Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company – Oral Argument – April 24, 1956

Media for Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

Audio Transcription for Oral Argument – April 23, 1956 (Part 1) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company
Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Earl Warren:

Number 117, 118, 119, 332, 333 and 334, Denver & Rio Grande Railroad versus Union Pacific Railroad.

Mr. Ginnane.

Robert W. Ginnane:

May it please the Court.

At the adjournment yesterday, I had presented the facts relating to the issue of whether through routes were already in existence between the so-called excluded or northwest territory and via Ogden in the Rio Grande to points in the eastern and southern parts of the United States.

To summarize those facts very briefly, Union Pacific does not offer through transportation with Rio Grande on the traffic here involved, admittedly, by publishing with Rio Grande only prohibitively higher combination rates.

Union Pacific seeks to preserve its own long-haul on this traffic.

Substantial war time and emergency routings of traffic have been made via Rio Grande, Ogden and Union Pacific.

In addition, a trickle of commercial shipments, totaling 55 and they’re represented at the year 1948, have passed over Rio Grande via Ogden and the Union Pacific.

The opposing views on this issue within the Commission, I submit, pinpoint this difficult question.

Is it enough that a through route exist in a technical sense and that a shipper who is willing to pay the higher combination rate may specify the alleged through route and that connecting carriers will comply with such a shipper’s routing instruction and issue a through bill of lading?

Or must there be a proof that a through route exist in a realistic commercial sense in that the connecting carriers affirmatively hold themselves out as providing through transportation over the particular route or in the sense that shippers make a substantial use of the alleged through route?

Felix Frankfurter:

Mr. Ginnane, is there any evidence in the record of refusal to operate as though through existence that you will prove (Inaudible)

Robert W. Ginnane:

That there is no evidence on Union Pacific, on any of the other carriers refusing to honor a routing.

Felix Frankfurter:

How —

Robert W. Ginnane:

— specified by shipment — specified by shippers via Rio Grande.

Stanley Reed:

Do you — do you challenge any of the facts since it were relied on by the Colorado court?

Robert W. Ginnane:

No, sir.

Those facts, I think, I’ve — I’ve just summarized in capsule form and those facts so far as I know are substantially undisputed by any of the parties.

Stanley Reed:

There was evidence by the traffic witnesses of the Union Pacific that — that they had moved that way?

Robert W. Ginnane:

Evidenced by representatives of Union Pacific and Rio Grande and — and that — by that — by that testimony while it did not necessarily meet was not contradictory.

Stanley Reed:

No, but what I’m thinking about looking aren’t on these.

That the principal traffic witness of the Union Pacific testified of shipper who was willing to pay the higher combination rate, had the right to specify under 15 (8) (Inaudible) via the Rio Grande.

And then it said this is going to — the Court said that this would only be where there was a through rate — through route.

Robert W. Ginnane:

That’s correct.If what the Rio Grande– if what the Union Pacific witness was referring to was section 15 (8), that would be so.

15 (8) of the Act —

Stanley Reed:

(Voice Overlap) referring to as I understand.

Robert W. Ginnane:

He didn’t specify.

Stanley Reed:

No —

Robert W. Ginnane:

The — the —

Stanley Reed:

— he simply said that any ship that comes —

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Robert W. Ginnane:

The shipper has arrived.

Stanley Reed:

— and move over the Rio Grande from whatever the point of origin was to the point of destination east of (Inaudible)

Robert W. Ginnane:

That the shipper have the choice of routing.

Stanley Reed:

Yes.

Robert W. Ginnane:

Now, from that Rio Grande contends and the District Court held that this amounted to an admission by Union Pacific that the through routes here in issue were in existence because, contends Rio Grande, section 15 (8) gives the shipper the choice of routing only where there are two — two or more through routes in existence.

Where there are two or more through routes in existence, the shipper can specify which are the through routes he wishes to use.

Stanley Reed:

Well, then if you — if you accept that, there would be (Inaudible) that there was a through route.

Robert W. Ginnane:

It would be evidence.

Now — but there — there still is the question, the basic question which divided the Commission, further evidence that occasional shipments are routing — with the — with the shippers routing being honored by the carriers over the alleged through route.

Stanley Reed:

(Voice Overlap) — have wanted to have routed but if there is a right through route.

There’s a difference between the case of the shippers who may be routed and one where there is a right to demand that they be routed.

Robert W. Ginnane:

That’s — that’s correct.

Now — so, the issue is, it divided the Commission 5-to-5 where there — where a through route exists in a technical legal sense — whether — whether that is proof of the existence of a through route for the purposes of the Act in view of the — of the safeguards which Congress in section 15 (4) has thrown around the carrier’s long-haul.

Felix Frankfurter:

Mr. Ginnane —

Earl Warren:

Well, doesn’t it — oh, pardon me.

Felix Frankfurter:

(Inaudible)

Earl Warren:

Doesn’t the — the shipper have the right to have his goods routed any way he wants provided he’s going to pay the accumulated tolls or accumulated rates?

Robert W. Ginnane:

Well, if a through route does not exist in even a technical legal sense then the carrier is not — is not the — the receiving or originating carrier is not obligated to issue a through bill of lading.

Of course, it couldn’t.

Earl Warren:

I’m not talking about through bill — bills of lading.

I just — I’m just talking about a shipper wanting to have his goods travel a certain route.

He can do that, can he not, if he’s willing to pay the accumulated tolls on each of the lines?

Robert W. Ginnane:

No.

If there — if — if between carriers A and B, it’s — if it’s clear that — that there’s no through route, then — then the originating carrier need issue a bill of lading only covering the transportation service which it offers.

Earl Warren:

I see.

Yes, I — I get — this is the section.

Robert W. Ginnane:

Whereas if — if carriers A and B have joined in a through route then the originating carrier must issue a bill of lading —

Earl Warren:

Yes.

Robert W. Ginnane:

— covering the entire service which it is offering either alone or in conjunction with the connecting carrier with whom it has a through route.

Earl Warren:

I see.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Stanley Reed:

Are you saying (Voice Overlap) –if they only have a through route, he must still may, must he not, the originating carrier issue a through bill of lading?

Robert W. Ginnane:

Yes, sir.

And if there are alternative through routes then section 15 (8), it gives the shipper the right to specify which of the alternative through routes to be employed.

Felix Frankfurter:

Mr. Ginnane, may I revert to Justice Reed’s earlier question?

In the course of your reply you said that the Commission was divided 5-to-5.

Now, let me clear up in my mind.

The Commission was divided 5-to-5 in the matter that’s before it then before its divided 5-to-5, the claims of the Denver & Rio Grande that there was an existing route did not prevail, is that right?

Robert W. Ginnane:

That’s correct, sir.

Felix Frankfurter:

Thereupon, the Denver & Rio Grande — what preceded before the Colorado District Court to enjoin that order claiming error and that it did not find a through route.

But in that proceeding, the Commission evidently upholds the Denver & Rio Grande.

Is it not?

Robert W. Ginnane:

Yes, sir.

