Time Incorporated v. United States/Dissent Black

by Hugo Black

United States Supreme Court

359 U.S. 464

Time Incorporated  v.  United States

 Argued: Jan. 20, 1959. --- Decided: May 18, 1959

Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice CLARK join, dissenting.

There can be no serious doubt that at common law a cause of action existed against carriers who charged unreasonable rates. See Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436, 27 S.Ct. 350, 353, 51 L.Ed. 553; Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 383, 52 S.Ct. 183, 184, 76 L.Ed. 348. ^[1] Nor can it be questioned that the Motor Carrier Act confirmed the common-law policy against unreasonable rates and in fact expressly made such rates illegal. ^[2] It is also clear that the Act attempted to preserve all pre-existing remedies which did not directly conflict with its aims. ^[3] Nevertheless the Court today holds that the statute abolished the common-law remedy by implication and left shippers helpless against carriers who have charged unreasonable and therefore illegal rates. To accomplish this result the Court relies essentially on two prior decisions of this Court; Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, which I believe has virtually nothing to do with the issue, and Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, which, I think, supports a holding opposite to that which the Court makes today. Moreover, in reaching its conclusion, the Court overturns a long-standing and consistent I.C.C. interpretation of the Motor Carrier Act-an interpretation which was based in large part on the Abilene case, which was first formulated by men who helped draft the Act, and which has been generally accepted by shippers, carriers, and Congress alike. I am unable to understand why the Court strains so hard to reach so bad a result.

The Motor Carrier Act, though largely patterned after the Interstate Commerce Act of 1887 regulating railroads, had no counterpart of §§ 8, 9, 13 and 16 of that Act. ^[4] These sections provided two remedies either of which a shipper could pursue to recover damages suffered as a result of unlawful carrier rates or practices. One remedy was by complaint to the Commission the other by suit brought in an appropriate District Court of the United States. Both these remedies authoried imposition of reasonable attorneys' fees on a carrier should a claim reach the court and be decided in the shipper's favor. See Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 432-433, 35 S.Ct. 328, 336-337, 59 L.Ed. 644.

In Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, this Court considered the effect of these reparation sections on common-law actions by shippers for damages caused by rates alleged to be unlawful because unreasonable. The Court implied that the state court in which the shipper had sued had no jurisdiction since the congressional remedies in the reparation sections were complete and exclusive in themselves and supplanted the pre-existing common-law right of shippers to sue for damages caused by unreasonable rates, this right being deemed inconsistent with the statutory remedies; and held that the power to determine the reasonableness of rates was primarily and exclusively vested by the Act in the Commission. It did not hold, as the Court now assumes, that the existence of primary jurisdiction alone destroyed all court remedies. Accordingly, since the Abilene case, when the question of unreasonableness has arisen in court proceedings courts have often refused to dismiss the cause but have stayed the action pending I.C.C. determination of that issue. See, e.g., Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432-433, 60 S.Ct. 325, 331, 84 L.Ed. 361; United States v. Western P.R. Co., 352 U.S. 59, 62-70, 77 S.Ct. 161, 164-168, 1 L.Ed.2d 126. ^[5] The Court today seems to decide instead that primary jurisdiction is inconsistent with court remedies of any kind, and that the mere omission of reparations provisions in the Motor Carrier Act showed a congressional purpose to deprive shippers of the common-law right to obtain damages resulting from unreasonable rates. It reaches this conclusion although to do so leaves shippers with no remedy at all however unreasonable and unlawful a past rate may have been, and although there is not a word in the Act, and nothing to which we have been directed in its history, that shows any congressional purpose to take away the pre-existing remedy.

