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United States v. Trucking Co., 310 U.S. 344 (1940)

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United States v. Trucking Co., 310 U.S. 344 (1940)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   UNITED STATES V. TRUCKING CO.

Case #: 310US344


NO. 724.  ARGUED APRIL 26, 29, 1940.  - DECIDED MAY 20, 1940.  -
REVERSED. 


COMMON CARRIERS BY MOTOR, IN INTERSTATE COMMERCE, FILED TARIFFS
PROVIDING RATES ON GOODS RESHIPPED IN THE ORIGINAL PACKAGES AS LESS
THAN TRUCK-LOAD CONSIGNMENTS IMMEDIATELY AFTER THEIR TRANSPORTATION AS
PARTS OF A TRUCK-LOAD OR CARLOAD CONSIGNMENT, AND ON LESSTHAN-TRUCK
LOAD GOODS WHICH, ON ARRIVAL AT THEIR IMMEDIATE DESTINATION, ARE TO BE
IMMEDIATELY RESHIPPED, IN THE ORIGINAL PACKAGES, AS PARTS OF A TRUCK
LOAD OR CARLOAD CONSIGNMENT.  THE INTERSTATE COMMERCE COMMISSION FOUND
THE RATES LOWER THAN OTHER RATES ON LIKE GOODS BETWEEN THE SAME POINTS;
THAT PRACTICALLY THEY COULD BE USED ONLY BY FORWARDERS AND A FEW LARGE
SHIPPERS; THAT THEY WOULD OPERATE FOR THE SPECIAL BENEFIT OF FORWARDERS
AND WOULD NOT BENEFIT OWNERS OF THE GOODS SHIPPED; AND THAT FORWARDERS
WOULD THEREBY BE AFFORDED TRANSPORTATION AT RATES LOWER THAN THOSE
CHARGED CERTAIN OTHER SHIPPERS UNDER SUBSTANTIALLY SIMILAR
CIRCUMSTANCES AND CONDITIONS, IN VIOLATION OF SEC. 216(D) OF THE
FEDERAL MOTOR CARRIER ACT.  HELD: 

1.  THAT THE COMMISSION WAS JUSTIFIED IN CANCELING THE PROPOSED
TARIFFS.  P. 347. 

2.  SECTION 216(D) OF THE MOTOR CARRIER ACT, LIKE PROVISIONS OF THE
INTERSTATE COMMERCE ACT, INSURES EQUALITY OF RATES FOR SUBSTANTIALLY
SIMILAR SERVICES.  P. 351. 

3.  ALTHOUGH THE EVIDENCE WAS UNDISPUTED, IT WAS FOR THE COMMISSION
TO DETERMINE THE QUESTION OF UNDUE PREFERENCE AND DISCRIMINATION.  P.
352. 

4.  THE COMMISSION WAS AUTHORIZED TO ACT IN THE MATTER ON ITS OWN
MOTION, WITHOUT COMPLAINT BY SHIPPERS.  P. 353. 

5.  THE COMMISSION PERFORMS ITS DUTIES IN THE INTERESTS OF SHIPPERS
GENERALLY, OF THE NATIONAL TRANSPORTATION SYSTEM, AND OF THE PUBLIC. 
P. 354. 

UNITED STATES ET AL. V. CHICAGO HEIGHTS TRUCKING CO. ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

APPEAL FROM A DECREE OF THE DISTRICT COURT OF THREE JUDGES, WHICH SET
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION CANCELING TARIFFS
OF MOTOR CARRIERS. 

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. 

RESPONDENTS ARE FORTY-ONE INTERSTATE COMMON CARRIERS OPERATING MOTOR
VEHICLES SUBJECT TO THE INTERSTATE COMMERCE COMMISSION UNDER THE
FEDERAL MOTOR CARRIER ACT OF 1935.  FN1  OUR DECISION TURNS UPON THE
VALIDITY OF AN ORDER OF THE COMMISSION CANCELLING CERTAIN PROPOSED
TARIFFS OF THESE CARRIERS UPON THE GROUND THAT THEY WERE UNLAWFULLY
DISCRIMINATORY IN AFFORDING LOWER RATES TO "FORWARDERS" OF FREIGHT THAN
TO OTHER SHIPPERS. 