Felix Frankfurter:

So, therefore, the Commission before the Denver court took the position, not 5-to-5 but as a body, as a litigant, that there wasn’t a through route.

And the case then came here?

Robert W. Ginnane:

That is correct, sir.

Felix Frankfurter:

And in the joint brief of the United States, the Commission and the Secretary of Agriculture, you want all three, the Government and litigant, wants that decree of the Denver court reversed.

So, I don’t understand what this 5-to-5 clause is except that it shed illumination on what the Commission had thought but so far as the position of the Government and the ICC and the Department of Agriculture is concerned, you are here urging this Court there was error on the part of Denver court.

Is that correct?

Robert W. Ginnane:

Sir, I agree entirely.

Felix Frankfurter:

All right.

Robert W. Ginnane:

And I — and I refer to the 5-to-5 division merely as — as evidencing that — that it was considered a difficult question.

Hugo L. Black:

But suppose the Commission had taken the other position.

Now, what effect would the failure to find in favor of D & R.G. have?

In other words, what is the duty of the Court, when the Commission divided five and five, on the point where the burden is on the railroad to make its claim, divided 5-to-5?

What’s the duty of the Court in connection with deciding those facts anew or as to deciding those facts for the first time?

What is your idea of the function of the Court there as of — in reviewing that?

Robert W. Ginnane:

That in the circumstances of this case since the burden of proof or persuasion was upon Rio Grande, the Commission’s report, full report concurred in by five members of the Commission in finding — in — in which it was found that through routes did not exist, that that should be treated as the order of the — of the Commission which was open to challenge in the courts.

Felix Frankfurter:

The reason I raise the question is because in your answer to Justice Harlan yesterday when he asked you what the question was or what you represented the position of the Commission, you said was commendable candor or appropriate candor — candor appropriate on the part of (Inaudible) They probably get credit for.

But that’s so difficult to perhaps, a doubtful question on which you cared for, take a dogmatic position.

I take it that the Commission is here taking a dogmatic position.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Felix Frankfurter:

By dogmatic meaning if it’s such a position.

Robert W. Ginnane:

And I am about to take it, sir.

Felix Frankfurter:

All right.

Robert W. Ginnane:

I — I have — I have no — no intention of trying to stay on fence, sir.

Felix Frankfurter:

I didn’t suggest that.

All I’m saying is that if you moved away, the Commission has moved away from 5-to-5 as an affirmative Commission here as part of its position, if I may quote eminent authority, a positive position —

Robert W. Ginnane:

Absolutely, sir.

Felix Frankfurter:

— that — that there is no or there was no rule of (Inaudible)

That’s correct isn’t it?

Robert W. Ginnane:

That is our position.

Hugo L. Black:

Doesn’t that supplement the findings or lack of findings?

Robert W. Ginnane:

I’m — I’m not sure I understand Your Honor’s question.

Hugo L. Black:

Well, the — the duty is on the Commission to make findings, if it can, of facts.

One party alleges certain facts.

The Commission finds it’s against that party by dividing 5-to-5.

Can the Commission supplement the position taken in the trial of that to please the Court by a new position it takes into court or —

Robert W. Ginnane:

I understand.

Hugo L. Black:

— did it have to take it in a Commission action?

Robert W. Ginnane:

Now, I understand, sir.

My answer — perhaps, I can answer the question this way.

All 10 members of the Commission participating in the proceeding treated the long report concurred in by five Commissioners as representing the agency decision.

The others in their separate reviews refer to themselves as partly concurring or partly dissenting and referred to the long report as the majority report.

Hugo L. Black:

In other words, your view, if I get it, I’m — I’m a little far from it, I don’t recall the case exactly but your view seems to be that since they were advised to file, the Commission has acted on to something.

So, that gives — that was — that did amount to a fact finding by them against the D & R.G., is that it?

Robert W. Ginnane:

I — I have to take that position, Your Honor, otherwise there — there’d be a gap in the administration of the law.

Hugo L. Black:

And that they are — the fact that they are now taking that position in the Court is not a mere — not a supplementing of finding of fact but taking the position that the facts were found by a failure to find by a majority of the other way?

Robert W. Ginnane:

Perhaps they had, sir.

I think — I think we have to take the position we’re taking.Otherwise Rio — otherwise I think Rio Grande to be in the position of being denied a forum of what’s claimed.

Felix Frankfurter:

I take it — I take it that when the Commission appeared in court, whether the division in court or this Court, is the Commission’s action not merely counsel but the Commission that is authorizing one position rather than another, is that right?

Robert W. Ginnane:

You’re entirely correct, sir.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

But isn’t it — isn’t it true that the difference between the five who thought there was a through route, and the others who thought that there was not a through route is really not a difference of fact over the facts.

It’s a difference over the legal standing.

Isn’t it —

Robert W. Ginnane:

That is correct, sir.

Isn’t that the real point?

Robert W. Ginnane:

The — the facts which — which both group —

Right.

Robert W. Ginnane:

— pointed out were the same facts —

Right.

Robert W. Ginnane:

— and — and are not challenged by any part (Voice Overlap) —

There’s no dispute about by the facts.

Robert W. Ginnane:

That is correct, sir.

Felix Frankfurter:

I — I don’t agree with that at all.

If I understand the situation, the fact that five can find one way and five can find other way doesn’t prove a difference in standards, it proves a difference in applications of the standard, namely, whether the fact is printed within the standard.

As I read the —

I’ll accept that (Voice Overlap) —

Felix Frankfurter:

As I read the — all the opinions of the ICC, they all rested on what was laid down in Thompson.

There was no difference of view as to what is to be applied but in applying, it gave us a different conclusion.

Robert W. Ginnane:

But if the —

Felix Frankfurter:

The members of this Court —

Robert W. Ginnane:

Right, sir.

Felix Frankfurter:

— may reach a different conclusion on the same record of borrowing the same standard to be applied to the same record.

Robert W. Ginnane:

And that’s also true, sir.

That as to the basic facts to which the standard was to be applied, all — all of the Commission will agree.

In fact, those facts are not disputed in this litigation at all.

Could I ask you one more question —

Robert W. Ginnane:

Certainly.

— before you go on?

I hate to interrupt you.

But what is your position as to the freedom of the Rio Grande had a shipment been tendered as a — as the freedom the Rio Grande had a shipment been tendered to — or the Union Pacific, I mean, the shipment been tendered for a through route in Chicago, could it have refused to accept shipment via the Rio Grande?

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Robert W. Ginnane:

I have to say that they could not have refused to accept —

(Voice Overlap) —

Robert W. Ginnane:

— other shipment because — because Rio Grande’s officers or one of Rio Grande’s — one of Union Pacific’s officers testified in this proceeding.

That they could not have refused?

Robert W. Ginnane:

That they were obligated to honor the — the shipper’s route.

Then how can the Rio Grande — how could the Union Pacific have closed the through route to the Rio Grande except by failing to publish a joint rate?

Robert W. Ginnane:

Their basic position, I think I’m stating their position fairly, is that they have, as a practical realistic commercial matter, closed the route by refusing to join with Rio Grande in — in joint rates and — and in — in joining Rio Grande only in combination rates which is an — for practical purposes are prohibitively high.

