and therefore, acting entirely within its statutory warrant, dismissed the complaint. This theory, unsupported by proper proof, that the public interest and national transportation policy demand that plaintiff's contentions be sustained, cannot be accepted as a legitimate substitute for the evidence specifically called for by Section 15(6) of the Act.
Plaintiff next asserts that 'The Commission erred in failing to find that the maintenance of the present harbor allowance is an unlawful practice in violation of Section 1(6) of the Act.'
In arguing the point strenuous attempt is made to create the impression that the Commission did not pass upon this question. The failure of the first report to discuss or decide it is stressed.
And then, in commenting on the denial of relief to the plaintiff by the Commission in its second report, plaintiff's reply brief states: 'It may not lawfully do that, without due investigation and a valid finding on this issue.' Completely overlooked is the Commission's specific finding in its second report that 'Upon the record, we conclude that the allowances assailed have not been shown to have been or to be unjust, unreasonable, inequitable, or unduly prejudicial as alleged, and that the allegation of unlawfulness under Section 1(6) of the act has not been sustained.' (Emphasis supplied).
Plaintiff's avowed purpose in invoking Section 1(6) of the Act was to seek prescription of minimum harbor allowances for its competitors in New York Harbor, in order that the plaintiff could avail itself of such allowance as the Commission might prescribe for it under Section 15(6). The Commission explained plaintiff's position in these words, 'The complaint was filed against all of the carriers participating in the joint rates, including harbor lines other than the Jersey Central, and sought prescription of the same allowances for all harbor lines, in order to prevent undue prejudice that otherwise would allegedly result from diversion of traffic, by rail connections, from the Jersey Central to other harbor lines with lower harbor allowances.' Thus the plaintiff, though nominally interested in proving the existence of an unlawful practice, in reality sought a change in the existing divisional arrangements among the twelve other New York Harbor carriers and their connections under the joint rates. Had the plaintiff succeeded, the Commission would have prescribed increased harbor allowances for the other harbor carriers as 'just, reasonable, and equitable divisions' of joint rates without having had before it, as to the other harbor roads, evidence bearing upon the elements required for its consideration under Section 15(6) of the Act. A similar circumvention of the divisions statute was stricken down in Baltimore & Ohio R.R. Co. v. United States, 277 U.S. 291, 300, 48 S. Ct. 520, 522, 72 L. Ed. 885, where the Court said that divisional arrangements under joint rates are not a practical and added: 'But even if the matter in controversy were a 'practice' within the meaning of the act, the Commission would not be authorized to set it aside without evidence that it is unjust or unreasonable.
Paragraph (6) of section 15, 49 U.S.C.A. § 15(6), Comp. St. Sec. 8583(6), empowers the Commission to prescribe divisions of joint rates, but there must be evidence adequate to justify action. Brimstone Railroad & Canal Co. v. United States, 176 U.S. 104, 48 S. Ct. 282, 72 L. Ed. 487; United States v. Abilene & Southern Ry. Co., 265 U.S. 275, 44 S. Ct. 565, 68 L. Ed. 1016; New England Divisions Case, 261 U.S. 184, 43 S. Ct. 270, 67 L. Ed. 605. That rule may not be avoided by a broad construction of the word 'practice."
The proofs offered by the Central, or rather, the lack of them, produced a fact result that justified the Commission's holding that the charge of unlawful practice had not been sustained. Cf. Radio Corp. of America v. United States, 341 U.S. 412, 71 S. Ct. 806.
Actions of the Commission Alleged to be Arbitrary and in Disregard of Due Process.
Plaintiff urges that the 'order of dismissal rests squarely on the premise that: 'the joint rates or at least most of them do not include the full cost of the harbor service and therefore for the purpose of this proceeding must be assumed to be below maximum reasonable level."
It is palpably incorrect to say that the above is why the Commission dismissed the complaint. Plaintiff's deliberate failure to produce adequate proof from which the Commission would have been able to determine its equitable share of the joint rate for its harbor service was the fundamental reason why the complaint was dismissed. Whether because of conflict with its basic theory or for some other reason, plaintiff made it entirely clear that it had no wish to supplement the present record with any additional evidence.
It is also claimed that the action of the Commission was arbitrary because its order was based in part of findings of fact which are either wholly irrelevant or unsupported by evidence.
Under this point plaintiff once more attacks the Commission's conclusion that the New York rates do not include the full cost of the harbor service as derived from the Commission's observations regarding the New York Harbor Case and the Eastern Class Rate Investigation. It is again asserted that those observations are wholly irrelevant because they are based on an outmoded rate structure. The vital current importance of the New York Harbor Case and of the Eastern Class Rate Investigation to the issue before us was gone into early in this opinion. It is enough to say that once more plaintiff fails to cite any decision deferring from the rationale of those cases.
Plaintiff's point under subdivision c of this branch of the argument repeats its erroneous statement that the Commission dismissed the complaint because the New York rates do not include the cost of harbor service. With that as a foundation it goes on to say that the dismissal was arbitrary because the Commission at the time had in effect orders prescribing many of the New York rates as maximum reasonable. The argument is wholly without merit.
Subdivision d concerns the denial of reargument. There was nothing arbitrary or in disregard of due process in that action of the Commission. Cf. I.C.C. v. Jersey City, 322 U.S. 503, 515, 64 S. Ct. 1129, 88 L. Ed. 1420; Inter-City Transportation Co., Inc., v. United States, D.C., 89 F.Supp. 441, 443.
