Earl Warren: Arkansas & Louisiana Missouri Railway Company et al., versus Amarillo-Borger Express Incorporated et al., and Number 224, United States of America versus Amarillo-Borger Express. Mr. Currie, you may proceed.
Ralph W. Currie: Mr. Chief Justice and -- may it please the Court. Within the time which is allotted to me, I want to discuss the several legal questions that are presented by this appeal, including the question of mootness, and thereafter, assuming that a justiciable controversy exist my reasons for arguing that the judgment of the court below should be affirmed. But before I begin the legal argument, I think it's appropriate and I believe I can be of the greatest assistance to the Court if I recite what the facts are, because it is difficult for me to explain my reasons for a legal conclusion without associating it with the facts upon which these conclusions are based. Now, the commodity that we're dealing with here is a commodity known as carbon black. Carbon black is a product of natural gas and oil. It is produced primarily in the State of Texas and -- in the Southwest. And the Panhandle area of Texas is the largest producer of carbon black. The principal users of carbon black are the rubber manufacturers or the tire manufacturers. The -- there's a statement in the record to the effect that approximately 95% of all carbon black is used in the manufacture of rubber to its entirety. The Interstate Commerce Commission found in this particular proceeding and -- and the proceedings reported in 298 I.C.C. at 721. And on page 723 of that decision, the Interstate Commerce Commission in this case pointed out that between 40% and 60% of all of the carbon black that was used in rubber was consumed around the Akron, Ohio area. So that for all practical purposes what we have here was a movement, a tremendous movement of carbon black from the Panhandle area of Texas into Akron, Ohio. The Commission's proceeding also discussed the fact that during the years 1954 and 1955, there seemed to be about 700,000 tons of this commodity that moved. It's quite a substantial movement. And the figures revealed to the Commission and recited by it in that decision. It showed that 66 and ninth-tenth percent of it was moved by rail during those years and 28 -- eighth -- and eight-tenth percent by motor carrier with four and three-tenths percent by seatrain. A seatrain is a water carrier that holds loaded railroad cars. There was no movement by barge and by way of momentary digression, it is hard for me to restrain a chuckle when I hear counsel say as he did yesterday that the purpose in reducing these rate was to forestall barge competition because there immediately appears before my mind the picture of a barge moving from the area Panhandle of Texas across the plains there to Akron, Ohio which is also a place not on water. The truth is that this movement of carbon black, it moved entirely by rail or by motor carrier. Those were the two competing forms of transportation that moved it. Now, prior to 1954, and I will let you say this. It constituted for the appellees and motor carriers whom I represent here a very important piece of business. It was important out of proportion to the revenue we received for it because it supplied us with a return haul. You see, under our certificates which the Commission issued to us, we are not allowed to handle products in bulk. We are not allowed to handle livestock. Now, in the Panhandle area of Texas, the things that are produced are grain, which moves in bulk and oil which moves in bulk or by pipeline and carriers. Consequently, when we carry products of general merchandise into the West Texas Panhandle area, there is little that we are authorized to move back. And carbon black which moves in sacks is a commodity which offered us a return haul into the Akron, Ohio area. So, it was of a -- a great deal of importance and at the time this controversy arose. We were -- excuse me. We were getting revenues in excess of a $1000 a day out of this transportation of the small percentage of the carbon black that we were being privileged to handle. Prior to 1954, the rail rates and the motor carrier rates were on the same level or substantially the same level. It had been that way for some time. Now, during the period following World War II, there had been blanket general increases granted to the railroads and taken by the motor carriers. And as a result of this -- of the application of these blanket general increases, the rates got slightly out of adjustment. The typical illustration which everybody agrees was typical, was the rate from the Panhandle points of Texas such as Borger and Amarillo into Akron, Ohio. There, the -- the rate when you add it on the various increases and calculated them according to the different formulas, the rails had a rate of $1.56 a hundred and the motor carriers a rate of $1.53 a hundred. The railroads in -- early in 1954 filed a new schedule and reduced their rate not to meet the motor carrier rate but down to $1.4785, one hundredths cents per hundred, which put them five and fifteen one hundred cents per hundred pounds below the then prevailing motor carrier rate. The motor carriers then filed with the Commission a new tariff seeking to establish the same $1.4785 per hundred pounds. The rails protested that and the Commission suspended the rates of the motor carrier. That was in 1954. Hearing was had on the suspension. They entered onto an investigation and the hearing was had in July 1954. The seven months period expired with no action on the part of the Commission and the motor carriers voluntarily extended the period of suspension and this was the customary practice we are told until the Commission could complete its investigation. At the time of the controversy which had its inception in September 1925 -- of 1955, the Commission had not yet completed its investigation and had not handed down its decision. Neither had it done so at the time of the trial in the court below. So that the practical effect of that situation was that the railroads were enjoying a differential of five and fifteen-one hundred cents below our rate, notwithstanding that differential in their favor. They proceeded by carriers which were scheduled to become effective on September the 24th, 1955. Rates which cut the particular rate down from a dollar forty-seven eighty-five down to a dollar thirty-three, precisely twenty cents, a hundred pounds under our rate. We knew then that we could not exist with a twenty-cent differential against this.Even the 28% of the traffic we were getting would be gone with 700,000 tons moving that. 20 cents a hundred is -- is quite a difference. So, we petitioned the Interstate Commerce Commission to suspend those rates on the ground as we thought that they were -- the rail carriers were embarking upon a course of a destructive competitive practice that was in contravention on the National Transportation Policy. The -- the Commission suspended our rates, I mean the rail rates. Our petition was granted. By its order of September the 23rd, 1955 the Interstate Commerce Commission, not the Board of Suspension, but the Commission, the Division 2 itself, acting as an appellate division entered this order which was admitted by everybody to be a valid order and well within the powers of the Commission.