So, in other words, what you’re really saying is that the concept of the through route, an open through route, does not exist apart from the commercial feasibility which means the existence of a joint rate, that’s what you’re really saying isn’t it?

Robert W. Ginnane:

In part.

Well, what it — was the qualification?

Robert W. Ginnane:

That — that there’s more than that here and that the record bristles with statements or concessions that — that Union Pacific’s course — course of business has been to protect its long-haul on this traffic.

That it in no way solicits in any affirmative sense at all traffic to be handled on a through route and joint rates with Rio Grande.

Well, that has been their — one of their basic commercial positions through many years since 1912.

And that in fact very few shipments have moved at this higher combination rates leaving aside the — the war time and emergency shipments.

Felix Frankfurter:

Well, the truth — it is true to admit that through billing is also important to shippers, wholly apart from a joint rate.

The — the service through billing afford advantages to a shipper, wholly apart from the — the case quoted by the Chief Justice earlier.

It may be willing to pay more, to possess the advantages especially in private advantages but it is a nuisance to have to get separate billings at each particular permit.

Robert W. Ginnane:

Yes, sir, it would be.

Felix Frankfurter:

So that through billing apart from joint rate is a factor in a joint route in a — in a through route, is it not?

Robert W. Ginnane:

On — on this record —

Felix Frankfurter:

I’m not about this part generally.

Through billing is a factor in — in transportation’s affair, doesn’t it?

Robert W. Ginnane:

Yes, sir.

I’m — I’m unable to say how important.

Felix Frankfurter:

All right.

Robert W. Ginnane:

On this record, the — the entire emphasis has been on the rates, the — the rate disparity.

Stanley Reed:

Well, what does that — except in the very unusual situation of stoppage of transit, it would always be commercially an unfeasible ship with a higher rate I take it.

Robert W. Ginnane:

Certainly, where the disparity is as great as it is in this case.

There’s no question about it.

Stanley Reed:

How would — how would the Union Pacific have — assume that there were — is a route here, how could the Union Pacific have got away with it?

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Robert W. Ginnane:

That they could publish in their — publish in their tariffs —

Stanley Reed:

And have that been approved —

Robert W. Ginnane:

— to — to —

Stanley Reed:

by the ICC?

Robert W. Ginnane:

to — to the effect that they would not provide through transportation with Rio Grande even at combination rates.

Stanley Reed:

And that’s not under any specific provisional statute?

Robert W. Ginnane:

They can —

Stanley Reed:

What (Voice Overlap) —

Robert W. Ginnane:

— put this by — by implication, the statute authorizes a carrier to cancel through routes and joint rates but the Commission may, after a hearing, block that cancelation, set — set aside such cancelation.

Stanley Reed:

Well, is there a statutory authority authorizing to cancel through routes?

Robert W. Ginnane:

I can’t find it now, Your Honor, I’m sorry.

But in — but in effect, it provided that a carrier may cancel existing through routes and joint rates and subject to veto by the Commission.

Stanley Reed:

Perhaps, you would give us —

Earl Warren:

Justice Reed would like a little memorandum on that subject, would you supply to us please?

Robert W. Ginnane:

It’s very — be very glad to.

Earl Warren:

And to counsel of course.

Robert W. Ginnane:

We think the question as to what should be the proper test for the existence of a through route must be resolved largely in terms of what test is necessary to carry out the congressional purpose in Section 15 (4).

By repeated amendments to Section 15 (4), as this Court has noted, Congress has laid down a clear purpose to protect railroad carriers in their long-hauls and has done this by carefully restricting the Commission’s power to prescribe new through routes.

In the Thompson case, the Court told the Interstate Commerce Commission that the policy of Section 15 (4) was not to be evaded by using a too easy test as to the existence of — of through routes.

Specifically in that case, the Court held that the fact that through transportation between two carriers is physically possible in the sense that there’s a physical interconnection between the two lines.

But that is not enough to establish the existence of a through route.

The Court said that rather the test is whether the participating carriers hold themselves out as offering through transportation service and the Court could have otherwise of whether the — whether the carriers course of business reflects the existence of a through route.

And I submit that in view of that policy of Section 15 (4) against carriers being forced to short-haul themselves, that the holding out or the course of business required to prove the existence of a through route should consist of representative conduct of carrier, that the facts should affirmatively show that the carrier either affirmatively offers through transportation or that, without objection by the carriers which — which is being short-hauled, the public is making a substantial use of the alleged through route.

Mr. Ginnane, in the days when the through routes with joint rates, the Union Pacific and the Rio Grande, they were part of the Union’s Pacific announced tariff — announced routing schedules, I suppose.

Robert W. Ginnane:

Yes.

What happened after they canceled, after the Union Pacific canceled the joint rates?

Did the through routes still continue to be shown on the Union Pacific’s tariffs?

Robert W. Ginnane:

The Union Pacific —

That it put a combination rates as distinguished from the joint rates or what happened?

Robert W. Ginnane:

At — at combination rates.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

But the routes themselves still were advertised?

Robert W. Ginnane:

Advertised may be too strong a word.

I’m not sure — I’m not sure I could use that fairly.

Well —

Robert W. Ginnane:

I — I can say this at no time did Union Pacific take any formal action to cut off the — the old through routes.

So that if a shipper, looking at the Union Pacific’s tariffs, at any time after 1897, whatever that date was, he would find a route advertised or stated in the tariffs at a combination rate which included the Rio Grande to points east, is that right?

Robert W. Ginnane:

I believe that is correct, sir.

So, applying those principles, the correct principles which we — we deduced from the Thompson decision, it seems to us that the evidence of substantial war time and emergency shipments by Union Pacific, Ogden and Rio Grande should be disregarded.

Those shipments were neither voluntary on the part of — of Union Pacific nor representative of its course of business.

There were diversions of traffic made under the compulsion of the Interstate Commerce Commission’s emergency routing powers.

But applying your own test, why doesn’t this inclusion of the through route in the tariff represent a holding out by the Union Pacific to that business, applying your own test?

Robert W. Ginnane:

My answer to that would be that the holding out is not a realistic holding out.

It’s a holding out of through transportation service only at prohibitively high rates.

Well (Voice Overlap) —

Robert W. Ginnane:

As evidenced by the fact that —

That’s for the shipper to decide.

Maybe he’d like — he’s willing to pay those routes.

Robert W. Ginnane:

And shippers by and large have decided that they don’t want to pay those rates and that out of 121,000 carloads of the traffic which is what’s here involved between the northwest territory and points in the east and south.

In 1948, only 55, both eastbound and westbound, moved over to higher combination rates over Rio Grande.

That isn’t because of a lack of holding out by the Union Pacific, that’s because the shippers prefer to take a cheaper way.

Robert W. Ginnane:

Well, there’s some evidence in the record that at — there’s evidence in the record that at least some of these — some of those shipments were made through inadvertence by shippers who didn’t — who did not realize that joint rates were not applicable.

