United States v. New York, New Haven & Hartford Railroad Company

PETITIONER:United States
RESPONDENT:New York, New Haven & Hartford Railroad Company
LOCATION:First Unitarian Church of Los Angeles

DOCKET NO.: 45
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 355 US 253 (1957)
ARGUED: Nov 20, 1957
DECIDED: Dec 16, 1957

Facts of the case

Question

  • Oral Argument – November 20, 1957 (Part 1)
  • Audio Transcription for Oral Argument – November 20, 1957 (Part 1) in United States v. New York, New Haven & Hartford Railroad Company

    Audio Transcription for Oral Argument – November 20, 1957 (Part 2) in United States v. New York, New Haven & Hartford Railroad Company

    Edmund M. Sweeney:

    Continuing in the line of answer to the question of Mr. Justice Brennan.

    I’d like to say that our position is that there was no real significant change in the responsibilities before or of after 322.

    But that I mean this, it is true that before 322 the Government could take its good time about determining whether it owed the money.

    But my point and our point here is that that was not a final determination.

    If the carrier did not like that, the carrier could go into Court and some judicial tribunal will determine whether or not that was a proper payment by the Government.

    Earl Warren:

    Who has the burden of proof on —

    Edmund M. Sweeney:

    In that case, Your Honor, the burden of proof would be on the railroad.

    And after 322, the railroads could go in and sue on the amount deducted that is, they could’ve gone in and sued on this $1025.

    And if they have then it would have been up to the railroads to prove their case.

    We are not saying in any way that the railroad should be relieved from the burden of proving their case.

    We are simply saying that when the railroad sues for one bill and the Government convened by way of affirmative defense at its set off.

    We are saying that the railroad does not have the burden of disproving the Government’s case.

    And conversely, the Government does have the real burden of proving that its counterclaim in set off is valid.

    Hugo L. Black:

    You know what’s valid (Inaudible)

    Edmund M. Sweeney:

    Well, Mr. Justice, no.

    We — we —

    Hugo L. Black:

    It’s valid on the claims from which it was deducted.

    Edmund M. Sweeney:

    Yes, we would and we would do that just as a matter of — of practical mechanics of a — of a suit.

    First of all Mr. Justice, may I explain that — I don’t know how to explain it because I know, you know more about than I do, but there’s nothing mystical about a 322 transaction between the Government and the railroads.

    They do not at all act at arm’s length.

    First of all, the railroad and the Government both employed very experienced, highly trained personnel in rates and divisions classification.

    And when the Government says that they have overpaid the railroad, the railroad looked it over and there is a — an amicable interchange of their opinion.

    And I would say that possibly at least 95% of the cases where there is a deduction under 322, there is an amicable adjustment.

    Now, actually in the case here before us today, that — that very so — same thing happened.

    They deducted $1025.

    After looking the thing over, the railroad agreed that all but $402, it was a proper deduction.

    Likewise, the Government agreed, too, that in part of it that Service Order 68 did not apply.

    So you see, it’s one of those things where they — it’s a workable rule and they tried to work out the best they can.

    However, we say that it is not fair or just unreasonable to impute to Section 322 the right in the Government when they have come to a stalemate with the railroad, the right in the Government to say, “Well, I listened to you.

    You’re a nice fellow, but this is it.

    Edmund M. Sweeney:

    We’re going to make the determination and we say this.

    You either pay us back or else.”

    And the “or else” is the deduction.

    We say that in lieu of some — there is no means of — for arbitrating these stalemates.

    And we say that the only proper tribunal is the one that’s left which is the judicial tribunal.

    Assuming your premise, the burden of proof is on the Government’s situation, what have you to say to the argument is the burden shifts or at least the duty of going to forward shifts, once the Government has shown that — once the Government has alleged, which in here that there were cars available, that the burden shifts to you because the records necessary to prove this are all in your possession.

    Edmund M. Sweeney:

    Well, first of all, Mr. Justice, I recognize the fact that the burden of going forward could shift and possibly —

    Which is why conventional — conventional greeting, I suppose.

    Edmund M. Sweeney:

    Yes.

    Perhaps, the other one could —

    Edmund M. Sweeney:

    The —

    They’re not same result.

    Edmund M. Sweeney:

    The — the burden could shift if it could be shown that there were facts which were peculiarly within the knowledge of the railroad.

    Now, actually as — well, as the case finally developed for the Government now, they are saying that they did, that they did present a prima facie case.

