The opinion of the court was delivered by: RICHEY
This cause came before the Court on October 26, 1972, for oral hearing on the Southern Governors' Conference's and the Southeastern Association of Regulatory Utility Commissioners' Motion to Intervene, and on the Motion of the defendants herein for Summary Judgment. After careful consideration of the written pleadings, the Memoranda of Points and Authorities in support thereof, and the oral arguments of the parties, the Court orally granted both the Motion to Intervene and the Motion for Summary Judgment. The purpose of this Opinion is to articulate the Court's reasons for granting the defendants' Motion for Summary Judgment.
Plaintiffs brought this action as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs and the majority of the members of plaintiffs' alleged class, hereinafter collectively referred to as the Northern lines, are common carrier railroad companies subject to the Interstate Commerce Act, as amended, 49 U.S.C. § 1, et seq., operating primarily in what is known as the Official Territory, which is essentially the northeastern quadrant of the United States. Defendants and the majority of the members of defendants' alleged class, hereinafter collectively referred to as the Southern lines, are common carrier railroad companies subject to the Act operating primarily in the Southern Territory, which is essentially the southeastern quadrant of the United States.
Each of the nation's railroads serves a finite area within the United States. In order to coordinate the freight service of these individual railroads, joint transportation of freight over the lines of several railroads is required. When two or more railroads participate in the joint carriage of freight the transportation charge is normally paid through a single joint rate which is collected by the railroad making delivery of the freight to the consignee. Settlement with the other participating railroads is normally made on the basis of their respective divisions of the joint rate. The joint rates on Official-Southern freight traffic handled by the Northern and Southern railroads are the result of the voluntary agreement of these railroads to establish such rates.
Since 1953, the Northern lines and the Southern lines have divided joint rates on freight traffic moving between the North and the South on an equal-factor basis, meaning that the divisional factors are the same for both the North and the South for the same length of haul. The equal-factor basis of divisions was established by order of the Interstate Commerce Commission pursuant to its reports in Official-Southern Divisions, 287 I.C.C. 497 (1953); 289 I.C.C. 4 (1953). The Commission ordered the Northern and Southern lines to establish "and thereafter apply" the prescribed divisions and "to abstain from asking, demanding, collecting, or receiving divisions of said joint rates upon other bases than those herein prescribed."
In 1956, the Northern lines filed a petition to reopen the Commission proceedings concerning the division of joint rates, based on the ground that the average costs of rail service in the North were higher than those in the South. The petition was granted, and in 1965, the Commission issued a decision prescribing inflated divisions for the Northern lines. Official-Southern Divisions, 325 I.C.C. 1 (1965). However, this order was set aside for lack of substantial evidence by a three-judge court in Aberdeen & Rockfish R. Co. v. United States, 270 F. Supp. 695 (E.D.La.1967), which was affirmed by the Supreme Court in Baltimore & Ohio R. Co. v. Aberdeen & Rockfish R. Co., 393 U.S. 87, 89 S. Ct. 280, 21 L. Ed. 2d 219 (1968). In April, 1969, the District Court, upon remand from the Supreme Court, set aside the 1965 order of the Commission and remanded the case to the Commission for further hearings.
In 1970, the Commission sought to reinstate its order prescribing inflated Northern divisions in modified form ( Official-Southern Divisions, 337 I.C.C. 75), but the order was set aside by the same three-judge court in an unpublished order dated October 29, 1970, because the Commission had failed to hold hearings as previously ordered. No appeal was taken from this decision, and on August 10, 1971, the Commission terminated its investigation of North-South divisions without prejudice to the right of any party to proceed by filing a new complaint.
On March 17, 1972, the Northern lines filed a Complaint before the Commission in a proceeding designated as I.C.C. Docket No. 35585, again seeking inflated divisions for the future for rail service in the North on the theory that it costs more to provide such service in the North than it does in the South. The proceedings before the Commission will be conducted pursuant to Section 15(6) of the Interstate Commerce Act, 49 U.S.C. § 15(6), the pertinent portions of which are quoted below.
It is conceded, however, that because the joint rates to which the divisions apply were not established pursuant to a finding or order of the ICC within the meaning of Section 15(6), the statute provides the Commission with no authority to grant retroactive relief for allegedly disproportionate divisions of the rates on North-South traffic for any period prior to the effective date of a Commission order prescribing new divisions for the future. Accordingly, the plaintiffs filed a Complaint in this Court seeking (1) reference to the Interstate Commerce Commission of the question whether the existing equal-factor divisions of agreed joint rates will have been unjust, unreasonable and inequitable during the period between January 1, 1972, and the effective date of an Interstate Commerce Commission order in Docket No. 35585; and (2) an accounting, damages and interest in the event the Interstate Commerce Commission were to find that the equal-factor divisions were unjust, unreasonable and inequitable during the period between January 1, 1972, and the effective date of an order in Docket No. 35585.
II. Contentions of the Parties
The defendants' position is that the Court does not have the power to provide plaintiffs with any retroactive relief under the theories (1) that a judicial remedy is inconsistent with the policy of Congress expressed in Section 15(6) of the Act, (2) that an order of the Commission exists which precludes the relief sought, and (3) that ...