U.S. Supreme Court ROCHESTER TELEPHONE CORPORATION v. UNITED STATES, 307 U.S. 125 (1939)

[Page 307 U.S. 125, 127]

deemed as engaged in interstate communications solely because of physical connections with the facilities of the New York Telephone Company ( hereafter called the New York).

The present controversy grew out of a ruling by the Federal Communications Commission that the Rochester owed obedience to a series of orders issued by the Commission. These orders required all telephone carriers subject to the Act to file schedules of their charges, copies of contracts with other telephone carriers, information concerning their corporate and service history, their relations with affiliates, their use of franks and passes. Copies of these orders were duly served on the Rochester. No response being had, the Telephone Division of the Communications Commission, on October 9, 1935, ordered the Rochester to show cause why it should not be required to file responses to the general orders theretofore served upon it. [Footnote 1] The Rochester answered, claiming to be outside the requirements of the Act except as to matters not here questioned.

[Page 307 U.S. 125, 128]

under the 'control' of the New York and therefore not entitled to the classification of a mere connecting carrier under Section 2(b)(2). Accordingly, the Commission ordered the Rochester classified 'as subject to all common carrier provisions of the Communications Act of 1934, and, therefore, subject to all orders of the Telephone Division.' A petition for rehearing before the full Commission was denied.

The Rochester thereupon filed the present bill, alleging that the order entered by the Commission on November 18, 1936, pursuant to its Report, was contrary to undisputed facts and erroneous as a matter of law, and that the Commission's threat to enforce it put the Rochester to the hazard of irreparable injury, and praying that the District Court 'make and enter its order and decree setting aside and annulling said orders of the Federal Communications Commission hereinbefore mentioned, and each and all of them, and enjoining the enforcement of said orders, except in so far as the provisions of said orders ... have already been complied with.'

The case was disposed of in the District Court on the pleadings and the record before the Commission.

Below, the Government made no objection to the District Court's jurisdiction, nor did that Court raise the question sua sponte. [Footnote 3] It sustained the Commission's action on the merits and dismissed the bill. Here, the Government urges that under the doctrine of 'negative orders' the Commission's order was not reviewable, but, in the alternative, supports the decree on the merits.

[Page 307 U.S. 125, 130]

(3) Where the action sought to be reviewed does not forbid or compel conduct on the part of the person seeking review but is attacked because it does not forbid or compel conduct by a third person. A familiar example is that of a shipper requesting the Interstate Commerce Commission for an order compelling the carrier to adopt certain rates or practices which the Commission, on the merits, declines. Another instance is where the Commission authorizes the carrier to depart from the long-short haul clause and a shipper adversely affected seeks to have the authorization set aside.

In group (1) the order sought to be reviewed does not of itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action. In view of traditional conceptions of federal judicial power, resort to the courts in these situations is either premature or wholly beyond their province. Thus, orders of the Interstate Commerce Commission setting a case for hearing despite a challenge to its jurisdiction, 5 or rendering a tentative6 or final valuation7 under the Valuation Act, 49 U.S.C.A. 19a, although claimed to be inaccurate, or holding that a carrier is within the Railway Labor Act, 45 U.S.C.A. 151 et seq., and therefore amenable to the National Mediation Board, are not reviewable. [Footnote 8]

[Page 307 U.S. 125, 131]

doing, anything; which does not grant or withhold any authority, privilege, or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier's existing or future status or condition; which does not determine any right or obligation.' United States v. Los Angeles R.R., 273 U.S. 299, 309, 310 S., 47 S.Ct. 413, 414.

Plainly the denial of judicial review in these cases does not derive from a regard for the special functions of administrative agencies. Judicial abstention here is merely an application of the traditional criteria for bringing judicial action into play. Partly these have been written into Article 3 of the Constitution, U.S.C.A., by what is implied from the grant of 'judicial power' to determine 'Cases' and 'Controversies,' Art. 3, Sec. 2, U.S.Constitution. [Footnote 9] Partly they are an aspect of the procedural philosophy pertaining to the federal courts whereby, ever since the first Judiciary Act, Congress has been loathe to authorize review of interim steps in a proceeding. 10