On the contrary, since passage of the Motor Carrier Act in 1935, a steady line of decisions by the I.C.C. has interpreted that Act as leaving shippers the right to sue in the courts for damages resulting from unlawful rates. This action lay only where the rates had not previously been held reasonably by the Commission, cf. Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 387-388, 52 S.Ct. 183, 185-186, 76 L.Ed. 348, and consisted of two parts, (1) a suit by a shipper in a court, (2) a determination by the Commission that the rates sued on had, in fact, been unreasonable or otherwise unlawful when charged. The first case of this kind, Barrows Porcelain Enam. Co. v. Cushman Motor Deliv. Co., 11 M.C.C. 365, was submitted to the Commission in April 1938, and handed down in February 1939. It was decided by Division 5 which was specially charged with the administration of the Motor Carrier Act and was concurred in by Commissioner Eastman who had by then served on the Commission or as Coordinator of the Transportation System of the country for 17 years. He had drafted the 1935 Act and probably knew mre about what it meant than anybody on this Court then or now. ^[6] Admitting that the Commission could not itself award reparations, Division 5 held, in Barrows, that it did have authority to pass on the reasonableness of past rates since unreasonable rates were unlawful under the Act. Significantly Division 5 stated, 'This conclusion is, we believe, supported by the reasoning of the United States Supreme Court in Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (27 S.Ct. 350, 51 L.Ed. 553).' 11 M.C.C. at 367. Barrows was reaffirmed in early 1940 with Commissioner Eastman again on the panel. ^[7]

In September 1940, after very extensive hearings, the Interstate Commerce Act was amended and broadened in many respects. ^[8] At the same time, water carriers were brought under Commission regulation. To achieve uniformity between the different parts of the Act efforts were made to subject motor carriers to reparation proceedings before the Commission. ^[9] The representative of the motor carriers strenuously objected. The hearings before the Senate Committee on Interstate Commerce show that the objections were directed against subjection of motor carriers to Commission reparations not to common-law actions in the courts. Commission actions, it was stated, might result in the taxing of attorneys' fees in addition to damages and might thereby encourage 'claim chasers.' ^[10] The Committee members and the witnesses before Congress all appeared to recognize that suits could be filed in court. Thus the Chairman of the Committee stated 'He has that right now. It does not add anything, as a matter of fact, to the rights of the shipper * * *. (I)f you were afraid that the railroad might go and stir up a claim against (the truckers), they can do that now.' ^[11] And the representative of the truckers answered 'We are not fearful of that, but we are fearful of practices occurring where (the truckers) will be constantly harassed.' To which a member of the omm ittee added 'The objection is that under the existing law you have to go to the court to get relief and under the proposed law the Interstate Commerce Commission could give you relief?' ^[12] Commissioner Eastman also appeared before the Committee, two months after the Barrows opinion came down, and stated

'(M)otor carrier tariffs have been, by and large, very imperfect products, and while the situation is improving continually, much room for improvement remains.

'Where tariffs are poorly worded and imperfectly constructed, experienced traffic experts can often raise troublesome questions as to the applicability of the rates charged, and there are those who make this their business, obtaining their compensation from such reparation awards as they are successful in securing.

'In the early stages of their regulation and tariff development, it was thought that the motor carriers might well be spared the burden of defending such claims before the Commission.' ^[13]

Accordingly the Committee Report on the 1940 Act stated that the paragraph of the bill which would have subjected the motor carriers to reparation claims before the Commission was changed

'because of motor carrier objections to awards of reparation by the Commission. Shippers have the right to recover in court any damages resulting from violations of the law by motor carriers or carriers by water.' S.Rep.No. 433, 76th Cong., 1st Sess. 18. (Emphasis supplied.) ^[14]

It seems clear, therefore, that when the 1940 Motor Carrier Act was adopted, at least the Senate Committee was fully informed of an existing interpretation of the 1935 Act under which shippers could sue for damages on the basis of unreasonable rates.

After the passage of the 1940 Act, Divisions of the Commission continued to construe the Motor Carrier law to allow determinations of the reasonableness of past rates. In 1942, for example, the Commission did this in a case involving the same question presented by the Government in T.I.M.E., No. 68-the reasonableness of a joint through-rate which exceeds the aggregate of intermediate rates between the same points. The Commission held that on the facts presented the rates 'were unreasonable * * * to the extent that they exceeded the corresponding aggregate * * *.' Kingan & Co. v. Olson Trans. Co., 32 M.C.C. 10, 12. Finally in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, the whole Commission reviewed the question to provide a 'precedent for future guidance' and emphatically approved the Barrows line of cases. It established safeguards against frivolous or moot complaints but reaffirmed the existence of court remedies for unreasonable rates and the need for Commission determinations of the fact of unreasonableness before the courts could award damages.