FORWARDERS UTILIZE COMMON CARRIERS BY RAIL AND MOTOR TRUCK TO
TRANSPORT GOODS OWNED BY OTHERS.  THEY SOLICIT AND OBTAIN MANY SMALL
SHIPMENTS, FROM VARIOUS POINTS WITHIN AN AREA, AND CAUSE THEM TO BE
CARRIED IN LESS THAN TRUCK-LOAD OR CARLOAD LOTS TO A CONCENTRATION
CENTER WITHIN THE AREA.  THERE THEY ARE ASSEMBLED BY THE FORWARDER FOR
FURTHER TRANSPORTATION IN TRUCK-LOAD OR CARLOAD LOTS.  ALTHOUGH THE
FORWARDER GIVES OWNERS OF INDIVIDUAL SMALL SHIPMENTS HIS OWN CONTRACT
CORRESPONDING IN FORM TO THROUGH BILLS OF LADING AND ASSUMES
RESPONSIBILITY FOR SAFE THROUGH CARRIAGE, THE FORWARDER CUSTOMARILY
ARRANGES FOR THE PICKUP, ASSEMBLY AND TRANSPORTATION OF THE SHIPMENTS
BY CARRIERS FOR HIRE.  AND THE FORWARDERS, NOT THE OWNERS OF THE GOODS,
SELECT THE CARRIERS AND ROUTE THE SHIPMENTS.  UPON ARRIVAL OF A TRUCK
LOAD OR CARLOAD OF THE ASSEMBLED SMALL SHIPMENTS AT A DISTRIBUTION
CENTER, THE BULK SHIPMENT IS BROKEN UP, THE FORWARDER SEPARATES AND
TAKES POSSESSION OF THE ORIGINAL SMALL SHIPMENTS AND ARRANGES, WHERE
NECESSARY, THEIR FURTHER CARRIAGE TO THEIR VARIOUS FINAL DESTINATIONS
IN THE AREA SERVED BY THE PARTICULAR DISTRIBUTION POINT.  IN THIS FINAL
CARRIAGE OF THE SMALL SHIPMENT TO ITS ULTIMATE DESTINATION, THE
FORWARDER AGAIN UTILIZES CARRIERS FOR HIRE TO MOVE THESE LESS THAN
TRUCK-LOAD OR CARLOAD LOTS.  THUS, FORWARDERS MAY USE THE SERVICE OF
CARRIERS TO ASSEMBLE SHIPMENTS OF LESS THAN TRUCK-LOAD OR CARLOAD LOTS
AT THEIR CONCENTRATION CENTER, TO TRANSPORT THE ASSEMBLED TRUCK-LOAD OR
CARLOADS TO A DISTRIBUTION CENTER AND TO CARRY THE BROKEN UP SMALL
SHIPMENTS BEYOND THEIR BREAK-BULK DISTRIBUTION CENTER. 

THE FORWARDING BUSINESS HAS BEEN BUILT UPON THE EXPECTATION THAT A
MATERIAL PART OF THE TRANSPORTATION WHICH IT CAUSES TO BE PROVIDED FOR
SMALL SHIPPERS CAN BY CONSOLIDATION OF SMALL SHIPMENTS BE OBTAINED AT
TRUCK-LOAD OR CARLOAD RATES.  FOR THE FORWARDERS' BUSINESS WAS
ORIGINALLY MADE PROFITABLE BECAUSE IT COULD OPERATE UPON THE MARGIN OF
PROFIT REPRESENTED BY THE DIFFERENCE BETWEEN RAILROAD CARLOAD RATES
PAID BY THE FORWARDER AND THE HIGHER RATES, APPROXIMATING LESS THAN
CARLOAD RATES, WHICH THE FORWARDER CHARGED THE OWNER OF A SHIPMENT. 
FN2  BUT FORWARDERS IN USING RAILROADS ENJOY NO SPECIAL TARIFF RATES
AND PAY THE SAME PUBLISHED CARLOAD AND LESS THAN CARLOAD RATES THAT
OTHER SHIPPERS PAY.  AND THE QUESTION HERE IT NOT WHETHER THE
COMMISSION SHOULD HAVE APPROVED AS LAWFUL LOWER RATES FOR TRUCK-LOADS
THAN FOR SMALLER SHIPMENTS, BUT WHETHER THE COURT PROPERLY SET ASIDE
THE COMMISSION'S ORDER WHICH HAD DIRECTED CANCELLATION OF RESPONDENTS'
TARIFFS PROVIDING LOWER RATES FOR CERTAIN LESS THAN TRUCK-LOAD
SHIPMENTS SOLELY BECAUSE THEY HAD PREVIOUSLY BEEN, OR WERE INTENDED
SUBSEQUENTLY TO BE, CONSOLIDATED IN TRUCKLOADS WITH OTHER INDIVIDUAL
SHIPMENTS. 

