --
Ralph S. Spritzer: I don't -- I don't -- I'm not fully -- I'm not relying on that. We've proceeded upon a basis of the allegations that a competing mode of transportation might be destroyed by unlawful rates and believe that those are allegations, certainly that the carriers ought to be -- that water carriers ought to be entitled --
Hugo L. Black: I would assume --
Ralph S. Spritzer: -- to prove if they can.
Hugo L. Black: I would assume of those allegations have shown if proven in violation of some federal law that was applicable to the party that would have some bearing on whether the suit would lie, would it not, even with reference to the 15 (7)?
Ralph S. Spritzer: Well, I have assumed that the primary point for determination here was whether realization of the purposes of the Commission proceeding, the pending proceeding permits the grant of an ancillary injunction and our submission is based entirely upon an analysis of the judicial power in relation to the Commission proceeding which is pending, Your Honor.
Earl Warren: Mr. Acheson.
Dean G. Acheson: May it please the Court. In response to the question just asked by Mr. Justice Black, I think we all recall that Mr. Lovett, in his argument said that the Southern Railway put these rates into effect without consultation with any other railroad, and I think we have a footnote in our brief which indicates that that argument, the footnote appears on page 10 of our brief, that that our argument has been abandoned.
Potter Stewart: In any event Mr. Acheson, a private party can't get an injunction under the antitrust laws, isn't it?
Dean G. Acheson: Correct.
Potter Stewart: Only the Government can [Inaudible] violation.
Dean G. Acheson: Now, may I – beg your pardon sir?
Arthur J. Goldberg: Mr. Justice Stewart, asked --
Dean G. Acheson: I'm sorry.
Potter Stewart: A private party cannot get an injunction under the antitrust laws in any event, even assuming a violation, isn't that correct?
Dean G. Acheson: I agree right there.
Potter Stewart: Only the Government can get injunctive (Voice Overlap) --
Dean G. Acheson: That is true.
Potter Stewart: A private party is limited to a suit for treble damages.
Dean G. Acheson: That is correct. Now, if the Court read it, may I go back and try to state what this case is about and the issues involved in it, and the attitudes of the Forties in regard to those issues. Because it seems to me that we have wandered a bit over the field today. This case involved as Section of the Interstate of Commerce Act, Section 15, paragraph 7. That Section in one form or another, pretty much the same form, has been in effect for half a century. During that half century, the shippers, carriers, lawyers, Commission, courts, including this Court have believed that this statute meant exactly what it said. The court below found this statute a model of clarity. It is now for the first time in this half century, being suggested that the statute should be given a new look. And that it be given -- being given a new look, it should be fitted out conceptions which have been suggested from the bench to be holy and novel in the law. 15 (7) does something in 1910 -- did something in 1910 which was novel. First of all, it gave the Commission the power to determine the legality of rates before they went into effect. And it gave it -- and it said that the rates should not be lawful unless and until they were filed by the Commission which might then start its investigation. The rates might not go into effect for one month after they were filed with the Commission. The Commission might while it was investigating the rate -- rates suspend their operation, so that they would not go into effect one month after they filed with it, about -- might be suspended up to a period of time fixed in the statute. I shall later on go over the changes in the times of suspension which interested Justice Harlan a moment ago. It also provided that when that period of suspension came to an end, it provided in 1920 and later on, that the rates shouldn't go into effect. In 1910 it was silent in regard to this. This is the statute which we are involved with today and the question before the Court is whether after the period of suspension authorized by the statue extended as it was here by agreement of the Southern Railway, after that period has expired, in the face of the language of the statute, may a District Court of the United States intervene and draft a restraining order. The case has been stated to you, but perhaps it might be well to go over that again also. The Southern Railway filed rates in 1961, new rates on grain moving from the river crossings into the territory of the Celtic. These rates were drastic reductions of rates already in effect. I shall later on have occasion to comment on this chart and what it says about those rates. I shall content myself at this moment by saying that the rates were drastically reduced because they involved a great innovation in ratemaking and in transportation, and in a moment I should tell you why. The reason for this, the reason why it is an innovation is that, first of all, new cars were designed and built by people who had never built railway cars before the Boeing Aircraft Company. These were aluminum cars that were larger than the ordinary cars. They carried twice the cargo weight at half the dead weight of a car. Again, the rate structure was different. This was a multiple car movement. It was -- the series of -- numbers of cars could be moved from one consignor to one consignee without breaking bulk and without, what is called frills, without privileges in transit, in other words, giving the same service to the shipper by rail as was given to him by the barge or buck -- or truck carrier. That is, it could be moved without breaking bulk in one movement by one consignor to one consignee and these savings prod -- produced a very much lower rate. I have to -- as I say at the end of the period, the Commission suspended the rates for a period of seven months. It found what has been stated to this Court in response perhaps to a question by -- Mr. Justice Harlan, the Commission is not required to find anything. It is only required to give the reason for a suspension. It could give it if it like the reason that it thought out in a whole it was a fair thing to do. In this case, it found that the Commission had reason to believe that the rates might be illegal and that they're unreasonable and illegal, unlawful rates and that they might be unjust and in violation of the National Transportation Policy. This was the finding before evidence without hit -- before evidence was taken without hearing, without argument. It need give only its reasons. At the end of the time as I've said, application was made to a District Court to continue or to give an injunction which would continue this suspension. The District Court denied relief finding that it had no jurisdiction. This went to the Circuit Court of Appeals for the Fifth Circuit which affirmed the District Court. From that time on there have been temporary restraining orders, interlocutory injunctions, pending appeal and pending this hearing granted by the District Court, the Court of Appeals and by a justice of this Court. Now, before turning to argument I should like state to the Court what I would call the anatomy of the argument. What are the issues? What attitudes do the various parties take toward those issues? This is