3. CROSS-DESIGNATION OF RECORD TO BE CERTIFIED

[Caption]

To: THE CLERK OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

In preparing the transcript of record in the above-entitled cause on the appeal of plaintiff, taken January 6, 1950, please include in said transcript the following:

[List Items]

This cross-designation, together with proof of service thereof. February 3, 1950

Counsel for Appellees.

4. STIPULATION as to RecoRD

[Caption]

The parties to the above-entitled cause hereby stipulate that the following portions of the record should be included in the transcript transmitted to the Supreme Court:

[Enumerate items to be included or omitted (whichever is shorter), with page references where possible].

Counsel for Appellant.

Counsel for Appellee.

5. APPLICATION FOR STAY

[Caption]

appellants herein, having appealed to the Supreme Court of the United States from the final judgment and decree of this court in this cause entered on November 7, 1949, do hereby pray that said judgment and decree of November 7, 1949 be stayed in all respects pending final disposition of said appeal and that an order be made with respect to the bond to be given for such stay.

Respectfully submitted,

Counsel for Appellants.

6. ORDER STAYING JUDGMENT

[Caption]

defendants herein, having appealed to the Supreme Court of the United States from the final judgment and decree of this court in this cause entered on November 7, 1949, and having presented their petition for an order staying said judgment and decree,

NOW, THEREFORE, IT IS HEREBY ORDERED that upon the approval of the supersedeas bond, as hereinafter provided for, said judgment and decree of November 7, 1949 be and the same is hereby stayed in all respects until the disposition of said appeal.

IT IS FURTHER ORDERED that a supersedeas bond be and the same is hereby fixed in the amount of Dollars with good and sufficient surety and shall be conditioned as may be required by law.

(Date)

Judge or Justice.

7. MOTION TO HAVE ORIGINAL RECORDS IN THE DISTRICT COURT
TRANSMITTED TO THE CLERK OF THE SUPReme Court of THE
UNITED STATEs, as a Part of the Record UPON APPEAL

[Caption]

Defendants-appellants petition the Court, pursuant to Rule 12, paragraph (4) of the Rules of the Supreme Court of the United States, to authorize and instruct the Clerk of the District Court to transmit as a part of the record upon appeal to be filed in the Supreme Court of the United States, the original of all documents, transcripts, exhibits, or other parts of the District Court records, of which there are no copies on file, upon the following grounds:

There are only originals of the transcript, exhibits, documents and other parts of the District Court records on file, which must be submitted to the Supreme Court. A great deal of expense and work would be required to prepare copies thereof for the transcript of record on appeal.

(Date)

Counsel for Defendants-Appellants.

8. ORDER THAT ORIGINAL RECORDS BE FORWARDED TO SUPREME COURT

[Caption]

Pursuant to the motion to transmit the original record on appeal of the above-entitled cause to the Supreme Court of the United States:

IT IS HEREBY ORDERED, that the documents and paper received in evidence in the District Court in the trial of this cause, and the stenographer's transcript of the proceedings held before the three-judge court on November 11, 1949, may all be forwarded, in lieu of copies of such documents and papers, to the Clerk of the Supreme Court of the United States as a part of the transcript of the record on the appeal herein.

(Date)

United States District Judge.

9. DESIGNATION OF PARTS OF RECORD TO BE PRINTED

[Caption]

Appellant designates the entire record, as filed in the above-entitled case, for printing by the Clerk of this Court.

OR

Appellant designates the following portions of the record herein for printing by the Clerk of this Court:

[Enumerate items, with page and line references where possible.]

OR

Appellant designates the entire record herein for printing by the Clerk of this Court except that the following may be omitted:

[Enumerate items to be omitted, with page and line references where possible.]

Counsel for Appellant.

10. STIPULATION AS TO PRINTING

[Caption]

The parties to the above-entitled cause hereby stipulate that the following parts of the record should be printed by the Clerk of the Supreme Court:

[Enumerate items to be included or omitted (whichever is shorter), giving page and line references where possible.]

Counsel for Appellant.

Counsel for Appellee.

11. MOTION TO AFFIRM

[Outside cover and caption as on Jurisdictional Statement.] IN THE SUPREME COURT OF THE UNITED STATES No. 1301, October Term, 1950

ν.

Plaintiffs-Appellants,

Defendants-Appellees.

MOTION TO AFFIRM

Appellees, pursuant to Rule 16 of the Revised Rules of the Supreme Court of the United States, move that the final judgment and decree of the District Court be affirmed on the ground that the question is so unsubstantial as not to warrant further argument.

STATEMENT*

This is a direct appeal from the final judgment and decree entered on January 16, 1950, by a district court of three judges specially constituted pursuant to 28 U.S.C. §§2284 and 2325, dismissing appellants' complaint which sought to set aside an order made by Division 4 of the Interstate Commerce Commission.

On June 15, 1948, the Macon, Dublin & Savannah Railroad Company applied to the Interstate Commerce Commission under Section 20b of the Interstate Commerce Act (62 Stat. 163; 49 U.S.C. 20b) for authority to extend the maturity date and otherwise to modify its First Mortgage Forty Year Five Percent Bonds and the related mortgage. Following hearings, Division 4 of the Commission on December 9, 1948, issued a report and order in which it made the necessary findings and concluded that the plan was in accord with the statutory standards prescribed in Section 20b, subject to the required assent of 75 percent of the affected bondholders. The order provided for submission of the proposal to the bondholders subject to the further determination of the Commission.1

Application for reconsideration of this order was filed by one of the appellants, but was denied by the entire Commission. Thereafter, the Macon, Dublin & Savannah Railroad Company submitted to the Commission proof that more than 75 percent of the affected bondholders had approved the proposal. On March 10, 1949, Division 4 of the Commission issued its report and order, finding that the plan conformed to Section 20b and authorizing its effectuation.2

Appellants brought this action in the United States District Court for the Southern District of New York, seeking to have the order of March 10, 1949, set aside on the ground that Section 20b of the Interstate Commerce Act contravened the Fifth and Tenth Amendments, and Articles I and III of the Constitution. The District Court dismissed the complaint on the ground that the court lacked jurisdiction to hear the issues raised because of appellees' failure to exhaust their administrative remedies under the Interstate Commerce Act.

ARGUMENT

The decision of the District Court is plainly correct. Section 17 (9) of the Interstate Commerce Act (49 U.S.C. 17 (9)) specifically limits suits to set aside a decision of the Interstate Commerce Commission to review of final action of the Commission as a whole, and requires the litigant to exhaust

* If a more elaborate memorandum in support of the motion to affirm is necessary, or if appellee wishes to state the "Questions Presented" or the "Statutes Involved," follow the form for the brief in opposition to certiorari, at p. 390.

1 Macon, Dublin & Savannah Railroad Company Bond Modification, 271 I. C. C. 376. 2 Macon, Dublin & Savannah Railroad Company Bond Modification, 271 I. C. C. 498.