The opinion of the court was delivered by: Will, District Judge.
The issues presented by the plaintiff's motion for summary
judgment in each of these three pending cases is whether certain
orders of the Interstate Commerce Commission are valid and
whether the plaintiff may sue for refund of certain alleged
overcharges collected by the three defendants, each a motor
The I.C.C. refund order here involved runs against the
defendants in these cases and against all other carriers who were
parties to certain increased rate tariffs filed by the Middlewest
Motor Freight Bureau, Inc., effective April 1, 1968. The
Commission had let the increased rates go into effect on their
effective date but, on protest of various parties (not including
the plaintiff herein), had instituted an investigation, without
suspension, into the lawfulness of the increased rates and had
set the matter for hearing on May 20, 1968. When requests were
then made by certain public shippers and the carriers (but not by
the private shippers) for an extension of time to prepare for the
hearing, the Commission granted a three months extension of time
to August 19, 1968, but included in its extension order a refund
provision requiring refund of the increased portion of the rates
collected on shipments after May 20, 1968, if the increased rates
should ultimately not be approved by the Commission.*fn1
Thirteen months after granting the extension and after oral
hearings and briefing by the carriers and others, the Commission
found the increased rate tariffs not shown to be just and
reasonable. Based upon this finding, the Commission, on June 5,
1969, ordered the increased rate tariffs cancelled and, in accord
with the prior refund proviso, ordered the carriers to make
appropriate refunds to shippers.*fn2
Subsequent to the June 5th order by the Commission, the
respondent carriers petitioned, to vacate the order. On August
29, 1969, at a general session of the Commission, the carriers'
petition to reconsider and vacate said refund order was denied,
and the Commission again ordered the refunds to be made.*fn3
The increased rates that were not shown to be just and
reasonable were collected by the defendants from April 1, 1968 to
August 31, 1969, with the Order to Refund applicable only to
charges made from May 20, 1968 to August 31, 1969. Although the
defendants in each case deny any liability whatsoever, they do
specify the amount of refund of freight charges to which the
plaintiff would be entitled in each case if the latter is
entitled to any refund under the orders of the Commission.*fn4
before us, then, are exclusively legal questions.
The initial issue which we must resolve is the propriety and
validity of the I.C.C. refund order that affects the defendants.
The defendants argue at great length that the order was void for
numerous reasons. This issue, however, has been resolved against
them by the Courts that have previously reviewed their
contentions. In Admiral-Merchants Motor Freight, Inc., et al. v.
United States, 321 F. Supp. 353 (D.Colo. 1971), aff'd
404 U.S. 802, 92 S.Ct. 51, 30 L.Ed. 2d 37 (1971), the motor carriers
involved before the Commission sought to have the refund orders
of the Commission overturned. A three-judge district court was
convened in Denver to hear this suit and denied the carriers'
request. The Supreme Court affirmed in a per curiam decision
The only basis that has been suggested by the defendants in
opposition to the motion for summary judgment that would
distinguish Admiral-Merchants from the instant case is that
Admiral-Merchants, unlike the proceedings herein, was not an
enforcement proceeding but merely an attack upon the refund order
entered by the Commission. The district court stated in this
respect, "The practical effect of this ruling is not before us
since this is not an enforcement proceeding." 321 F. Supp. at 360.
We believe that this distinction, however, is not relevant to the
initial issue of the propriety of the Commission order.
The defendants contend that the Colorado district court did not
affirm the order of the Commission, but merely refused the
plaintiffs in that suit (the carriers) the relief that they
requested. This myopic reading of the opinion of the district
court is belied by the statement of issues set forth by that
court and by the question presented on appeal to the United
States Supreme Court.*fn5 A reading of these "presented" issues
clearly indicates that both the District Court and the Supreme
Court were affirming the validity of the Commission refund order.
Having made the determination that the Commission's refund
order was valid, the next issue presented to the Court concerns
the practical effect of the order upon plaintiff's rights.*fn8
In dealing with the practical effects of the order, three
separate questions arise. The initial question is whether the
plaintiff's failure to intervene or otherwise become involved
with the proceedings before the Interstate Commerce Commission is
an impediment to its instant suit. Second, we must determine if
the plaintiff has a statutory basis for suit. Finally, we must
consider plaintiff's asserted equitable basis for recovery of
A. Although they never specifically make the allegation, the
defendants appear to argue at various points in their brief in
opposition to the motion for summary judgment that the plaintiff
should be precluded from collecting any refunds under the order
of the Interstate Commerce Commission because it was not a party
to the proceedings before the Commission which culminated in that
order nor in the subsequent review proceedings in which the
refund order was affirmed. If the defendants are making this
argument, we do not believe it to be meritorious because the
litigation before the I.C.C. was intended to benefit all shippers
over the lines of the carriers subject to the order.
In Phillips v. Grand Trunk Western Railway, 236 U.S. 662, 35
S.Ct. 444, 59 L.Ed. 774 (1914), the plaintiff therein was
accorded the benefits of a reparations order entered in an I.C.C.
proceedings to which it was not a party. ...