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To deny the Custodian any compensation for the unlawful withholding of money demanded by him, and to permit the holder to continue to have the use of that money without charge during the period of unlawful detention, would, in the words of the Third Circuit, "place a premium upon disobedience to the mandate of the statute and reward the recalcitrant" (App., p. 12). Such encouragement of dilatory tactics would be totally inconsistent with the Act's purpose to ensure the speedy reduction to possession of enemy property without the delays of litigation. Cf. Central Trust Co. v. Garvan, 254 U. S. 554; Silesian-American Corp. v. Markham, 156 F. 2d 793, 798 (C. A. 2), affirmed, sub nom. Silesian-American Corp. v. Clark, 332 U. S. 469.

CONCLUSION

For the reasons set forth above and in the petition for writ of certiorari, it is respectfully urged that rehearing be granted and that, upon such rehearing, a writ of certiorari issue to the Court of Appeals for the Second Circuit.

Respectfully submitted,

Counsel for petitioner.

CERTIFICATE OF COUNSEL

I hereby certify that the foregoing petition for rehearing is presented in good faith and not for delay and is restricted to grounds specified in Rule 33 of the rules of this Court.

Counsel for petitioner.

APPENDIX

Conflicting Opinion set forth [omitted]

10. STIPULATION AS TO PARTS OF RECORD TO BE PRINTED

[Caption]

STIPULATION

It is hereby stipulated and agreed by and between counsel for the respective parties to the above-entitled cause that:

1 In addition to the cases referred to in the petition for writ of certiorari heretofore filed, the question has arisen also in Clark v. Douthitt, et al. (S.D.N.Y., Civil No. 36-196, now pending).

The printed record shall consist of the following:

List of items, giving page references.

OR

The entire record, except for [list items omitted, giving page references].1 IT IS FURTHER STIPULATED AND AGREED that any of the parties may refer in their briefs and argument to the record filed in the Supreme Court of the United States, including any part thereof which has not been printed.

Counsel for Petitioner.

Counsel for Respondent.

(Date)

B. FORMS USED IN CONNECTION WITH

APPEALS

1. NOTICE OF APPEAL

[For forms of notices of appeal from federal and state courts, see Appendix to Rules, pp. 493-7, infra.]

1 Counsel should list the items included or omitted, whichever is shorter.

[blocks in formation]

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

JURISDICTIONAL STATEMENT

[Names and addresses of counsel]

[Inside of cover]

INDEX

and

Table of citations.

[Inside caption]

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19--•

No.

Appellants,

V.

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the United States District Court for the Northern District of Texas, entered on December 14, 1949, setting aside an order of the Interstate Commerce Commission, and submit this Statement to show that the Supreme Court of the United States has jurisdiction of the appeal and that a substantial question is presented.

OPINION BELOW

The opinion of the District Court for the Northern District of Texas, Dallas Division, is reported in 87 F. Supp. 107. The opinion of the Inter

state Commerce Commission is not yet reported. Copies of the amended opinion, findings of fact, conclusions of law and judgment, and of the opinion of the Interstate Commerce Commission, are attached hereto as Appendix A.

JURISDICITION

This suit was brought under 28 U.S.C. §1336, to set aside an order of the Interstate Commerce Commission. The judgment of the District Court was entered on December 14, 1949, and notice of appeal was filed in that court on February 10, 1950. The jurisdiction of the Supreme Court to review this decision by direct appeal is conferred by Title 28, United States Code, Sections 1253 and 2101 (b). The following decisions sustain the jurisdiction of the Supreme Court to review the judgment on direct appeal in this case: United States v. Capital Transit Company, 325 U. S. 357; United States v. Detroit and Cleveland Navigation Company, 326 U. S. 236; United States v. Pierce Auto Freight Lines, 327 U. s. sis.

QUESTION PRESENTED

Where the Interstate Commerce Commission has issued sixteen certificates of purchase and of convenience and necessity under Sections 5 (2) and 207 of the Interstate Commerce Act to a motor carrier wholly owned by a railroad, all of which certificates contain the provision that the Commission may impose, in the future, such further specific conditions as it finds necessary to restrict the motor carrier's operation to service which is auxiliary and supplemental to the rail service, may the Commission reopen such certificates to specify additional conditions confining the motor carrier to such supplemental service and prohibiting independent and competitive motor carrier operations.

STATUTES INVOLVED

Sections 5 (2) (a), (b), 5(9), 206, 207, 208 (a), 212 and 221(b) (49 U.S.C. §§5 (2) (a), (b), 5(9), 306, 307, 308 (a), 312 and 321(b)) of the Interstate Commerce Act, as amended, are set forth in Appendix B hereto.

STATEMENT

[If from a state court, see Rule 15 (1) (d), second sentence.]

Appellee, hereinafter referred to as Transport, is a wholly owned subsidiary of the Texas and Pacific Railway engaged in the motor transportation business. Prior to 1935, Transport engaged solely in a limited pick-up and delivery service for the railroad. From 1936 through 1942, Transport gradually established a motor carrier business extending over 1150 miles from New Orleans to El Paso, Texas and Lovington, New Mexico, which roughly parallels the lines of the Texas and Pacific Railway. This motor carrier route was acquired in segments, both by the purchase of other carriers and by the inception of new operations by Transport. As the segments were acquired,

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