Byron White

“ It is argued that the enforcement court has no power to set aside the Commission order and, therefore, a decision upholding a carrier's attack on the Commission's order in one enforcement proceeding would not preclude another shipper from successfully invoking that order in a separate enforcement proceeding, thus resulting in disparate treatment of shippers contrary to the Act's objective of securing uniform rates. ”

“ The Phillips case thus contemplates that the suit of a nonparticipating shipper is to await the outcome of litigation over the validity of the Commission order and that the nonparticipating shipper may rely on the Commission's order only when the policy of uniformity will thereby be served. ”

“ But if a Commission order containing findings on all matters essential to the shipper's recovery is admitted and the carrier produces no opposing evidence, the findings and order of the Commission may not be rejected by the jury and the shipper is entitled to judgment. ”

“ Section 16 (1) provides that if the Commission determines the complainant is entitled to reparations it 'shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.' If the carrier fails to comply with the order by the designated time, the shipper then has the right under § 16 (2) to file suit in either federal or state court to enforce the Commission's reparation award. ”

“ As the principles stated at the beginning of this section demonstrate, the test of reviewability is no longer pregnant with the concept of irreparable injury to the same extent as when the negative order doctrine held sway, and we do not mean to resurrect the strict equity approach. ”

“ In this way, the shipper will frequently be denied his choice of forum on the statutory violation issue as the § 17 (9) suit must be brought in the judicial district of the residence or principal office of the party bringing the suit, 28 U.S.C. § 1398 (a) , which may be far removed from the district in which the shipper resides or through which the road of the carrier runs-alternatives that are open to the shipper under § 16 (2) and, being likely to offer a more convenient venue to the shipper, would frequently be the shipper's choice. ”

“ Thereafter, some reparation claims were settled, and Phillips, which had not been a complainant before the Commission, commenced its reparation action. The Court reasoned that if Phillips could not rely on the Commission order, shippers prevailing before the Commission would obtain a preference as compared to nonparticipating shippers. ”

“ Moreover, in one of the earliest cases under the Hepburn Act, the Court reviewed the question of statutory violation in a § 16 (2) case, concluded that the legal theory applied by the Commission was erroneous, and set aside the Commission's determination that the disputed rates were unreasonable. Southern R. Co. ”

“ The prima facie evidence provision in § 16 (2) , however, draws no express distinction between administrative and quasi-judicial findings of the Commission, and we said of that provision in Meeker & Co. v. Lehigh Valley R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644, that ' (i) t cuts off no defense (and) interposes no obstacle to a full contestation of all the issues * * *.' See also United States v. Interstate Commerce Comm., 337 U.S. 426, 435, 69 S.Ct. 1410, 1416, 93 L.Ed. 1451 (§ 16 (2) proceedings afford 'railroads complete judicial review of adverse reparation orders') . ”

“ Judicial relief from decisions, etc., upon denial or other disposition of application for rehearing, etc.↑ The above-described provisions of the Judicial Code read in pertinent part:↑ As is readily apparent from this opinion, the statutory provisions governing this case and the companion case, Consolo, 383 U.S. 607, 86 S.Ct. 1018, are an historical patchwork subject to more than one interpretation. ”