Both the Bell case and the Barrows case have been cited to Congressional Committees time and again. In 1947 and 1948 extended hearings were held before Senate and House Committees on bills to establish uniform statutes of limitations for court actions arising out of violations of the Commerce Act and to subject motor carriers and freight forwarders to Commission reparations. ^[15] Members of the I.C.C. in written statements, briefs and testimony, stressed to the Committees considering the bills both the existence of the court remedies described in the Bell case and the fact that few common-law actions were in fact undertaken because of the expense involved in a split procedure. ^[16] Witnesses for and againstthe bills accepted the rule of the Bell case. ^[17] Thus the representative of the freight forwarders, whose status under the Act is the same as that of motor carriers, referring to the Bell case said 'It is the law today,' and then added 'If the Commission finds that the rates have been unreasonable in the past, damages may be obtained under the law as it stands today.' ^[18] He opposed the proposed change because he felt that it would make it easier for shippers to obtain reparations where no damages were actually suffered. ^[19] When the bills were reported by the Committees the provisions for reparations before the Commission were excluded. The report of the House Committee explained that reparations before the Commission were not available under the law as it stood. After stating that the bills originally had included reparation provisions before the Commission similar to those applied to rail carriers and that these had been dropped, the report incorporated a letter from the I.C.C. explaining the existence of the court remedy and pointing out the weaknesses of this remedy. The Committee then stated that legislation making additional reparations provisions applicable to motor carriers and freight forwarders was not at that time deemed desirable. It concluded that the other provisions, including a uniform statute of limitations in cases arising from the charging of tariffs different from those on file should be enacted. ^[20] While Congress did not enact these measures before adjournment, ^[21] they were passed in the following Congress after Committee Reports which referred to the hearings of the prior two years. ^[22]

Once more, as late as 1957, after this Court's decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, the I.C.C. sought to have reparations before the Commission established. Again hearings were held; in these the Chairman of the I.C.C., the Under Secretary of Commerce, a representative of the freight forwarders and others unequivocally testified that a remedy for unreasonable past rates was available through the courts. ^[23] This testimony by the representative of the freight forwarders caused the presiding member of the Subcommittee to ask 'What does this bill propose that is different from what we now have? That is what I am trying to determine.' To which the representative, opposing Commission reparations, replied: 'It just adds some cumbersome machinery that we think will cause litigation.' ^[24]

This Court has frequently had occasion to say that interpretations of statutes by agencies charged with their administration are entitled to very great weight. ^[25] Moreover, the legislative history of bills attempting to grant the I.C.C. power to award reparations goes far, in view of the arguments made against them, toward approving the original interpretation of the Motor Carrier Act made by Division 5 of the I.C.C. and Commissioner Eastan. Recently, the Commission has reaffirmed its interpretation which has stood for more than 20 years. ^[26] Against reaffirmance a dissent was written based on the belief that this Court's holding in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, required a new interpretation. The Court seems to stress the same contention here. Quite apart from the fact that the question actually up for decision in Montana-Dakota was whether the Federal Power Act created a federal cause of action and not whether it destroyed common-law rights, I believe that there are important differences between the Power Act and the Motor Carrier Act which make the Montana-Dakota case wholly inapplicable here.

Admittedly Montana-Dakota and the statute it interpreted have some similarities to these cases and this statute. But unlike the Carrier Act the provisions of the Power Act under consideration in Montana-Dakota regulated wholesale rates, that is rates charged purchasers for resale, not rates charged retail customers. ^[27] The purpose of that Act was, nevertheless, to benefit consumers by holding down wholesale prices. Whole-salers whose purchase price was reduced prospectively could pass the reduction on to their customers, the consumers. In Montana-Dakota the Court indicated that the consumers would not be helped by ex post facto determinations of unreasonableness resulting in a refund to wholesalers. 341 U.S. at page 254, 71 S.Ct. at page 697. The facts of the case lent themselves to such a finding. Damages were asked for a back period of many years; consumers had long since paid their rates on the basis of the unreasonable prices charged the wholesalers; and there was no reason to believe that any consumers who benefited from whatever lower prices the refund might allow would be the same ones who had paid the excessive rates. The Federal Power Commission, in an amicus brief, stressed these facts and argued that any refund would likely be a windfall providing an unjust enrichment to the wholesaler. Citing this brief the Court accepted the F.P.C. argument, 341 U.S. at page 254, 71 S.Ct. at page 697, note 11, over a vigorous dissent which indicated that perhaps ways of refunding the excess to consumers might be found. 341 U.S. at pages 265, 266, 71 S.Ct. at page 702. No similar problem exists under the Motor Carrier Act. The relevant sections were in large measure designed to protect shippers, ^[28] and in fact the shippers are, in many instances, the ultimate parties on whom the burden falls. Both these cases are, of course, such instances. And even when the shippers are not necessarily the ultimate parties the economics of the industry is such that windfalls to them are unlikely.