Felix Frankfurter: Did it go through the Board of Suspension?
Ralph W. Currie: It did, sir, yes.
Felix Frankfurter: And they just -- they just channeled it over the -- to them?
Ralph W. Currie: No, sir. They -- well, we had a conference and the record reveals this sentence. We had a conference and the Board of Suspension which is the -- the employees of the Commission declined to suspend. And immediately, we asked the -- the Division itself to look into the matter and on the same day, the Commission did look into it and decided the Board was wrong and issued this order suspending the rates.
Felix Frankfurter: Suppose they -- supposed they have concluded that the Board of Suspension were right, could they -- in the same quick manner sustain the Board and just said the order of suspension or Board of Suspension approve -- or Board of Suspension approved herein?
Ralph W. Currie: Yes, sir. I -- I don't know what they would have had to say. Probably, they would have had to say nothing.
Felix Frankfurter: But suppose they said nothing, that was my question, would they have to say anything?
Ralph W. Currie: If they didn't want to reverse the Board of Suspension, they wouldn't have to say anything.
Felix Frankfurter: Let's say approved on a piece of paper that came up to it, is that right?
Ralph W. Currie: That's correct, sir.
Felix Frankfurter: In those findings, why they didn't suspend?
Ralph W. Currie: No, sir, and the reason for that is this, Mr. Justice Frankfurter. And I'll digress from the statement of facts for the moment to say this.
Felix Frankfurter: Don't -- don't follow my irrelevance. You stick to your proper argument.
Ralph W. Currie: But I would like to answer your question, sir.
Felix Frankfurter: Well, do it. It's relevant, not otherwise.
Ralph W. Currie: Well, it -- it's relevant.
Felix Frankfurter: All right.
Ralph W. Currie: Certainly. You see, the carrier under the statute -- under Section 15 subsection 7 of the Interstate Commerce Act. The carrier has the right to initiate its own rates, simply by publishing them with the Commission and as -- given 30 days notice. At the exploration of the 30-day period, the rates go into effect unless the Commission by affirmative action has stopped them from going into effect. So that if the Commission decides that it is not going to suspend, all it needs do is nothing and the rates go into effect. It requires affirmative action on the part of the Commission to make a -- a rate that the carrier has a right to initiate -- suspend it and you operate it.
Felix Frankfurter: So that this -- this -- from your point of view slashing ruthless tariff, proposed tariff by the -- filed tariff by the railroads would have gone into effect with all the evil consequences that you've laid before us, is that right?
Ralph W. Currie: Except for the action of the Commission, except for the action of the Interstate Commerce Commission which on the -- on September the 23rd, 1955 issued its order finding this probable unlawfulness and suspending the record.
Felix Frankfurter: I'm assuming the contrary hypothesis that the Board of Suspension rejected your protest or at least didn't act on it favorably, acted on it unfavorably and that the Division 2 did nothing about it. Then, this ruthless tariff would have gone into effect unassailably, is that right?
Ralph W. Currie: Had the Commission done nothing about it? Yes, sir.
Felix Frankfurter: Yes. Well, I'm not -- I just want to know what the course of events.
Ralph W. Currie: That would have been --
Felix Frankfurter: And what the Board -- what the underlying -- what the structure -- I'm trying to find out what the law, what the Interstate Commerce Act provides, what the procedure for relief is, what the power of the Commission are.
Ralph W. Currie: Yes, sir. Then, the -- I think the -- in -- I believe, Your Honor, has it correct that if -- if the Board of Suspension had decided to do nothing, the Interstate Commerce Commission itself on our appeal to -- to it to examine the action of its employees had resulted in no action, then these rates would have automatically gone into effect on September the 24th as scheduled.
Felix Frankfurter: Yes.
Ralph W. Currie: Now --
Felix Frankfurter: But suppose the -- what really was done had -- suppose the course of events had been what they were, namely that the Board of Suspension rejected your protest or didn't act on it favorably, Division 2, in fact, overruled the Board and suspend it. And then, suppose Division 2 did what I have known courts to do, think of all what they have done and get together the next day and say “Let's reconsider this” someone, a member more interested or more alert or more anything or less anything, I don't care which and say, “Let's rethink this.” And the next day they say “We were all wrong about it yesterday,” and then they recall that order.
Ralph W. Currie: I'd like to get to that a little later.
Felix Frankfurter: Even the Supreme Court of the United States have been known to do that.
Ralph W. Currie: Yes, sir. And I think, usually, when the Supreme Court of the United States or any other court, Mr. Justice Frankfurter, changes its mind, it says, “Why it did.”
Felix Frankfurter: It may only or not to.
Ralph W. Currie: And we have the situation here, which I would like to outline further in the facts where the vice in the commission order here was that they didn't say they were wrong. The effect of their finding was and the effect of what they did subsequently was to reaffirm that they were right in the first place in their finding of probable unlawfulness, but persisted in doing -- in taking away the protection of the order which they had already said and reiterated, we were entitled to receive.
Felix Frankfurter: Where is that? Where did they say they were -- they were still -- they still thought it ought to be suspended but they aren't going to do it? Where did they say that?
Ralph W. Currie: They do not say that in so many words.
Felix Frankfurter: Well then, any kind of words.
Ralph W. Currie: If we examine page 7, we find the order which I am challenging in which it says that by an order on page 7 of the record --
Felix Frankfurter: I beg your pardon. All right. Thank you.
