U.S. Supreme Court TAGG BROS. & MOORHEAD v. U. S., 280 U.S. 420 (1930)

[Page 280 U.S. 420, 435]

business, or by eliminating some plaintiffs for the purpose of increasing the compensation of those remaining. And one assignment attacks the order on the ground that it is confiscatory as to all the plaintiffs.

First. The contention that Congress did not purport to empower the Secretary to issue an order prescribing the charges of market agencies is without substance. The language used was apt to confer the power. The Committee of the House declared in terms that it did so, when it reported the bill. [Footnote 3] The executive department charged with the duty of enforcing the act so interpreted it. This Court assumed in Stafford v. Wallace, 258 U.S. 495, 514, 42 S. Ct. 397, 23 A. L. R. 229, and Chicago Board of Trade v. Olsen, 262 U.S. 1, 34, 43 S. Ct. 470, that the power had been conferred. The Maximum Rate Cases, Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, , 16 S. Ct. 700, Id., 167 U.S. 479, 17 S. Ct. 896, Interstate Commerce Commission v. Alabama Midland R. Co., 168 U.S. 144, 18 S. Ct. 45, upon which appellants rely, lend no support to their contention.

[Page 280 U.S. 420, 445]

was not brought to his attention, the appropriate remedy is to apply for a rehearing before him or to institute new proceedings. He has the power and the duty to modify his order, if new evidence warrants the change. Compare Interstate Commerce Commission v. Union Pacific R. R. Co., 222 U.S. 541, 550, 32 S. Ct. 108. A rate order is not res judicata. Every rate order made may be superseded by another.

Sixth. There is also a contention that the rates prescribed are not merely unsupported by the evidence, but are confiscatory; and that the order is therefore void. Whether the additional evidence before the master was admissible on the issue of confiscation presents a serious question of practice which was not argued by counsel. The lower court held the additional evidence admissible, and, after considering it, reached the conclusion that the charges prescribed are not unreasonably low or confiscatory. This conclusion of the lower court conforms, in our opinion, to the evidence, whether the examination be confined to that evidence which was received by the Secretary or be extended to include the additional evidence introduced before the master and the court. The question of the admissibility of the additional evidence on the issue of confiscation may, therefore, be passed, and it is passed, without decision.

Affirmed. Footnotes

Footnote 1 As the Secretary's power to suspend a tariff pending a hearing is limited by section 306 to a period of 60 days, tariff No. 2 became operative on March 27, 1926.

Footnote 2 In doing so, he also approved an appeal bond to operate as a supersedeas and granted a temporary injunction pending the appeal. This part of the order, being beyond the power of a single judge, was later vacated by him. Cumberland Telephone & Telegraph Co. v. Louisiana Public Service Commission, , 43 S. Ct. 75. An application for a stay made to the three judges was denied on February 11, 1929. It was not until then that the rates which had been prescribed by the Secretary on November 19, 1926, became operative.

Footnote 3 Report No. 77, 67th Congress, First Session, on H. R. 6320, states at page 10, referring to title 3: '... The Secretary of Agriculture is given substantially the same jurisdiction over stockyard matters which the Interstate Commerce Commission has over railroads, including the power, after full hearing, to establish and enforce just and reasonable rates and charges for, and practices in connection with, the furnishing of stockyard services.' By the definitions contained in section 301(b) and (c), (7 USCA 201(b)(c), the term 'stockyard services' includes the services rendered by the plaintiffs.

Footnote 4 The judicial review of rate orders in suits begun under the Urgent Deficiencies Act to set aside orders of the Interstate Commerce Commission does not differ in substance from that in suits instituted by the Commission under the Interstate Commerce Act to enforce its orders. The Act to Regulate Commerce, February 4, 1887, c. 104, 16, 24 Stat. 379, 384, 385 (49 USCA 16) specifically provided that, in proceedings to enforce orders of the Commission, its findings were to be merely prima facie evidence; and the Court was not to be restricted to the record before the Commission. Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Interstate Commerce Commission, 162 U.S. 184, 187, 195 S., 196, 16 S. Ct. 700; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U.S. 144, 174, 175 S., 18 S. Ct. 45. Compare United States v. Los Angeles & Salt Lake R. R. Co., 273 U.S. 299, 309, 47 S. Ct. 413. The Commerce Court Act June 18, 1910, c. 309, 13, 36 Stat. 539, 554, 555, amended section 16 and restricted the scope of review as follows: 'If, after hearing, that court determines that the order was regularly made and duly served, and that the carrier is in disobedience of the same, the court shall enforce obedience. ...' This is the provision now in force-U. S. C. tit. 49, 16(12), 49 USCA 16(12). Reparation orders are still only prima facie evidence. U.S.C. tit. 49, 16(2), 49 USCA 16(2).

Compare Oregon R. R. & Navigation Co. v. Fairchild, 224 U.S. 510, 525, 32 S. Ct. 535; Napa Valley Electric Co. v. Cal. R. R. Comm., 251 U.S. 366, 370, 40 S. Ct. 174; and Pacific Tel. & Tel. Co. v. Kuykendall, 265 U.S. 196, 200, 44 S. Ct. 553. Also the District of Columbia Public Utilities Law, Act of March 4, 1913, c. 150, 8, par. 67, 37 Stat. 938, 989; the Valuation Act, March 1, 1913, c. 92, 37 Stat. 701, 703, U.S.C. tit. 49, 19a, (b) Fifth (j) (49 USCA 19a); and the Federal Trade Commission Act, Sept. 26, 1914, c. 311, 5, 38 Stat. 717, 719, 720, U.S.C. tit. 15, 45 (15 USCA 45).