complicated because very often there are three attitudes, one by the respondent, one by the petitioner, one by the Government. I should try to state them all to the Court. Let us start with the statute. As I said the statute, it gives the Commission authority to determine the legality of rates. It gives the Commission power to suspend rates but now only for seven months and it then provides that if the Commission has not decided the case, at the end of the period of suspension the rates shall go into effect. It doesn't say they may go into effect. It says they shall go into effect. Now, let's take up these three statements in the statute. First of all, all parties agree, the respondent, the petitioner, the Government, they all agree that the authority to determine the lawfulness of the rate is given solely to the Commission. No court, nobody else may interfere with the Commission's decision of that question except on appeal after decision is made. Now, so far as suspension is concerned, all parties agree that the authority of the Commission to suspend is in the first instance its own. No court may suspend, unless the Commission has done so first and unless the Commission has given some reason that it believes, there is occasion to believe that the rates may be unlawful. There's no question abut that. If the Commission should not suspend, these petitioners would not make the argument that they make here. It would be either agreed by all of us that no court may intervene no matter how great the showing of damage maybe. Now, I think it is also agreed, although I'm not so sure of this, I think the -- our two other opponents would agree that if this Commission suspends for less than the full period and then allows the rates to go into effect, no court may intervene no matter how great the damage maybe because there would then be no statement of any sort by the Commission which it is admitted must make this statement that there is reason to believe that the rates would be unlawful. We've come apart when we have the situation created -- that exists here, a situation where the Commission has suspended for the full period of time, and then under the statute the rates shall go into effect. In that situation, there are three different views. Our own view, the respondent's view is that the power to suspend, to enjoin, to prevent the rates from going into effect has been given solely to the Commission and no one else and that the legislative history to which I shall come to would indicate that that is so. And we contend further that there has been a legislative balancing of equities or convenience here, arriving at the conclusion that rates shall not be suspended for more than seven months. That during that time the railroad shall bear the irreparable injury for which it has no action at law if its rates should turn out to be lawful and that thereafter, other parties shall bear whatever burden they bear because they do have rights to recover damages. That is our view. Now the petitioner's view is a different one. The petitioners say that the power of the courts to suspend existed before 1910. I shall discuss this later on. It says that the Mann-Elkins Act, the Act of 1910 which we have been talking about modified this rate but did not abrogate. It modified it and if it existed before, now, after 1910, it -- an action could not be brought and that's the Commission had taken these prior steps. But if the Commission has then an action maybe brought in to courts, say the petitioners, because the time limit they say applies only to the Commission and not to the courts. Our answers to this will -- perhaps it appeared from what I have said and will appear more later. Now the Government takes a different position from this. It takes the position debutante about the situation before 1910. Now, it says quite correctly that some courts did intervene a granted injunction. It referred to Mr. Justice Hughes opinion in the Great Northern case in which it is pure dicta, dicta by a very important and honored judge, who says that in his opinion the better view wasn't before 1910. There was no jurisdiction in a court to grant an injunction. But in any rate the Government says, whether or not it existed before 1910, it was created by the Act of 1910. The Government says the very opposite of what respondents say. We say the Act of 1910 gave it solely to the Commission. The Government says, no by a curious sort of -- perhaps unintended result, the courts were given this power because once the Commission could find probable cause to believe that there was unlawfulness and issued a suspension order then the courts could do what they had not been able to do before, rely upon the Commission's finding and extend the injunction. But the Government goes on and says that the petitioners are quite wrong in believing that there injunction from the courts maybe activated by a plaintiff who is about to suffer irreparable injury. They say this is not so. Now, whether they say the added requirement as a jurisdictional requirement or not, I gather this morning from my distinguished colleague that he thinks it is a not jurisdictional in addition but it is merely a requirement that the court should be careful how they had. However, he says that he would not believe that an injunction is warranted by a person who appears before the court of plaintiff, who has what he calls, the ordinary or garden variety of irreparable injury. Garden varieties won't work in this case. Now the plaintiff must have what I suppose to bullet -- battle the parley of trade would call a super colossal irreparable injury. It must be something the Government says, amounting to extinction or some very grave difficulty. In other words, the propriety of the action is not the jurisdiction to action. It depends upon the degree of the plaintiff's anguish. But it is ordinary -- ordinary anguish, the court may not act. If it is very great anguish then it should act, but the anguish must be quite a bit greater than the ordinary. Now, as had been pointed out, this suggestion is a wholly novel one. This has no basis either in the history of the statute, the legislature -- the legislative history nor does it have any basis in prior court decisions on equity jurisdiction, nor does it have any basis in legal history. This is wholly new. Not only is it wholly new but it raises questions which the Government has not -- to which the Government has not given us the answer. It is all very well to say that it requires a plaintiff with a super colossal injury to come into court to get the injunction, but for whose benefit does the injunction run? Does the injunction only run for the benefit of those who will suffer this super injury? If that is so then obviously there will be a multiplicity of rates or perhaps the Government suggests that the rights -- rates might be varied according to the degree of injury. If a plaintiff comes in and says, “I'm about to be put out off of business,” the junction must issue -- it is at -- going to mean that everyone else is protected whether he -- whether they have just garden injury or not, or should there be as I say this variety of rates. Shall the court tamper the rate to the Shaw and Lamb or is the Shaw and Lamb the plaintiff which gets benefits for all the lands and this will present, I believe to the courts rather -- more problems than the Government expects to solve. This then is the anatomy of the