Similarly other reasons which induced this Court's holding in Montana-Dakota are inapplicable here. In refusing to include in the Power Act provisions authorizing wholesalers to seek reparations before the Federal Power Commission, the Senate Committee which reported the bill said, 'They are appropriate sections for a State utility law, but the committee does not consider them applicable to one governing merely wholesale transactions.' ^[29] This report, unlike any in the Motor Carrier Act, is easily understood when read in the light of evidence presented to the Committee considering the Power Act. The reparation provisions of that Act were opposed by the National Association of Railroad and Utilities Commissioners, whose General Solicitor told the Committee:

'That is an entirely proper provision in a railroad statute. When a man goes to the railroad station with a load of goods to ship somewhere he has to ship at the rate that is fixed in the tariff. He must make the shipment then; and he ought to be able to come thereafter to the Commission and show that he was required to pay an unreasonable rate, if it was unreasonable, and to ask for a determination of a reasonable rate and get reparation that is due him for any overpayment. That is perfectly proper. But this bill relates only to service between the wholesale generating or producing company and the distributing utility. We question whether the public interest will be served by giving any company the right to go ahead receiving service at the established rate for 2 years, and then to bring a complaint before the Federal Commission that the rate has been unreasonable.' ^[30]

The testimony was emphasized, as shown above, in the briefs in Montana-Dakota. ^[31] Doubtless this history led the minority as well as the majority in that case to the view that 'Congress did not intend either court or Commission to have the power to award reparations on the ground that a properly filed rate or charge has in fact been unreasonably high or low.' 341 U.S. at page 258, 71 S.Ct. at page 698. Since the history of the Motor Carrier Act points in the opposite direction there is no reason to apply the Montana-Dakota case to the Motor Carrier Act.

Moreover, if motor carrier shippers are deprived of court actions to recover for unreasonable rates, they are placed in a much worse position than wholesale power purchasers. 16 U.S.C. § 824d(e), 16 U.S.C.A. § 824d(e), authorizes the Power Commission to suspend rates for five months and, if a hearing on those rates is not concluded by that time, to order the power company to keep an accurate account of the amount and source of all money received. Should the rates be found unreasonable, the Commission can order the excess refunded with interest. The Motor Carrier Act, on the other hand, while authorizing suspension of rates has no provision for refunds if hearings are not completed when the suspension expires. § 216(g), 49 U.S.C. § 316(g), 49 U.S.C.A. § 316(g). Had there been such a provision in the Carrier Act the Government would have been fully protected from the rates charged in the Davidson case, No. 96.

The Power Act and the Motor Carrier Act are quite different in language, scope, purpose and meaning. The Court in Montana-Dakota carefully limited its holding to the Power Act, e.g., 341 U.S. at page 254, 71 S.Ct. at page 697. The arguments advanced in that context for the conclusive effect of power rates once filed are wholly inapplicable to rates under the Motor Carrier Act. In these Motor Carrier cases we have 20 years of Commission interpretation, in part by men who helped write the Act and who administered it from the time it first went into effect, to help us in deciding the question. Congress passed the 1940 revision of the Motor Carrier Act, apparently with full knowledge of the Commission rulings which indicated that shippers could challenge, in the courts, carrier-fixed rates so long as these rates had not been expressly held reasonable by the Commission. Cf. Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348. The changes made in 1949, and those not made in 1957, again indicate a reliance on the Commission's interpretation. I believe that interpretation should govern here, and therefore would affirm the judgments of the Courts of Appeals in both these cases.