[Page 307 U.S. 125, 134]

thority of the Commission to render an adverse rather than a favorable decision but because he urges errors of law outside the Commission's final say-so. Such an analysis emerges from a long sequence of cases under the Urgent Deficiencies Act viewed in the setting of general doctrines of federal jurisdiction. On the other hand, the result in the Lehigh Valley case was reached in the earlier phases of modern administrative law and did not deal with its specific jurisdictional problems in the perspective of underlying principles governing federal equitable jurisdiction. In consequence, the phrase 'negative orders' gained currency as though it were descriptive of some technical doctrine of jurisdiction having peculiar relevance to judicial review of orders of the Interstate Commerce Commission and comparable regulatory bodies. [Footnote 12]

[Page 307 U.S. 125, 136]

merce Court erred in taking jurisdiction and remanded the cause for dismissal.

Clearly Procter & Gamble was authorized under Section 13 of the Act to Regulate Commerce, 49 U.S.C.A. 13, to institute the proceedings before the Commission. Since it asserted a legal right under that Act to have the Commission apply different principles of law from those which led the Commission to dismiss the complaint, the ingredients for an adjudication-constituting a case or controversy-were present. Compare Interstate Commerce Commission v. Brimson, supra; Interstate Commerce Commission v. Baird, 194 U.S. 25, 38, 24 S.Ct. 563, 566. Judicial relief would be precisely the same as in the recognized instances of review by courts of Commission action: if the legal principles on which the Commission acted were not erroneous, the bill would be ordered dismissed; if the Commission was found to have proceeded on erroneous legal principles, the Commission would be ordered to proceed within the framework of its own discretionary authority on the indicated correct principles. The requisites of equity have of course to be satisfied, but by the conventional criteria. They were satisfied in the Procter & Gamble case, since the bill sought to avoid a multiplicity of suits. Finally, the shipper was within the express language of Congress authorizing suits 'to enjoin, set aside, annul, ... any order of the Interstate Commerce Commission.' To be sure the opinion in the Procter & Gamble case partly yielded to the Government's main contention in that case that the jurisdictional statute only applied where the order complained of was one which was to be enforced by the Commission. More recent decisions of this Court, however, have dispensed with this requisite for review. [Footnote 13]

[Page 307 U.S. 125, 137]

The impelling consideration underlying the decision in the Procter & Gamble case did not concern technical procedure. It was part of the process of adjusting relations between the Interstate Commerce Commission and the courts to effectuate the purposes of the Commission. This is made abundantly clear by the general atmosphere of the opinion as well as by its language,14 particularly when regard is had to the fact that the Court's spokesman was Chief Justice White, who had such a large share in developing modern administrative law. [Footnote 15] While the

[Page 307 U.S. 125, 139]

law evidentiary and procedural fetters in enforcing basic procedural safeguards. 21

From these general considerations the Court evolved two specific doctrines limiting judicial review of orders of the Interstate Commerce Commission. One is the primary jurisdiction doctrine, firmly established in Texas & Pacific Ry. v. Abilene Cotton Oil Co., , 27 S.Ct. 350, 9 Ann.Cas. 1075. Thereby matters which call for technical knowledge pertaining to transportation must first be passed upon by the Interstate Commerce Commission before a court can be invoked. [Footnote 22] The other is the doctrine of administrative finality. Even when resort to courts can be had to review a Commission's order, the range of issues open to review

[Page 307 U.S. 125, 140]

is narrow. Only questions affecting constitutional power, statutory authority and the basic prerequisites of proof can be raised. If these legal tests are satisfied, the Commission's order becomes incontestable. Interstate Commerce Commission v. Illinois Central R.R., 215 U.S. 452, 470, 30 S.Ct. 155, 160; Interstate Commerce Commission v. Union Pacific R.R., , 32 S.Ct. 108.