argument before us. Before we go into that argument, may I say a few words about the background? This is what my distinguished friend and colleague, Mr. Lovett, argued to the Court this morning and they -- the background is illustrated and by -- what he said and by the map behind me. He pictures the background, how does this struggle, he says the chapter in the struggle in the Tennessee Valley between the barge lines and the railroads. This -- I -- we shall not discuss, it would seem to me quite unlikely that if this was solely a struggle between two types of carriers, we would have found the interveners in this case that we have both before the Commission and in some cases before this Court. Why for instance would the Southern Governor's Conference or the Departments of Agriculture of the United States, or of North Carolina or Virginia, or Missouri or the American Farm Bureau Federation, or the Georgia Poultry Federation or the Alabama Cattlemen Association, or the Georgia or North Carolina Public Utilities Commission, or the Southeastern Association of Railroad and Utilities Commissioners or the National Association of Railroad and Utilities Commission, why should they intervene before the Commissioners are here if this is only a fact recital route between two carries? I wish to refer to a different background and for a different reason. It is not to say who is sheep and who is wolf, but to say why these rates have been put into effect. The result of the Government's argument and of the petitioners' argument is that at an early stage of the ratemaking process the courts should be injected to do what the Government calls their traditional task of weighing the equities. What I am about to say on the back is to show to Your Honor that it is nothing of this sort. There is no tradition about what the courts will be doing here. This is not the kind of a thing that a court is equipped to do or has done or can do. And why do I say that? Before the Commission, evidence was introduced to show the history of the carriage of grain in the Southeast, into the Southeast over the last five years in regard to which figures were available. The figures which I'm about to state to the Court, I do not wish to represent as absolutely accurate statistical figures. The figures for carriage by rail at water are accurate and complete. The carry -- figures for carriage by truck have been estimated by statistical methods used by the Department of Agriculture and others who were engaged in trying to discover the amount of grain imported by unregulated carriers. And therefore this is -- there isn't element of estimate about this and the figures can be wrong by say 10%. Now, what do these figures show? They show that over the five years from 1955 to 1960, the railroads carried at the beginning 55% of all the grain introduced into the Southeast. At the end of that period they carried 22%, less than half in five years. It showed that the trucks neither did -- that the water carriers in 1955 carried a quarter, 25% of all the grain brought into the Southeast. At the end of the period they carried 21%. Trucks at the beginning of the period carried 20% and at the end they carried 57%, almost three times as much but this Your Honors is only half the story. Between 1955 and 1960, the amount of grain brought into the Southeastern section of the United States tripled. It increased by seven and a third million tons of grain and it is interesting to say who shared in that new business. The new business which was twice as rate as the whole business which existed before it. The railroad gained less than half a million tons out of this seven and a third million. The barges gained a million and a third they increased their carriage by 250%. The trucks gained five-and-a-half million tons of grain and as I say, rose from 20 to 57% of the carriage. Now this truck competition, Your Honors, is something new. This is new since the war. This is a new development arising out of the great increase in super highway, the great increase in automobile production which has produced enumerable new trucks which one can buy with a small down payment and the nature of this carriage, this is 99% unregulated. These are not great truck lines which are carrying as common carriers. These are small gypsy truckers who carry Southern goods north. They carry fruits, lumber, vegetables, stones of various kinds, marbles, sand stones, whatever it maybe. They carry this north and on the back haul they pick up grain and carry this into the south. And usually the owner-driver-operator buys the grain himself and sells it when he gets into the south. And because all he has to do is to pay a little more than the added cost of gasoline for loading his truck, his rate and his profit on the grain are the same thing. Nobody knows what these rates are, there are no rates. These are private treaties. Sometimes they're not treaties at all as I have said. He merely buys grain, carries it south and sells it. Much of the barge traffic is wholly unregulated also or you mean to escape from the regulation of the Interstate Commerce Commission by carrying grain by barge is to carry only grain in one tow. This takes you out from under regulation. Of course if you have a barge made out of something else in, then you are not exempt under default commodity provisions. And so a great deal of it is done by private carriage also and there are no terms, no rates are fixed. A great many of the barge lines of whom I believe, although I do not dare assert that the petitioner here is one, are alliances which do not own equipment at all. They lease equipment from stockholders who owned the equipment in connection with their own business, such as sand and gravel companies. They get the other with other companies and form a barge line. There equipment is used by the barge line and what is rate, what is dividend, what is profit, nobody can ascertain. Therefore, briefly I point that this -- this chart is all based on the basis that published common carrier tariffs are being charged and that at -- because those tariffs are charged, the barge line will go out of business. So, nothing could be further from the fact. There are various rates which were on the end, have been taken off showing a barge rate at Guntersville and then a rail rate to Birmingham. And they said they're -- they've denied proposed rates that so much of that combination of these published common carrier barge rates and the published common carrier truck or rail rates that they would be out of business, but that isn't what happened. This is all fanciful. The idea of the -- this super colossal injury is going to take place days upon a series of assumptions which in fact on our proof and in my judgment cannot be proved. But aside from that, what I have been saying to the Court about the background of transportation in the south -- into the Southeast is not an unusual story. This has been coming about, ever since the development of the throughways and the development of the trucks. And it is clear that only drastic innovation by the railways is going to keep the railways alive. If they go on with their conventional rates and a conventional traffic patterns, and their conventional traffic arrangements, the railroads are bound to lose as they have lost here all the new business which a developing economy is bringing about, they are bound to lose that to the truckers and to the barge lines.