Notes

1. 'The exaction of unreasonable rates by a public carrier was forbidden by the common law. * * * The public policy which underlay this rule could * * * be vindicated * * * in an action brought by him who paid the excessive charge to recover damages thus sustained.' 284 U.S. at page 383, 52 S.Ct. at page 184.
2. 49 Stat. 543, as amended, 49 U.S.C. §§ 301-327, 49 U.S.C.A. §§ 301-327. Section 216(d) of the Act, as amended, 49 U.S.C. § 316(d), 49 U.S.C.A. § 316(d), reads in part: 'All charges made for any service rendered or to be rendered by any common carrier by motor vehicle engaged in interstate or foreign commerce in the transportation of passengers or property * * * shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful.' See also § 216(b), 49 U.S.C. § 316(b), 49 U.S.C.A. § 316(b).
3. Section 216(j), 49 U.S.C. § 316(j), 49 U.S.C.A. § 316(j), states 'Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith.'
4. See 24 Stat. 382-384, as amended, 49 U.S.C. §§ 8, 9, 13, 16, 49 U.S.C.A. §§ 8, 9, 13, 16.
5. Conversely many instances have been cited of shippers seeking only a determination of the reasonableness of a past practice from the I.C.C. and reserving their rights to obtain damages later in the courts. See generally the discussion of this problem in United States v. Interstate Commerce Comm'n, 337 U.S. 426, 464-466, 69 S.Ct. 1410, 1430-1431, 93 L.Ed. 1451 (dissenting opinion). See also United States v. Interstate Commerce Comm'n, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (opinion of the Court).
6. See Hearings, Senate Committee on Interstate Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 756-757, 762, 785.
7. Dixie Mercerizing Co. v. ET & WNC Motor Transp. Co., 21 M.C.C. 491. The Court suggests that this line of cases gave only cursory treatment to the question of whether a court remedy existed. But in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 341-343, the I.C.C. stated in part:
8. 54 Stat. 898.
9. See, e.g., statement of Senator Reed, Hearings, Senate Committee on Interstate and Foreign Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 132.
10. Id., at 129-133.
11. Id., at 130.
12. Ibid.
13. Id., at 792.
14. The statute expressly declares unreasonable rates unlawful. See note 2, supra. Barrows Porcelain Enam. Co. v. Cushman Motor Deliv. Co., 11 M.C.C. 365, confirmed this fact as to past unreasonable rates.
15. See Hearings, House Committee on Interstate and Foreign Commerce on H.R. 2324, H.R. 2295, 80th Cong., 1st Sess.; Hearings, Senate Subcommittee of the Committee on Interstate and Foreign Commerce on S. 571-H.R. 2759, S. 935, S. 1194, S. 290-2426, 80th Cong., 2d Sess.
16. Hearings, House Committee, supra, n. 15, at 5-6; Hearings, Senate Subcommittee, supra, n. 15, at 8-16.
17. See, e.g., Hearings, House Committee, supra, n. 15, at 41 47, 52.
18. Id., at 41, 42.
19. Id., at 42-47.
20. H.R.Rep. No. 208, 80th Cong., 1st Sess. 3, 4.
21. The bill passed the House of Representatives but the Senate did not debate it before adjournment. See H.R.Rep. No. 766, 81st Cong., 1st Sess. 1; S.Rep.No. 83, 81st Cong., 1st Sess. 2.
22. 63 Stat. 280. See H.R.Rep. No. 766, 81st Cong., 1st Sess.; S.Rep. No. 83, 81st Cong., 1st Sess.
23. Hearings, Senate Subcommittee of Committee on Interstate and Foreign Commerce on S. 377, S. 378, S. 937, S. 939, S. 943, 85th Cong., 1st Sess. 3, 12, 49, 116-117, 137.
24. Id., at 1, 117.
25. See, e.g., Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124; cf. Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462.
26. United States v. Davidson Transfer & Storage Co., 302 I.C.C. 87.
27. 41 Stat. 1063, as amended, 16 U.S.C. §§ 791a-825r, 16 U.S.C.A. §§ 791a-825r.
28. See testimony of Commissioner Eastman in Hearings, Senate Subcommittee on Interstate and Foreign Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 792.
29. S.Rep. No. 621, 74th Cong., 1st Sess. 20.
30. Hearings, House Committee on Interterstate and Foreign Commerce on H.R. 5423, 74th Cong., 1st Sess. 1685.
31. See Brief of Respondent Northwestern Pub. Serv. Co., pp. 26-27; Brief of the Federal Power Commission as amicus curiae, p. 13.