UNITED STATES ET AL. v. UNITED STATES SMELTING REFINING & MINING CO. ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH.

No. 173. Argued February 13-14, 1950.-Decided March 27, 1950.

1. The Interstate Commerce Commission has the power under the Interstate Commerce Act to fix the point at which line-haul or carrier transportation service begins and ends. Pp. 190, 193, 197.

2. The convenient points at which line-haul or carrier transportation service begins and ends are questions of fact to be determined by the Commission; and its findings on those questions will not be disturbed by the courts if supported by substantial evidence. P. 193.

3. In this proceeding, the Commission's determination of the points at which line-haul or carrier transportation service begins and ends at the smelting companies' plants is supported by substantial evidence and must be sustained. Pp. 188–194.

4. When the Commission has determined the point at which linehaul or carrier transportation service begins and ends at a particular plant, the line-haul charge thereafter must be to that point and not to a further point fixed in a carrier tariff, since transportation to the latter point at the line-haul rate would be preferential and would violate § 6 (7) of the Interstate Commerce Act. Pp. 194-197.

5. The contention that to require the carriers to conform to the Commission's orders in this case would require the smelting companies to pay twice for their services misconceives the scope of this proceeding, which was solely to define what is embraced in line-haul transportation, and not to determine whether the charge made for the service was compensatory. Pp. 197-198.

6. The Commission has authority to exclude rate questions from this proceeding. P. 198.

7. The fact that there was no appeal from an earlier judgment of the District Court granting a temporary injunction and remanding the case to the Commission (the court having found that there was no evidence to sustain a Commission finding that the line-haul rates were not compensatory for the services rendered) does not

require that the judgment here appealed from be affirmed under the rule of "law of the case," since the earlier judgment was not a final judgment. Pp. 198-199.

Reversed.

In a suit to enjoin the enforcement of orders of the Interstate Commerce Commission, the District Court held the orders unlawful and permanently enjoined their enforcement. On direct appeal to this Court, reversed, p. 199.

Joseph W. Bishop, Jr. argued the cause for the United States, appellant. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bergson and J. Roger Wollenberg. Edward Dumbauld was also of counsel.

Allen Crenshaw argued the cause for the Interstate Commerce Commission, appellant. With him on the brief was Daniel W. Knowlton.

Charles A. Horsky argued the cause for the United States Smelting Refining & Mining Co., appellee. With him on the brief was Paul B. Cannon.

Otis J. Gibson argued the cause and was on the brief for the Denver & Rio Grande Western Railroad Co., appellee.

Elmer B. Collins argued the cause and was on the brief for the Union Pacific Railroad Co., appellee.

John F. Finerty argued the cause and was on the brief for the American Smelting & Refining Co., appellee.

The cause was submitted on briefs by Clinton D. Vernon, Attorney General, for intervenors State of Utah et al.; Walter R. McDonald for intervenor Public Utilities Commission of Colorado; Stanley T. Wallbank for intervenor Colorado Mining Association; and S. J. Quinney for intervenor Utah Mining Association, appellees.

Opinion of the Court.

339 U.S.

MR. JUSTICE MINTON delivered the opinion of the Court.

The Interstate Commerce Commission instituted the proceedings leading to the orders here involved as its Seventy-fifth and Seventy-sixth Supplemental Reports to Ex parte 104, Practices of Carriers Affecting Operating Revenues or Expenses, Part II, Terminal Services, 209 I. C. C. 11. The proceedings concerned the switching and spotting services rendered by appellee-carriers at the Garfield and Murray, Utah, and Leadville, Colorado, plants of the American Smelting Company, and the Midvale, Utah, plant of the United States Smelting Company. Extensive hearings were held in these supplemental proceedings for the purpose of determining the respective points at which the carriers' line-haul transportation service ended and the extent of the service the carriers might render in the discharge of their obligation to deliver the freight at these four plants.

It will not be necessary to detail the physical characteristics of each of the plants involved here. Each has a receiving yard or interchange tracks upon which incoming and outgoing freight is switched. Beyond the interchange tracks switching services are numerous and extensive within the plants. The Garfield plant may be described as indicative of the situation at all the plants.1 There, frozen ore is handled in six distinct movements. A large amount of intraplant switching is done by the carriers. To perform these switching services at Garfield requires three train-crew shifts daily. In one twelvemonth period at this plant, 22,982 carloads of inbound and 6,960 carloads of outbound freight were handled.

1 The plants are described in detail by the Commission in its reports, 263 I. C. C. 749, 266 I. C. C. 476, 270 I. C. C. 385; 263 I. C. C. 719, 266 I. C. C. 349, 270 I. C. C. 359.

186

Opinion of the Court.

On October 14, 1946, the Commission entered its first orders in these proceedings, enjoining appellee-carriers from performing switching and spotting service in violation of the Interstate Commerce Act. On petition to the District Court, a statutory three-judge court sitting, the orders were held unlawful. The court was of the opinion that each of the Commission's orders was based on the premise that the line-haul rates did not cover the intraplant services, and held that such a finding was not supported by the evidence. In addition, the court found that the Commission had not "presumed to exercise the authority which is intended to be conferred under Ex Parte 104 in that the order made is not specifically based upon that authority." The matter was remanded to the Commission "for such action as it may find justifiable in the premises," and the Commission was "temporarily enjoined from requiring its formal order to be carried into force and effect . . . The Commission on remand reopened the case but took no more evidence. It restated the ground for its action and entered cease and desist orders against the carriers. On petition of the appellees, the District Court again held the orders unlawful and permanently enjoined their enforcement. It is from this judgment that the Commission and the United States have appealed.

The Commission undertook its general investigation, Ex parte 104, in the interest of establishing a uniform and equal service for shippers. The Commission concluded that carrier obligation for transportation service ends customarily when delivery is made at a convenient point on the siding inside or outside a consignee's plant. This delivery is such as may be accomplished in one continuous movement without "interruption" occasioned for the convenience of the industry, and is only the equivalent of team track or simple placement switching. In the Commission's view as developed in Ex parte 104, such a con

Opinion of the Court.

339 U.S.

venient delivery point marks the beginning and end of what is termed "line-haul" transportation, and is the extent of the service which may be performed under the linehaul rate. The Commission's authority to determine the point where transportation duty ends and industry convenience begins was upheld by this Court in United States v. American Sheet & Tin Plate Co., 301 U. S. 402. We have repeatedly sustained the Commission in its application of Ex parte 104 principles to particular plants where it has prohibited the performance of services beyond the point fixed under a line-haul rate. In issuing cease and desist orders in these cases the Commission has acted pursuant to its duty to enforce § 6 (7) of the Interstate Commerce Act, which section prohibits departure from filed tariffs and the rendering of preferential services."

As stated, the purpose of these proceedings before the Commission was to determine the beginning and end of

2 Corn Products Refining Co. v. United States, 331 U. S. 790; Hanna Furnace Corp. v. United States, 323 U. S. 667; United States v. Wabash R. Co., 321 U. S. 403; United States v. Pan American Petroleum Corp., 304 U. S. 156; A. O. Smith Corp. v. United States, 301 U. S. 669; Goodman Lumber Co. v. United States, 301 U. S. 669.

3 "No carrier, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs." 24 Stat. 379, as amended, 49 U. S. C. § 6 (7).