William J. Brennan, Jr.

“ We think it significant on this aspect of the case that the Commission has, on this appeal, conceded that it is obliged to make findings and that the challenged order is fatally defective because no supporting findings were made. The Commission further represents that it has amended its practice accordingly. It thus appears that one of the 'continuing' practices whose validity appellants would have us adjudicate continues no longer. ”

“ Since these tariffs would be in violation of the long-and short-haul provisions of § 4 (1) of the Interstate Commerce Act, [1] the railroads simultaneously applied for the administrative relief which is authorized by the first proviso to § 4 (1) . [2] Timely protests were filed by the appellant barge lines, alleging that the proposed railroad rates threatened the extinction of legitimate competition by water carriers for the traffic from the producing areas into Chicago. On January 9, 1959, Division 2 of the Commission entered Fourth Section Order No. ”

“ The District Court should have vacated the order which it declined to review. [12] Since our disposition rests solely on the mootness occasioned by the railroads' elimination of the long-haul short-haul discrimination, it is not to be taken as foreclosing determination, on any appropriate future occasion, as to (a) whether the Commission was empowered to enter Order 19059 utilizing the procedures it did; (b) whether Order 19059 was effective to authorize the Fourth Section departures to which it related ”