In translating these important objectives for effectuating the Congressional scheme to enlarge the independent powers of the Interstate Commerce Commission into a seemingly technical distinction between 'negative' and 'affirmative' orders, the opinion in Procter & Gamble v. United States gave authority to a doctrine which harmonizes neither with the considerations which induced it nor with the course of decisions which have purported to follow it. [Footnote 23] Subsequent cases have made it abundantly clear that 'negative order' and 'affirmative order' are not appropriate terms of art. [Footnote 24] Thus, the Court has had occa-

[Page 307 U.S. 125, 141]

sion to find that while an order was 'negative in form' it was 'affirmative in substance.' [Footnote 25] 'Negative' has really been an obfuscating adjective in that it implied a search for a distinction-non-action as against action-which does not involve the real considerations on which rest, as we have seen, the reviewability of Commission orders within the framework of its discretionary authority and within the general criteria of justiciability. 26 'Negative'

[Page 307 U.S. 125, 142]

and 'affirmative,' in the context of these problems, is as unilluminating and mischief-making a distinction as the out-moded line between 'nonfeasance' and 'misfeasance'.27

The considerations of policy for which the notions of 'negative' and affirmative' orders were introduced, are completely satisfied by proper application of the combined doctrines of primary jurisdiction and administrative finality. The concept of 'negative orders' has not served to clarify the relations between administrative bodies and the courts but has rather tended to obscure them. An action before the Interstate Commerce Commission is akin to an inclusive equity suit in which all relevant claims are adjusted. [Footnote 28] An order of the Commission dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less, than an order directing some change in status. The nature of the issues foreclosed by the Commission's action and the nature of the issues left open, so far as the reviewing power of courts is concerned, are the same. Refusal to change an existing situation may, of course, itself be a factor in the Commission's allowable exercise of discretion. In the application of relevant canons of judicial review an order of the Commission directing the adoption of a practice might raise considerations absent from a situation where the Commission merely allowed such a practice to continue. But this bears on the disposition of a case and should not control jurisdiction. The nature of judicial relief, that is the

[Page 307 U.S. 125, 143]

form of directions available, in situations like those presented by the Procter & Gamble and the Lehigh Valley cases, were the Commission's orders reviewed, would be no different than was that used in the Inter-Mountain Rate and the New River Co. cases. [Footnote 29] In both types of situations 'a judgment rendered will be a final and indisputable basis of action as between the Commission and the defendant,' Interstate Commerce Commission v. Baird, 194 U.S. 25, 38, 24 S.Ct. 563, 566. We conclude, therefore, that any distinction, as such, between 'negative' and 'affirmative' orders, as a touchstone of jurisdiction to review the Commission's orders, serves no useful purpose, and insofar as earlier decisions have been controlled by this distinction, they can no longer be guiding.

[Page 307 U.S. 125, 148]

none to overrule any of them or to repudiate or impair the doctrine they establish. 1 The Court's discussion, extraneous to the issue involved, confuses rather than clarifies.

The findings of the district court are amply sustained by the evidence, and its decree should be affirmed.

Mr. Justice McREYNOLDS, concurs in this opinion. Footnotes

Footnote 1 On November 13, 1935, the order was amended in matters not here relevant.

Footnote 2 The hearing before the examiner lasted two days; 221 pages of testimony were taken and 34 exhibits were introduced.

Footnote 3 Under United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80$ L.Ed. 1263, and United States v. Griffin, 303 U.S. 226, 229, 58 S. Ct. 601, 602, the doctrine of 'negative orders' implies a jurisdictional defect which courts must consider sua sponte.

Footnote 4 All except one of the prior decisions of this Court on the 'negative order' doctrine involved review of action by the Interstate Commerce Commission. United States v. Corrick, supra, note 3, involved review of action by the Secretary of Agriculture under the Packers and Stockyards Act, 7 U.S.C.A. 181 et seq.

Footnote 5 United States v. Illinois Central R.R., , 37 S.Ct. 584. Compare Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963.

Footnote 6 Delaware & Hudson Co. v. United States, 266 U.S. 438, 45 S.Ct. 153.

Footnote 7 United States v. Los Angeles R.R., 273 U.S. 299, 47 S.Ct. 413.

Footnote 8 Shannahan v. United States, 303 U.S. 596, 58 S.Ct. 732; compare Shields v. Utah Idaho Central R.R., 305 U.S. 177, 182-184, 59 S.Ct. 160, 163, 164.

Footnote 9 Hayburn's Case, 2 Dall. 409, is the symbol for considerations which limit the constitutional power of the federal courts, though that case itself self never reached adjudication. See, also, United States v. Ferreira, 13 How. 40; Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250.

