Pennsylvania Railroad Company v. United States

PETITIONER:Pennsylvania Railroad Company
RESPONDENT:United States
LOCATION:Superior Court of Bibb County

DOCKET NO.: 451
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 363 US 202 (1960)
ARGUED: May 17, 1960
DECIDED: Jun 13, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – May 17, 1960 in Pennsylvania Railroad Company v. United States

Earl Warren:

Number 451, Pennsylvania Railroad Company, Petitioner, versus United States.

Mr. Cox.

Hugh B. Cox:

May it please the Court.

This case is here on a writ of certiorari from the Court of Claims.

And the case arose in this way.

In 1941 and 1942, the Pennsylvania Railroad Company carrying 75 shipments of iron and steel articles for the account of the United States from various points in the East to the port of New York.

The shipments were consigned to that port for export.

Because of conditions created by the war, they were not exported to that port but stored for a while in New York and then they sent it elsewhere.

Some of them ultimately went to Canada, some of them were ultimately exported to other ports.

The controversy in this case relate to the charges and only to the charges, or no shipments from the point of origin to the port of New York versus the set of charges.

They are under the tariff —

Felix Frankfurter:

Were the shipping — were the shipping documents changed after they couldn’t —

Hugh B. Cox:

They were changed afterwards, Mr. Justice Frankfurter.

There were two sets of rates that might have been applied to these shipments.

One, were the ordinary domestic rates on iron and steel article, the other were lower export rates.

The Railroad billed the United States on the basis of the higher domestic rates and the Unites States paid for the shipment on that basis.

Subsequently, on post audit by the Controller General, he decided that the United States should not have been billed on that basis but it — it should have been billed on the basis of the export rate.

He took the position first that the — in the conditions that applied to these shipments, the export rates under the tariffs were applicable.

And alternatively, he took the position that any rate higher than those export rates as applied to these shipments would have been unreasonable.

He therefore deducted under the procedure provided for in the post-audit statute from freight bills admittedly owing to the Railroad an amount equal to the difference between the domestic rates and the lower export rates that came to approximately $7237.

The Railroad then brought suit in the Court of Claims to recover that amount.

There was a report by a Commissioner, an argument before the Court of Claims and then to Court of Claims, held that the doctrine of primary jurisdiction as laid down by this Court in the Western Pacific case in 352 U.S., required the Court of Claims to suspend its proceeding until the Interstate Commerce Commission could decide what rates should lawfully and properly be applied to these shipments.

The Court of Claims entered an order suspending the proceeding and directing the United States to institute a proceeding before the Interstate Commerce Commission to have that question determined.

United States instituted that proceeding by all the petition, asserting alternatively that the export rates should apply on — that they didn’t apply any rate higher than those rates, was unreasonable.

There were — the case was sent by the Commissioner to an examiner.

Before the examiner, the United States abandoned the position of the — the export rates were applicable and relied solely on the ground that the — any rates higher than the export rates were unreasonable.

The examiner made a report favorable to that contention of the United States.

Exceptions to the report were overruled by Division 2 which entered an order discontinuing the proceeding and a petition for a reconsideration was denied by the whole Commission.

Felix Frankfurter:

I take it that the question of whether export rate of parts, the rates couldn’t be higher — the reasonable rates couldn’t be, or a rate higher than the export rates would be unreasonable, was itself a subject matter for the so-called family jurisdiction.

Hugh B. Cox:

As I think there’s no doubt about that.

Hugh B. Cox:

The United States then went into the Court of Claims and filed a motion asking the Court to vacate the suspension of the proceeding and to enter judgment for the Railroad in the amount of approximately $1635.

That was the amount of the total amount sued for in the Court — Court of Claims which represented charges which the Interstate Commerce Commission had found to be reasonable.

The Pennsylvania Railroad then filed a pleading in the Court of Claims resisting this motion and asking that the Court of Claims suspend the proceeding in the Court in there until the Railroad could file a proceeding in an appropriate District Court under Section 1336 of Title 28 to review and know and suspend and set aside the Commission’s order.

The United States resisted that motion.

However, while the case was still in the Court of Claims, the Pennsylvania Railroad in fact did file such a proceeding in the United States for the Eastern District of Pennsylvania invoking the jurisdiction under — to that Court under Section 1336 and laying venue under Section 1398 of the same title.