And we think that these few commercial shipments, total of 55 in the represented year of 1948, again are too few to constitute either — to reflect either an effective realistic holding out by Rio Grande or to constitute any substantial use by shippers with the Union Pacific’s acquiescence.

After finding that through routes via Rio Grande were not already in existence, the Commission considered whether it should prescribe new through routes and joint rates applicable to those routes.

Under the standards and limitations of — of paragraphs (3) and (4) of Section 15, Section 15 (3) empowers the Commission whenever deemed by it to be necessary or desirable in the public interest to establish new through routes and joint rates applicable to such routes.

However, since it would — it’s conceded that the routes proposed here would require Union Pacific to short-haul itself, the Commission also had to take into consideration and stated that it was taking into consideration the restriction of Section 15 (4) which provides that in establishing any such through route, the Commission shall not, except as provided in Section 3, require any railroad to short-haul itself with provisos and the pertinent exception here is unless the Commission finds that the through route proposed to be established is needed in order to provide adequate and more efficient or more economic transportation service.

I would like to refer briefly to the reiterated contention of Union Pacific in briefs and in oral argument that the Commission treated this case as a financial needs case in violation of the command of Section 15 (4) that through routes which would short-haul the carrier shall not be established by the Commission to assist another carrier in meeting its financial needs.

Now, that contention of Union Pacific is simply not true.

Felix Frankfurter:

When did that come under the statute, in 1940?

Robert W. Ginnane:

If not, before.

This —

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Felix Frankfurter:

That still further restricted the mitigating or relieving power of the Commission.

Is it not?

Robert W. Ginnane:

Correct, sir.

But this —

Felix Frankfurter:

You’ve got the whole — the whole — the Government knows that the legislature or as to protect against short-hauling, does that it bears suddenly in the course of legislation?

Robert W. Ginnane:

And to restrict the Commission’s power to establish new routes which would short-haul the carrier.

And it’s in the light of that continuing persistent congressional purpose shown in repeated amendments to Section 15 (4) that we think the test to be adopted for determining whether through routes are already in existence should be a realistic practical test.

Harold Burton:

But if — if a carrier establishes a through route himself, they may thereby short-haul themselves.

Robert W. Ginnane:

They can voluntarily short-haul themselves without any restriction in the statute.

Now, this case was not tried as a financial needs case.

The record doesn’t — doesn’t begin to contain evidence on which the Commission could treat it as a financial needs case.

And the Commission specifically stated in reaching our conclusions herein that no consideration has been given to the financial needs of the complainant.

Indeed, the principal evidence as to financial need presented in this case with the Union Pacific witness testified that it — its financial needs were greater than those of Rio Grande.

The Commission’s ultimate finding and this is in volume two of the record at page 1578 —

Felix Frankfurter:

Is that the only thing — well, I haven’t read the evidence to where — I haven’t read the evidence but how did that get into the case if the question of needs — of the railroad’s needs, financial needs, wasn’t interfered?

Robert W. Ginnane:

Because from the very beginning, Union Pacific has been taking the position that Rio Grande was bringing before the Commission a financial needs case —

Felix Frankfurter:

Very well.

Robert W. Ginnane:

— than a — than a consistent position.

Felix Frankfurter:

I understand that but first the — I’m referring to your statement that says but to which I got the impression that the evidence of the record, of the rest of evidence dealing with the financial conditions of the route, particularly the Denver & Rio Grande —

Robert W. Ginnane:

That’s correct.

Felix Frankfurter:

— can now say that the Union Pacific said, we are in greater need, don’t take away our — don’t divert traffic from us because we — we have more greater need of revenue than the — than the Rio Grande in which I might jump to the conclusion quite too hastily that there must have been some discussions of financial needs.

Robert W. Ginnane:

Oh, what I — what I meant to say was that the record does not begin to contain the complete financial data on which an agency would have to determine —

Felix Frankfurter:

At least how much?

If I went through the record, what would I find on that subject?

Robert W. Ginnane:

Just quite —

Felix Frankfurter:

That’s all the financial of the Denver & Rio Grande, it was a matter of corporate knowledge on the part of the — private knowledge on the part of the ICC board.

Robert W. Ginnane:

Well, I — of course.

Felix Frankfurter:

A reading in this Court of the investigation order for the matters that come before it on that subject, I suppose.

Robert W. Ginnane:

The — the —

Felix Frankfurter:

And a good deal of that regarding the Denver & Rio Grande in this very Court.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Robert W. Ginnane:

The — the financial affairs of both carriers are matters of — of public knowledge.

The Commission’s ultimate finding was that it is necessary and desirable in the public interest in order to provide adequate and more economic transportation that through routes and joint rates over such routes, the same as apply over Union Pacific in its connecting lines, be established via Ogden in connection with the Rio Grande.

That the Commission sharply limited its order, was best establishing new through routes to the following commodity, to carload shipments of granite and marble monuments from Vermont and Georgia to points in the northwest territory and then more important to carload shipments of ordinary livestock, fresh fruits and vegetables, dried beans, frozen poultry, frozen foods, butter and eggs, from origins in the excluded territory to destinations east and south of the following area.

It was excluded from this grant of through routes, this area that was excluded for the reason that for destinations in that area, the Commission found that the use of Rio Grande’s routes was too circulus for the establishment of — of through routes to those points to be in the public interest.

The Commission’s ultimate findings were based upon the following facts as to the needs of shippers, not as to the needs of Rio Grande but as to the needs of shippers.

And in view of the statements made to this Court yesterday that there was no record that there were neither findings nor evidence to support the Commission’s order in this respect.

This evidence is set forth in considerable detail, first in the Commission’s report in the record at volume two, pages 1547 and page 1564 and on the Government’s brief in — between pages 20 and 36.

Summarizing that evidence briefly, the excluded northwest territory produces substantial quantities of livestock, vegetables, fresh fruits generally.

There, it developed an elaborate system from marketing these commodities which involves extensive use of intransit privileges such as feeding, packing, freezing and so on.

These intransit privileges are available in practically all railroads including both Rio Grande and Union Pacific but as a practical matter, shippers can afford to use this intransit privileges on a particular carrier’s line only if after reprocessing or freezing, as the case may be, the commodities can be reshipped on the balance of joint rates.

Similar of these commodities can be reconsigned while on route as buyers and markets are found, only through reconsignment — only through rerouting can be done at joint rates.

Now, to illustrate, sheep and cattle produced in the northwest area, the area serve by Union Pacific, are desirable for feeding and breeding purposes.

On the other hand, there are good grazing areas in Utah and Colorado in the areas served by the Rio Grande.

Livestock is fattened in those feeding and grazing areas and reshipped to other parts of the country.

If livestock is moved from the excluded area for feeding in area served only by Rio Grande in Utah and Colorado, that livestock, after feeding, can be reshipped to points beyond the Rio Grande’s lines only if the combination rates which are substantially higher than would be the balance of joint rates.

The result is to deprive livestock growers in the excluded territory of the market for their livestock represented by the feeding lots in Utah and Colorado served only by the Rio Grande and it deprives the feeders served only by the Rio Grande of access to the feeding stock produced in the northwest area.