Footnote 10 Prior to Section 7 of the Act of March 3, 1891, 26 Stat. 828, authorizing an appeal to the Circuit Court of Appeals from a decree granting a preliminary injunction, review in a case not involving a final judgment was unknown in the federal judicial system, except insofar as it was present in the practice of certification introduced by Section 6 of the Act of April 29, 1802, 2 Stat. 159. See United States v. Bailey, 9 Pet. 267. For state court decisions the requirements for finality of the original Judiciary Act have been adhered to. Section 237, Judicial Code as amended, 28 U.S.C. Sec . 344, 28 U.S.C.A. 344. Review of action of the federal district courts not involving final judgments can be had only in a limited class of cases dealing with interlocutory injunctions, receiverships, and criminal appeals. Section 129 and 238 of the Judicial Code as amended, 28 U.S.C. Sec . 227, 345, 28 U.S.C.A. 227, 345. This Court, however, may take jurisdiction on certiorari before the appellate jurisdiction of the circuit court of appeals is exhausted.

Footnote 11 The Lehigh Valley case apparently originated the statement, often made in 'negative order' cases, that the risk results from the statute, not from the order. But this formula hardly squares with the actualities of the situation in that case. The Panama Canal Act, paragraphs (19-21) of Section 5 of the Act to Regulate Commerce, as amended, 49 U.S.C.A. 5 (19- 21), forbade community of interest between any common carrier subject to the Act and a competing water carrier. Under paragraph (20), jurisdiction was conferred on the Commission to determine questions of fact as to the existence of actual or potential competitive conditions, either on the application of the carrier or on the Commission's motion, its determination to be final. Under paragraph (21), the Commission was given jurisdiction to extend the time within which operations otherwise prohibited by the statute might be carried on after July 1, 1914, if such extension did not reduce competition and benefited the public. After receipt of notice of the Act from the Commission, the Lehigh applied to the Commission for a ruling that it was not subject to the Act, or, the alternative, for an extension. The Commission issued an order subjecting the Lehigh to the Act and denying an extension. Thereupon the Lehigh brought a suit to set aside this order and to enjoin the Commission from enforcing it.

As a practical matter the risk of prosecution to which the Lehigh was subjected if it wished to continue to operate its boats was the result of the order. Since the Panama Canal Act provided that the Commission should find the facts under it, there could have been no prosecution without a previous finding by the Commission that the Lehigh was within the Act; once such a finding was made it was subject to the rule of administrative finality. Compare Keogh v. Chicago & N.W. Ry., 260 U.S. 156, 43 S.Ct. 47. Therefore the Commission's order that the Lehigh was subject to the Panama Canal Act was responsible for the risk, as much so as if it had expressly commanded the Lehigh to stop running its boat lines. And assuming the Lehigh was within the prohibition of the statute, the Commission's order denying an exception had the same practical effect as a direct command. Inter-Mountain Rate Case, 234 U.S. 476, 34 S.Ct. 986.

Piedmont & Northern Ry. v. United States, 280 U.S. 469, 50 S.Ct. 192, presents a more complicated situation. Section 1(18-22) of the Act to Regulate Commerce, as amended, 49 U.S.C.A. 1(18-22), prohibits any common carrier by rail subject to the Act from extending its lines or constructing new lines without a certificate of convenience and necessity. This requirement did not apply to 'interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation.' Upon an application for a certificate by the Piedmont & Northern, coupled with a motion to dismiss on the ground that it was an 'interurban electric' railway, for which no certificate was required, the Commission denied the motion to dismiss and denied the certificate on the merits. The bill to enjoin the Commission from taking any proceedings against the Piedmont & Northern under this order attacked the action of the Commission solely on its assumption of jurisdiction. The Court held the order was not reviewable, on the ground that the order did not adjudicate the railroad's status, did not command it to do anything, but only had the effect of increasing the Piedmont's doubts as to the correctness of its construction of the statute. To be sure, statutory construction is a judicial function. But this is to view the matter too abstractly. For the Commission itself had instituted the system whereby it requested preliminary submission to it of the status of interurban roads. Such a decision was at least the equivalent of a threat of prosecution under the statute, and, in fact, considerable weight is given to administrative practice in ascertaining the meaning of such legislation. Compare United States v. Village of Hubbard, 266 U.S. 474, 45 S.Ct. 160.