Charles E. Whittaker:

May I ask you, Mr. Cox?

Was there jurisdiction in the Court of Claims to have entertained that matter?

A jurisdiction in the Court of Claims —

Hugh B. Cox:

No, we think not.

Charles E. Whittaker:

You think not.

Hugh B. Cox:

Yes, from what I could get.

William J. Brennan, Jr.:

The Government agrees?

Hugh B. Cox:

The Government agrees with us, yes.

That — well, in any event, then in the Court of Claims, the — the Government resisted the suggestion of the Pennsylvania Railroad and filed another memorandum of pleading arguing that it was appropriate for the Court of Claims to proceed because the Commission’s determination was merely an ancillary step in the judicial proceeding and no purpose would be served by a further delay in the Court of Claims.

The Court of Claims thereupon, without any further hearing and without purporting to review the order of Interstate Commerce Commission, entered judgment for the Pennsylvania Railroad in the smaller amount which had been suggested in the motion filed by the United States.

It said in its order, wrote no opinion, but it said in its order that it did not think that in this case, the procedure of staying for further action in the Court of Claims until review by in a District Court was an applicable procedure.

I think the words it used were — the precise words of that procedure, is inapplicable here.

Could I ask you a question, as a matter of curiosity?

Is what you’ve just said in — mean that the Government has shifted its position, what it was below?

Hugh B. Cox:

I should — I should prefer not to characterize the Government’s position for — largely because I find it not altogether easy to understand the papers they filed in the court below.I find their papers here quite explicit clear.

I read their brief.

It could’ve carried your name.

Hugh B. Cox:

That is true in this Court.

What they did and what the Court of Claims — is a little more difficult for me to characterize.

William J. Brennan, Jr.:

(Inaudible)

Hugh B. Cox:

I am about finished, may it please the Court.

We have two legal points.

Felix Frankfurter:

Before you — before you state your points, may I ask this.

Has one a right to say that the order of the Court of Claims means that it found a reference to the Commission because the primary jurisdiction, a determination upon return of the original suit to the forum when the suit started, the determination of the ICC is not reviewable, is that the upshot?

Hugh B. Cox:

I think it means that in this case and a case in the Court of Claims, it is not renewable.

Felix Frankfurter:

I mean — I means that —

Hugh B. Cox:

At least it was not reviewed in this case.

Felix Frankfurter:

I mean in this case.

Hugh B. Cox:

Yes.

Felix Frankfurter:

That they haven’t got the power —

Hugh B. Cox:

That’s right.

Felix Frankfurter:

— but accept as definitive the determination now on the reference.

Maybe that’s the —

Hugh B. Cox:

I think that’s — that’s what —

Felix Frankfurter:

— that that is the upshot, isn’t it?

Hugh B. Cox:

That’s the upshot of this case.

Now, we have — we have two — there’s two legal points.

One is that we say this determination of the Commission was a final administrative determination between shipper and carrier which carry legal consequences.

And therefore, it is a reviewable ordinance.

United States agrees with us on that point and I don’t propose to argue.

Our second point is that in the circumstances of this case, the Commission’s order should be reviewed in a separate proceeding, brought under Section 1336 of Title 28 because the Court of Claims really for two reasons.

In the first place, because Congress has provided, the District Court shall review orders of the Commission, in the second place, because the Court of Claims has no jurisdiction to review an order of the Commission.

The United States agrees with us in that position.

We ask in our prayer for relief that the case, this case, the judgment of the Court of Claims be reversed and that the case be remanded with the directions to the Court of Claims to stay proceedings until there has been a final determination of the suit in the Eastern District of Pennsylvania to review the Commission’s order.

On the last page of its brief, the United States agrees that that belief should be given to us.I think in the circumstances that I should not take anymore of the Court’s time and I submit my case on that basis.

Earl Warren:

Mr. — Mr. Doub.

George Cochran Doub:

Mr. Chief Justice, if the Court please.

The —

Felix Frankfurter:

Tell us what you’re going to argue, Mr. Doub.

George Cochran Doub:

We acquiesced, if the Court please, in the petition for certiorari.

We did not confess error then, one, because their views did not finally crystalized.