Arthur J. Goldberg: [Inaudible]
Dean G. Acheson: This is --
Arthur J. Goldberg: [Inaudible]
Dean G. Acheson: Yes, sir. I completely disregard those.
Arthur J. Goldberg: Why?
Dean G. Acheson: Because I think they are based upon what I've just been showing you here. Your Honor, if you take published rates and assume that all carriage is carried on by the published rates of the barge lines and trucks, when the fact of the matter is that perhaps from 80 to 95% is not carried on then the deductions made from the published rates are perfectly true and if these were in truth the fact somebody would suffer severely but it isn't the fact. And therefore I -- it seems to me that for a court to believe what everybody knows is not the fact is for the court to take on unnecessary blindness at any rate. Your Honors' accusation about my attitude is correct, yes sir, it is entirely correct. Now I was saying this innovation has got to attrition. This isn't my statement. This is the President's statement. The President's transportation message says that this is essential. The Interstate Commerce Commission in half a dozen recent decisions has called for innovation by the railroads and here we have innovation. Innovation means lower rates. It means new patterns of transportation. It means new rate patterns also and this means that somebody is going to make less money or somebody is going to be hurt. It may be that they are seriously hurt. I would be extravagant if I said nobody would be hurt in any way from this rate -- these rates. They will be hurt, but this is what competition is about. Someone is always hurt by competition. The railways cannot exist if the rule laid upon them is that you may not change your rates so that you inconvenience any of your competitors. If this is the rule, the railroads are out of business. If the rule is as the National Transportation Policy asserts that the nation -- natural advantages of each form of traffic are to be preserved, then here is a natural advantage to the railroads.
Hugo L. Black: That's the question that the Commission will have to decide, isn't it?
Dean G. Acheson: That is correct, sir. That is correct. That is the heart of the matter before the Commission and the Commission, one of the questions was if you carry in bulk in one large movement from St. Louis to Birmingham by rail that's a nation -- natural advantage of the rails. If you have to come from St. Louis and unload a barge, load it on the railroad transit and carry it to somewhere else and then unload it, that's a disadvantage, a natural disadvantage of the barge lines. At any rate, I am giving you this background for the purpose of coming to the one point that I want to make out of it and that is that in a situation like this, no court, no United States District Judge, unguided by the investigation of an expert agency, unhelped by the findings and analysis and the recommendations of the Interstate Commerce Commission is capable of weighing the equity. He doesn't even know what the equities are. Suppose it is true that weaker barge operators will go into bankruptcy. How do you weigh that equity against the whole advantage to the Southeast of the United States in lower cost of grain, increased developments in summer of the states? Some cities where new elevators will be erected, new business will occur, a larger and cheaper poultry industry, how do you weigh these equities in the traditional sense? It is only the Interstate Commerce Commission which is equipped and staffed to find out what the net of all these changes in the economy of a vast area which is equipped to find out whether this will in the long run benefit the development of a complete transportation system. It is only the Commission that is able to weigh these equities and this is why the Interstate Commerce Commission has put these powers and these duties upon the Commission and not upon the courts. This is the reason for the creation of the Commission in the first place and for giving it the power to suspend and only giving it to the Commission. Are the courts, if my brethren's view here is persuasive to the Court, are District Courts to intervene at the end of seven months, take witnesses away from the hearing before the Interstate Commerce Commission, duplicate its investigation into what is going on to find out what the equities are and how they should be balanced.
Hugo L. Black: Has that been done?
Dean G. Acheson: [Inaudible]
Hugo L. Black: Has that been done?
Dean G. Acheson: No, sir, it has not been done.
Hugo L. Black: But they weigh -- equities they weigh were or was there, at least to the equities outweighs of whether the allegations, sufficient reason to believe that the allegations were true as if indicated they were that this rate would be below cost to the railroads that they were doing or putting them on for the purpose of destroying and would destroy the barge lines if some action were not taken. That is quite different, isn't it to who should ultimately decide whether that charge is right?
Dean G. Acheson: My point, Your Honor is that not only are the courts incapable of weighing those equities but to the Congress has said they should not weigh those equities, but that the Commission should.
Hugo L. Black: But why are the courts incapable of weighing the equities assuming the allegations are true which as I recall the railroads have not denied, that these rates will put these barge lines completely out of business if the thing is not suspended. Why -- why a court is not able to weigh that equity? I'm not talking about what --
Dean G. Acheson: [Inaudible] --
Hugo L. Black: -- that'll eventually be the rate, that's a different thing.
Dean G. Acheson: How are the courts to determine this question? How are the courts to determine whether the rights are compensatory or not?
Hugo L. Black: Well, did the railroad deny that this would put the truck line -- the bus -- barge lines out of business?
Dean G. Acheson: Well, it certainly would, most certainly would deny that, Your Honor. We haven't had any trial. Of course, and we hope we never we'll have a trial but they would deny it without any hesitation.