    And they are saying that once they simply alleged that the size of the car or that was available that that is sufficient.

    And then the burden of going forward shifted to us.

    Now, I say this, if they had put in one scintilla of evidence in this case that there were cars of the size available, this — or the cars of the size ordered available then at least that would have been some indication that they were prepared to assume the burden of proving that counterclaim and it would have been up to the Court to determine within whose province lay the peculiarity of these facts.

    Now, in meeting the Government’s argument in the railroad’s brief, we have pointed out actually and as a matter of fact that in this case, I do not think that the Government could successfully allege that the facts were peculiarly within the knowledge of the railroad, because first of all, the Government who ought to found the relief was very unhappy with the Service Order 68, so unhappy that shortly after it was inaugurated by the ICC, they petitioned to have it waived insofar it applied running Government shipments.

    And in that particular petition which by the way it’s set out as Exhibit A in the railroad’s brief.

    In that petition the War Department went to great lengths to show what they were doing to see to it that all facets of the transportation facilities were being used.

    And they pointed out that they had made spot inspections and they have this and they have that.

    It’s quite amply, I submit, setting forth that the Government knew just as much about or whether we had cars available or not, but to get back Your Honor’s question, if that had — if it is true that had the case progressed to the point where the Government was assuming its burden of proof, they might well have come a place in the case where the burden of going forward might have shifted.

    Well, this is summary judgment, isn’t it?

    Edmund M. Sweeney:

    Yes, Your Honor.

    A summary judgment?

    Edmund M. Sweeney:

    Yes, Your Honor.

    As I understand it, the Government said there were cars available prepared to (Inaudible) that.

    And you fellows do nothing more under those circumstances in assuming that this is an exception to the burden of proof rule or sufficient to shift the burden, why wouldn’t the Government be entitled?

    Edmund M. Sweeney:

    Well, Your Honor please, first of all, the — it isn’t — wasn’t quite that way.

    It is true that it was summary judgment, but it was summary judgment filed by the plaintiff.

    Edmund M. Sweeney:

    The — the motion filed by the Government was a motion I didn’t quite understand.

    It was a motion which said, “We seek judgment for the Government because the plaintiff,” being the railroad, “Has not alleged facts which entitled it to relief.”

    Now, the District Court denied that motion and at the same time the railroad had filed a motion for summary judgment claiming that there was no general issue of facts outstanding.

    And since we do not believe that the facts of — whether we knew or they knew more about the availability of the cars, that wasn’t alleged to the facts so the Court naturally assume that — I mean, they decided on the facts that there was no fact outstanding.

    So that it was — there are — arose in this case.

    William J. Brennan, Jr.:

    Well, Mr. Sweeney, when this claim was processed, the deduction initially arise that by the Government after they ordered on the post-audit.

    Did the Government say, we’re entitled of this deduction because the railroad hasn’t proved to us they didn’t have cars available or was the audit in its position, we know the fact that the railroad did have cars available.

    Edmund M. Sweeney:

    Well, Mr. Justice, I — I don’t — I don’t know that I ever got the actual facts of that.

    My recollection of the record, of the file in the case is that the Government sent out what they call a Form 103 and that form says on it or contains on it the — the new computation procedure according to the determination of the Government.

    And I think it simply said that Service Order 68 did not apply, something to that effect.

    I do know that — that I — the cars to be served upon them extensive interrogatory, trying to find out some of the answers myself and I do know that in answer to some of my interrogatories, they had said that they didn’t think the Service Order applied, Service Order 68 applied in this case.

    Now, likewise, speaking of those interrogatories, the only facts upon which the Government relied by the way, Mr. Justice Harlan, the only fact upon which the Government relies, that it has proof, the question of availability to the cars was there own answers to interrogatories.

    And — and I say that’s no proof at all.

    I mean, that’s just a statement in which the Court either could have or did not have to believe.

    Felix Frankfurter:

    Mr. Sweeney, may I ask you to indicate some other types of controversy that arise between the railroad — the carriers and the Government?

    Edmund M. Sweeney:

    Yes, Your Honor.

    There are several —

    Felix Frankfurter:

    Could you shed some light on — on the question of whether it is — this is merely the establishment of (Voice Overlap) —

    Edmund M. Sweeney:

    Well, one —

    Felix Frankfurter:

    That will indicate the rule of going forward.

    Edmund M. Sweeney:

    Well, —

    Felix Frankfurter:

    What are the types of controversy?