A similar situation exists with respect to fresh fruits and vegetables which are grown in substantial volume either in Idaho, Washington and Oregon.

There exist on the Rio Grande, a point served only by the Rio Grande, numerous processors, dealers in such commodities but if they buy fruits and vegetables, potatoes, produced in the excluded territory for processing, packing and so on, on the Rio Grande that can — they cannot ship such commodities after processing in transit to points beyond the Rio Grande except at the higher combination rates.

And in the case of the fruits and vegetables, potatoes, there’s still a further factor.

Those commodities are frequently shipped, put on cars and started moving generally toward the east at a time when — when a — before a buyer has been obtained.

So that the right to reconsign as buyers are found or as a buyer has lost and another buyer is found is very important.

Those reconsignment privileges exist on practically all railroads including Union Pacific and Rio Grande, but the reconsignment privileges are practically unavailable unless they can be exercised on through rates and on a balance of — on joint rates or on a balance of joint rates.

For example, if an Idaho shipper routes a carload of potatoes under — via Rio Grande and while on Rio Grande he finds a buyer at a point beyond — beyond Rio Grande’s lines, he can reroute only at the higher combination rates.

That means that he will probably, in most instances, have to sell the potatoes at a sacrificed price rather an attempt to reconsign them or reroute them at the combination rates, that’s called a pocket market.

In the case of the same shipper, for example, these ships bound to Oklahoma on — on a through route by Union Pacific and then wants to reroute into the southeastern part of United States as he finds a buyer, he can do so only at the higher combination rates.

That’s because the Union Pacific and shipments coming out of the northwest territory will allow through routes to the north — to destinations in the southeast or in the shipments that utilize Union Pacific long-haul to either Omaha or Kansas City.

The shipment ends up down here.

If the Idaho shipper wants to reconsign the points to the southeast, he can do so only at the higher combination rates, whereas to such a shipper, the entire southwest area is a pocket market.

Thank you.

Stanley Reed:

Mr. Ginnane, what — what is the interest?

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Stanley Reed:

Why wasn’t — this order of the Commission was restricted in this particular commodity?

Robert W. Ginnane:

Because those were the commodities —

Stanley Reed:

There — there (Voice Overlap) —

Robert W. Ginnane:

— as to which —

Stanley Reed:

— that moves in this way.

Robert W. Ginnane:

Those were the commodities as to which a convincing showing as to a particular shipper need was made because the — the Commission, in — in order to find through routes in this situation —

Stanley Reed:

Well, you say —

Robert W. Ginnane:

— new through routes had to find both the public interest, general public interest as required by Section 15 (3) and it also had to find under Section 15 (4), since short-hauling was involved, that — that there was a need for adequate and economic or efficient transportation.

And to find that, it looked and relied only upon specific proof of some specific shipper need and had — had found that specific shipper need in the need for growers of these commodities, livestock and the fruits and vegetables in the Northwest, to have access to the markets represented by transit facilities, marketing and — and processing facilities on the Rio Grande and — plus their need to be able to ship to Rio Grande points and still be able to reconsign to other points at the balance of joint rates rather than that prohibitively higher combination rates.

That is why the Commission’s order was so limited.

Stanley Reed:

Do you — do you speak also for the Department of Agriculture?

Robert W. Ginnane:

Yes.

Stanley Reed:

What — what is there (Inaudible)

Robert W. Ginnane:

Their — their —

Stanley Reed:

(Voice Overlap) —

Robert W. Ginnane:

— strong position is that these — that these broader markets embodied in the Commission’s order for producers of livestock, fruits and vegetables in the Northwest should be made available.

Felix Frankfurter:

Were there any of the — who operated in the Northwest as parties before the Commission in your present shipper’s interest?

Robert W. Ginnane:

If not parties, they appeared as — as witnesses.

Some were parties, others appeared as witnesses.

Stanley Reed:

Well, if the Department of Agriculture had — had interest that you suggest then why did they take an appeal?

They joined in the appeal for the Colorado (Inaudible)

Robert W. Ginnane:

No, the Department of Agriculture appealed only from the Nebraska decision.

They took an appeal solely from Nebraska decision, solely for this reason, the Nebraska court cut down the scope of the relief which the Commission granted.

The Nebraska court upheld the Commission to order only as to commodities which are initially routed to points on the Rio Grande for intransit, the operations there and the Department of Agriculture took an appeal from that limitation.

They contend as to the United States and the Commission that the Nebraska court should not have restricted the order, that as to fruits and vegetables in particular, it should have left the order intact so that the shippers of fruits and vegetables in the northwest territory may exercise reconsignment privileges effectively along — along the Rio Grande as well as intransit privileges.

Felix Frankfurter:

But, Mr. Ginnane, the counsel for the Department of Agriculture joined the party to your brief in asking that the judgment of the Colorado District Court should be reversed.

Robert W. Ginnane:

A distinction should have been made there because they did not take an appeal.

Hugo L. Black:

Mr. Ginnane, you did not mention page 61 and 62 of this record in connection with the statement that the Union Pacific facilities were adequate.

Robert W. Ginnane:

Sir —

Hugo L. Black:

Where would your answer certainly refer?

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Robert W. Ginnane:

Your Honor, which record is this?

Hugo L. Black:

117, 118, 119, bottom of page 61, top of page 62.

That you concede that that conflicts it all of your statement that the Commission found that there were not adequate service to be rendered or that in order to give adequate service if it was necessary to grant the relief (Inaudible)

Robert W. Ginnane:

I should make it clear that the Commission did not find, indeed Rio Grande does not contend that Union Pacific does not render good service on its routes.

The Commission made no finding that Union Pacific does not render adequate service on its routes.

The Commission’s finding was that these shippers of these specified commodities in the northwest territory need through routes and joint rates via Rio Grande in order to — to take advantage of the markets represented by the intransit facilities served only by Rio Grande points and in order — to be able to exercise effectively reconsignment privileges over the Rio Grande.

Hugo L. Black:

So, the Commission found according to your brief on page 51 that their ultimate finding was that the establishment of said routes were necessary and desirable in the public interest in order to provide adequate and more economic transportation.

Robert W. Ginnane:

Yes, sir.

Hugo L. Black:

You do not think that conflicts at all with what is said at the top of page 62 where reference has been made?

Robert W. Ginnane:

In your reference to the record at 117, are you referring, sir, to the material beginning, “The Union Pacific operates about 9000 (Voice Overlap) —

Hugo L. Black:

That’s right.

Opposition testimony it says.

Robert W. Ginnane:

That’s right.

Hugo L. Black:

And over on the next page it says that present facilities are adequate and you refer to the Commission’s findings on your page 51 where the Commission found that the establishment of said routes raised necessary and desirable in the public interest in order to provide adequate and more economic presentation.

Robert W. Ginnane:

No — no sir.

We don’t see any inconsistency there for this reason, that there — no one challenges the fact that Union Pacific, on its routes, furnishes adequate transportation service.

The Commission’s order was based upon the proposition.

Felix Frankfurter:

Adequate for what?