And two, because we felt that if we did reach the conclusion we’ve expressed in our brief, where does a — a major question of court jurisdiction of proper procedure which — and where there’s conflict among the District Courts that it was — there should — the — the issue needed clarification by the Court and there should be no law established as to court jurisdiction and procedure by agreement of the parties.

And our interest here, if the Court please, is merely our concern for the desirable rule and our function here is merely to try to give the Court the benefit of the best thinking which the Solicitor General —

William J. Brennan, Jr.:

May I ask —

George Cochran Doub:

— and I have been able to give.

William J. Brennan, Jr.:

I think that that — I gather from the facts you (Inaudible) and it might be, another question would arise or the views (Inaudible)

George Cochran Doub:

It’s not before you, but it — but it’s very difficult, Mr. Justice Brennan to — to follow the precise issue here without seeing the whole picture.

And it is a closely affiliated question.

And we noticed that in the Texas Mexican case, in the Jones case, in the United States against ICC involving procedural questions of this kind in judicial administration.

You’ve gone beyond the precise question and attempted to clarify for the bar and the bench below what was sound procedure.

Felix Frankfurter:

But we certainly have to determine what we are — we certainly have to decide in this case what to do with the Court of Claims’ judgment.

Namely —

George Cochran Doub:

No question about that.

Felix Frankfurter:

So, that —

George Cochran Doub:

But that —

Felix Frankfurter:

That involves, I take it, determining whether the Court of Claims could and if it could, should have reviewed — could have reviewed the order of the Commission.

And that, I take it, you’ll argue — you suggest involve being — is it reviewable at all and if so, by what Court, if not, by the Court of Claims.

That’s your position.

George Cochran Doub:

That’s right.

Could I —

William J. Brennan, Jr.:

(Inaudible)

Earl Warren:

I so understood.

George Cochran Doub:

We do — we do agree but the — the Interstate Commerce Commission does not agree and I wish to explain their position and their reasoning.

And we invited and file brief here and gave them an opportunity to do so.

Earl Warren:

Did they do so?

George Cochran Doub:

No, they did — like did not to do so.

But —

Earl Warren:

Well, Mr. Doub —

George Cochran Doub:

— they then filed their briefs in the district —

Earl Warren:

Mr. Doub, may I ask you this?

There must be some issue between the two of you if you — if you’re going to argue, I’d like to ask you, is there an issue between you and the other side.

And if so, will you state the issue to us?

George Cochran Doub:

No, there is not.

Earl Warren:

There is no issue between you?

George Cochran Doub:

There is no issue at this point.

George Cochran Doub:

We’ve can — we have in effect in our final brief, confessed that the petitioner was entitled to have the — the adverse determination of the Interstate Commerce Commission or it viewed under these statutes that is derived from the Urgent Deficiencies Act of 1913.

And that under the statutory venue, it was in the Eastern District of Pennsylvania because the venue provisions —

William O. Douglas:

That’s a one judge or a three-judge court.

George Cochran Doub:

Do you think it should be one judge?

Felix Frankfurter:

Do you think one judge?

George Cochran Doub:

We think it should be one judge.

Felix Frankfurter:

Well, that’s —

Earl Warren:

What is the other side of this?

George Cochran Doub:

Under the United States against Interstate Commerce Commission.

Well, they asked for one judge in their —

But then what puzzles me is this.

One can think of practical considerations.

I don’t say they’re legal considerations or permissible ones but the practical considerations why this rigmarole view, is inefficient.

Then, why there should be review if it’s legally possible in the referral court?

Yet, you’re taking a position that is wholly in agreement with your adversaries and we have nothing before us from the Interstate Commerce Commission or any other view that to argue, they — a different position.

George Cochran Doub:

Well, I wish that —

Then maybe you can enlighten me —

George Cochran Doub:

I’d like to present —

— as to what the fact of considerations are, that claims about this curious result because you could really stand up here and confess error.

George Cochran Doub:

But we have been unable, Mr. Justice Harlan, by virtue of the unambiguous terms of the review statutes.

And by virtue of what this Court has said in the Jones case for example where you said that the Congress had not conferred upon the Court of Claims any power to review orders of the Interstate Commerce Commission.

You said it is not confirmed expressly and we may not infer because it would violate the entire philosophy and framework of the statutory review provisions.