    Edmund M. Sweeney:

    One of the big controversies is land grant, of course, out the war situation.

    That’s land grant whether — whether the Government paid for transportation over — over an area that was land granted, that’s one of them.

    Then classifications —

    Felix Frankfurter:

    (Voice Overlap)

    — we stop a minute there.

    That’s rather a question of law, isn’t it?

    (Inaudible) whether — whether the shipment could have been sent over land grant there for just cheap arrangements.

    Edmund M. Sweeney:

    That’s right.

    Edmund M. Sweeney:

    It’s a question of fact, if Your Honor please, I think as to whether any particular mileage —

    Felix Frankfurter:

    (Inaudible)

    Edmund M. Sweeney:

    — of railroad was land granted.

    Felix Frankfurter:

    Well, that —

    Edmund M. Sweeney:

    And that were —

    Felix Frankfurter:

    Is that — there’s no — you keep your knowledge on anybody.

    Edmund M. Sweeney:

    That’s — that’s right.

    Felix Frankfurter:

    Now, what else?

    Edmund M. Sweeney:

    Now, another type would be — well, such as they had in the Western Pacific case, the question of whether or not an incendiary bomb was an incendiary bomb.

    In other words, whether a shallow case —

    Felix Frankfurter:

    Classification, you mean, classification problem.

    Edmund M. Sweeney:

    Classification — classification problem would be another one.

    Well, rates and division such as we have in — sometimes, when we have these explosives sent from the West Coast to Boston for example and they had to be backed up during the war.

    They were — they had what they call backup deck all the way from a large metropolitan area.

    And the question is to whether there were rates and divisions involved in that as to whether the Government through a Section 20 — quotation 22 rate paid the proper amount, those are the examples —

    Felix Frankfurter:

    Demurrage problems?

    Edmund M. Sweeney:

    Well, it could be.

    It — it — demurrage problems could be, but I don’t —

    Felix Frankfurter:

    (Voice Overlap) —

    Edmund M. Sweeney:

    I don’t recall of any.

    I never recall of any.

    Felix Frankfurter:

    Is the Accounting Office a division for — vis-à-vis the railroads?

    Edmund M. Sweeney:

    Well, I think they do, Your Honor, because every time that we go to the GAO, we meet the same nice gentlemen that are there and they — I think they — they’re experts.

    They —

    Felix Frankfurter:

    Well, they’re not nice — nice, this isn’t restricted to that particular graph of the Accounting Office, is it?

    Edmund M. Sweeney:

    No, I think it’s — I think the Accounting Office —

    Felix Frankfurter:

    Generally nice.

    Edmund M. Sweeney:

    — throughout is generally nice.

    Felix Frankfurter:

    Yes.

    Edmund M. Sweeney:

    Certainly, but my contact has been with that particular group.

    Edmund M. Sweeney:

    Section — the — the history of 322 —

    Earl Warren:

    Mr.– Mr. Sweeney, before you get to the history, would you answer me this please.

    Do I — am I correct in believing that the tariff for this commodity that was being transported would have been lower, the math which the railroad charged, if the railroad had had the proper size cars for it?

    Edmund M. Sweeney:

    Yes, Your Honor.

    Earl Warren:

    And that if they didn’t have the cars for it and had to — had to use a larger one, but then the Government would have to — have to pay the tariff for the larger car.

    Edmund M. Sweeney:

    Yes, Your Honor.

    Earl Warren:

    Now, what — what I want to ask is this.

    How could the Government be expected to know and to prove that your railroad didn’t have cars on that particular day of the particular size that were called for, for the lower tariff?

    Edmund M. Sweeney:

    Because, Your Honor, the — the transportation during the war as you know was conducted by the transportation corps and they had a man assigned to each area and those were the persons who ordered the cars.

    Now, at any time — at any time that the — first of all, these cars were not loaded by the railroad, they were given over to a Government train.

    They have a depot of some sort where they were being loaded.

    Now, at any time that the cars came in there, they did not necessarily come in, in the one, two, three order that they were ordered on the bill of lading, say of yesterday, because that would have been almost impossible.

    So, if they ordered 10 cars, the 10 cars were shifted over to them as they came in and the Government had its own selection of the number of cars that come in to its own depot as to which one they’d use first or which one they’d use second.

    Now, if at anytime the safety army for example, if the army had received the cars in response to its orders, which cars were not in the size ordered, they could have refused to accept those cars and made the railroad determine whether or not they had them.