Robert W. Ginnane:

Adequate for moving these commodities along Union Pacific’s routes.

What the Commission found, the basis for its action was that shippers or the commodities in question in the northwest territory needed through routes and joint rates via Ogden and Rio Grande in order to have access to the marketing facilities and processors on the Rio Grande, points on the Rio Grande not served by Union Pacific.

Hugo L. Black:

Based entirely on that?

Robert W. Ginnane:

Based on entirely on that.

That’s why the Commission’s order establishing —

Hugo L. Black:

So, from your standpoint, it’s wholly immaterial that they found that UP services were adequate.

Would that preferably —

Robert W. Ginnane:

On — on UP’s routes.

Felix Frankfurter:

But doesn’t that — doesn’t that make you encompassed, Judge Johnson, opposition, that that would allow every other that would always allow another route that is available to be opened up and thereby this short-haul existing.

Certainly, if you got another one then there must be conditions like that throughout the country.

It’s always better to have another — another — what do you call this, (Inaudible)

Robert W. Ginnane:

But — but the Commission didn’t operate just on the basis that it would be nice in some general way to have an additional through route.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Robert W. Ginnane:

It acted only on the basis of a showing and only as far as that showing went, the particular commodities, that there was a specific need, specific needs of specific groups of shippers for the through routes and joint rates.

Felix Frankfurter:

When you mean needed — when you mean needed, it would be cheaper for them to do it that way or more advantageous, is it not, but it isn’t adequate from the point of view of transportation.

I suggest that Judge Johnson’s argument can’t be met by that if it’s remarking but by — that’s always when you have another one with this particularly wanted in this case where you — where you have the other routes available that is shorter or longer, slower and all the other disadvantages than what Rio Grande has over the great Union Pacific.

Robert W. Ginnane:

Well, the Commission — the Commission’s order will have to rest upon the basis which it gave for it, and the basis it gave for it was, as I say, these specific — specific needs of these — the shippers of these particular commodities.

Felix Frankfurter:

Not that they couldn’t get to the market but to say to get to the market with certain advantages of–

Robert W. Ginnane:

Well, at prohibitive —

Felix Frankfurter:

— if it was added to you.

Robert W. Ginnane:

At — at prohibitive disadvantages.

Felix Frankfurter:

Why prohibitive?

Robert W. Ginnane:

Because of the higher combination rates.

They were not — there is a — they were as a practical matter.

Felix Frankfurter:

You’ve got the Union Pacific.

You take the monument (Inaudible) would have element of humor about it I think that there two films with the —

Robert W. Ginnane:

Yes.

Felix Frankfurter:

— was it — whom you saw a vegetable.

Robert W. Ginnane:

Now, the ship — I will admit that the shipments and monuments are rather minute in comparison to the shipments of livestock and fruits and vegetables.

But the —

Felix Frankfurter:

Even though the livestock can’t get to where there’ll be — where they might have a market merely means that they’ve had a medium market, is that it?

Earl Warren:

Thank you, Mr. Ginnane.

Mr. Holman.

Frank E. Holman:

If the Court please.

Not to belabor the discussion that’s just taken place that arose originally, I think, with the Chief Justice’s question yesterday of counsel of the Union Pacific with respect to whether or not the Union Pacific’s facilities are adequate.

And counsel directed Your Honors’ attention then only to the statement under opposition testimony.

And that, I submit, is not a finding and was not so intended.

The real finding which hasn’t yet been called to the attention of this Court is on page 1574 of consolidated record Roman numeral II.

And thereafter, the intervening discussion of opposition testimony and pro-testimony, here is the finding while the through service over defendant’s routes, that’s the Union Pacific’s routes, in general is a satisfaction to the shipping public as the service which could be provided over routes including the Rio Grande, this is not true with respect to the commodities we have enumerated.

Now, there’s claim.

Well, there isn’t time here to show what the evidence was on that but there is the claim.

Now —

Earl Warren:

That’s under “General Discussion and Ultimate Fact Findings?”

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Frank E. Holman:

That’s right.

Yes.

Now, I do not want to spend too much time on 15 (4), 15 (4) is the statute which I frankly confessed in the beginning which creates a monopoly in behalf of a railroad in connection with the privilege of preserving its long-haul.

But 15 (4) has nothing to do, the matter of establishing new through routes under the restrictions therein contained.

I submit has nothing to do with the issues in the Colorado case.

And so, I would like to go to that situation and in the brief time at my disposal attempt to clear up, if not, the point of view of others at least to present clearly the point of view of the Rio Grande because this question of through routes was concededly the first and paramount issue in this litigation.

The Rio Grande had an unquestioned right under the statutes to resort to the Interstate Commerce Commission and asked for a decision upon this allegation that through routes were in existence.

Not that they were to be established under 15 (4).

That wasn’t the complaint.

The action went off on that later.

But the through routes were actually in existence.

Now, there were two prongs to that, not one but two.

First of all, that through routes had been established and competitive joint rates had been established admittedly when we were operating in relation with the Oregon Short Line and the (Inaudible)

And then when the Union Pacific took over control of those routes, it cancelled only the competitive joint rate and never made a notation on the tariff or never put anybody on notice or ever suggested that the through routes were cancelled or were intended to be cancelled.

Are there examples of those tariffs, modern tariffs, in the record?

Frank E. Holman:

I think so, Your Honor.

Now, how are we met and I’m still on the first form, not on the question of user at all, not on the question of shipments which is there theretofore to this problem.

We are met in this case by the statement that because there was a higher rate, the routes were commercially (Inaudible)

Now, I submit that this Court has settled that question.

In the Great Northern case and in the Virginia case and another cases that the formula, and that’s how simple it is and the Union Pacific’s defense that the mere possession of a higher rate automatically close the through routes.

Of course the commercial deterrent kept the shipments down.

The wonder is we had 55 cars in the typical year.

We only use the typical year 48.

The wonder is that there were enough shippers willing to pay that higher rate.

It wouldn’t have been much longer if we’d only had 10 cars.Now, on these government shipments, there’s a point there to be cleared up.

Yes, these shipments were under service orders.

What a service order merely compels the carrier to take the shipment, it doesn’t compel it to settle that competitive joint rates which the Union Pacific did on those shipments and they were perfectly willing it took no compulsion when 19,000 cars were shifted from Western Pacific, it’s one of our allied lines in southern and they took them over.

They took them over on a through route basis.

In other words, required to take them but they weren’t required to take them on a through route basis.

And if there was no through route then if you look at Section 15 (4), you’ll find that the Commission has the power in any emergency if there is no through route to establish a temporary through route for that emergency.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Frank E. Holman:

And so, the Commission itself recognized when it merely enter — issued a service order that the through routes were there unavailable and could be used.

Now, that’s one form of it, I say, and we might stand on that alone and not be compelled to show any shipments at all.

What the other form is this question of user and of holding out and we’re told that it’s not realistic because the Union Pacific never went out or actively solicited traffic.

Does anyone suppose down here, where we have through routes, why user’s consent that the Union Pacific ever goes above the prospective costumers in that area and urge — assumed to ship over the Rio Grande?

