266 US 127 Avent v. United States

266 U.S. 127

45 S.Ct. 34

69 L.Ed. 202


No. 52.

Argued Oct. 9, 1924.

Decided Nov. 17, 1924.

Mr. Frank E. Wood, of Cincinnati, Ohio, for plaintiff in error.

[Argument of Counsel from pages 127-129 intentionally omitted]

Mr. Blackburn Esterline, of Washington, D. C., for the United States.

Mr. Justice HOLMES delivered the opinion of the Court.

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Transportation Act 1920 (Act Feb. 28, 1920, c. 91) title 4, § 402(15), 41 Stat. 456, 474, 476 (Comp. St. Ann. Supp. 1923, § 8563[15]), authorizes the Interstate Commerce Commission, whenever it is of opinion that shortage of equipment, congestion of traffic or other emergency requiring immediate action exists in any section of the country, to suspend its rules as to car service and to make such reasonable rules with regard to it as in the Commission's opinion will best promote the service in the interest of the public and the commerce of the people; and also, among other things, to give direction for preference or priority in transportation or movement of traffic.


On July 25, 1922, the Interstate Commerce Commission, reciting that in the opinion of the Commission an emergency which required immediate action existed upon the railroad lines east of the Mississippi River, ordered that coal cars should be furnished to the mines according to a certain order of purposes numbered in classes 1, 2, 3, 4 and 5, and that no coal embraced in classes 1, 2, 3 or 4 should be subject to reconsignment or diversion except for some purpose in the same or a superior class. The making of gas falls in Class 2; the making of Portland Cement into Class 5.


The plaintiff in error was indicted for fraudulently inducing interstate carriers to transport coal seemingly intended to be used to make gas but actually intended to be used to make Portland Cement in violation of the Commission's order. A demurrer to this indictment was overruled and the plaintiff in error pleaded guilty and was sentenced to a fine. Subsequently he moved in arrest of judgment upon the grounds that the order and the statute if it authorized the order were unconstitutional, as depriving him of due process of law, and as exercising a power reserved to the States; and also that the order granted a preference to the ports of one State over those of another. The motion was overruled and a writ of error was taken direct to this Court.


The right to come here depends upon the presence of some substantial constitutional question. But so far as such questions are raised we are of opinion that they are not substantial in view of previous decisions. We must take it that an emergency contemplated by the statute existed, as found by the Commission and alleged in the indictment. That in such circumstances Congress could require a preference in the order of purposes for which coal should be carried, consistently with the Fifth Amendment is clear, and is assumed in Peoria & Pekin Union Ry. Co. v. United States, 263 U. S. 528, 532, 44 S. Ct. 194, 68 L. Ed. 427. See also Wilson v. New, 243 U. S. 332, 37 S. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024; Fort Smith & Western R. R. Co. v. Mills, 253 U. S. 206, 207, 40 S. Ct. 526, 64 L. Ed. 862; Pennsylvania R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 133, 35 S. Ct. 484, 59 L. Ed. 867. That it can do so without trenching upon the powers reserved to the States seems to us not to need argument. That it can give the powers here given to the Commission, if that question is open here, no longer admits of dispute. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 S. Ct. 155, 54 L. Ed. 280; United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563; Pennsylvania R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 133, 35 S. Ct. 484, 59 L. Ed. 867. The statute confines the power of the Commission to emergencies and the requirement that the rules shall be reasonable and in the interest of the public and of commerce fixes the only standard that is practicable or needed. Union Bridge Co. v. United States, 204 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523; Nash v. United States, 229 U. S. 373, 376, 377, 33 S. Ct. 780, 57 L. Ed. 1232; Intermountain Rate Cases, 234 U. S. 476, 486, 34 S. Ct. 986, 58 L. Ed. 1408; Mutual Film Co. v. Industrial Commission of Ohio, 236 U. S. 230, 246, 35 S. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916C, 296. Congress may make violation of the Commission's rules a crime. United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563. The alleged preference of ports if there is anything in the objection does not concern the plaintiff in error. As there is no substance in the grounds for the appeal to this Court and as other matters are urged the case must be transferred to the Circuit Court of Appeals. United Surety Co. v. American Fruit Product Co., 238 U. S. 140, 35 S. Ct. 828, 59 L. Ed. 1238; Act of September 14, 1922, c. 305; 42 Stat. 837 (Comp. St. Ann. Supp. 1923, § 1215a).


Transferred to Circuit Court of Appeals.