Ralph W. Currie: Page 7 of the record, the Commission refers to the order of September the 23rd and says that it entered upon an investigation concerning unlawfulness of the rates and charges. That consideration has been given to petitions of the respondents requesting vacation and to reply as thereto in good cause appearing. It is ordered that the order be set aside insofar as it suspended the operations, but the proceeding of investigation of said schedule shall continue in full force in effect. I say that the necessary effect of that order, Mr. Justice Frankfurter, is that they reaffirmed the findings of probable unlawfulness because, otherwise, they would not have continued to investigate schedules.
Felix Frankfurter: Well, don't they have to examine the merits of the reasonableness of the order that was filed?
Ralph W. Currie: No, sir.
Felix Frankfurter: Didn't you protest against it?
Ralph W. Currie: But a request for a suspension, Mr. Justice Frankfurter, is not a formal complaint.
Felix Frankfurter: Well, I know, but the Commission don't know what it can decide whether a big slash in the rate is reasonable or not.
Ralph W. Currie: That's correct, and if they do, sir, they are by that very act saying in effect that there is something probably unlawful with these rates and we're going to look into the matter.
Felix Frankfurter: I think there's no justification for any such statement. They merely say that on the phase of it is a basis for us to investigative. It doesn't follow because you investigate to find a rate which a carrier can initiate and you may after investigation find that it's unreasonable. To another phase of it, it's unreasonable. What's the point of a long investigation if you can make that judgment very quickly?
Ralph W. Currie: No, sir. I do not say. I say that -- that probable cause exists and probable cause did exist, I think or they would not have undertaken the investigation. The court below in its opinion --
Earl Warren: Well, Mr. -- before you get to the court below, Mr. Currie, will you get back to the date of September where --
Ralph W. Currie: Yes.
Earl Warren: -- where the Court made the order of suspension and carry on with your narrative.
Ralph W. Currie: Thank you, sir.
Earl Warren: I want to hear the narrative, if you please.
Ralph W. Currie: All right. The -- the Commission there, as I say, entered this order of suspension in which it found. It stated reasons as required under Section 15(7) that these rates would -- it is -- there is reason to believe said the Commission that these rates would, if permitted to become effective, result in rates and charges on rules and regulations and practices that would be unlawful and would violate the National Transportation Policy. The order then went on to suspend the schedules and to tell the railroads that neither these schedules suspended nor those sought to be ordered by the new schedules should be changed until the proceeding has been disposed off or until the period of suspension had expired or until otherwise ordered by the Commission. Now, there is where the man arrested until on November the 14th, 1955. The Commission entered the order which we challenge in the court below. That is the order to which -- which appears on page 7 of the record and to which I have just made reference. We didn't get notice of it. Of course, the instant date was filed but as soon as we did, we went to the District Court. In the meantime, we asked the Commission to weigh the rule and modify the rule and reconsider the action of Division 2 by the entire Commission. The -- the Commission declined to do that on November the 23rd.
William J. Brennan, Jr.: Well, the order recites petition's requesting vacation in reply thereto. What was the substance of the petitions? That's the advance to this order, the instant date.
Ralph W. Currie: It had then advanced, sir, and the record does not show it. I do not have them. I never did see the petitions for -- for the petitions requesting vacation nor -- and -- nor the reply.
William J. Brennan, Jr.: Well, did the replies refer reply from the part of your time?
Ralph W. Currie: I take it so, sir, but I did not found one and I did not see the others. I'm sorry, and it was never --
Felix Frankfurter: Do you mean that reached the cycle?
Ralph W. Currie: Sir?
Felix Frankfurter: Is that recital baseless where the Commission say there were a petition and replied when there weren't any?
Ralph W. Currie: Mr. Justice Brennan's question, Mr. Justice Frankfurter, was what was the substance of those petitions?
Felix Frankfurter: But I will first want to know, was there a petition?
Ralph W. Currie: I'm sure there was. They (Voice Overlap) --
Felix Frankfurter: Or their reply?
Ralph W. Currie: I'm sure so.
Felix Frankfurter: An order replied on behalf of the present respondents?
Ralph W. Currie: The present respondents would not --
Felix Frankfurter: You represent the respondents, don't you?
Ralph W. Currie: Oh the first respondents, yes.
Felix Frankfurter: The appellees, I beg your pardon.
Ralph W. Currie: The appellees.
Felix Frankfurter: In appeal. The appellees, were those replies on behalf of the appellees?
Ralph W. Currie: So far as I know, my -- these present appellees did not file a reply except in connection with or they were represented by their -- by their several freight bureaus. I didn't see them.
Felix Frankfurter: Well, it didn't -- the question isn't, if I may so, whether you saw them. The question is whether these appellees filed a reply?
Ralph W. Currie: Then well, let's -- let us concede that they did, sir, because I'm sure that the question --
Felix Frankfurter: That was --
Ralph W. Currie: -- that would be -- that would be near -- most against me and I'm willing to concede that they did file replies, yes, sir.
Felix Frankfurter: Well, this isn't a personal matter, Mr. Currie.
Ralph W. Currie: Now, the replies were filed, we would say and --
William J. Brennan, Jr.: Well, are you -- I thought you said that you received no notice of the order and I -- I would suppose if there were petitions to which replies were filed on behalf of your clients, you must have -- they must have known that there would be some action taken on the petitions.
Ralph W. Currie: The -- what I meant was we didn't get it immediately. In other words, it wasn't -- we didn't get it on November the 14th. ASdministrative processes being what they are, it took the Commission a few days before it was able to get to my clients. This order, I think, is about a week it took them before the -- and now, we made no complaint about it. It just took about a week to get the order mimeographed and distribute it to everybody.