Hugo L. Black: Well, do you have -- you had the trial at least by affidavit before the District Court and you presented affidavits and they did, didn't they?
Dean G. Acheson: Yes.
Hugo L. Black: And the Court reached an opposite conclusion, didn't it?
Dean G. Acheson: The Court did and I'm saying the Court is incapable of wisely coming to that conclusion. You really have to have the expert knowledge of the Commission to know whether the total sum of equities involved here, some of which can never be represented before the Court at all, the interest of all the consumers in the Southeast which is represented before the Commission, the interest of the truck carriers who are not before the Commission at all, the interest of communities in the south which are not before the Court. These things cannot be dealt within a Court and Congress knew that they couldn't be and knowing it wrote the statute that they did write. Now may I -- I am reminded that the court, Mr. Justice Black, I'm reminded that the court below only found irreparable injury that there -- that the affidavits indicated irreparable injury but not that they would be put out of business at all.
Hugo L. Black: What was -- what was that based on?
Dean G. Acheson: This is based on the findings of fact of the United States District Court in Alabama.
Hugo L. Black: Based on what evidence?
Dean G. Acheson: On the affidavits, which were before the Court, you and I were discussing a moment ago.
Hugo L. Black: Did not the affidavit cite that would put some out of business?
Dean G. Acheson: Yes, the affidavits charged so but the Court did not find it so.
Hugo L. Black: That was the basis for the charge that would inflict the irreparable damage, wasn't it?
Dean G. Acheson: The -- this was one of(Voice Overlap) --
Hugo L. Black: District Courts found that --
Dean G. Acheson: Yes, they would lose money and (Voice Overlap) --
Hugo L. Black: When the District Court found that will inflict irreparable damage. Is this by rights?
Dean G. Acheson: It is quite right, it is. Now may I come with this perhaps over long introduction to a discussion of the Interstate Commerce Act, Section 15, paragraph 7. It means we assert what it says and the language is plain enough. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate shall go into effect at the end of such period. It's the language one would think was played. Mr. Justice Stewart has said, “Perhaps, to make it plainer, it should say positively go into effect.” Perhaps that would make it plainer but not much plain and this, Your Honor presents -- Your Honors presents to a person in my position with the problem. How does one argue the obvious? One can only perhaps go on saying it over and over again which would be tiresome and would not help the Court. But perhaps, one way to argue the obvious is to show what the problem was before the statute went into effect. What the Congress was discussing? What the issues were before the Congress? And how the Congress undertook the deal with that problem? Now before the Mann-Elkins Act of 1910, there was they say the very least, the gravest question is to whether the United States courts had any authority to enjoin these rates while the Commission was investigating. Mr. Chief Justice Hughes thought they had no power to do this at all but I think it's irrelevant to hear whether they had it or whether there was great doubt about it, certainly there was the land. In 1910, the Congress intervened into this, into this situation and it authorized the Commission to suspend rates and only the Commission. There is not a word in the statute to indicate that it was granting authority, if authority did not exist that it was granting authority to the United States courts. There's not a word of that sort there. There is not a word of any sort except desultory statements by various members of Congress during debate as to whether they were considering the question of granting. This question was not issue. It was not before the Congress at all. The bill proposed, the Committee has proposed, everyone discussed giving this power to the Commission. Not a soul proposed except Senator La Follette that it should be given to anyone else and Senator La Follette's proposal as you have heard was rejected. The issue which was discussed was a real issue and in this issue the sides were pretty well formed between the progressives, the insurgent, Republicans on one side and the more conservative members of the Congress on the other. And this issue was, shall we take away from the railroads their prior power, shall we take completely away from the railroads their prior power to put rates into effect first and litigate them afterwards or, shall we say that after a reasonable chance has been given for the Commission to look into these rates, we will divide the irreparable injury. Everybody knew there was going to be irreparable injury. The railways are irreparably injured if they are committed to collect lawful rates, other people maybe irreparably injured, even though they have actions at law if the railroads do collect rates which are later held to be unlawful, shall we divide this by dividing the time that the rates shall be in suspension? Now this was the argument before the Congress. This is what they discussed and in the Act of 1910, this battle went back and forth and the legislative history is all directed to this question. And you see first of all the insurgents putting in amendments which would say no rate is lawful until the Commission has said it's lawful. These were defeated. Then the stalwarts begin to offer concessions. They at first said, “Two months suspension.” Then they said, “Well, we're going to double that, four months suspension” and the insurgents had enough votes to beat that off. And finally, you -- there was a compromise made by saying the Commission may suspend for four months, but if that isn't enough time they may have six months more, but the principle was established that there should be an end at some not, an end fixed by Congress of the period of suspension. In the Transportation Act of 1920, this period of ten months, four months plus six months were shortened to five months. Now, five months proved to be too short. In the Act of 1927, the period was then extended to one lump sum of -- one long period of seven months. But I suggest that reason box at the thought that all of this debate, all of this struggle between intelligent, earnest, convinced men was only a pillow fight that there was no reality in it at all. Because these men were so stupid that they did not know unbeknownst to them whatever period they might agree on that the Commission should suspend that they were giving power to the courts to step in afterwards and continue the suspension until the Commission should decide. This I think denigrates men who are worthy of better treatment admits. These men thought they were fighting and indeed they were fighting about a principle and about a real issue. Can you say that they weren't at all -- that was all a lot of foolish business back and forth is to how long the Commission should be able to suspend where the courts always lurking in the background, able to complete the suspension. This I think is completely to abnegate history. There aren't many occasions as clear as this, if the Court please, where a very considerable battle appears clearly on the page of statute, here it is, right on the statute itself. I know of only -- of the -- one other case where it's as clear as this which is not without its illustrated interest. Sir John Neil talks about the first Elizabeth's battle with the Congress and with the Parliament of 1559 on the issue of the British prayer book. This was a battle which nearly upset the Tudor regime in England and it was compromised around a colony. It's compromised in that part of the preamble in the Eucharist, in the double sentences separated by a colon in which the bread and wine are administered. Sir John points out that the first one of these sentences is the prayer book of Panama, the Catholic doctrine, the real presence then at the end is a colon. The second sentence is Swiss Reformation Doctrine. These two about which the Queen and the Divines were battling were put together and separated by a comma and here in that one page of the prayer book, you'll find the great issue of the early days of Queen Elizabeth, an issue which might have divided England and overthrown the Queen, here it is now unnoticed by anybody because it's sanctified by centuries of usage. So it's true here, Your Honor. On this statute, in which my learned friend says all he can conclude is that the Congress wished to toss this question into the lap of the court. Nothing is further from the historical fact in there. That Congress had no idea of tossing this issue into the lap of the courts. It had every thought it was deciding it itself and deciding it after a tremendous battle and there, the Act of 1910 is an issue of a great battle in the Congress over this very question.
