These causes have been heard on the motion of the various carriers to amend the order of this court entered on May 15, 1944, 55 F.Supp. 51, enjoining the enforcement of the order of the Interstate Commerce Commission of January 18, 1944, so as to provide for the issuance of an order enjoining the enforcement of a subsequent order of the Interstate Commerce Commission of June 12, 1944; and also a motion of the United States for a retrial of these causes and a modification of the order of this court of May 15, 1944.
At the hearing of the foregoing motion it was stipulated by all parties in open court that Justice THURMAN W. ARNOLD of the United States Court of Appeals of the District of Columbia might sit in lieu of
In its opinion and findings of fact of this court filed on May 1, 1944, the court held in substance that the Interstate Commerce Commission was without jurisdiction to make its order of January 18, for the reason that the carriers were engaged in intrastate commerce throughout the entire length of their lines and that the Interstate Commerce Commission had not made findings of fact sufficient to justify its conclusion that it had jurisdiction because its action was necessary to carry out the national transportation policy.
Without applying to this court for a modification of the order of this court of May IS, 1944, the Commission proceeded to reopen its hearings, to take further testimony, to make additional findings, and to enter a new order on June 12, 1944, which was, in effect, the same order that had been permanently enjoined by this court. Although it is rather difficult to understand the conduct of the Commission in undertaking to put into effect an order this court had enjoined, we have nevertheless taken into consideration the new report of the Commission and the evidence upon which it is based.
As to the first question whether the carriers are in intrastate commerce over the entire length of their lines, practically no additional evidence was introduced before the Commission. This court has already found that the Commission was in error in its conclusion of law upon the facts and it is unnecessary to discuss this question any further.
As to the new evidence and findings of fact upon which the Commission undertakes to conclude that it has jurisdiction because it “is necessary to carry out the national transportation policy,” the Commission bases its conclusion chiefly on the finding that the employees of the Pentagon are dissatisfied with the fares charged by the carriers and the importance of the war work carried on at the Pentagon. As to the first ground, apart from the fact that the dissatisfaction of the employees with the fares charged by the carriers is ground for finding that their reduction is necessary to carry out the national transportation policy, there is a mere scintilla of evidence to support this finding. The Commission’s findings were that many of the passengers to the Pentagon are low-salaried employees of the Government and that a representative group of them were dissatisfied with the fares. As to the latter finding, it clearly appears that the proportion of turnover of employees at the Pentagon did not exceed the average in government departments, and in only a very few instances did employees give the rate of fares as the cause of their dissatisfaction. .
It must be observed that there has been no raising of fares by the carriers whereby the national transportation policy has been affected.
As to the importance of the Pentagon in the prosecution of the War, Congress has not provided that the Commission could take jurisdiction merely because of the importance of transportation to or from a government agency. There must be more than this; it must appear that the war work of the government is materially affected and not merely that a small portion of the workers are dissatisfied with the rates of fare charged by the carriers.
We hold that the facts found by the Commission do not support its conclusion that its taking jurisdiction is necessary to the national transportation system.
The motion of the United States for a new trial should be overruled and the order of the Commission of June 12, 1944 be set aside and its enforcement permanently enjoined.