    We — I — I think it is only reasonable to keep in mind in this context that the furnishing of Government or cars to the Government during the war was a tremendous problem.

    And thus, it was one of those things where I think everybody just did the best they could to get along the best they could and it was only some six years afterwards, the two examiners in the GAO Office determined that we didn’t have these cars.

    As I read the Rule 34, now Rule 34 is in the — it’s ordered in classification number 14 and that is the one that has the rule in it that says that if the Government is unable to furnish a car of the size ordered, then it must charge only — that it must charge with the size of the car furnished if the goods which are to be transported will not fit on the size of the car ordered.

    Now, that was a good rule.

    Now, Service Order 68 which is the basis of this case waived that rule.

    And the result of Service Order 68 was this, that if the Government was unable — if the railroad is unable to furnish the Government with a car of the size ordered then irrespective of whether or not the goods to be shipped could be shipped on that size or could not be shipped on that size the Government still paid for the size of the car furnished.

    And I think it’s real to point out here that this was not a rule put in by the railroad.

    This is a rule put in by the ICC.

    And in the petition by the Secretary of War to have this Service Order 68 defended as to the Government which is appendix A in our brief.

    It is — it is pointed out there that this was not to — this is not something which the railroad had done and that it was something that the ICC had put in and that it was necessary even though the Government would suffer some additional payments for the larger size ordered.

    We think that it’s — I — I sincerely think that it was just as easy for all the — and under those circumstances, just as easy for the Government to prove the availability of the car — size of the car or the size ordered as it was for the railroad.

    Felix Frankfurter:

    Let me ask you this, Mr. Sweeney, this — plainly be a stupid question, but didn’t the Government made this claim and didn’t send the available cheaper car — cheaper cost cars, they must have had some basis for making that claim.

    Edmund M. Sweeney:

    Well, I think they have never set it forth, but I would assume that the only one that they had made was this.

    Felix Frankfurter:

    But I don’t know what it is but I’m asking, they must have had some.

    They don’t just go over there and say, “We got a counterclaim.”

    Did they introduce anything at the trial?

    Edmund M. Sweeney:

    No.

    There isn’t — nothing.

    You see, they didn’t offer anything but —

    Felix Frankfurter:

    They must have had some basis.

    Edmund M. Sweeney:

    Well, I — I’m — I think I know what the basis was and that is that in the bill of lading, they — there are two little boxes, one entitled, size of car ordered and the other one, size of car furnished.

    So that any — keep in mind, this was six years after they were furnished.

    Some clerk is going through there and they see one box marked 40 feet for all (Inaudible)

    And they see the next box marked 46 feet for six (Inaudible)

    That’s enough for them.

    In other words, they — they assumed just from seeing those two — two marks, that since we furnished the larger one that we had the other one available.

    They — they’re using the converse of the rule.

    That’s all that — that’s all I could say (Inaudible)

    Earl Warren:

    Well, I thought the rule said that they — they were to get the lower rate unless the railroad could establish that it didn’t have that kind of cars and only had the larger ones.

    Edmund M. Sweeney:

    Yes.

    Earl Warren:

    Am I wrong in that?

    Edmund M. Sweeney:

    Well, you’re not wrong in the full text.

    You’re wrong in this, Mr. Chief Justice, if I may —

    Earl Warren:

    Yes, it’s all right.

    Go ahead.

    Edmund M. Sweeney:

    That it does not spell out that if the railroad says it does not have the car, it simply says, if the railroad is unable to furnish, and it doesn’t say that the railroad has to state that they’re unable.

    And so, I would assume that the rule of regularity would apply here like everything else.

    In the rule of regularity, you are suppose to — we were suppose to obey those rules so that if we had a car available, we would give it.

    And that if we didn’t if we didn’t have the car available and we furnished the car of the larger size, there would be the inference or the presumption that we didn’t have the car of the size ordered.

    Felix Frankfurter:

    Will that — that doesn’t disprove that they’re nice people, but it doesn’t seem some other things either.

    Could I ask you one question?

    Assuming that the burden is on you, either originally or the result of shifting, in the consequence and any of those affected at all by the lapse of time between the —

    Edmund M. Sweeney:

    Well, yes.

    (Voice Overlap)

    Edmund M. Sweeney:

    Yes, Mr. Justice.