You don’t have to have active solicitation.

What is a holding out?

As we stated in our brief, the merchant on the street who has his door open for business is holding out.

He doesn’t need to go out into the street and urge costumers to come in to his shop.

A holding out is merely being open for business on a certain basis and the Union Pacific and all its trade officers have been open for business on a through route basis and never have they refused to issue a through bill of lading.

Now, may I clear up another matter?

Mr. Justice Harlan has been interested in this question of 2011 and Mr. Collins said, as I understood him, that under 2011, a railroad is compelled to issue a through bill of lading.

On — of you return to our brief.

At page 47, our opening brief, you’ll find this section is discussed and I think carefully, 2011 requires — and that’s basically a section so that the shipper will have a receipt and he can sue for damages, for negligence and other matters.

And so, the section does provide that a common carrier must give a receipt or a bill of lading but it does not say through bill of lading.

And Justice — Mr. Ginnane very frankly admitted a railroad may decline to which the through bill of lading.

Now, in 48 is the Section you were reaching for, if I may say so, Section 6 (1) which empowers railroads, in fact, requires railroad to publish these tariffs and it distinguishes, as you see on page 48 of our brief, it says that they must publish the tariffs and they may show when a through route and joint rates have been established.

If no joint rate or through route has been established if no joint rates or through if it has been of service to several carriers on such through route so (Inaudible) and keep open for the public inspection as aforesaid and so on.

So as Mr. Hickey indicated in his brief and he’s much a much abler commerce lawyer than I pretend to be, Mr. Hickey in his little brief for the American Short Line Railroad Association has fully explained, I believe, this whole situation of how a railroad, by filing a tariff if it wants to also cancel the through routes may do so.

If it does then some shipper and interested party may come in.

Now, it has been said here that this is a question of fact, this question of the existence of through route.

Yes, it’s a question of fact as to whether through routes were ever established there and compared to the joint rate, but I submit to you as this case reached the Colorado court, it was not a question of fact.

It was strictly a question of law because there was no disagreement at all on the basic fact, and I don’t think it will — quite true to say if I may say so that there must have been something in the nature of a motion here, Mr. Justice Reed, where a decision was reached.

We were entitled to a decision on that question, not if it was merely an administrative matter.

What if the facts were undisputed?

This Court has always considered it a question of law and it’s so admitted in the Union Pacific’s brief or we considered it a question of law as to whether through routes are in existence or not.

And that brings us to the Thompson case and I want to finish on that note.

In the Thompson case, there were no through routes of any kind and no shipments had ever gone forward.

There was no background that the through route ever having been established or a competitive to a greater existence.

And so, the difficulty here is that this Commission was concerned about the Thompson case and query and this is my last query, does is take five shipments under the Thompson case or 10 or 50 or 20 or 55?

And whatever result comes from this litigation, if I may say so, whether Rio Grande prevails or Union Pacific, I think it is important for this Court to clarify the Thompson case and make a claim so that no Commission again divide by its class on this important issue, I think.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Earl Warren:

Mr. Collins, could you —

Elmer B. Collins:

If it please the Court.

You might known right now but —

Earl Warren:

I think you have three minutes to —

Elmer B. Collins:

I’d like to suggest first of all that this — all this talk about whether or not through routes and joint rates were in existence by the Rio Grande is wasted, if it ever amounted to this thing.

It became moot when the Commission knocked that off the ground in a way by saying that the routes are necessary in the public interest, but next to what extent?

To the extent that joint rates are necessary on particular a commodity.

They have as to whether or not through routes existed has been played up by the Rio Grande in an effort to get this case back to the Commission and get a fresh start and see if they can — better — better order than they’ve had.

The Commission said the rates — the routes are needed, of course, they can brush a short-haul prohibition aside just for the use of the words then they could say as it is.

The next step, to what extent are the — they wouldn’t argue and come to discover on everything — every commodity in tariff.

They said they’ll need it on these commodities, the perishable commodities because we think that perishable commodities need every possible route thus going far beyond in the statutory (Inaudible)

Then as I said, the Court yesterday, they reached out and brought in dried beans and livestock under that tent and then that not being enough brought in the westbound tombstone.

Now, may I say to the Court that their effort to the efforts of counsel for the Rio Grande suggest that there’s confusion in the Thompson case is futile so far as this case is concerned.

Thompson made it definitely clear that the publication by each — each railroad that connects it with the next one of its local joint rate did not result in the establishment of through routes and we get upon the point Mr. Justice Frankfurter was touching awhile ago that if that would be so then the through routes power given to the Commission in 1906, 19 years after the original Act required the publication of local rates by each carrier, is all a futile gesture and unnecessary surplus.

And the idea that the Union Pacific, by not making some note in its tariff or tariffs, saying that the route is close as I have said to you yesterday and I point to discussion in page — of the railroads brief in number 333, the Colorado case, page 76.

I’ve cited cases there which said — say that we can’t put any kind of a — of a wording in a tariff, it will — will prevent us from carrying out a statutory duty.

They might as well say that we’ll publish another so we won’t pay our income tax because the duty is just as binding on us to act as a common carrier, to accept shipments when they’re offered at whatever rate is published.

We’re compelled to publish rates and to accept shipments and all of these — these pathetic talk about our having never put a roadblock or torn up the tracks or having published the futile note in the tariffs saying the route is closed is without the — the slightest substance and nothing but an effort to get this case back to the Commission to take a fresh start for seven more years of this onerous litigation.

Felix Frankfurter:

Would you please, before you sit down, Mr. Collins, tell us the precise words in the tariffs that were in existence at the time that this case was before the Commission, the precise words out of the Union Pacific tariffs filed to the Commission referring to the acceptance of shipment that also go with the Rio Grande.

What are the exact words of the tariff?

Elmer B. Collins:

Well, you — Your Honor, you have — you have to give in — the tariff publishes a little more credit than they deserve, but I’d like to give as the language.

Felix Frankfurter:

If there is difficulty in time, perhaps you — with the Chief Justice’s permission, give us a memorandum.

I would like to know exactly what this tariff stated.

Elmer B. Collins:

The tariffs that were in effect at the time that we were on trial before the Commission.

Felix Frankfurter:

Pardon me?

Elmer B. Collins:

The tariffs that were in effect at the time we were on trial before the Commission.

Felix Frankfurter:

Rather than to this litigation here.

Elmer B. Collins:

Yes.

Felix Frankfurter:

What — what does it say?(Voice Overlap) —

Could you add to —

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Felix Frankfurter:

— produce a memorandum.

Could you add to what Mr. Justice Frankfurter suggested what your subsequent tariffs after cancellation showed as well?

Elmer B. Collins:

Well, no, I don’t understand that he asked me about the tariffs in effect at the time of the cancellation back in 1976.

Felix Frankfurter:

I just — I just wanted to know what the tariff stated on this question, namely, that the tariffs in Mr. Holman’s suggestion because the tariff invited business to where a man doesn’t have a shoe store where there have never been a shop.