Felix Frankfurter: For about two months -- two months elapsed between the original order of September 23rd and this order of November 24th.
Ralph W. Currie: Well, the order was November 14th, effective November 24th, two months to be precise.
Felix Frankfurter: All right, November 14th and I --
Ralph W. Currie: Yes, sir.
Felix Frankfurter: All right, 10 days shorter of two months.
Ralph W. Currie: Yes, sir.
Felix Frankfurter: And what I take it, Justice Brennan and I inquiring about is what took place in between?
Ralph W. Currie: The only thing that took --
Felix Frankfurter: The Commission says -- the Commission says that a petition was filed and that replies were made thereto. I --
Ralph W. Currie: Yes, sir.
Felix Frankfurter: It could be sorry days so far as I'm concerned if the Commission would make recitals like that or unfounded in fact.
Ralph W. Currie: I do not challenge the fact that petitions were filed and replies were made. I say they were to the -- my -- my only ignorance, Mr. Justice Frankfurter, was that I do not know what they said and which was Mr. Justice Brennan's question what was the substance of them and I didn't know.
William J. Brennan, Jr.: Well, just it make it say a fair inference that there were considerations raised by those petitions answered in the replies which finally weighed by the Commission led them to vacate their order?
Ralph W. Currie: I think that the Court might -- if -- if the Court is privileged to be indulged in the presumption I think that this would be the -- the presumption. That if there had been, sir, questions in that order or in the petitions which caused the Commission to change its mind and to decide that the facts which it thought existed on September the 23rd did not, in truth, exist. The Commission could have said so and should have said so in its order of vacation. So that I think the fair inference to be drawn is that there was noting in those petitions or nor in the replies which would have caused the Commission to change its mind about the reasons why these rates might have been probably involved.
Felix Frankfurter: Would it make a difference to your case if they had said in explicit unambiguous language having on reconsideration and found that probably cause does not exist for suspension but no more. Would that have made a difference to your case?
Ralph W. Currie: I doubt that, sir. I think they would have had to gone farther and said, “We were in error in finding that these rates were probably unlawful.”
Felix Frankfurter: Suppose they said that, we were in error in finding these rates, would that have satisfied -- would that make a difference to your case?
Ralph W. Currie: Mr. Justice Frankfurter, I can only say, sir, that if that had been the language, I would have hesitated a long time before I had gone to court.
Felix Frankfurter: Just those words and no more?
Ralph W. Currie: I would be inclined to think that I -- I would not be on various sound right now. However, I did not reach that point and because that wasn't what occurred.
Felix Frankfurter: Well, then that isn't the order -- I'm just -- I'm thinking if that --
Ralph W. Currie: And --
Felix Frankfurter: -- had been the order.
Ralph W. Currie: If that had been the -- the (Voice Overlap)
Felix Frankfurter: But no more. No more hearings, nothing more except putting in, we now realized we were all inclined in probable cause and we'll wait until the full investigation exposes the whole problem.
Ralph W. Currie: I'm rather inclined to think, sir, in all candor that I would not have gone to Court under those circumstances. I think I would have just decided that that was within the discretion of the Commission and I have a very clear opinion in my own mind that the lower -- that the court below would not have sustained this.
Speaker: When you applied to the original order of suspension, were there answers by the railroads to that or was that ex parte?
Ralph W. Currie: No, there were replies, sir.
Speaker: There were replies thereto?
Ralph W. Currie: Yes. There were replies in the conference.
Speaker: Are those -- are those in the record?
Ralph W. Currie: No, sir, no, sir.
Speaker: Is there any reason why they can't -- Court can't have access to those, at least to the second petition and replies and what's all the mystery about it?
Ralph W. Currie: None that I know of, Mr. Justice Harlan, other than --
Speaker: They argue in this case (Voice Overlap) unrealistic bases, it seems to me, it would --
Ralph W. Currie: Sir?
Speaker: If there's underlying material here in which the Commission acted in these orders as recited, why isn't it in the record? I don't understand it.
Ralph W. Currie: Simply because we took the position and I still take it, sir, that this Court on -- nor the lower court would not be required to search the record to find a basis upon which the Commission might have acted when it didn't say it acted on any basis and that the validity of the order, of any reviewable order must be tested by the recitals in the order. And only if you challenge these bases for the recitals and say that there is no facts upon which that order can be based. Is it necessary or even appropriate that one bring up the record upon which the Commission says it acted thus thereby showing that there was no factual basis for the recital. But whereas here, there was no recital of any fact or what is more properly stated where they were reiterated or in effect reaffirmed findings which entitled as to certain protection and no basis for any contrary action, then the action itself is subject to attack the cause. It does not disclose the basis on which the action was taken. We went to -- to continue with the recital of the facts. We went then to the District Court, the Judge Atwell, the District Judge before whom the case was filed and to whom the petition for temporary restraining order was presented, declined to issue it on the ground that he didn't feel that there would be any damage done to the complainants until such time as the application for temporary injunction could be heard. Although the record doesn't show that the railroads were present, it does show that, on page 12, that the Government was present. The railroads were actually present. I invited them. They didn't show here because at that time, they had not formally intervened. Now, the proceeding went on. The dealing with the subsequent proceedings before the Commission or after the -- the Court had heard the case on December the 12th, on January the 23rd it entered its order finding that the order under attack was invalid. Thereafter, and by the way, the Court was pretty careful to say that they were simply -- it is simply saying that the order of September 23 could be modified. They weren't going to say that the Commission could not have changed its mind. But if they do change their mind or if it did change its mind, it had to do so under lawful means and set the matter back to the Commission with the open invitation on page 59 of the record that the Commission should -- if it wanted to set aside the order of September 23rd, do so lawfully.