Footnote 12 The initial decision in this group of cases, the Inter-Mountain Rate Case, 234 U.S. 476, 34 S.Ct. 986, held reviewable the action of the Commission in refusing to grant requested consent to depart from the long-short haul clause. Section 4 of the Act to Regulate Commerce, as amended, 49 U.S.C.A. 4. While this case would seem to control the Lehigh Valley case and at least to be persuasive in the Piedmont & Northern case, it was not mentioned them. After these two cases, subsequent decisions in this group indicated that the 'negative order' doctrine might prevent review of the refusal by the Secretary of Agriculture to accept rates for filing, the Packers and Stockyards Act, 7 U.S.C.A. 181 et seq., prohibiting the charging of rates except those on file with the Secretary, United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, and of the refusal to grant an increase in rates of compensation for carrying of mail, the Railway Mail Pay Act of 1916, 39 U. S.C.A. 523 et seq., requiring the carrier to carry the mail at the rate set, United States v. Griffin, 303 U.S. 226, 58 S.Ct. 601. But in both these decisions the result reached was supported by factors irrelevant to the present discussion. On the other hand, in Powell v. United States, 300 U.S. 276, 57 S.Ct. 470, action of the Commission, striking from its files a tariff on the ground that a point was not served by the carrier, was held subject to review as a command to the railway which had filed the tariff not to give the service covered by the tariff.

Footnote 13 The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317; Venner v. Michigan Central R.R., 271 U.S. 127, 46 S.Ct. 444; Colorado v. United States, 271 U.S. 153, 46 S.Ct. 452; Claiborne-Annapolis Ferry Co. v. United States, 285 U.S. 382, 52 S.Ct. 440; United States v. Idaho, 298 U.S. 105, 56 S.Ct. 690.

Footnote 14 '... we have learned of no instance where it was held or even seriously asserted, that as to subjects which in their nature were administrative and within the competency of the Commission to decide, there was power in a court, by an exercise of original action, to enforce its conceptions as to the meaning of the act to regulate commerce by dealing directly with the subject, irrespective of any prior affirmative command or action by the Interstate Commerce Commission. On the contrary, by a long line of decisions, whereby applications to enforce orders of the Commission were considered and disposed of, or where requests to restrain the enforcement of such orders were passed upon, it appears by the reasoning indulged in that it was never considered that there was power in the courts as an original question, without previous affirmative action by the Commission, to deal with what might be termed in a broad sense the administrative features of the act to regulate commerce by determining as an original question that there had been a compliance or noncompliance with the provisions of the act.' 225 U.S. at pages 296, 297, 32 S.Ct. at page 766. '... the recognition of a right in a court to assert the power now claimed would, of necessity, amount to a substitution of the court for the Commission, or, at all events, would be to create a divided authority on a matter where, from the beginning, primary singleness of action and unity was deemed to be imperative.' 225 U.S. at pages 298, 299, 32 S.Ct. at page 767.

Footnote 15 See Chief Justice Taft's estimate of the services of Chief Justice White in 'a new field of administrative law': 'The capital importance which our railroad system had come to have in the welfare of this country made the judicial construction of the interstate commerce act of critical moment. It is not too much to say that Chief Justice White, in construing the measure and its great amendments has had more to do with placing this vital part of our practical government on a useful basis than any other judge. His opinions in the case of the Texas & Pacific Railway Co. v. Abilene Cotton Oil Co. (204 U.S. 426, 27 S.Ct. 350, 9 Ann. Cas. 1075), and the cases which followed it, are models of clear and satisfactory reasoning which gave to the people, to state legislatures, to Congress, and the courts a much-needed knowledge of the practical functions the Commerce Commission was to discharge, and of how they were to be reconciled to existing governmental machinery, for the vindication of the rights of the public in respect of national transportation. They are a conspicuous instance of his unusual and remarkable power and facility in statesmanlike interpretation of statute law.' Proceedings on the Death of Chief Justice White, 257 U.S. v, xxv.

Footnote 16 34 Stat. 584.

Footnote 17 36 Stat. 539.

Footnote 18 Laws of New York, One Hundred and Thirtieth Session, c. 429 (1907).

Footnote 19 Wisconsin Laws of 1907, c. 499, St. 1911, 1797m-1 et seq.

