$8. LIABILITY IN DAMAGES TO PERSONS INJURED BY VIOLATION OF LAW

Grounds of Recovery, Generally

81. Violations of the Act. See Mid-States Packers, Inc. v.

United States, at §8, n. 180.

Undue Preference and Prejudice

180. Proof and measure of damages. -Generally, evidence sufficient to establish violation of Interstate Commerce Act is not necessarily sufficient to support an award of reparations; assailed practice must be shown to have resulted in unreasonable charges in the past or otherwise to have caused damage. No damage was shown as a result of railroads' unlawful practice of refusing fully to absorb interline switching charges and complainants are not entitled to damages as a matter of law. -Mid-States Packers, Inc. v. United States, 363 F. Supp. 275 (276-77)*.

Proof of Damage

221. Showing of proximate cause and financial damage prerequisite to award. See Mid-States Packers, Inc. v. United States, at §8, n. 180. $14 (1). REPORTS OF INVESTIGATIONS BY COMMISSION

1. The report; requisites. In approving proposed new per-car charges for in-transit inspection of grain in the West, the Commission failed to explain its departure from prior norms and its legal basis for doing so. Though it recognized that western railroads' line-haul grain rates included the first stop for inspection, the Commission did not require any rate reduction in relation to the reduced service; nor did it repudiate or overrule its prior decisions that a proposed separate charge for an accessorial service, presently included in line-haul rates, cannot be approved without substantial evidence, presently included in line-haul rates, cannot be approved without substantial evidence that such charge is justified when measured against the overall services rendered and overall reasonableness of the resulting increased aggregate rate. Thus, for purposes of the court's review, the Commission's distinguishing of instant case from its prior decisions, and its legal basis for the decision under review, are not adequately explained. Case remanded for further Commission proceedings consistent with the court's opinion; proposed charges suspended and held ineffective until otherwise ordered by the court. -Wichita Board of Trade v. United States, 352 F. Supp. 365 (368-69)*.

$15 (7).

COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; REFUNDS

In General

1. Jurisdiction of courts in preventing change of rates. —On plaintiff's motion for preliminary injunction against Commission orders

llowing proposed interim surcharge on certain rail tariff rates to go into ffect without suspension, the district court has jurisdiction to provide the elief sought because of the Commission's failure to issue an impact statement, der the National Environmental Policy Act, in conjunction with the chalenged orders. Although the Commission has sole and exclusive power to suspend roposed rates, and its failure to suspend is not judicially reviewable, the EPA implicitly confers authority on federal courts to enjoin any federal ction taken in violation of procedural requirements thereof, even if jurisiction to review the action is otherwise lacking. Moreover, recognition of hat independent jurisdiction under NEPA does not undermine the Commission's road discretion with regard to suspension, or its primary authority to etermine reasonableness of proposed rates; nor does judicial insistence on ompliance with nondiscretionary procedural requirements of NEPA interfere ith the Commission's substantive discretion. Preliminary relief granted. — tudents Challenging Regulatory Agency Procedures (S.C.R.A. P.) v. United tates, 346 F. Supp. 189 (196-98)*.

Furthermore, although its earlier decision, 346 F. Supp. 189, is ending on appeal to the Supreme Court, the district court has jurisdiction to rule on plaintiff's present motion for preliminary injunction against subsequent Commission action approving proposed selective percentage increases In rail rates. In claiming the court lacks jurisdiction, defendant cites the settled rule that filing of an appeal vests jurisdiction over the cause of action in the appellate court and denies the lower court jurisdiction to take any further action in the case. However, that rule is subject to well recognized exceptions, including the principle that an appeal from a lower court order granting a preliminary injunction does not divest the lower court of jurisdiction.-Id., 353 F. Supp. 317 (320, footnote) *.