UPON THE COMMISSION'S OWN MOTION, A HEARING WAS HELD AND THE
COMMISSION ORDERED THE CANCELLATION OF THESE TARIFFS.  FN3  RESPONDENTS
BROUGHT SUIT IN THE DISTRICT COURT TO SET ASIDE AND RESTRAIN
ENFORCEMENT OF THE COMMISSION'S ORDER.  A THREE JUDGE COURT HELD THE
ORDER VOID AND PERPETUALLY ENJOINED ITS ENFORCEMENT.  THE CASE IS HERE
ON DIRECT APPEAL BY THE UNITED STATES AND THE INTERSTATE COMMERCE
COMMISSION.  FN4 

RESPONDENTS' TARIFFS WOULD BE AVAILABLE TO FORWARDERS WHO ARRANGE
ASSEMBLING, TRANSPORTATION AND DISTRIBUTION SERVICES IN THE TRADE AREAS
SURROUNDING CONCENTRATION AND BREAK-BULK CENTERS IN ILLINOIS, WISCONSIN
AND INDIANA.  AND THE COMMISSION FOUND THAT "IN PRACTICAL EFFECT THESE
RATES CAN BE USED BY FEW, IF ANY, SHIPPERS, EXCEPT THE FORWARDERS." 
SINCE IN ITS OPINION THESE TARIFFS WERE "MATERIALLY LOWER THAN
RESPONDENTS' LOCAL RATES ON LIKE TRAFFIC BETWEEN THE SAME POINTS," FN5
THE COMMISSION FOUND THAT "THE FORWARDERS  ..  ANND POSSIBLY A FEW
LARGE SHIPPERS  ..  WIILL BE AFFORDED TRANSPORTATION AT RATES LOWER
THAN THE RATES  ..  CHHARGED CERTAIN OTHER SHIPPERS UNDER SUBSTANTIALLY
SIMILAR CIRCUMSTANCES AND CONDITIONS, IN VIOLATION OF SECTION 216(D)." 
FN6 IN THE VIEW WE TAKE, IT BECOMES UNNECESSARY TO CONSIDER ADDITIONAL
GROUNDS UPON WHICH THE COMMISSION FOUND THE TARIFFS VIOLATED ANOTHER

SO FAR AS PERTINENT HERE, THE TARIFFS BEFORE US PROPOSE RATES FOR
TRANSPORTATION OF COMMODITIES IN LESS THAN TRUCK-LOAD LOTS.  ALL
COMMODITIES (WITH EXCEPTIONS NOT HERE MATERIAL) ARE AS A GROUP GIVEN
THE SAME SPECIAL RATE.  IN GENERAL, RESPONDENTS' OTHER TARIFFS PROVIDE
RATES WHICH VARY FOR DIFFERENT TYPES OF COMMODITIES.  ACCORDINGLY, IF
THE SUSPENDED RATES WERE IN EFFECT, TRANSPORTATION OF THE SAME
COMMODITY OVER THE SAME HAUL MIGHT COST A FORWARDER LESS THAN OTHER
SHIPPERS. 