Footnote 20 See, e.g., Hughes, Some Aspects of the Development of American Law 1916, 39 N.Y.B.A.Rep. 266, 269-270; Root, Public Service by the Bar, 1916, 41 A.B.A.Rep. 355, 368-369; Sutherland, Private Rights and Government Control, 1917, 42 A.B.A. 197.

Footnote 21 Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S.Ct. 563, 568; Interstate Commerce Commission v. Louisville & Nashville R.R., 227 U.S. 88, 93, 33 S.Ct. 185, 187; United States v. Abilene & So. Ry., 265 U.S. 274, 288, 44 S.Ct. 565, 569; compare Douglas v. Noble, 261 U.S. 165, 169, 43 S.Ct. 303, 305. 'It is, perhaps, not too much to say that not a single case arising before the Commission could be properly decided if the complainant, the railroad, or the Commission were bound by the rules of evidence applying to the introduction of testimony in courts.' Twenty-second Annual Report of the Interstate Commerce Commission, 10.

Footnote 22 See, also, e.g., Baltimore & Ohio R.R. v. United States, ex rel. Pitcairn Coal Co., , 30 S.Ct. 164; Robinson v. Baltimore & Ohio R.R., 222 U.S. 506, 32 S.Ct. 114; United States v. Pacific & Arctic Co., 228 U.S. 87, 33 S.Ct. 443; Texas & Pacific Ry. v. American Tie Co., 234 U.S. 138, 34 S.Ct. 885; Northern Pacific Ry. v. Solum, 247 U.S. 477, 38 S.Ct. 550; Director General v. Viscose Co., 254 U.S. 498, 41 S.Ct. 151; Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 44 S.Ct. 169, 33 A.L.R. 472; Western & Atlantic R.R. v. Georgia Public Service Comm., 267 U.S. 493, 45 S.Ct. 409; Midland Valley R.R. v. Barkley, 276 U.S. 482, 48 S.Ct. 342; Board of Railroad Commissioners v. Great Northern Ry., 281 U.S. 412, 50 S.Ct. 391. The doctrine has been given general application, e.g., United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S. Ct. 247 (Shipping Board); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459 (National Labor Relations Board). Compare, also, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S. Ct. 816.

Footnote 23 In Manufacturers' Railway Co. v. United States, 246 U.S. 457, 38 S. Ct. 383, the Court treated as reviewable the action of the Commission in failing to require an absorption of switching charges or a requested joint rate but held not reviewable refusal to fix divisions. In part this may have been on the theory that the issue of the divisions was not properly before the Commission. See 246 U.S. at pages 482, 483, 38 S. Ct. at page 390. In United States v. New River Co., 265 U.S. 533, 44 S.Ct. 610, the Court held reviewable the action of the full Commission dismissing a complaint by a shipper against certain car practices held invalid by one division of the Commission. Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429, held not reviewable the action of the Commission refusing to grant reparations, but the main basis of the decision was not the 'negative order' doctrine but the statutory scheme dealing with reparations. In Alton R.R. v. United States, 287 U.S. 229, 53 S.Ct. 124, the Court held reviewable the action of the Commission refusing to interfere with divisions set by a railroad in violation of a previous agreement, the Court stating that the action of the Commission validated divisions which were previously invalid. See 287 U.S. at pages 236, 237, 53 S.Ct. at page 127.

Footnote 24 The only test which can be derived from the cases in notes 11-13, 23, supra, is that an order is 'affirmative' if it has the legal effect of changing the status quo, permitting what was previously not allowed or compelling what was previously not required. But on this test the order in the Lehigh Valley case was 'affirmative'. The decision in the New River Co. case could hardly be hung on such a gossamer thread as this test, since there the only change in the status quo resulting from an order considered 'affirmative' was that the order of the full Commission held unobjectionable a car practice which was the subject of complaint. A division of the Commission in the same proceeding had stated that the practice was invalid and should be abandoned and it was abandoned. After the full Commission found the practice not invalid and dismissed the complaint, the practice was adopted again.

Footnote 25 See Alton R.R. v. United States, 287 U.S. 229, 235, 53 S.Ct. 124, 126.