2. Breadth of investigation and suspension powers of Commission. While decision in 372 U.S. 658 grants the Commission broad discretion at the suspension stage in rate proceedings, the court is not convinced that it precludes a grant of preliminary relief sought. Apparent thrust of the doctrine is that judicial review is available only when rates in question are Commission-made rather than carrier-made; so long as rates are authored by the carriers, the Commission's mere failure to suspend them is not reviewable. In instant case, the finding of reasonableness does not, by itself, convert considered rates into a Commission-made tariff; but the Commission affixed detailed conditions to its approval of the interim surcharge without suspension and, also, made it amply clear that it would suspend proposed rate increases if the conditions were not added. An agency may not use its suspension power, in effect, to make rates and still avoid judicial review. And a suspension decision which blackmails carriers into submitting agency-authored rates is not distinguishable from an agency order setting those rates; such orders are, of course, judicially reviewable.-Students Challenging Regulatory Agency Procedures (S.C.R.A.P.) v. United States, 346 F. Supp. 189 (196-97)*.

Procedure

35. Burden of proof upon the hearing; in general.—A specific and longstanding administrative interpretation of a statute should not be overruled except for weighty reasons; such administrative rule has the force and effect of a statute and rules of evidence apply to both in the same manner. The Commission departed from prior norms when, without repudiating its well established rule as to the burden of proof on railroads proposing a separate charge for an accessorial service previously included in line-haul rates, it found proposed charges for in-transit inspection of grain in the West to be reasonable when related to costs of specific services for which they would be assessed, even though carriers failed to prove overall reasonableness of the increased rate, composed of line-haul rate plus in-transit charge, that would result from approval of proposed charges. In effect, the Commission excused respondents from meeting substantial proof requirements of its evidentiary rule because of their "inability" to sustain that burden; and as held in 347 U.S. 645, since legal basis therefore is not explained, such a departure from prior norms is not permissible. Case remanded to the Commission; proposed charges suspended until further order of the court. Wichita Board of Trade v. United States, 352 F. Supp. 365 (367-69)*.

$17(5).

FINDINGS, ETC., OF COMMISSIONER OR BOARD; ACCOMPANYING STATEMENT
AND RECOMMENDED ORDER; COPIES TO PARTIES; EXCEPTIONS; RECOMMENDED
ORDER AS COMMISSION'S ORDER

15. Recommended order; effect; stay.-Plaintiffs argue the Commission adopted the examiner's discussion and conclusions as the Commission's findings of fact. Judicial decisions prior to this case indicate that when the Commission refers to the examiner's statement of facts the Commission is referring to the examiner's summary of the evidence and not to the examiner's discussion and conclusions. -United Trucking Service, Inc. v. United States, 359 F. Supp. 100 (104-05).

$17 (10).

JUDICIAL RELIEF FROM DECISIONS, ETC., UPON DENIAL OR OTHER DISPOSI-
TION OF APPLICATION FOR REHEARING

2. Construction and interpretation.—In reviewing an order by the Commission, court must decide whether the Commission reached a rational conclusion, based on substantial evidence. The evidence herein, even detracting all contrary evidence, was substantial and the increases approved by Commission in demurrage charges were rational on the record before the Commission. Accordingly, the court affirms Commission's order approving said increases. General Mills, Inc. v. United States, 364 F. Supp. 1278 (1282-84)*.

$20b.

MODIFICATION OF RAILROAD FINANCIAL STRUCTURES

Alteration and Modification; Findings

30. Plan of alteration, modification. -Modification of bonds due Sept. 1, 1971, authorized under $20b, along with modification of terms of

Part V loan, as part of an overall package to avoid financial squeeze, which otherwise could have resulted in the bankruptcy of the railroad. Although involving two essentially different transactions, each was contingent on the consummation of the other. -Erie Lackawanna Ry. Co. Bonds Modification, 342 I.C.C. 403 (404-05)*.

PART II

$203(a) (15). CONTRACT CARRIER DEFINED

1. Contract carrier defined. In ruling on applications for contract carrier permits, Commission must first determine whether applicant satisfies definition of a contract carrier under $203 (a) (15) and then determine whether applicant satisfies the five criteria of $209 (b) for determining consistency of an application with public interest and the national transportation policy. In denying plaintiff's application, Commission failed to consider, or failed to rule upon, question whether plaintiff satisfied $203(a) (15) by virtue of having entered into a continuing contract with one person for transportation of property. District court, therefore, reverses Commission's denial of plaintiff's application and remands the application to the Commission for further consideration. -Keller Trucking, Inc. v. United States, 374 F. Supp. 848 (849)*.