THE FINDINGS OF THE COMMISSION AND THE SUPPORTING EVIDENCE  FN8
REVEAL THAT LOCAL LESS-THAN-TRUCK-LOAD RATES CHARGED SHIPPERS ARE IN
MANY IF NOT MOST INSTANCES GREATER THAN RATES ON LIKE COMMODITIES
BETWEEN THE SAME POINTS TO BE AFFORDED FORWARDERS UNDER THE PROPOSED
TARIFFS WHICH THE COMMISSION ORDERED CANCELLED.  HOWEVER, UPON
REVIEWING THE IDENTICAL EVIDENCE WHICH THE COMMISSION HAD CONSIDERED,
THE COURT BELOW DREW INFERENCES OPPOSITE TO THOSE OF THE COMMISSION AND
DISAGREED WITH ITS CONCLUSION THAT IN OPERATION THE DISPUTED TARIFFS
WOULD VIOLATE SEC. 216(D) WHICH FORBIDS UNDUE PREFERENCES AND
ADVANTAGES THAT LEAD TO UNJUST DISCRIMINATION.  THE EXERCISE OF
JUDGMENT BY THE COMMISSION AND BY THE COURT IN APPRAISING THE SAME
EVIDENCE HAS LED TO THESE OPPOSING CONCLUSIONS. 

THE TARIFFS APPLY ON "'ALL FREIGHT' (EXCEPT AS OTHERWISE PROVIDED
..  ),, WHICH HAS BEEN TRANSPORTED TO  ..  (AAN) ORIGIN STATION  ..  ,

AS A PART OF A TRUCK-LOAD CONSIGNMENT OR CARLOAD CONSIGNMENT MOVING
UNDER TARIFFS OR SCHEDULES LAWFULLY ON FILE WITH THE INTERSTATE
COMMERCE COMMISSION AND IMMEDIATELY RESHIPPED IN THE ORIGINAL PACKAGES
AS AN L.T.L. (LESS THAN TRUCK-LOAD) SHIPMENT: 

"(B) 'ALL FREIGHT',  ..  WHHICH IS TO BE TRANSPORTED TO  ..  (AA
NAMED) DESTINATION STATION ..  ASS AN L.T.L. SHIPMENT, AND IMMEDIATELY
RESHIPPED IN THE ORIGINAL PACKAGE AS PART OF A TRUCK-LOAD CONSIGNMENT
OR CARLOAD ASSIGNMENT MOVING UNDER TARIFFS OR SCHEDULES LAWFULLY ON
FILE WITH THE INTERSTATE COMMERCE COMMISSION." 

IT IS EVIDENT THAT THESE SPECIAL TARIFFS ARE AVAILABLE ONLY TO
SHIPPERS WHO INTEND AND ARE ABLE (A) TO ARRANGE IMMEDIATE FURTHER
TRANSPORTATION IN CARLOADS OR TRUCK-LOADS FOR COMMODITIES THAT HAVE
BEEN CARRIED IN LESS THAN TRUCK-LOAD LOTS, OR (B) TO MOVE COMMODITIES
IN LESS THAN TRUCK-LOAD LOTS IMMEDIATELY AFTER THEY HAVE BEEN CARRIED
AS PART OF A CARLOAD OR TRUCK-LOAD.  WHILE, AS HAS BEEN NOTED, SOME FEW
LARGE SHIPPERS MAY POSSIBLY AVAIL OF THE TARIFFS, THERE IS NO QUESTION
ABOUT THE FINDING OF THE COURT BELOW THAT THE "PRINCIPAL TRAFFIC WHICH
WILL BE CARRIED UNDER THE SUSPENDED RATES IS WHAT IS CALLED BY THE
COMMISSION 'FREIGHT FORWARDER TRAFFIC.'" 

ALMOST SINCE ITS INCEPTION THE COMMISSION HAS BEEN CALLED UPON TO
EXERCISE ITS JUDGMENT RELATIVE TO THE INTERSTATE COMMERCE ACT AS
APPLIED TO FORWARDERS.  FN9  INITIAL HOSTILITY OF THE RAILROADS CAUSED
THEM TO DENY FORWARDERS THE ADVANTAGE OF THEIR PUBLISHED RATES. 
HOWEVER, WHEN CALLED UPON TO DECIDE, THE COMMISSION HELD THAT THE
RAILROADS' ACTION DISCRIMINATED AGAINST FORWARDERS AND DECLARED
FORWARDERS TO BE ENTITLED AS SHIPPERS TO PUBLISHED CARLOAD RATES.  THIS
COURT SUSTAINED THE ACTION OF THE COMMISSION.  FN10 