Finally, says the plaintiff, the Commission in dismissing the complaint acted contrary to the Fifth Amendment and do left the plaintiff without remedy for confiscatory divisions of joint rates prescribed by the Commission itself.
The premise to this assertion, i.e., that the divisions to the Jersey Central from the joint rate are confiscatory, is not borne out by the record. Those divisions do not just consist of the Central's harbor allowances but include a percentage division of the joint rate as a line-haul carrier and for origination and termination of freight. Every one of the harbor railroad group receives the same type of allotments from the joint rate. There is nothing in this record to indicate the total divisions received by the Jersey Central and the other harbor lines in compensation for their various services out of the joint New York rate, are confiscatory. There is, at the very least, no satisfactory proof of excess cost of harbor service of any of the lines with the exception of the Jersey Central. Plaintiff claims, correctly we think, that as a matter of competition it could not afford to accept higher compensation for its harbor service than the allowances received by the other harbor lines since in that event it would surely lose its business to those other carriers. But as already mentioned, this case is barren of inference that the divisions of the joint rate to those other lines are unfairly low.
In addition to the above, plaintiff's proof of its own harbor costs is strongly attacked by the defense on the ground that it is predicated on a stale survey made back in 1939; that the harbor services, including plaintiff's, have been inefficiently operated and that a late check would be bound to show improvement especially in connection with the lowering of the cost of those services.
On the whole record it is apparent that the action of the Commission in dismissing the complaint does not amount to confiscation as charged.
The report of the Commission is sound in law. Its factual findings have substantial support on the record considered as a whole. Cf. Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456; National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S. Ct. 453. Its position is neither arbitrary nor in disregard of due process. Its orders reversing its prior order in this matter and denying reargument will be affirmed.
Finding of fact and conclusions of law are filed herein in accordance with the provisions of Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.
Findings of Fact.
We find as facts:
1. On July 3, 1944 the Trustees of the Central Railroad Company of New Jersey filed a complaint with the Interstate Commerce Commission against all of the connecting railroad carriers operating in Official Territory and participating with the plaintiff in joint rates between New York Harbor and other point in and beyond said territory.
2. Said complaint alleged that the New York Harbor allowances were inadequate, unjust, unreasonable and inequitable, and unduly prejudicial to the Central Railroad of New Jersey in violation of Section 1(4) and Section 3(4) of the Interstate Commerce Act.
3. The complaint further charged that the practice of the other New York Harbor lines in agreeing to the maintenance of non-compensatory harbor allowances was an unjust and unreasonable practice in violation of Section 1(6) of the Act.
4. The evidence in the matter was heard by two examiners on behalf of the Commission and was concluded in September 1946. The case was submitted to the Commission April 21, 1948 and the Report of the Commission was filed October 11, 1948.
5. In that Report the Commission found that the New York Harbor allowances to the Jersey Central out of the joint rates '* * * for the future will be unjust, unreasonable, and inequitable.' The allowances for car floatage were increased to six cents per hundred pounds and for lighterage were increased on a sliding scale from six to eleven cents per hundred pounds. These allowances were to be increased proportionately with certain subsequent rate increases.
6. The increases were made applicable to all New York Harbor lines.
7. The Jersey Central allowances for car floatage and lighterage were not to be adjusted retroactively.
8. An appropriate order was entered by the Commission on the same date that its Report was filed, namely, October 11, 1948.
9. On December 10, 1948 a petition for reargument and reconsideration was filed by certain non-harbor lines and the New York Central Railroad Company. Plaintiff filed a motion to dismiss that petition.
10. The reargument was allowed and the case reargued on April 25, 1949.
11. Following reargument and reconsideration, the Commission, on December 29, 1949, filed a second report in the case. That report reversed the conclusions of the prior report and held that 'Upon the record, we conclude that the allowances assailed have not been shown to have been or to be unjust, unreasonable, inequitable, or unduly prejudicial as alleged, and that the allegation of unlawfulness under section 1(6) of the act has not been sustained.' On the same date, namely, December 29, 1949, the Commission entered an order setting aside its order of October 11, 1948 and dismissing the complaint in this cause.
12. Plaintiff then filed a petition requesting that the order of dismissal be set aside and that the case be again reopened for further consideration.
13. Said petition was denied by the Commission's order on May 18, 1950.
14. Plaintiff on January 29, 1951 filed its petition in this Court seeking to have set aside (1) the Commission's order of December 29, 1949 which, as stated, had reversed the Commission's first order in this case and (2) the Commission's order of May 18, 1950 which had denied plaintiff's petition that the case be reopened and reconsidered.
15. The United States of America and the Interstate Commerce Commission filed answers on April 4, 1951. The intervening railroad defendants filed an answer on April 5, 1951.
16. The matter was argued orally to this Court, convened pursuant to statute, on June 8, 1951 and briefs have been submitted.
Conclusions of Law.
1. The Court has jurisdiction of the parties and of the subject matter of this suit.
2. The Commission's orders of December 29, 1949 and May 18, 1950 were within the statutory authority of the Commission.
3. The findings of the Commission contained in its Report of December 29, 1949 are supported by substantial evidence on the record considered as a whole and are clearly sufficient to sustain its order of that date.
4. The order of the Commission of May 18, 1950 denying plaintiff's petition for reopening the case and reconsideration thereof was entirely proper and in accordance with the authority vested in the Commission by the Interstate Commerce Act.
5. The orders of the Commission of December 29, 1949 and May 18, 1950 should be affirmed.