Potter Stewart: Mr. Acheson.
Dean G. Acheson: Yes sir.
Potter Stewart: I don't want to interrupt the order of your argument and this may or may not be relevant but this question has occurred to me. After the ICC makes it's a final determination in this case then of course there's the possibility of a review by a three-judge statutory District Court. Would such a court have power to enjoin the effect of the SEC's order, pending decision on the merits, is that ever been decided?
Dean G. Acheson: Your Honor, may I reply at a little length into that question? This general matter is discussed in the statute, and it says that a three-judge court created after an order of the Commission and only a three-judge court has authority to issue interlocutory or final orders, a final injunction regarding orders of the Commission. Its jurisdiction relates to orders of the Commission. Obviously, under that statute it can issue a temporary restraining order, interlocutory injunction or any other kind of injunction against an order. Now, orders of the Commission have different effects. An order of the Commission saying these rates are illegal makes these rates illegal. Therefore, the Court enjoins that down the -- the injunction is lifted. They do no along this -- I mean the order is lifted, they do no longer -- if however, the order of the Commission says these rates are lawful, the rates are in effect and lawfully in effect under the 15 (7), the Commission nearly confirms what was true anyway, and does not make the rates unlawful. Therefore, strictly answering your question on a purely logical statutory basis, the answer to your question is no. They do not have and are not given the authority to enjoin rates but only order the Commission, but that really doesn't answer your -- to your question because it all depends what the Commission does and what the courts do. If the court issues an order saying that we for various reasons want to enjoin your order and we think that you've omitted something or you've taken a wrong view and therefore, we order you or ask you or direct you to set aside -- have a new hearing on these rates then, the Commission will start doing something which will put the railroad in a wholly different position. And if the railroad is then told by the Court of Appeals that it has views which are very likely put the railroad in serious trouble if it goes ahead, it is quite likely not to go ahead for the Commission may take it up with the railroad. There's a great -- this is not done really on a strictly -- on its length basis. The railroad must look out for what it sees ahead of itself, and the Commission has great power to tell the railroad that it would be wise if it filed a new tariff not putting this in effect until after its final judgment. That is about the way this thing works. Now, Your Honors if I may go on a little longer, the petitioner's argument is one which I think is quite easy to understand. The Government's argument, I've already pointed out, presents grave difficulties as to the framing of the injunction. The Government's argument also presents grave difficulties as to the statement of the rule which it is urging upon this Court. It's already been pointed out by Justice Goldberg that this is a -- of novel standard. This is a standard that we are not familiar with in the law. This is not a standard of irreparable injury, one of some kind of additional injury, where does this come from. There's no indication that anybody in the Congress was ever thinking of any such idea as this at any time during the debate on the statute. This is not a distillation of congressional thought. As I say there's nothing in the legislative history. There's nothing in the history of equitable remedy which indicates this super, super standard. In order to state this, what I think almost defy legal draftsmanship, I wouldn't know if I were asked to amend the statute to bring into it with the idea given us by the Government. I wouldn't know how to go about this drafting job. It would be a complete rewriting of the statute, but then the Government says it is not shown that in determining the language which Congress adopted, it foresaw the sort of injury that the Government is talking about. This I submit to the Court is a new type of legislative history and use. It is true that when a language of the Congress is absolutely clear and there's no doubt about the fact that Congress meant just what it said that anyone can show 50 years later that a case comes along which the Congress did not foresee when it used this plain language, that the plain language must be changed. I have never heard of legislative history being used in this way. The language is plain. It does not permit this error. There's no evidence that anyone ever considered this standard. In other words, a standard made out of thin air is now introduced to deal with what is taught to be a particular case and the only thing that I think this effort the Government attributes to this case is to underline the error of the petitioner's position. Both -- may I pass to another point about the petitioner and the Government in their briefs? Refer to Section 22 of the Interstate Commerce Act, which preserved common law remedies when this common law remedies are not inconsistent with the Act. Now, neither the Government nor the petitioners spell out what they mean by this and indeed I'm not able to spell it out either because we have already pointed out that there is no suit at common law by someone alleging injury from a rate which is too low. Common law remedies are against rates which are too high or discriminatory. The thrust of this case is clearly that the rates are too low. If it is said that the rates are discriminatory, then I answer that there is nothing in the Commission's finding about discrimination at all. It deals only about unjust and unlawful rates which means the rate is too high or rates which contravene the National Transportation Policy. Well, now that isn't the common law remedy. Surely, this equitable remedy of preserving