Felix Frankfurter

“ The Commission must often pass on the legality of a particular practice of a carrier; such proceedings may serve as the basis for reparations. Under Part I of the Transportation Act, relating to rail-carriers, the shipper may ask the Commission for a declaration that a practice has been illegal and base a claim of damages on such illegality under § 8 of the Act. His other course is to secure a Commission determination only as to the illegality of the practice and not ask for an award, reserving the claim of damages for court action. ”

“ In the reticulated scheme for enforcement of the new rights and obligations created by the Interstate Commerce Act, Congress clearly indicated where the judiciary comes in and where the judiciary is to keep out. ”

“ The scheme as a whole ought not to be dislocated to meet the exigencies of a particular situation.
First. Judicial review of an order by the Commission dismissing a complaint for reparations has heretofore been urged exclusively on the basis of the Urgent Deficiencies Act. The jurisdiction of the district court in this case was invoked under that Act. This is the sole basis of jurisdiction urged by the Government here in its comprehensive brief and argument, and the Court rejects it. It rightly rejects it. ”

“ These are the relevant provisions: 'any person or persons claiming to be damaged by any common carrier * * * may either make complaint to the commission as hereinafter provided for, or may bring suit * * * in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.' 24 Stat. ”

“ But the Standard Oil decision was left intact by the Rochester decision, for the opinion in that case explicitly pointed out that 'the main basis' of the Standard Oil decision 'was not the 'negative order' doctrine but (that) the statutory scheme dealing with reparations' precluded review of an order denying money damages. ”

“ Money damages are part of the regulatory scheme. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 258, 33 S.Ct. 916, 921, 57 L.Ed. 1472. But while the Commission may determine that rates for the future be reduced, it is not required to award damages for the higher rates in the past. Thus it is not at all strange that its action be not subject to court review where the shipper has failed to persuade the Commission to award damages. Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448, 458, 53 S.Ct. ”

“ Up to June 15, 1942, these piers were operated by the Transport Trading and Terminal Corporation, as agent of the defendant railroads. War conditions made it necessary for the Government to cancel its leases with the Terminal Corporation and, on June 15, 1942, it took over the operation of these piers for the movement of military freight, almost entirely outbound. The railroads refused allowances for the cost of services which they had theretofore absorbed, and declined a later request of the Army to perform the handling services because the Army, not the railroads, controlled the piers. ”

“ The specific terms of § 17 (9) which alone give reviewing power to the courts, save in cases where the carrier has been held to owe money, do so 'under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.' 54 Stat. ”

“ Brady v. I.C.C., D.C., 43 F.2d 847, affirmed per curiam after argument, Brady v. United States, 283 U.S. 804, 51 S.Ct. 559, 75 L.Ed. 1424; Allison & Co. v. United States, D.C., 12 F.Supp. 862, affirmed per curiam, 296 U.S. 546, 56 S.Ct. 175, 80 L.Ed. 387; Ashland Coal & Ice Co. v. ”