ABOUT 1920, PRIOR TO THE MOTOR CARRIERS ACT, FORWARDERS BEGAN TO
UTILIZE MOTOR CARRIERS.  FORWARDERS AND TRUCKERS OPERATED UNDER
INDIVIDUAL CONTRACTS PROVIDING DIVISIONS OF THE COMPLETE LINE HAUL
CHARGE.  AFTER THE TARIFF PROVISIONS OF THE MOTOR CARRIERS ACT WENT
INTO EFFECT, FORWARDERS FILED TARIFF SCHEDULES WITH THE INTERSTATE
COMMERCE COMMISSION ON THE ASSUMPTION THAT THEY WERE SUBJECT TO THE ACT
AS COMMON CARRIERS.  TARIFFS SO FILED WERE, HOWEVER, ORDERED CANCELLED
BY THE COMMISSION UPON THE GROUND THAT FORWARDERS WERE NOT MOTOR
CARRIERS SUBJECT TO THE ACT.  A THREE JUDGE DISTRICT COURT UPHELD THE
COMMISSION  FN11  AND THIS COURT AFFIRMED.  FN12 

HERE, THE COMPLAINT ITSELF HAS ALLEGED THAT THE SO-CALLED
"PROPORTIONAL" TARIFFS UNDER CONSIDERATION "NAME RATES WHICH ARE
IDENTICAL WITH" THE DIVISIONS OF THROUGH L.C.L. RATES WHICH RESPONDENTS
WOULD HAVE RECEIVED HAD THE FORWARDERS' TARIFFS BEEN UPHELD.  AND, AS
STATED BY THE COMMISSION, "STRIPPED OF PROTECTIVE COLORING, THESE RATES
ARE PUBLISHED AS PROPORTIONAL RATES PRIMARILY AS A MATTER OF EXPEDIENCY
TO SERVE THE PURPOSE OF CERTAIN FREIGHT FORWARDERS AND TO PERPETUATE IN
ANOTHER FORM SO-CALLED DIVISIONS OF PURPORTED JOINT RATES OF THE
FREIGHT FORWARDERS." 

RESPONDENTS CONTEND THAT THE COMMISSION IMPROPERLY CONCLUDED THAT THE
CANCELED TARIFFS CREATE UNDUE PREFERENCES OR ADVANTAGES RESULTING IN
UNJUST DISCRIMINATIONS IN VIOLATION OF 216(D) BECAUSE THERE WAS NO
EVIDENCE THAT THE SUSPENDED RATES WOULD SUBJECT ANY PARTICULAR PERSON
OR TYPE OF TRAFFIC TO DISADVANTAGE OR INJURY; WHILE THE SUSPENDED
RATES, APPLICABLE ON ALL CLASSES OF TRAFFIC, MIGHT BE LOWER AS TO SOME
COMMODITIES, THE AGGREGATE COMPENSATION FROM THEM WOULD NOT BE LESS
THAN THAT FROM LIKE LOCAL TRAFFIC IF ALL SUCH LOCAL TRAFFIC IS
CONSIDERED; SERVICES RENDERED BY RESPONDENTS TO THE FORWARDERS ARE
UNLIKE AND LESS BURDENSOME THAN LOCAL SERVICES RENDERED INDIVIDUAL
SHIPPERS; SERVICES RENDERED THE FORWARDERS ARE ON LONGER HAULS THAN ON
OTHER LOCAL LESS THAN TRUCK-LOAD COMMODITY TRAFFIC; TERMINAL SERVICES
RENDERED FORWARDERS BY RESPONDENTS ARE LESS EXPENSIVE THAN IN THE CASE
OF OTHER SHIPPERS; FORWARDERS BEAR THE EXPENSE OF SOLICITING BUSINESS
THEREBY RELIEVING RESPONDENTS OF THAT BURDEN; THE ONLY EVIDENCE BEFORE
THE COMMISSION WAS INTRODUCED BY RESPONDENTS; AND NO SHIPPERS
COMPLAINED OF INJURY.  FN13 