Then, you went on to point out that when a court — a District Court whether one judge or three judge, reviews determinations of the Commission.

It has the power to remand those for further consideration by the Commissioner in accordance with the legal principles the Court established.

But the Court of Claims has no such power.

It wouldn’t have any power to remand to the Commission if it found there had been error.

The only power it has under the statutes is to enter a money judgment against the United States.

Now, it was also pointed out that if the Court of Claims could review the — a decision of the Commission and enter judgment on the basis of its determinations that that would be the exercise of a power that even a three-judge District Court could not do in a review proceeding.

And you said it would be enormous to say that the Court of Claims would have such a power.

Yes but you can think of — this is our premise on reviewing the referral order or the order pursuant to the referral as a formal order which is reviewable in the ordinary way.

But it’s not hard to think of arguments that could be made that even — that in a referral case of this kind, short of formal review which you say is impossible in the Court of Claims.

And I agree with that.

That nonetheless, the reviews of the Commission in the case of this kind could be taken only in an advisory sense.

And therefore, in practical effect could be reviewed by the referral Court.

And those arguments are — if they had any validity to them, maybe they’re wholly unsound or not represented in this proceeding at all.

George Cochran Doub:

Well, I — I wish to present them to you in just a moment but I’d like to make two preliminary remarks —

Earl Warren:

Well, what —

George Cochran Doub:

— if I may.

William J. Brennan, Jr.:

I just like to be sure of this, Mr. Doub.

When you addressed yourself to — aren’t you asking insofar as this case is concerned, merely to render an advisory thing?

What — what are we solving in this case?

George Cochran Doub:

No, I don’t think so.

This has happened before.

And as a matter of fact, it’s — Mr. Oscar Davis reminded me that in the cases where it has occurred where the Government in effect confess error by taking the — recognizing that the — a decision and it’s favor below was in error.

And where it did sound not in it’s answer to the petition but after the petition had been granted.

It’d been the practice of the Court to write a full opinion.

And here, it’s highly desirable that this —

Felix Frankfurter:

Well, I’ve been told that we can’t take the law from the Department of Justice —

George Cochran Doub:

You said so.

Felix Frankfurter:

— and particularly to this Court.

George Cochran Doub:

You said you will not take the law of except — but the law on the basis of agreement of the parties then of course it’s not.

Charles E. Whittaker:

If we write a full opinion in this case, it would have to be, would it not, Mr. Doub, upon the facts, issues, and law in this case?

George Cochran Doub:

That’s right.

Charles E. Whittaker:

All right.

Now then, you confess that that judgment has to be for petitioner.

George Cochran Doub:

Well, you’re not bound by that that.

You’re not bound — to accept our view of the matter and — as a matter of fact, I think it was Professor Cox who took a similar position and the Court disagreed with him.

Earl Warren:

Well, are you going to argue that we should go along with the Government or that we should not go along with the Government in this matter?

Which do you want us to do?

Now, you can’t each defy and keep it.

George Cochran Doub:

Well —

Earl Warren:

If you’re — if you’re going to agree with the other side on all of the issues, then the question is, do you want us to reverse or affirm this case?

And —

George Cochran Doub:

Now, which we expect you to — we — we think you should reverse and (Voice Overlap) —

Earl Warren:

And we think that we should do what you’ve already suggested.

George Cochran Doub:

In our brief?

Yes.

Earl Warren:

Yes.

George Cochran Doub:

Yes.

I take it (Voice Overlap) —

Earl Warren:

Well, and why — why do — what would we got to argue about?

Felix Frankfurter:

Are you — are you speaking — are you authorized to speak for the Interstate Commerce Commission and asserting a different view?

I — I — that would be a blessed day when the Commission and the Department agrees.

George Cochran Doub:

Well, I have to discuss the matter with them a number of times and I did wanted to give the Court the benefit of their views.

Felix Frankfurter:

Although, they don’t want to.

George Cochran Doub:

Well, they felt it was a matter of judicial administration.

And they also concluded that they only filed an amicus brief in exceptional cases and they didn’t feel this was such.

(Voice Overlap) —

Felix Frankfurter:

Because there is a problem for me if you’re going to take the whole transaction, namely if you — your use — you agree with the petitioner but the Court of Claims’ judgment should be — not — should not be affirmed.