Felix Frankfurter: Which means in this case that they could say nunc pro tunc, we now insert and whereas, as then so minded, we do not find the base -- probable cause for suspending. We as of whatever this date is, December 25th, December 14th has --
Ralph W. Currie: Or January the 23rd.
Felix Frankfurter: Whatever it is, way back. That's what this -- that's what the practicality would mean?
Ralph W. Currie: I do not think they would have done that. I think that you would have to treat it as though the Commission still had the petitions for reconsideration under advisement and it could have on January the 23rd, then simply entered an order granting the petitions for reconsideration asserting the factual basis upon which it acted. We don't give --
Felix Frankfurter: But your -- your statement doesn't -- didn't call for any factual statement. It merely requires a recital, an explicit language that we have -- we now find way back, not after the whole investigation. We find as of whatever it was, December, 1954 that there was no probably cause. That's all they would have to say to be according to a lawyer.
Ralph W. Currie: As I say, sir, if they -- Commission has --
Earl Warren: Well, did they say that? Did they --
Ralph W. Currie: Sir?
Earl Warren: Did they say that in their order of November 14th?
Ralph W. Currie: No, sir. Of course they didn't. They did not say that.
Felix Frankfurter: There's a -- a tribunal --
Earl Warren: I was asking counsel --
Ralph W. Currie: They did not say -- they did not say anything to indicate the slightest that they were dissatisfied with the order of September 23, 1955.
Felix Frankfurter: If a -- if a tribunal changes its -- reverses its opinion, it means it's of the same opinion still, is that it?
Ralph W. Currie: Let me put it this way, Mr. Justice Frankfurter. You may be able to change your opinion, but here in this case, the Commission was under a statutory duty and under Section 15, subsection 7 of the Interstate Commerce Act to state reasons why it would interfere with the -- with the, otherwise, invaluable right of the carrier to initiate its own rates. It made this statement. It -- it stated those reasons and those reasons were in substance that other people were going to be hurt by this publication or that there was probable cause to believe that there would be. As a matter of fact, I think we can agree that the only time the Commission in the exercise of sound discretion can interfere with the carrier's right to publish its own rates is because it has determined that somebody is going to get hurt. Otherwise, there's no reason to interfere with what the carrier may do. And once the Commission has found that there exist a situation, which causes -- which may injure someone and has decided to take action to protect that someone. Then, if the Commission decides that it is wrong about that that those facts do not exist. I think it owes to that person the same duty. Having once found that those rights are to be protected, the Commission is under a mandatory duty to protect them and if it finds it's in error about that, it owes to the -- to the person whose rights are thus being not longer protected, the duty to say -- to give the reasons for it just as though to the same standards it had to tell the carrier in the first place. I think that's just with simple fairness and a necessary corollary to the suspension power. Those things, the Commission did not do. As a matter of fact, it seemed to have regarded it, just as though -- just as the District Court did in the Western supply, the Western Electric Company against Cinema Supplies Company, a case by the Sixth Circuit, in which the Court seemed to have found on a temporary injunction, mind you. It found all of the facts in favor of the plaintiffs that would entitle the plaintiffs to the injunctive relief sought. And then said that we have balanced the equities and they decided that we will not issue the injunction because under the -- all of the balancing of equities, it would not be right to do it. And the Circuit Court of Appeals for the Fifth -- for the Sixth Circuit reversed and said that when a court has made -- when a case for temporary injunction is clearly made out. It does not lie within the power of a court, though it'd be discretionary to deny the remedy. And certainly whereas here, the facts which the Commission found to exist and which it did not take away in its subsequent order as it left those facts still enforced by its subsequent order -- by the very nature of the order. It's simply saying that were just not going to grant the remedy any longer. That was our complaint and that was the real vice in the argument, in the order of the Commission.
William J. Brennan, Jr.: Well, I gather what you would have wanted the order to say or something in fact but we were wrong when we thought that somebody was going to be hurt, to use your language. And that now, we're satisfied that no one will be hurt and we're satisfied that no one will be hurt for the following reasons, is that it?
Ralph W. Currie: I think that -- that would have been much stronger. Now, mind you --
William J. Brennan, Jr.: Much stronger? Wouldn't that have been enough?
Ralph W. Currie: So far as I can now determine, sir, that would have been enough. I -- I say that simply because I have done -- I have briefed this case and have -- have satisfied myself about the applicable principles of the law, relating them only, sir, to the facts that are here present. I would not want to hazard a -- an opinion as to what the law might be where the facts differ. Although, I can appreciate that Your Honors must take those things into account. I would not want to be unhelpful by making a wrong guess. And I would say that based on what I now know, I would say that would have been enough having that been the situation. Certainly, it's the point --
Hugo L. Black: You -- you say they could have -- if they had found that without any hearings and without any evidence, without any additional information, that would be enough?
Ralph W. Currie: No. Then -- then we might have had -- we might have been back in the courthouse. As a matter of fact, I remember telling Judge Brown who asked the question about, suppose that -- suppose we send this back to the Commission and the Commission makes findings, what are you going to do then? And I had said to him that so far as I am presently informed, there's nothing in those petitions that would change the -- that would change the -- that should have changed the Commission's mind and we might well be back to challenge the action of the Commission on the ground that the action had no factual basis even though the facts were recited. And we could have --
Hugo L. Black: The -- the petitions you referred to are not here, you say?