the status quo, pending a decision of another judicial or administrative body, this is not a common law remedy. I just fail to see what our opponents are driving at. There is one other idea which is related in a way to what Mr. Justice Stewart asked me a moment ago. In both the Government and the petitioner's brief or probably in the Government's brief, there are two suggestions that the intervention of the courts is necessary to preserve, I use this word, to preserve or to make effective, the judgment first of the Commission or then of a three-judge court. Is it different from what Mr. Justice Stewart asked me a moment ago? In the Government's brief on page 19 to 20 they say, “After these allegations are legit, the barge lines are driven out of business before the Commission could rule upon the lawfulness of the rates, the Commission will be rendered powerless to grab effective relief or to carry out the declared policy of Congress and the outcome of a bitterly contested economic controversy in which an important public interest is at stake will be determined not by the responsible agency applying a statutory criterion but by the force of circumstances.” Now, I submit to this Court that nothing of that sort is even remotely possible. The Commission is not rendered ineffective nor is it -- its judgment rendered ineffective depending upon the economic situation of certain plaintiffs before a District Court. There are vast interests before the Commission. The Commission will render its order. Its order will be effective when rendered. There's no danger of circumstances and not the Commission deciding this case. The Commission will decide it and can decide it, and thousands of people who will be affected one way or the other will still be there to be affected by the Commissioners -- Commission's decisions.
Arthur J. Goldberg: And that the – [Inaudible]?
Dean G. Acheson: Quite right but that is not the point which is made, Your Honor. That is not the point which is made. There are two points here. One is that great danger to a person. The other one is that to preserve the jurisdiction of the Commission. This is necessary. That is not true. Similarly, it is not true that a three-judge court might be convened before as the Government says again on page 20 of its brief, they don't altogether foreclose the thought that if a three-judge court might be convened in advance of the decision of the Commission to preserve its jurisdiction. Now, that's on page 20 Justice Goldberg, in the footnote. Now, you don't need to preserve the jurisdiction of the three-judge court by any such performances there. In the first place there cannot be a three-judge court until there is an order for them to review. This is clear in the statute that the three-judge court reviews orders of the Commission. There being no order, there is no authority to convene a three-judge court. But even if there were, it is necessary to preserve its jurisdiction. The Commission is there. The railroads are there, everybody is -- in the Southeast is there, there's no question that the judgment of the three-judge court would be affected. Well now --
Hugo L. Black: Suppose the Commission were to decide that these rates are unlawful and in the meantime these petitioners have been destroyed, another barge line, would you say that was consistent with the Act?
Dean G. Acheson: Yes, sir. I would say it was entirely consistent with the plain words of the Act.
Hugo L. Black: The Act is supposed to further a national railroad system, people able to operate not being squeezed out by rates that are unlawful, isn't it?
Dean G. Acheson: I think the Act is supposed to do exactly what it says on the statute, Mr. Justice (Voice Overlap) --
Hugo L. Black: You don't think its (Voice Overlap) --
Dean G. Acheson: What is says, the rates shall go into effect. I think they mean that they shall go in with effect.
Hugo L. Black: If they're later found to be unlawful, you say that the -- no injury would be done to the purpose of the Act if they are found to be unlawful and in the meantime, several people have been put out of business by rate that required people to compete for getting three cents a ton or carry in freight? I don't quite understand your argument on this. Why are you saying that, that that would not frustrate purpose of the Act?
Dean G. Acheson: The purpose of the Act is to regulate commerce and to regulate rates. The purpose of the Act is not to keep everybody in business, who is in business now.
Hugo L. Black: That is right.
Dean G. Acheson: Now, Your Honor asked me a highly theoretical question as to whether if certain people were then put out of business.
Hugo L. Black: That's the evidence?
Dean G. Acheson: This would be contrary to general public policy. And my answer is no.
Hugo L. Black: I didn't say general public policy. I said the policy of that Act which is to protect those engaged in commerce from unlawful depredations by others engaged in that commerce.
Dean G. Acheson: I would agree, Your Honor that the purpose of the Act is to protect or at one purpose or a purpose is to protect people from unlawful rates in the manner suggested by the Act and not a general --
Hugo L. Black: That gets back to the interpretation. I understand your argument on the interpretation of Section 7, but I don't understand the argument on what you have to establish it that there was -- the Act was -- the purpose would be fully carried out. If unlawful rates were put in effect which resulted in the destruction of a number of people engaged in the interstate commerce who were supposed to be protected from unlawful depredations, I don't understand that argument.
Dean G. Acheson: That -- Your Honor, may I perhaps make it clearer in this way. I would say first of all that the highly theoretical character of your question makes it difficult for me to [Inaudible]
Hugo L. Black: [Inaudible] --
Dean G. Acheson: I don't think it's going to have (Voice Overlap) --
Hugo L. Black: I say -- I finally understand that because those are the allegations of the bill.