Elmer B. Collins:

Eastbound rates and here’s the tariff, eastbound rates from points subject to the Western gateway’s name herein do not apply on traffic delivered by the Union Pacific to connecting lines at junction points in the State of Utah.

That’s the Rio Grande Railroad.

That’s meant that the lower joint rate would not apply on traffic delivery.

Felix Frankfurter:

Is that all?

Elmer B. Collins:

That’s all as to eastbound traffic.

Felix Frankfurter:

Yes.

Elmer B. Collins:

The same thing for westbound traffic.

Felix Frankfurter:

And has that been the formula ever since your cancelation (Voice Overlap) —

Elmer B. Collins:

I can’t be sure of that.

Felix Frankfurter:

Would you be good enough.

I think that (Inaudible)

Elmer B. Collins:

We will trace our tariff history back —

Felix Frankfurter:

Would you be good enough (Voice Overlap) —

Elmer B. Collins:

— as far as we can if you’re interested in it.

(Inaudible)

Elmer B. Collins:

We — we don’t have in this record the tariffs that were —

(Inaudible)

Elmer B. Collins:

No, I didn’t say anything about the two —

(Inaudible)

Elmer B. Collins:

Well, Your Honor, it doesn’t mean what’s in the record.

I think we’re confined to the record in this case and the tariffs were put into the record.

(Inaudible)

Felix Frankfurter:

And you say it doesn’t say anything except what you read, is that (Voice Overlap) —

Elmer B. Collins:

We have never contended that we said anything about through routes, but let me — let me suggest that you look at the — at the cases I’ve cited, proceedings that took place before the Interstate Commerce Commission at the time that some of these old rates were canceled.

I have pointed at —

Hugo L. Black:

What — what rates are you using then?

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Elmer B. Collins:

I — I have the railroads —

(Inaudible)

Elmer B. Collins:

The Union Specific in one — number 333, where I show that in three to four of those old proceedings that took place at the time those rates were canceled, the Commission said the Union Pacific offers tariffs opposing to cancel through routes and joint rates.

And the discussion, all the way through, showed that the Commission thought it was canceling the through routes as well as the joint rates and nobody ever had any such thought as you now hear it thence until the right man dug it up (Voice Overlap) —

(Inaudible) Mr. Collins (Voice Overlap) —

Elmer B. Collins:

I — I don’t see it admittedly but one of them was — was the Ogden Gateway case and maybe I’m looking the wrong brief and two or three others there which repeat that the Commission was canceling through routes to the extent that authorized the tariffs as well as joint rates.

Now, that’s the language it used and that’s what at all it was doing 50 years ago.

They come to you now and tell you they didn’t do it.

We’ve got a new theory about it so the result is that the through route have been there all the time but if they held then they’ve been there on every railroad in this country, every connecting railroad.

They were not there for any other reason according to their argument except because joint rates were published and the lines physically connected.

If that’s so then a joint rate is all as — I mean the through route is forever there and nobody can do anything about it.

It’s then is a through route under compulsion and the — the whole statutory pattern becomes distorted.

The page that now I had in mind, Mr. Justice Harlan, is 63 of this light grey brief, number 3333.

Hugo L. Black:

Is that your brief in the case?

Elmer B. Collins:

I beg your pardon?

Hugo L. Black:

Your brief in the case?

Elmer B. Collins:

The brief — it’s the opening brief in the Colorado case.

Earl Warren:

Well, Mr. —

Elmer B. Collins:

Sir?

(Inaudible)

Elmer B. Collins:

Well, the Union Pacific and the other seven railroads that joined.

Earl Warren:

Mr. Collins, perhaps you’d like to — to give us some memorandum on the history of — of this matter and if you will do that, Mr. Holman, you may have an opportunity to answer if you wish to do it.

Frank E. Holman:

Well, Your Honor may I answer theirs.

They raised it and I think I should be in the answering position (Voice Overlap) —

Earl Warren:

But just as you please.

If you wish to do it, you may.

If you don’t, why — you don’t need to.

Now, may I —

Frank E. Holman:

I would like very much to do it, but I’d like to answer theirs.

Earl Warren:

May I — may I refer to another matter.

Audio Transcription for Oral Argument – April 23, 1956 (Part 2) in Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company

del

Frank E. Holman:

Yes.

Earl Warren:

Yesterday, I asked you about the question of adequacy and what the language of the Commission was in finding that the facilities of the Union Pacific were adequate.

And you referred me to that portion of the report of the Commission which is entitled, “Opposition Testimony” in which it said its present facilities are adequate to move over its own direct routes, the present volume of traffic in any additional volume that may be anticipated in the foreseeable future.

Now, today, Mr. Holman points out to us, under the heading “General Discussion and Ultimate Fact Findings,” the following language, “While the true service over defendant’s routes in general is as satisfactory to the shipping public as the service which could be provided over routes including the Rio Grande via Ogden or Salt Lake City, this is not true with respect to the commodities we have enumerated.”

Then jumping to the latter sentence of that same paragraph, it says, “On such traffic, the defendant’s routes are inadequate unless economical and are the Rio Grande routes.”

Now, would you explain the difference between those two and which is binding on us — binding on us insofar as the question of adequacy is concerned.

Elmer B. Collins:

Your Honor, I have never seen a more confusing and fuzzy and puzzling paragraph and inconsistent piece of writing in my life than that —

Earl Warren:

(Voice Overlap) —

Elmer B. Collins:

— paragraph.

Now, they say first that the Union Pacific routes can make it in at least 24 hours shorter time.

For traffic, this traffic moves, mind you, from the Northwest to Atlantic City in New York.

The question is getting it from the west origin to the east in termini.

And yet they say it is not true that we can do all that, haul perishable goods.

And why can’t we?

They don’t explain.

They don’t tell us why we can’t haul perishable goods that’s passed or pass at the Rio Grande.

They tell us that perishable goods need a lot of transit services, after telling us in the first place that they must travel with expedition and care.

Then they tell us that they must stop for periods which under the tariff could be as long as 12 months.

(Inaudible) privilege is what puts the Commission itself in this case and this Court wants in the decision in 305 U.S.by Mr. Justice Reed, that is a commercial operation and not a transit — not a transportation service.

So, then next they say, the shippers in the Northwest, who now have the Union Pacific routes and a few of whom, 20 — 22 of whom as against 73, the Commission says are debarred.

The 73 denies that they’re debarred and they denied that they want the long routes.

They say they are satisfied but the Commission says you were debarred no matter what you say from these markets in the country because you can’t ship over the Rio Grande at the same rate you can over the Union Pacific Railroad.

They each testified that they reached every market in the country in the all 48 States — I — I beg your pardon.

They say we — we ship our goods to every State in the 48 States and to six foreign countries.

Now, that came both from Rio Grande witnesses and witnesses that uphold the Rio Grande.

I — I say to you, Mr. Chief Justice, that the Commission has — has so obviously, to me in that paragraph, contradicted itself that I see no way to reconcile the — the statements in it.And if the Union Pacific routes are inadequate because we don’t serve points that might want to go through a commercial operation called transit located along the Rio Grande then we are sunk indeed and so is the rail — the railroad in the country.