The opinion of the court was delivered by: GOURLEY
This is a suit to enjoin, set aside and annul an order entered by the Interstate Commerce Commission on October 4, 1954, 28 U.S.C. §§ 1331, 1336, 2284, 2321-2325.
In addition to the United States as statutory defendant, the Interstate Commerce Commission and certain common carriers have intervened as defendants.
The answers of the Interstate Commerce Commission, The Chesapeake and Ohio Railway, The Virginian Railway Company and The Norfolk and Western Railway Company all plead a 'First Defense,' asserting in substance plaintiff's failure to state a claim upon which relief can be granted.
The complaint in this case followed the denial by the Commission of plaintiff's petition for reconsideration of its order of April 11, 1952. The first defense was lodged, which defense, if sufficient, will dispose of the proceeding and eliminate the necessity of considering the arguments upon the merits. If the defense is insufficient, it should be stricken to leave the way clear for a determination of the plaintiff's claim upon the merits.
The following is the chronology of events:
On January 16, 1951, the Class I common carrier railroads petitioned the Interstate Commerce Commission for approval of a general increase in freight rates. The petition was docketed Ex Parte No. 175, Increased Freight Rates, 1951, and resulted, inter alia, in an order entered on April 11, 1952, permitting rate rail increases as to coal with a limitation maximum of 40 cents per net ton; provided, however, that the increased rail freight rates on coal from the Southern Mines to Hampton Roads could be no higher than 20 cents per net ton when the coal was destined for subsequent movement by water in coastwise service to New England ports. The effect of said permissive order was to bestow upon receivers of coal located at New England ports a 20 cents lower rail rate for the transportation of coal from the mines to Hampton Roads ports than competing receivers located at less distant ports, including New York, New Jersey, and Philadelphia. On May 8, 1952, the plaintiff, which operates its coke plant at Seaboard, New Jersey, filed a petition for intervention in Ex Parte No. 175, and for reconsideration and modification of the April 11, 1952, order.
Plaintiff's petitions for reconsideration and intervention were related only to Ex Parte No. 175, Increased Freight Rates, 1951, and participated as an intervenor restricted to the ex parte proceeding alone.
On May 12, 1953, plaintiff filed a complaint before the Interstate Commerce Commission against the southern railroads, which proceeding has been assigned docket No. 31264, seeking to have the rates involved in the instant action declared invalid and also seeking reparations for the alleged illegal charges by The Chesapeake and Ohio Railway Company and others for coal shipped from the southern mines to Hampton Roads for movement by water in coastwise service to plaintiff's Seaboard plant. Said complaint is presently pending before the Commission.
Plaintiff's suit before this court seeks to have the court direct the Commission to grant the relief sought in plaintiff's petition for reconsideration initially filed before the Commission, which is to require the southern carriers to maintain the same rate on transportation of coal from the southern mines to Hampton Roads ports for subsequent transshipment by water, whether the ultimate destination is the plaintiff's plant at Seaboard, New Jersey, or its competitors located at New England ports.
It is contended that the Commission's report and order 'Ex parte No. 175, Increased Freight Rates, 1951; resulting from the findings of the Commission in that proceeding, whereby permissive increases in tariff form had become effective bestowing upon receivers of coal located at New England ports a twenty-cent lower rail rate for the transportation of coal from the mines to Hampton Roads ports than competing receivers located at less distant points, was unreasonable, discriminatory and unduly prejudicial.
The crucial issue, therefore, is whether this court may set aside and annul a permissive order entered by the Commission when plaintiff has failed to exhaust his remedy under Sections 13 and 15 of the Interstate Commerce Act, but has interceded as an intervenor for reconsideration and modification of the Commission's findings.