Ralph W. Currie: No, sir, no, sir. As I said, I did not consider it necessary to bring them up in the court below. The -- the absence of them was not challenged in the court below. The Commission made no effort to -- to justify its action either in the court below and here, I mean as a de facto matter. The -- the whole issue of whether or not the Commission was, as a matter of fact, and truth justified based on the petitions has never been presented.
Felix Frankfurter: Yet, you're asking us to say that the Commission was baseless in making such a determination.
Ralph W. Currie: On the authority of -- of other decisions, yes sir, by this Court because this Court has consistently held that that an order of an administrative agency must -- the order itself must disclose the basis upon which the action was taken.
Felix Frankfurter: This Court has never made any such statement because it couldn't. It must have made it with reference to a particular agency, with reference to particular proceeding on a particular record. It doesn't make and I don't believe it ever has said in this blanket way because if there's one thing that's to be said about the relation of the Courts to the -- to the administrative agency that these are rowdily speaking ad hoc situations. The idea of saying that this -- that this Court has ever pronounced that it can never led an administrative order by unless as we know what all the facts were, particularly when the facts aren't broad here for us to determine whether the administrative agency acted with the utmost reason.
Ralph W. Currie: What I am trying to impart to the Court, Mr. Justice Frankfurter, was simply that it seems to be the rules so far as I have been able to determine that when -- when an administrative order is challenged, the basis upon which the order was made must appear on the face of the record.
Felix Frankfurter: That is not so, in the (Inaudible) cases which ought not to be unknown to you, this Court held the Commission could act without anything before it, anything and give no reason.
Ralph W. Currie: Now, to deal with the factual situation again, the -- the proceeding continued before the Interstate Commerce Commission, resulting on June the 25th, 1956 in an order terminating the proceedings and finding the rates to be lawful or reasonably compensatory to the carriers and that in -- incidentally, I should add this that on April the 23rd, the -- the suspension order of September 23 which had been revived by the order of the District Court expired by reason of its own terms. On April the 24th, the railroads republished the tariffs and the rates that were under suspension theretofore, the rates that should -- that were originally scheduled to go into effect on September the 24th. These reduced rates became effective on April the 24th, 1956.
Hugo L. Black: Where -- what -- where is that order now? Was that challenged?
Ralph W. Currie: No, sir.
Hugo L. Black: Does that -- is that the order you say that after investigation, the Commission decided that the rates were fair?
Ralph W. Currie: Yes, sir. When the Commission finally finished its investigation on June the 25th, 1956, and that proceeding is reported in 298 I.C.C. 721. That happened after the case was heard --
Hugo L. Black: How did that leave the comparative rates of the bus lines and the --
Ralph W. Currie: That leaves them presently, sir. That leaves presently, sir. By the way, I should add as a matter of -- of information that ultimately, the Commission found that our rates were all right too. And so that presently, the -- the relationship between the motor carriers and the rail carriers is that the rate from the Panhandle to -- to Akron by rail is $1.33 per hundred and the rate from -- by motor carrier from the same points -- between the same point is $1.4785. We have been permitted to meet the older rail rate, but we have not tried to meet the new rail rate. We can't because we just can't justify it. We know the Commission would -- would -- our over the road cost of operation just wouldn't meet and we just can't do it. So, we have not tried to meet that rate.
Hugo L. Black: So that means that -- that means then according to the findings I presume that railroads can carry cheaper than you can by reason of the inherent advantages that they have over you in that connection?
Ralph W. Currie: I assume so, sir. At least they found that -- that the rails -- it was compensatory for the rails and we have decided in our managerial discretion that it's not compensatory for us.
Hugo L. Black: And that order -- that order is not challenged with reference to the rail rates.
Ralph W. Currie: Oh, no sir. Not now. It is -- it is finished. That is why, Mr. Justice Black, that this case is moot.
Hugo L. Black: How much difference is it between them? What was the difference between your rates at the time that the Commission first suspended this order?
Ralph W. Currie: Five and fifteen one hundred cents, sir.
Hugo L. Black: And what's the difference now after all these hearings?
Ralph W. Currie: Fourteen and eighty-five one hundred cents, sir. That's still the differential over -- under up. We do not have the advantage of this traffic any longer, sir, no matter what this Court may do with this proceeding. This appellee, motor carriers have nothing to gain nor to lose.
William J. Brennan, Jr.: But why -- why are you defending this? I don't follow it. I mean, what --
Ralph W. Currie: Well, sir --
William J. Brennan, Jr.: -- what does it make to your clients what happens to those seven months.
Ralph W. Currie: It made this difference. I -- I just didn't feel, sir, that as an officer of this Court and been having -- been successful in the court below that it would -- it was quite the discharge in my duty as counsel nor my client to make no effort to defend a -- a situation which we regarded as correct at the time.
William J. Brennan, Jr.: But as a practical matter, if the appellants win here, you lose nothing.
Ralph W. Currie: That's correct, sir. We have already lost -- what we lose otherwise.
Felix Frankfurter: Not only --
Ralph W. Currie: That's correct Mr. Justice Brennan, we would not lose anymore than we've already lost.
Felix Frankfurter: As I understood from what you said a minute ago, you're here out of regards for your duty to the Court as a lawyer and yet you argue the case is moot so it's our business to throw out the case.
Ralph W. Currie: Sir?
Felix Frankfurter: That you argue the case is moot.
Ralph W. Currie: Yes, sir.
Felix Frankfurter: And that -- so that your duty as a counsel to this Court is to bring a case here that you say we should throw out.
Ralph W. Currie: I did not, Mr. Justice Frankfurter, bring it here.
Felix Frankfurter: What?