Now, that involves determining — in other words, if that the — if the order of the Commission is subject to review somewhere.

You argue and Mr. Cox, and you agree with Mr. Cox, but it’s not with the Court of Claims.

I should myself thinks it’s bad enough for us to say where it is.

But I’m left a little bit in doubt by Mr. Cox’s brief as to whether this can be determined by a District Court of one judge or with a trial to a three-judge District Court.

Charles E. Whittaker:

Well, is that an issue we could determine in this case?

Is that before us here?

George Cochran Doub:

Well, it’s not directly here.

On the other hand, if the Pennsylvania Railroad application or — or complaint in the Eastern District of Pennsylvania should’ve asked for three judges.

And a one-judge Court did not have authority to — to review the Commission order, then I think it’s conceivable, the Court of Claims could’ve gone ahead and entered judgment on — the rate was an improper review procedure.

Felix Frankfurter:

Well, we can’t — we can’t say that Court of Claims is wrong without presumably saying why it was wrong.

George Cochran Doub:

That’s right.

Felix Frankfurter:

And if it was wrong because the Court of Claims had no reviewing power — well first, they should be reviewing the power.

Secondly, the Court of Claims has no such reviewing power addressed to the District Court.

Then, I don’t think we’d be praying out of our preserve if we stay and of course it must by (Inaudible) wouldn’t agree.

I don’t think what — we need to be that Court.

George Cochran Doub:

Well, it was —

Earl Warren:

I’m a little surprised at the — at the Commission saying that it only wants to be — make an appearance in exceptional cases because as I remember it, only at the last Congress, the Commission had a bill in there to prevent the Department of Justice from — from injecting itself into each — into each cases.

George Cochran Doub:

[Laughs]

Earl Warren:

And I thought that the Department of Justice would very much oppose to that.

George Cochran Doub:

Yes, we were.

May I point — make two preliminary observations.

The first is this.

There has been 17 cases before the Court of Claims where references where made to the Interstate Commerce Commission.

Since your decision in 1956 in the Western Pacific Railroad case where you — the primary jurisdiction doctrine flowered.

Now, the Commission tells us that they receive about 15 cases a year where there was a prior original proceeding in the District Court.

Felix Frankfurter:

15?

George Cochran Doub:

15 a year.

Felix Frankfurter:

15.

George Cochran Doub:

Now, of the five cases — of five cases referred by the Court of Claims where the Commission determined the issue, the findings were accepted by the parties in four of them.

So, it looks like in about four cases out of five, when a reference is made to the Commission, the parties accept the decision of the Commission.

And then, I think does suggest that the doctrine of primary jurisdiction has been practically very successful.

And the other point I’d like to make is, that while this Court has talked about referral of a case to the administrative agency and we have done — done it to our brief and we’ll — and be in argument.

Actually, there’s not an actual referral talk.

And the Court doesn’t have any power to make one in the statutory authority for that and there’s no transfer of the case.

What the Court merely does is to enter an order, sustain the proceeding until one of the parties applies to the Commission for — an initial determination.

So, the proceeding before the Commission goes forward just as though it would’ve if there hadn’t been any independent judicial proceeding in another Court.

And the only difference is that when the Commission makes its determination, it merely provides in its order for the discontinuance of the — of — of the proceeding.

Felix Frankfurter:

Is this case — does the — do the merits of this case involve an obsolete tariff or a tariff is still enforced?

George Cochran Doub:

It involved tariffs I think still enforced but the shipments —

Felix Frankfurter:

Because as I understand (Voice Overlap) —

George Cochran Doub:

— where they made it a long time before and the —

Felix Frankfurter:

Well, that —

George Cochran Doub:

— the issue involved, Mr. Justice Frankfurter, only related to those particulars.

Felix Frankfurter:

Yes, I understand that, but was it a tariff, a living tariff or a dead tariff —

George Cochran Doub:

It think it was a living tariff.

Felix Frankfurter:

— because that seems to be the —

George Cochran Doub:

Mr. Cox tell me it’s a dead tariff.

Felix Frankfurter:

All right.

Well, that’s — because that’s the distinction he takes in the footnote between a living — the 337 — 352.