Dean G. Acheson: I know sir.
Hugo L. Black: And to a certain extent with the findings of the District Court and to a certain extent was the conclusions reached by the Commission on its primary looking at the --
Dean G. Acheson: Yes.
Hugo L. Black: -- brief.
Dean G. Acheson: What the Commission -- what the Commission -- what the lower court found, what the Act talks about is irreparable injury. Now, the Act balances the irreparable injury of the railroad against the irreparable injury of other people.
Hugo L. Black: After rates are found lawful?
Dean G. Acheson: No, before there's any finding at all, Your Honor. It says, pending the decision of the Commission, the railroad shall suffer irreparable injury.
Hugo L. Black: Does it?
Dean G. Acheson: Yes, sir. That's just what it says. They couldn't --
Hugo L. Black: Why did it say that?
Dean G. Acheson: It says the Commission may suspend the rate for up to seven months. During that time it may not charge rates which may be right.
Hugo L. Black: Oh, there might not be irreparable injury, but the (Voice Overlap) -- legal entry because they might be unlawful.
Dean G. Acheson: I am sure they might be unlawful and therefore, in your case they might be lawful also.
Hugo L. Black: That's right.
Dean G. Acheson: What we're talking about here is that rates which maybe lawful or maybe unlawful. Nobody knows which they are going to be until the Commission decides. During that period the Act says the railroads must take the risk that they will be irreparably damaged for seven months, everybody other that the railroads must take their risks for the rest of the time. Now, this is the congressional scheme.
Hugo L. Black: Why does it say it have a -- why does it -- you keep saying that the plain language of the Act forbids court action to protect people against irreparable injury.
Dean G. Acheson: Plain language of the Act (Voice Overlap) --
Hugo L. Black: [Inaudible] the plain language that way.
Dean G. Acheson: The plain language of the Act is at the end of such period the rates shall go into effect.
Hugo L. Black: But it says nothing at all about the problem they had in mind as to whether if those rates going in effect, the Court shall forego that the -- one of the great parts of their jurisdiction is exercised for centuries to prevent irreparable damages from unlawful conduct.
Dean G. Acheson: In the first place, Your Honor, I tried to point out that for centuries this jurisdiction has not been exercised in this regard.
Hugo L. Black: But you thought that way --
Dean G. Acheson: Did not been able to decide (Voice Overlap) --
Hugo L. Black: -- because I was talking about the irreparable damages, irreparable injuries, wrongful injuries?
Dean G. Acheson: Not in this case it happened. Not before 1910 was it done, not since 1910 has it been done. There are few lower federal courts that attempted to do this and the great Chief Justice Mr. Hughes said that the weight of authority was against their doing it.
Hugo L. Black: Who said that?
Dean G. Acheson: Mr. Hughes in the Great Northern case.
Hugo L. Black: In that case?
Dean G. Acheson: He said in that case that the weight of authority before 1910 was that these federal courts did not have the authority to enjoin the rates. So that I say this Act has not been exercised for a hundred years. Now, which you say to me that --
Hugo L. Black: What about Judge Riffkin's case?
Dean G. Acheson: That I do not have in mind, but I think I have already trespassed too long on the time of the Court and if my opponents have any time I would wish them to have it this afternoon. Ending up solely with the statement again, that before the Commission exercises its power to decide, I do not believe that the Congress meant to give or gave or should have -- maybe thought about it again, power to a court to intervene into the ratemaking procedure in order to weigh equities which it cannot weigh at all.
Earl Warren: Mr. --
John C. Lovett: Mr. Chief Justice --
Earl Warren: -- Lovett.
John C. Lovett: -- may it please the Court. With respect to the argument concerning the question whether technological developments have made barge movement of grain obsolete. These are questions of course which are pending before the Commission. These go into the lawfulness of the rates, but may I quickly summarize the rest of our legal position. We do not believe as evidently did the court below that we can take the literal language of the statute, the word shall go into effect and apply the plain meaning rule and get the answer to this case. Surely, the words --
Arthur J. Goldberg: The District Court [Inaudible] --
John C. Lovett: I think the -- oh --
Arthur J. Goldberg: -- with reference to [Inaudible]?
John C. Lovett: No sir. I think the District Court has an obligation to weigh the equities when this thing is presented to it and if the railroads take that position, I think the District Court has to look at it, yes.
Arthur J. Goldberg: [Inaudible]
John C. Lovett: Oh, I'm sorry. I misunderstood you. I can conceive of a situation where if the suspension powers are not invoked, the court can forcibly invoke it. I think it's very difficult or if they are invoked, the courts can intervene. If the invoking of the suspension powers where it results in the railroads being required to collect a rate which is confiscatory or extortion, I certainly think the courts can intervene in that case, yes.
Speaker: [Inaudible] opposite of your present case here and I am asking you if the railroad asked for an increase in rates and the Government and the Commission suspended those rates for seven months. Could they go into a federal court and alleged that unless they put those rates into effect the railroad company would become insolvent and have to go out of business, would that give the court jurisdiction?
John C. Lovett: My own feeling is that it would, that there are situations where nothing will prevent a person having access to the court. If they can show that this is confiscatory and unconstitutional deprivation of their property, I would have no doubt of it, sir.
Earl Warren: Very well.