Ralph W. Currie: I did not bring it here.
Felix Frankfurter: Well, I know, but the case is -- the case is now decided so that you created a situation -- we've got a situation in which a principle of law is laid down, which you now say is moot, the decision.
Ralph W. Currie: Now, I concede that my duty as counsel, Mr. Justice Frankfurter, to tell the Court that I consider it moot. I -- I would like to say that it's not moot and I would like to say that it ought to be affirmed on its merits, but I do not really, sir, as a lawyer that I can truthfully say that I think that it is not moot. And it occurred to me that if counsel is to discharge his full duties to the Court, it ought to disclose to the Court any facts and circumstances which might render the case moot because the Court certainly does not want to spend its time and efforts and energies in deciding controversies. The -- where the logic of events has turned the investigation into an autopsy, instead of a determination of litigations.
Felix Frankfurter: But you must have had a live litigation, some interest of a client and not merely abstract devotion to law that brought you in the Court, is that right?
Ralph W. Currie: I can answer that question only this way, sir, because I'm not sure that I have quite followed, Your Honor.
Felix Frankfurter: But you can't. Lawyers can, no matter how strongly they feel, that they want a further sound law. They cannot just come into a court and say, "I want to promote the just development of the law." Their client must have an earthly interest.
Ralph W. Currie: Sir, the -- now, my client and by the way, only one of these seven felt that he wanted to spend the time and money to get in and justify the action of the court below, that's why I'm here. We have this feeling about it, sir, that if it's not moot and the other side of the case, it isn't moot. And we do not want to see the case reversed for -- just by a -- as a result of a default.
Hugo L. Black: You are saying -- you are claiming that it was not moot when you filed a suit but it's --
Ralph W. Currie: It certainly was a very live one when we filed the suit.
Hugo L. Black: But -- but has become --
Ralph W. Currie: It become moot -- it became moot -- I'm sorry. It became moot on April the 23rd when the suspension order which we asked which was entered for our protection expired by reason of the seven-month statutory period.
Hugo L. Black: And you -- you are saying that so far as you are concerned as a litigant, so far as the admission is concerned as a litigant, no longer any -- any live controversy between you and them --
Ralph W. Currie: That's --
Hugo L. Black: -- whatever obligations might be imposed on railroads or somebody else.
Ralph W. Currie: That's correct and there's no -- and there's no live controversy so far as the railroads are concerned, either, sir, in my opinion.
Felix Frankfurter: Well, the higher rate is now the legal rate.
Ralph W. Currie: No, sir. The lower rate is now the legal rate, sir.
Felix Frankfurter: Well, I mean, the charge -- they charged too little and what is the law -- what was found to be the lawful rate, is that right?And therefore, there was an undercharge and therefore if the railroad doesn't collect it, it's a rebate.
Ralph W. Currie: Mr. Justice Frankfurter, I wonder if there is any liability on the -- to me, it seems this, that to say that the railroad is liable to collect the undercharge, it's just a -- a use of word. Actually, it would seem to me that -- if that -- what the railroads are in effect saying is that if this -- if the action of the Court is upheld, we're entitled to more money, which I do not perceive to be a -- a detriment. They're entitled to more money. It isn't --
Felix Frankfurter: But it's something alive. That's what -- as I had to consider here for many years, that's what most of these rails are about, money on one side or another.
Ralph W. Currie: I --
Earl Warren: Mr. Currie, we've been --
Ralph W. Currie: Yes.
Earl Warren: -- getting your argument on mootness in -- in very fragmentary manner. Would you mind stating your position? You only have a few minutes more. Would you mind stating your brief on the mootness in this case?
Ralph W. Currie: I'd be -- I'd be glad to, sir. I'll try to answer the questions and that may have been why.
Earl Warren: Yes. I am not criticizing you at all. You were answering questions.
Ralph W. Currie: Well, my brief -- let me say it this way, Mr. Chief Justice. This proceeding involves only one question. Here, the Commission issued and admitted a valid suspension order. It suspended certain rate schedules. Thereafter, it attempted to set aside that suspension order. The order -- the -- the District Court said that that attempt was ineffectual and that the suspension order was still in full force and effect. Subsequently, the suspension order had expired by its own terms. It was not a continuing order. It is not a short-term order capable of repetition. The power of the Commission over that order was exhausted when it expired by its own terms because the statute stopped it. Still later, the Commission proceeded with its investigation and has entered a final order, finally terminating all matters at issue between this, these appellees, the railroads and of course the Commission. This proceeding attempts only to ask this Court at this late date to decide whether the Commission had power to vacate an order which by subsequent events has already been vacated. Now, suppose that this Court says “Yes, you had the power to vacate that order.” Now, what possible good is it? It solves nothing. The order is already extinct. It has already expired. It is nothing except as a guide for future conduct.
Tom C. Clark: What about the reparations?
Ralph W. Currie: There are no reparations, Mr. Justice Clark, in this case. The only thing that you have here is a situation where the railroads might say that they are entitled to collect some additional money from the -- from the shippers in the event we are right.
Tom C. Clark: The shippers wouldn't want to pay, would they?
Ralph W. Currie: I have not been advised. I would assume, sir that the shippers wouldn't want to pay, although, as I pointed out in the brief, these shippers were there. They were present in the court below. One of them made an affidavit in lieu of testimony in this case representing an association that ships 95% of all the carbon black.So, they knew what the facts were and they knew what the situation was at that time. I would say --
Tom C. Clark: Now, the position in the -- perhaps I'm wrong that the Commission or the railroad is one, provided there were up to seven weeks period between the date and the issuance of this vacation is commenced and the issuance of the injunction by the Court in which the railroad is charging the lower rate.