$203(b). VEHICLES EXCEPTED FROM OPERATION OF LAW

50. Carriage of livestock, fish, agricultural commodities.

Fish, including shellfish: Upon petition, the Commission (Division 1) found that for-hire motor transportation of ground oyster shells is not within the partial exemption from economic regulation stated in §203(b)(6) of the Act. Although "oysters, with or without shells" are covered by this partial exemption, the shells at issue herein have ceased to be oysters as the living tissue in them has decomposed through the passage of time (in this case up to 3,000 years) and their only reasonable link to oysters is as possible fossils or relics. Therefore, questions as to whether these shells are "manufactured of" or "processed from" oysters, or their intended use are irrelevant and immaterial. In support the Commission cited 66 M.C.C. at 123, wherein it is stated that once the oyster has been removed, "the shell alone cannot be considered as any longer a variety of shellfish."Grant's Trucking Co.-Petition-Oyster Shells, 118 M.C.C. 892 (894-95).

60. Commercial zones.

Carriers affected: Because the availability of existing motor common carrier service is not a proper issue for consideration in commercial zone proceedings, it was deemed unnecessary to discuss the various operations of carriers serving an area for which a petition was filed to incorporate it into a nearby commercial zone. - Kansas City, Mo.-Kansas City, Kans., Commercial Zone, 118 M.C.C. 462 (465)*.

Construction generally:

A commercial zone is not "established" or "created" by the Commission but already exists by reason of trade practices, the uses to which a proposed area is put, and geographic and political considerations.-Kansas City, Mo.-Kansas City, Kans., Commercial Zone, 118 M.C.C. 462 (462)*.

Municipality: As defined by the Commission, the term "municipality" refers to "any city, town, village, and borough which has been created by special legislative act or which has been, otherwise, individually incorporated or chartered pursuant to general State laws, or which is recognized as such, under the Constitution or by the laws of the State in which located, and which has a local government. It does not include a town of the township or New England-type."-Adams Trucking, Inc.-Revocation of Certificates, 118 M.C.C. 567 (571).

New England-type towns: The governmental unit known as a "town" in New England is a minor subdivision of a county and is more commonly known as a "township" elsewhere in the country. That which is known as a "town" or "village" elsewhere is commonly called a "borough" or possibly a "city" in New England. Hence, the Commission has consistently held that townships in New England (i.e., "New England-type towns") or anywhere in the country are not municipalities within the meaning of $203(b) (8) of the Act.-Adams Trucking, Inc. -Revocation of Certificates, 118 M.C.C. 567 (571).

Unincorporated urban communities: The mere presence of places of business, and a finding that they have transportation requirements are insufficient to establish the existence of an unincorporated community. Therefore, we must conclude that Hopsons, Miss., is not an unincorporated community. Rather, it consists of a highway crossroads with 10 or 12 residences and 3 businesses, and its residents depend upon Clarksdale, Miss., for all services including mail service. There is nothing in this record to indicate that Hopsons has achieved community status and thus defendant's authority to service Hopsons cannot be construed as conferring the implied right to serve Clarksdale as a point within Hopsons' "terminal area." Cease and desist order entered.-F & W Express, Inc., v. Taylor Truck Line, 118 M.C.C. 898 (901-03).

Particular Zones, by Name

Cleveland: Cleveland, Ohio, commercial zone redefined to include all points in Cuyahoga County, Ohio, and all points in Wickliffe, Willoughby Hills, Waite Hill, Willoughby, Willowick, Eastlake, Lakeline, Timberlake, and Mentor, Lake County, Ohio.-Cleveland, Ohio, Commercial Zone, 118 M.C.C. 524 (529-30)*.

Kansas City: The commercial zone of Kansas City, Mo. - Kansas City, Kans., was extended to include Blue Springs, Mo., and specified areas adjacent thereto. Kansas City, Mo.-Kansas City, Kans., Commercial Zone, 118 M.C.C. 462 (465)*.