That is what —

George Cochran Doub:

The — the Interstate Commerce Commission has taken the following positions in several District Court cases where there was a reference to the Commission and where the — an independent review proceeding was brought under the statute as to take in the position that the determination of the Commission is merely ancillary to the so-called referral court.

That is an aid to the pending Court action.

But the Commission decision didn’t determine any right or obligation that it’s an exercise of the Commission’s function of investigation.

There’s no order of the Commission requiring anyone to do anything since it’s merely one for discontinuance.

So, the Commission did not undertake to give effect to its findings, if I may, passing an order requiring the performance of an act of the payment of money.

Felix Frankfurter:

The Commission suggest that — that nobody needs to pay any attention to it or so long as no court overrules it?

George Cochran Doub:

Well, it said — it said that if it’s reviewable anywhere, it’s reviewable by the referring court, but it — it’s never conceded it was even reviewable at all.

And the Commission’s argument has been that the review provisions of 1336 and 1398 apply only that asserts to enforce or set aside an order of the Commission and does not extend the mere findings and determinations of the Commission.

Charles E. Whittaker:

Mr. Doub, maybe I don’t understand you.

I thought you’d taken that issue out of the case by conceding here that the Commission’s order was reviewable in an appropriate District Court?

George Cochran Doub:

In the —

Charles E. Whittaker:

Do I misunderstand?

George Cochran Doub:

That’s correct.

But I — I had hoped that I — I might present to you because this — I — we feel this is a question of major judicial administration.

It’s one that the lower courts were in dispute about.

Judge Holtzoff, a few months ago, held that there — the — the Court that should review such a determination was a referring court.

Now, Judge Thompson in Baltimore, in the Davidson case held that the review should be under the statutes here.

An independent review proceeding was required.

The three-judge Court in New Jersey, Judge Hasty and several others have — without discussion applied the statutes and held that after a reference to the Commission by a — the Southern District of New York, review should be had in a — under the statute in New Jersey.

So —

Earl Warren:

Well, Mr. Doub, if — if you believe in the position you took in your briefs, why do you argue the contrary to us here?

George Cochran Doub:

I’m not arguing — I’m arguing — I’m not arguing the contrary at all, Your Honor.

I — we feel — the Solicitor General and I both are both in accord that the statute is so explicit and unambiguous that the review proceeding must be had under its terms.

And we think that under the — what you — the teachings you have given us in the Jones case and in the United States against Interstate Commerce Commission and the Texas-Mexican case where you reiterated that that’s where — that is the forum and that’s where it must be.

Charles E. Whittaker:

The quarrel?

You said — did you say the quarrel?

George Cochran Doub:

I say that is the proper forum for the review.

Charles E. Whittaker:

Well, there’s no quarrel between petitioner and —

George Cochran Doub:

No, I say that is a proper forum.

(Voice Overlap) —

Charles E. Whittaker:

Oh, I beg your pardon.

I beg your pardon.

George Cochran Doub:

Could I just say — say one word, Mr. Chief Justice, about a collateral question that you may not wish to relate.

Earl Warren:

Is that in the case?

George Cochran Doub:

It’s —

Earl Warren:

Is it in the —

George Cochran Doub:

— it’s affiliated but it’s not directly in the case.

Earl Warren:

But why should we argue those things that are not in the case?

What is the purpose of — that’s all I’m trying to get at Mr. Doub.

If there’s a — tell us what the purpose of it is.

If you want us to — if — if you want to establish some point for us, why — tell us.

And if it’s in the case, of course, we’d like to hear it.

But I — if that seems —

George Cochran Doub:

I’m aware of this.

Earl Warren:

— it just seems —

George Cochran Doub:

I was trying to —

Earl Warren:

It’s not very unrealistic to me to — your argument on something that you agree with the other side with 100% —

George Cochran Doub:

That was —

Earl Warren:

— but if you doubt your position, if you do —

George Cochran Doub:

No, we do not doubt it.

We do not doubt it.

George Cochran Doub:

But I wish to point out the implications of our position.

Most review proceedings will be in the District Courts, they’ll originate in the District Courts.

They’ll take the place in the District Courts.

Now, if the Congress hadn’t spoken on this subject, it would undoubtedly be desirable for a District Court that made the reference to review and not have a circuitous procedure with a multiplicity of actions, namely the review proceeding in another District Court.

