for a limited time, orders in respect to these charges.
Appellants argue that demurrage charges are 'rates, fares, and charges for transportation' and that the term 'rules, regulations, or practices' has no relation to the fixing of rates, fares or charges. They cite Lehigh Valley R. C. v. U.S., 1911, 3 Cir., 188 F. 879. That case holds that demurrage charges must be filed with the Commission and, when filed, must be observed as filed. But the section of the statute there relied on (Section 6 of the act of 1887, as amended 49 U.S.C.A. § 6, requires that the filed schedules shall include 'all other charges which the Commission may require,' and 'any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges.' It seems to us that the argument of plaintiffs in this respect is a nonsequitur, and, further, that the case cited does not support the point made. If a published rule or regulation affects or determines a charge, it is nevertheless a rule or regulation.
The further point is made by the plaintiffs that these orders of the Commission are invalid because thirty days notice was not given to the Price Administrator, as the designated agency of the President under the provisions of Section 1 of the Stabilization Act of 1942.
That statute provides in part
'That no common carrier or other public utility shall make any general increase in its rates or charges which were in effect on September 15, 1942, unless it first gives thirty days notice to the President, or such agency as he may designate, and consents to the timely intervention by such agency before the Federal, State, or municipal authority having jurisdiction to consider such increase.'
Although the Price Administrator, on his own behalf and on behalf of the Stabilization Director, originally petitioned to intervene as a party plaintiff in this case, he later withdrew his petition, stating, 'Conversely, if this court should hold that the Commission may direct an increase in a demurrage charge without following the usual procedure provided for increases of rates or charges, the notice provision of the Stabilization Act would not be applicable.' This obviously must be so, because if the Commission directs an increase in demurrage charges without notice and without hearing, the carriers, being without notice themselves, could not give the Price Administrator notice, and, there being no hearing, there would be no proceeding in which intervention could be had. The statute could not be held to direct an impossible act. Moreover, it would require clear language in the statute to persuade us that Congress intended to nullify an existing emergency power granted the Commission solely in the public interest and effective only for limited times of public necessity.
In argument plaintiffs contend that the service orders here involved are invalid because made applicable to intrastate as well as to interstate commerce. The complaint contains no averment as to intrastate traffic, but, on the contrary, the averments are that plaintiffs, including the intervening plaintiff, and their members are engaged in interstate and foreign commerce, and in business over the lines of railroads operating in accordance with the provisions of the Interstate Commerce Act. We need not, therefore, consider the point.
Plaintiffs averred that it would have been impossible to unload cars on certain days during the Christmas holidays. The labor situation in that respect was of such common knowledge that we took judicial notice of it in passing upon the application for a temporary restraining order. In passing upon the motions to dismiss and the cross motions for summary judgment, the averments of the complaint must be accepted as facts. Upon that premise it appears that the orders could not, in respect to those days, accomplish any part of their sole objective, i.e., the unloading of cars. Their only result, so far as those days are concerned, would be to cause payments to be made to the railroads by shippers. We think that emergency orders with that sole result are arbitrary. We, therefore, sustain as part of the judgment upon the motions for summary judgment the provisions of the temporary restraining order. So much of the orders of the Commission as provide for the exclusion from free time of Sunday, Monday, and Tuesday, December 23, 24, and 25, 1945, Sunday, December 30, 1945, and Tuesday, January 1, 1946, will be set aside and enjoined.
Orders will be drawn in accordance with the foregoing opinion.