WEIGHTY AS THESE ARGUMENTS WERE, THEY DID NOT PERSUADE THE COMMISSION
THAT FORWARDERS COULD WITHOUT DISCRIMINATION BE GIVEN LOWER L.T.L.
RATES THAN OTHER SHIPPERS.  THE COMMISSION WAS IMPRESSED BY THE FACTS
THAT THE PROPOSED RATES WERE NOT IN REALITY AVAILABLE TO ALL OF THE
SHIPPING PUBLIC AND IN PRACTICAL EFFECT WOULD OPERATE FOR THE SPECIAL
BENEFIT OF THE FORWARDERS AND WOULD NOT BENEFIT THE OWNER OF GOODS
SHIPPED; THAT SEC. 216(D) OF THE ACT REPRESENTED A MANIFESTATION OF THE
CONGRESSIONAL PURPOSE IN PART I, SEC. 2, AND PART II, SEC. 202(A) OF
THE INTERSTATE COMMERCE ACT, TO PREVENT FAVORITISM BY INSURING EQUALITY
OF TREATMENT ON RATES FOR SUBSTANTIALLY SIMILAR SERVICES; AND THAT THE
PROPOSED TARIFF WOULD AFFORD "FORWARDERS  ..  ,  AND POSSIBLY A VERY
FEW LARGE SHIPPERS  ..  ,  TRANSPORTATION AT RATES LOWER THAN THE RATES
WHICH ..  (WWOULD) BE CHARGED CERTAIN OTHER SHIPPERS UNDER
SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS, IN VIOLATION OF
CONCLUDED THAT THE MERE FACT THAT FORWARDERS MIGHT ORDINARILY FURNISH A
VOLUME OF TRAFFIC GREATER THAN BUT IDENTICAL IN KIND WITH THAT
FURNISHED BY INDIVIDUAL SHIPPERS DID NOT JUSTIFY LOWER RATES FOR
FORWARDERS. 

"IT IS NOT DISPUTABLE THAT FROM THE BEGINNING THE VERY PURPOSE FOR
WHICH THE COMMISSION WAS CREATED WAS TO BRING INTO EXISTENCE A BODY
WHICH FROM ITS PECULIAR CHARACTER WOULD BE MOST FITTED TO PRIMARILY
DECIDE WHETHER FROM FACTS, DISPUTED OR UNDISPUTED, IN A GIVEN CASE
PREFERENCE OR DISCRIMINATION EXISTED."  FN14  AND WHERE A COURT
SUBSTITUTED "ITS JUDGMENT AS TO THE EXISTENCE OF PREFERENCE FOR THAT OF
THE COMMISSION ON THE GROUND THAT WHERE THERE WAS NO DISPUTE AS TO THE
FACTS IT HAD A RIGHT TO DO SO, (THE COURT) OBVIOUSLY EXERTED AN
AUTHORITY NOT CONFERRED UPON IT BY THE STATUTE."  FN15  SO HERE, IT HAS
BEEN POINTED OUT THAT THERE WAS NO DISPUTE IN THE EVIDENCE BEFORE THE
COMMISSION, ALL OF WHICH WAS INTRODUCED BY RESPONDENTS.  BUT THE
DIFFERING INFERENCES AS TO DISCRIMINATION FINDING POSSIBLE SUPPORT IN
THAT EVIDENCE ARE MADE TO STAND OUT BY THE PERSUASIVE REASONING
ADVANCED IN BOTH THE MAJORITY AND MINORITY OPINIONS OF THE COMMISSION. 
THE INTERSTATE COMMERCE ACT DOES NOT ATTEMPT TO DEFINE AN UNLAWFUL
DISCRIMINATION WITH MATHEMATICAL PRECISION.  INSTEAD, DIFFERENT
TREATMENT FOR SIMILAR TRANSPORTATION SERVICES IS MADE AN UNLAWFUL
DISCRIMINATION WHEN "UNDUE," "UNJUST," "UNFAIR," AND "UNREASONABLE." 
AND THE COURTS HAVE ALWAYS RECOGNIZED THAT CONGRESS INTENDED TO COMMIT
TO THE COMMISSION THE DETERMINATION, BY APPLICATION OF AN INFORMED
JUDGMENT TO EXISTING FACTS, OF THE EXISTENCE OF FORBIDDEN PREFERENCES,
ADVANTAGES AND DISCRIMINATION.  FN16    A SPECIAL ALLOWANCE TO A
FORWARDER AS AN INDUCEMENT TO SHIP GOODS BY A PARTICULAR CARRIER WOULD
BE AN ILLEGAL REBATE.  FN17  SIMILARLY, AND AS PREVIOUSLY POINTED OUT,
FORWARDERS ARE SHIPPERS PROTECTED BY THE INTERSTATE COMMERCE ACT FROM
DISCRIMINATION BY CARRIERS.  FN18  AS SHIPPERS, FORWARDERS DO BUSINESS
SUBJECT TO THE PARAMOUNT PRINCIPLE THAT CONGRESS INTENDED OUR NATIONAL
TRANSPORTATION SYSTEM TO OPERATE WITHOUT FAVORITISM.  PURSUANT TO ITS
DUTY TO APPLY THAT PRINCIPLE UPON A NATIONAL SCALE, THE COMMISSION CAN
PREVENT UNJUST RATE DISCRIMINATION BY CARRIERS AGAINST OTHER SHIPPERS
AND IN FAVOR OF FORWARDERS.  THE PARTICULAR PROBLEM HERE INVOLVED IS
BUT A SEGMENT OF THE LARGER COMPLICATED NATIONAL PROBLEM OF RATES WITH
WHICH THE COMMISSION MUST DEAL.  AS EXEMPLIFIED BY THIS RECORD, THE
COMMISSION IS "INFORMED BY EXPERIENCE"  FN19  OF YEARS IN ITS
CONSIDERATION OF THE RELATIONSHIP OF FORWARDERS TO OUR NATIONAL
TRANSPORTATION SYSTEM. 