Now, we’ve proposed to recommend to the Congress legislation to recognize.

We also think — we also think that the venue provision might well be deemed away where a shipper brings a suit, for instance, in the Eastern District of Virginia against the CNO.

The rate issue is referred to the Commission.

It comes back and then under the venue statute, the shipper who’s dissatisfied would have to sue in the Western District of Virginia.

Could I —

Felix Frankfurter:

Do you want us by a side wind?

You — I make such a proposal prospect to the next session of Congress?

(Voice Overlap) —

Charles E. Whittaker:

I would agree with you on that, but we don’t have that case.

George Cochran Doub:

No, you don’t have that point.

Could I put a practical question?

Do you — having put the views of the Interstate Commerce Commission before us, as to which you don’t agree.

Well, the United States now in this case prepared to confess error?

George Cochran Doub:

We have done so in our brief and with this —

Well, maybe you haven’t and put it I those terms?

You are, though, prepared to confess error?

George Cochran Doub:

Yes, we — and we have done so.

Felix Frankfurter:

Why do you say that?

Why do you think that’s a practical thing since we can’t act on your confession?

George Cochran Doub:

Well, our — our brief and the position taken today adds up to a confession of error and maybe a matter of (Inaudible)

Tom C. Clark:

Well, in fact, it was held on (Inaudible)

Well, suppose the — that’s the (Inaudible) that dwell on — we won’t take jurisdiction, these issues with reference to the (Inaudible)

George Cochran Doub:

Well, I think they have — would have to take it because these cases I pointed out initially, Mr. Justice Clark, have to be broad.

They’re — they are really brought on the facts that (Inaudible)

They’ve not to transfer it over from the referring court.

And in fact, there isn’t even an order referring it over.

George Cochran Doub:

That’s merely an order staying these proceedings until one party or the other brings the proceeding before the Commission.

Tom C. Clark:

And they know they know — they don’t they that it is a referral as a matter of practicality.

George Cochran Doub:

Yes, they do.

But I have a great difficulty obtaining statistics from them because they’re not listed on their dockets.

And it’s necessary to go into the pleadings to find out that the case had originated in the Court of Claims or a District Court.

William J. Brennan, Jr.:

Well, even though the Court of Claims or the District Court, has been instigator where the proceedings finally brought.

The Commission can’t refuse if the party which brings the proceeding before the Commission properly invokes its jurisdiction, it has to proceed.

George Cochran Doub:

That’s right.

It must proceed.

Tom C. Clark:

Well, he said — the Commission says, “Well, you bring this in order to advance that sort of things?”

And he said, “Yes, that’s what I’m bringing this for.”

It looks like to me that you might run into an empty place if — then another thing that worries me about it is, is how long is this case before the Commission?

George Cochran Doub:

Well, they — they can last for years.

The Western Pacific case —

Tom C. Clark:

What happened during (Voice Overlap) —

George Cochran Doub:

I don’t think it’s ever been finally decided by the — by the Commission.

Felix Frankfurter:

Because in the mean time, the case gets into the statistic as an undecided case by a District Court, doesn’t it, as well as the docket?

George Cochran Doub:

Yes, it would.

On the other hand, I — I think the doctrine of primary jurisdiction which you have developed has been highly successful and — may I point out, Mr. Justice Clark that it didn’t originate at Western Pacific.

It originated 1906 in Abilene and — and so, I doubt that after over 50 years, the Commission would suddenly do the dreadful thing and do suggest that it might do a thing, we won’t — we won’t hear them.

Tom C. Clark:

All it is saying that suppose it — it was during the days.

Felix Frankfurter:

Has it been time saving?

Has it been what?

Tom C. Clark:

Time saving?

George Cochran Doub:

Well, I suppose not, but I think the fact that the parties have — have been accepting the decisions of the Commission in four out of five cases (Voice Overlap) —

William J. Brennan, Jr.:

Or maybe they’re just worn out, Mr. Doub.

George Cochran Doub:

Well, and that’s just what — [Laughter]

Felix Frankfurter:

Well, the doctrine isn’t a time saving device.

That is in the theory of the doctrine or its necessity or is functions.

Charles E. Whittaker:

Well, (Inaudible)

Earl Warren:

Mr. Cox.

[Laughter]