    And the —

    Edmund M. Sweeney:

    You see, we — we destroy our records at the end of three years.

    That’s what I want to get at.

    Edmund M. Sweeney:

    And we do that by permission of the ICC.

    Is that a —

    Edmund M. Sweeney:

    Because if we wait six years, we don’t have this record and —

    Charles E. Whittaker:

    You mean that —

    Is there any —

    Edmund M. Sweeney:

    Sir?

    Charles E. Whittaker:

    Did you raise that in there?

    Edmund M. Sweeney:

    We didn’t raise it as a defense, sir, because they never offered to prove our counter — their counterclaim to the — as in the lower court.

    They didn’t do anything.

    We just say that the plaintiff should have — prove their case.

    It would have definitely have been raised, Mr. Justice Whittaker —

    Did it show on this record — the facts shown in this record that your record has been destroyed?

    Edmund M. Sweeney:

    I think it shows, Mr. Justice, in the record but not through our case.

    It shows, Mr.– in Mr. Justice McGruder’s opinion.

    He recites Atlantic Coast Line case and he adopts certain language there and I’m pretty sure that the — I do know that he did adopt the language from the Atlantic Coast Line case in which it said that the Court was satisfied that the records were destroyed.

    The railroad — all railroad records were destroyed at the end of three years.

    Felix Frankfurter:

    You said this is by authorization of the ICC.

    Edmund M. Sweeney:

    That’s right.

    Felix Frankfurter:

    Is that a formal order or just an understanding or what?

    Edmund M. Sweeney:

    Well, it is — it’s an order of the ICC and I — I’m not prepared to say that it is a mandatory order that you do it.

    Felix Frankfurter:

    No, but I didn’t —

    Edmund M. Sweeney:

    It is a permissive order.

    Felix Frankfurter:

    Yes.

    But it is by a formal order of the Commission, is it?

    Edmund M. Sweeney:

    As my understanding that it is.

    Felix Frankfurter:

    (Voice Overlap) — would you — would you —

    Edmund M. Sweeney:

    In other words, we cannot — we cannot destroy without their permission, but I will check it up if it’s a —

    Felix Frankfurter:

    But it’s a little — apart from this case, there’s a hiatus there if it’s — is six years a fair gap between performance and post-audits?

    Edmund M. Sweeney:

    Well, no.

    Of course, it’s not a fair gap.

    Felix Frankfurter:

    (Inaudible) — what I’m suggesting is —

    Edmund M. Sweeney:

    But the —

    Felix Frankfurter:

    — you can destroy, if the Commission authorizes destruction of carrier documents after three years, is that all for the limit?

    Where was the burden of that?

    Edmund M. Sweeney:

    That’s — that’s right, it should, Your Honor.

    We — we of course are in this position, the ICC, as also the Government and I assume that they would want to protect us as well protect the Government in that respect.

    Felix Frankfurter:

    Would you be good enough to check that out, wouldn’t you, Mr. Sweeney?

    Edmund M. Sweeney:

    Yes, I would, Your Honor.

    In the moment of thought that I have left, we respectfully raise that it’s not reasonable to say that 322 allows the Government to make a final determination and that where the Government brings their deduction under 322 into a judicial proceeding, they must meet the requirements of any other counterclaimant and therefore they must prove their case.

    Earl Warren:

    Mr. Rosenthal.

    Alan S. Rosenthal:

    May it please the Court.

    I was commenting upon which Mr. Sweeney finished up with.

    Of course the Government has never suggested that there is any finality attendant to the post-audit results any more than there was any finality attaching to the administrative determination under the pre-audit procedure.

    The Government’s position is simply that where this — the post-audit which have been substituted for the pre-audit, where in that post-audit the administrative officials responsible come to the conclusion that there is a question as to the correctness of the bills of the carrier, the carrier is then under an obligation to establish the correctness of those bills and if it does not do it on an administrative level, it has to do it in a judicial level.

    Now, I’d like if I may to go into a minute to the administrative practice here.

    When as Mr. Sweeney indicated after the — the audit is conducted, if the General Accounting Office has a question as to the correctness of the bill, they send out this form 1003.

    The carrier upon receive of that form enters into or has the — certainly, the ability to enter into negotiations with the General Accounting Office.

    If it’s got evidence satisfactory establishing the validity of their claim, it has the opportunity to present that evidence.

    It’s the same thing as under the pre-audit procedure.

    If under the pre-audit, the question had risen, the carrier was advised and it could then present its proof.