Footnote 26 This becomes clear on analysis of the precise problem presented in the Procter & Gamble case. It was a dispute between shippers who owned private cars and those who did not as to the distribution of the cars owned by the carriers. The Commission was called upon to resolve that economic conflict by virtue of its authority to prevent practices which unfairly discriminated against one group at the expense of the other. Its final decision was based on a comprehensive policy concerning the place of private cars in our transportation system. Had the prior practice of the carriers been inconsistent with this policy, and the order of the Commission compelled a change, the private car shippers would admittedly have been entitled to test the validity of the Commission ruling in the courts, subject, of course, to the canons of administrative finality. It seems capricious that the fact that the Commission's order authorized the preservation of the status quo should block any review at all. The force of this reasoning is emphasized when it is realized what small factors may determine whether the status quo has been changed, e.g., a difference of views within the Commission, as in the New River Co. case, supra, note 24. See the opinion of the Commerce Court sustaining reviewability in Procter & Gamble Co. v. United States, 188 F. 221.

Footnote 27 The Restatement of Torts does not employ this nomenclature. See, also, 7 Labatt, Master and Servant, 2586.

Footnote 28 Compare Inland Steel Co. v. United States, , 59 S.Ct. 415, 418: '... the Commission was acting in the interest of shippers generally and in behalf of the public and the national railroad system.'

Footnote 29 In the Procter & Gamble case the judicial relief asked was that the order of the Commission dismissing the complaint against the demurrage rules be annulled and that the carriers be enjoined from applying those rules. In the New River Co. case the judicial relief asked was that the car rule under attack be adjudged invalid, that the order of the Commission dismissing the complaint against it be adjudged invalid, that the carriers be enjoined from complying with the rule and that the Commission be enjoined from restricting the commerce of the complainants by its order and by the rule.

In the Lehigh Valley case the judicial relief asked was that the enforcement of the order of the Commission and the institution of any proceedings thereunder against the complainant be enjoined. In the Inter- Mountain Rate case the judicial relief asked was that the order of the Commission be set aside, that Section 4 of the Act to Regulate Commerce, 49 U.S.C.A. 4, and be declared invalid, and that the Commission and the Attorney General be enjoined from taking any proceedings to prosecute the carriers for violation of Section 4.

Footnote 30 Compare United States v. Atlanta, B. & C.R.R., 282 U.S. 522, 51 S. Ct. 237.

Footnote 31 See House Report 1850, 73d Cong., 2d Sess., 4, 5; compare 78 Cong. Rec. 8446. 8446.

[Footnote 1] See e.g.: Procter & Gamble Co. v. United States, 1912, 225 U.S. 282, 292 et seq., 32 S.Ct. 761, 765. Hooker v. Knapp, 225 U.S. 302, 32 S.Ct. 769; United States v. Baltimore & Ohio R.R. Co., 225 U.S. 306, 320, 32 S.Ct. 817, 819; Lehigh Valley R. R. Co. v. United States, , 37 S.Ct. 397; United States v. Illinois Cent. R.R. Co., 244 U.S. 82, 89, 37 S.Ct. 584, 586; Chicago Junction Case, 264 U.S. 258, 263, 264 S., 44 S.Ct. 317, 318, 319; United States v. New River Co., , 539- 541, 44 S.Ct. 610, 612; Delaware & Hudson Co. v. United States, 266 U.S. 438, 448, 45 S.Ct. 153, 154; Minneapolis & St. L.R.R. v. Peoria Ry., , 46 S.Ct. 402; State of Colorado v. United States, 271 U.S. 153, 161, 46 S.Ct. 452, 453; United States v. Los Angeles R.R., 273 U.S. 299, 309, 47 S.Ct. 413, 414; Great Northern Ry. v. United States, , 48 S.Ct. 466; Piedmont & Nor. Ry. v. United States, 280 U.S. 469, 475-477, 50 S.Ct. 192, 193; United States v. Atlanta, B . & C.R. Co., 282 U.S. 522, 51 S.Ct. 237; Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429; Alton R. Co. v. United States, 287 U.S. 229, 53 S.Ct. 124; United States v. B. & O.R. Co., 293 U.S. 454, 55 S.Ct. 268; Powell v. United States, 300 U.S. 276, 284, 57 S.Ct. 470, 474; United States v. Griffin, , 232 et seq., 58 S.Ct. 601, 604; Shannahan v. United States, 303 U.S. 596, 599, 58 S.Ct. 732, 733.