Ralph W. Currie: Yes, sir, that's correct.
Tom C. Clark: Presumably it's correct, that's legal, it's valid. Now, they should have been charging during those seven weeks the higher rate. So now, they would be obliged, they say, (Inaudible) to go to the shippers and say, “Look, we charged you lower rates. We should have charged higher and we have to charge this higher rate.” The shippers would say, “Well, look, we've paid beyond to the order of the Court.” So, there'd be a controversy between the railroad and the shippers as to whether or not the -- the (Voice Overlap) --
Ralph W. Currie: No, sir. Mr. Justice Clark that's -- that's not quite the -- the way it is. Under the order of the Court, they collected the higher rate, you see, and not the lower rate so that they did not --
Tom C. Clark: But the order of the Court didn't come into effect until --
Ralph W. Currie: On --
Tom C. Clark: -- January (Inaudible) So, during the seven weeks, they were collecting the lower rate, were they not?
Ralph W. Currie: During the seven weeks period, they were collecting the lower rates but the shippers couldn't defend on the ground we were paying you under the order of the Court because there wasn't any order of the Court. They were paying only reduced -- the reduced rate. Now, let me say this.
Earl Warren: The order of the Court --
Tom C. Clark: Well, that's to say what the railroads were saying, “We were -- at that time, depending on the order of the Commission and we've charged them the lower rate, (Inaudible)
Ralph W. Currie: Yes, sir.
Tom C. Clark: So, they -- the shippers would come in and say, “Well, look, the Court vacated that ab initio so you don't have any -- that's not a valid order, but you have a conflict according to the railroad, not just during the --
Ralph W. Currie: I understand that, sir, and I -- I think there are two answers to it. In the first place, those people are not parties to this suit and as I see the rule of mootness as laid down by prior decision to this Court. This controversy has to be determined or has to be judged on whether or not there's anything that the parties to this controversy stand to gain or lose by it. Second, if there be any -- three things -- secondly, if this Court finds that this case is moot and vacates the judgment of the court below, as it usually does, you are going to have the -- all of that situation will be eliminated.
Hugo L. Black: Would be the same as though there had never been a lawsuit.
Ralph W. Currie: Yes, sir.
Hugo L. Black: (Voice Overlap)
Ralph W. Currie: Would be the same as though there have been -- never been a law suit.
Hugo L. Black: Did the parties have any right of action against the railroad and to be told to what's been done already?
Ralph W. Currie: Now, thirdly, any controversy that can be settled between the shippers and receivers of the freight and the railroads could not be settled in this Court. As a matter of fact, if the railroads feel that it would be unjust for them to collect the undercharges that might exist, all they need do is to apply to the Interstate Commerce Commission on the informal docket for a relief from -- and for permission to weigh the undercharges. That's frequently done because it operates this way that if they collect the undercharges, the Commission might award reparation back to the shipper so as an administrative shortcut when they have a situation which the rails and carriers and the shippers think is obviously unfair, they simply go to the Commission. The Commission -- the Commission decide that it would be unfair and that they would award reparation if collected, they said to take the shortcut and authorize the railroads to weigh the undercharge in the first instance.
Felix Frankfurter: Well, it can't be that there's a real controversy if they go before the Commission, but there is no controversy here. If you say they could get this fixed up or somehow arranged by getting proper relief before the Commission, it must be something with reference to which relief is given.
Ralph W. Currie: Well, that maybe --
Felix Frankfurter: It says something -- which relief is to be given then it's a live controversy.
Hugo L. Black: Is it relief against you or relief against somebody else?
Ralph W. Currie: No, sir. No reliefs again. There'd be no relief against me, sir.
Felix Frankfurter: The question of mootness doesn't mean that both of them -- we got the railroads here. They've got an interest, but you say it's a lie. They can get it arranged and taken care of by going to the Commission.
Ralph W. Currie: Well, I --
Felix Frankfurter: Are you affected by what happens here?
Ralph W. Currie: I simply say, sir, that -- that the railroads have nothing to lose. They have no liability. They're not liable for any reparation under this. In -- in that connection, Mr. Chief -- Mr. Justice Frankfurter, the decision of this Court in Alejandrino against Quezon which just came to my attention yesterday, it's in 271 U.S. 528. The -- this Court did say in that connection that it must be with the term of office, I mean this period of suspension of the term of office having expired, the case was moved even though the question of whether the man was entitled to his salary during that time have not been determined and was still left to be determined. It may be persuasive. I -- I simply want to conclude my remarks this way, if -- may it please the Court, because my time is about up. That the brief -- my brief here indicates very clearly that if this still presents a justiciable controversy, the action of the court below needs to be affirmed. The order was reviewable. It's impact upon the petitioners there were just as definite and certain as it ever would be when we went to the Court. The action of the Commission, I think as disclosed by the record, was an arbitrary action and in truth, it is worthy of some note that the -- that neither the briefs nor the argument make any real effort to justify de facto what the Commission did. They spend their time arguing that it was not reviewable. The question of the injunction of the rates is one which I think was a necessary consequence that would follow the -- judging the invalidity of the order. In other words, once we concede that the order was -- was invalid and that the suspension order was thereby still left in -- sorry.
Earl Warren: You may finish your sentence (Voice Overlap).
Ralph W. Currie: Thank you, Mr. Chief Justice. Then we have -- then, we must say that the Court having found that the order was void, then these rates were published in contravention of the valid suspension order. And therefore, the Court would be under a duty as a necessary parallel to order that rates filed in contravention of invalid suspension order be set aside and not used. I thank you.