    The question here is whether carrier does not establish its claim.

    Who has then in the subsequent judicial proceeding the burden?

    And of course, the carrier is not required in a judicial proceeding of this kind to show that on any overall basis it is not indebted to the Government.

    The carrier knows from its negotiation for the GAO just precisely what bills were issued and just precisely what the nature of that issue is.

    Really, what you’re doing here is saying that although the railroad sued on the 1950 bill, the only issue in the case is the 1944 situation and therefore, the burden is on them?

    Alan S. Rosenthal:

    Your Honor, the 1950 Bill —

    Is that right?

    Alan S. Rosenthal:

    That’s right.

    Alan S. Rosenthal:

    The 1950 Bill never could have been an issue because Congress in setting up the statutory scheme said that you will deduct from amounts found to be due to carriers.

    So, when Mr. Sweeney suggest that the railroad is willing to assume its burden, he is saying that the railroad is willing to assume its burden of proving the correctness of a bill which he already knows the Government has not and will not challenge.

    And that actual — in actuality, we think this has to be governed by the statutory scheme.

    Now, the private shipper interestingly enough, he can’t make these deductions from subsequent bills.

    He’s in the position where he has to bring the affirmative proceeding.

    That Congress could have done that with the Government.

    Congress could have said, “You were paid properly.

    And if subsequently you think you’ve been overcharged, you can bring a suit and recover just the way a private shipper has.”

    Felix Frankfurter:

    Where the private shipper is allowed credit if he maybe — the situation is the same.

    Alan S. Rosenthal:

    Well, he’s got very brief credit and I don’t know whether he —

    Felix Frankfurter:

    I know, but where he has it, it is the same.

    Alan S. Rosenthal:

    Well, Your Honor, I don’t think — I’m not so certain if he could withhold at the end of the credit period of 96 hours.

    I think he would be required to pay the amount of the bills.

    I think the ICC doesn’t say that you can withhold payment for 96 hours and then not pay at all if you don’t think that it —

    Felix Frankfurter:

    But in theory those 96 hours of some shipments that are — uncontested and some were —

    Alan S. Rosenthal:

    Right.

    Felix Frankfurter:

    — contested then he can do the same thing.

    Alan S. Rosenthal:

    Yes.

    And if he does that, the carrier sues them and the railroad then it has the burden of proof.

    See, we’re the ones that are in the position of having — we don’t have — we have to pay these bills.

    We don’t have the option of the pre-audit at all.

    And again of course that the Government was not intended to be placed in the same position as the private shipper as reflected by the deduction provision.

    And of course Congress has set up, we have had them in our brief, numerous statutory protections to make certain that improper claims are not presented to the Treasury and that the Public Treasury is not rated thereby.

    Felix Frankfurter:

    May I ask to whether it is the Government’s contention that if Rule 34, meaning that the — the shorter or smaller, whatever they are, the lighter cars, if lighter cars are ordered, then — and heavier cars are rendered that — that in itself prove the violation of the rule?

    Alan S. Rosenthal:

    No.

    The — the Government’s position is this —

    Felix Frankfurter:

    I mean on that question.

    Alan S. Rosenthal:

    Under Rule 34, as — means this, that the carrier can charge the Government or any other shipper on the basis of the larger cars furnished if, but only if that carrier did not have the smaller car — smaller cars which were ordered available.

    Felix Frankfurter:

    And it’s the mere furnishing proof.

    They violated the rule.

    Alan S. Rosenthal:

    No.

    Well, the furnishing, we submit places the burden upon the carrier to come in and show that we did not supply you what you ordered and what was necessary because we didn’t have it available.

    Now, we don’t think that that’s any extraordinary burden at all.

    And of course, the Government transportation officers are in no position to know what the Para Market Railroad happen to have at this time.

    That is information which is in the railroad’s possession.

    They’ve got the cars, we don’t.

    Felix Frankfurter:

    Well, during the war it might be the other way around.

    Alan S. Rosenthal:

    Well, but — if at prima facie, we submit and there was no indication in this record at all that the — that the Government here was in possession.

    Felix Frankfurter:

    No.

    Alan S. Rosenthal:

    It would have been under possession of any in this information.

    Felix Frankfurter:

    We know that Congress was, it can take judicial orders to the — the year in which this happened and what the relationship to the railroad and Government trade was, don’t need any evidence on that.

    Alan S. Rosenthal:

    No.