THE FACT THAT THE COMMISSION ACTED ON ITS MOTION WITHOUT COMPLAINTS
BY INDIVIDUAL SHIPPERS DID NOT DETRACT FROM THE COMMISSION'S POWER TO
PROTECT AND MAINTAIN A TRANSPORTATION SYSTEM FREE FROM PARTIALITY TO
PARTICULAR SHIPPERS.  THE COMMISSION ACTED IN ITS CAPACITY AS A PUBLIC
AGENCY AND CARRIED OUT DUTIES IMPOSED UPON IT BY CONGRESS IN THE
INTEREST OF SHIPPERS GENERALLY, THE NATIONAL TRANSPORTATION SYSTEM AND
THE PUBLIC INTEREST.  FN20  ITS ORDER WAS THE EMBODIMENT OF THE
COMMISSION'S JUDGMENT THAT THE PROPOSED TARIFF WAS A DISCRIMINATION
PROHIBITED BY THE ACT.  "THE JUDGMENT SO EXERCISED, BEING SUPPORTED BY
AMPLE EVIDENCE, IS CONCLUSIVE."  FN21 

THE JUDGMENT OF THE COURT BELOW IS REVERSED AND THE BILL IS ORDERED
DISMISSED.  REVERSED. 

FN1  49 STAT. 543. 

FN2  SEE INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W. R. CO., 220
U.S. 235, 243. 

FN3  DIVISION 5 FIRST REPORTED, 10 M.C.C. 556.  ON RECONSIDERATION,
THE REPORT WAS BY THE COMMISSION, 17 M.C.C. 573. 

FN4  28 U.S. CODE, 45, 45(A), 47(A), 345. 

FN5  TWO COMMISSIONERS IN DISSENT THOUGHT THIS WAS "TRUE ONLY IN
PART.  THEY ARE LOWER THAN SOME, BUT BY NO MEANS ALL, OF THE
CORRESPONDING LOCAL RATES." 

FN6  SEC. 216(D):  "IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER BY
MOTOR VEHICLE ENGAGED IN INTERSTATE OR FOREIGN COMMERCE TO MAKE, GIVE,
OR CAUSE ANY UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE TO ANY
PARTICULAR PERSON, PORT, GATEWAY, LOCALITY, OR DESCRIPTION OF TRAFFIC
IN ANY RESPECT WHATSOEVER, OR TO SUBJECT ANY PARTICULAR PERSON, PORT,
GATEWAY, LOCALITY, OR DESCRIPTION OF TRAFFIC TO ANY UNJUST
DISCRIMINATION OR ANY UNDUE OR UNREASONABLE PREJUDICE OR DISADVANTAGE
IN ANY RESPECT WHATSOEVER:  PROVIDED, HOWEVER, THAT THIS PARAGRAPH
SHALL NOT BE CONSTRUED TO APPLY TO DISCRIMINATIONS, PREJUDICE, OR
DISADVANTAGE TO THE TRAFFIC OF ANY OTHER CARRIER OF WHATEVER
DESCRIPTION." 

FN7  SEE SEC. 217(A), (B). 

FN8  THE DISTRICT COURT FOUND THAT SOME OF THE LOCAL "RATES ARE
HIGHER AND SOME LOWER THAN THE SUSPENDED RATE," BUT THE AVERAGE REVENUE
DERIVED BY THE RESPONDENTS FROM LOCAL RATES "PER HUNDRED POUNDS  ..
UPOON THE WHOLE, IS LESS THAN" THAT PRODUCED BY THE SUSPENDED RATES. 

FN9  SEE, E.G., EXPORT SHIPPING CO. V. WABASH RAILROAD CO., 14 I.C.C.
437; FREIGHT FORWARDING INVESTIGATION, 229 I.C.C. 201; ACME FAST
FREIGHT, INC., COMMON CARRIER APPLICATION, 8 M.C.C. 211. 

FN10  INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W.R. CO., 220 U.S.
235. 

FN11  8 M.C.C. 211, ACME FAST FREIGHT, INC. V. UNITED STATES, 30
F.SUPP.  968. 

FN12  ACME FAST FREIGHT, INC. V. UNITED STATES, 309 U.S. 638. 

FN13  THESE ARGUMENTS FOR SUSTAINING THE TARIFFS WERE ALL FORCEFULLY
PRESENTED IN THE DISSENTING OPINION OF CHAIRMAN EASTMAN, CONCURRED IN
BY COMMISSIONER MAHAFFIE. 

FN14  UNITED STATES V. LOUISVILLE & NASHVILLE R. CO., 235 U.S. 314,
320. 

FN15  ID. 

FN16  SWAYNE & HOYT, LTD. V. UNITED STATES, 300 U.S. 297, 304;
INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W.R. CO., SUPRA, AT 255;
MANUFACTURERS RY. CO. V. UNITED STATES, 246 U.S. 457, 481.  TEXAS &
PACIFIC RY. CO. V. INTERSTATE COMMERCE COMM'N, 162 U.S. 197, REPRESENTS
AN APPARENT EXCEPTION, AT AN EARLY DATE BEFORE THE FUNCTION OF THE
COMMISSION HAD BECOME FULLY OUTLINED AGAINST THE BACKGROUND OF TIME AND
THE EMPIRIC PATTERN OF LITIGATION.  (COMMISSION'S BILL TO ENFORCE ITS
HOLDING THAT THE DIFFERENCE BETWEEN DOMESTIC AND IMPORTED MERCHANDISE
COULD NOT JUSTIFY DIFFERENT RATES BETWEEN THE PORT OF RECEPTION AND
POINT OF DELIVERY, ORDERED DISMISSED). 

FN17  LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444. 

FN18  INTERSTATE COMMERCE COMM'N V. DELAWARE, L. & W.R. CO., SUPRA,
AT 255. 

FN19  CF. STANDARD OIL CO. V. UNITED STATES, 283 U.S. 235, 239;
ILLINOIS CENTRAL R. CO. V. INTERSTATE COMMERCE COMM'N, 206 U.S. 441,
454. 

FN20  CF. INLAND STEEL CO. V. UNITED STATES, 306 U.S. 153, 157. 

FN21  UNITED STATES V. ILLINOIS CENTRAL R. CO., 263 U.S. 515, 525,
526. 



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