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11/12/73 John M. Cleary, v. O. Roy Chalk


November 12, 1973





Appeal from the United States District Court for the District of Columbia.


Robinson and Wilkey, Circuit Judges, and Jameson,* Senior United States District Judge for the District of Montana.


Section 10 of the Clayton Act *fn1 prohibits interstate common carriers and corporations with which they have interlocking directors from dealing in securities and articles of commerce aggregating in value more than $50,000 annually except on the basis of competitively-derived bids most favorable to the carrier. *fn2 Section 4 of the Act enables a person injured in his business or property by activity violative of the federal antitrust laws to sue for triple damages. *fn3 On appellees' motion, appellant's complaint invoking Section 4 for alleged infractions of Section 10 was dismissed by the District Court on the ground that it failed to state a claim upon which relief could be awarded. *fn4 We affirm. I

From 1956 to 1973, D.C. Transit System, Inc. (Transit),5 engaged as a common carrier of passengers in and between the District of Columbia and its Maryland and Virginia suburbs.6 Between 1964 and 1970, Transit made six conveyances of improved parcels of real estate7 which had been withdrawn from transportation operations after they had lost their usefulness therein.8 Each conveyance was of a single parcel to a corporation in exchange for all of its capital stock.9 Each was made at the property's book value -- which exceeded Section 10's $50,000 ceiling -- without competitive bidding. At the time of each transaction, Transit and at least five of the conveyees were interlocked in a fashion addressed by Section 10.10 And at the inauguration of this litigation, all of the conveyees remained wholly-owned subsidiaries of Transit. These were the salient facts established on the record when the District Court acted.11

Appellant was a regular farepaying rider of Transit's vehicles.12 In that role he sued for himself and the entire class of riders.13 The theory of the complaint, predicated squarely on Section 10, was that Transit had conveyed properties worth substantially more than the securities -- the corporate stocks -- received in return, and had divested itself of the earning power and loan value which those properties possessed, all to the detriment of Transit's customers in the form of higher fares.14 For this the complaint sought treble damages,15 and jurisdiction and standing to sue were rested exclusively on Section 4.

In the view that the allegations of appellant's complaint did not provide a foundation for relief, the District Court granted appellees' motion to dismiss.16 On this appeal the parties have debated a number of points, but we find it necessary to address only the question whether the transactions described fell within the condemnation of Section 10. We answer that question in the negative.17 II

The goal of the Federal antitrust laws is to safeguard the interplay of competitive forces in the far-flung commerce of the Nation.18 The Sherman Act,19 passed in 1890, "was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade."20 Its "fundamental purpose . . . was to secure equality of opportunity and to protect the public against evils commonly incident to destruction of competition through monopolies and combinations in restraint of trade."21 The Clayton Act, adopted in 1914,22 had these wholesome aims no less in view,23 but sought its contribution to them through a regulatory technique of its own.

Unlike the Sherman Act, which broadly approached antitrust problems by outlawing consummated contracts and conspiracies, the Clayton Act specifically prohibits particular practices which are outside the ambit of the Sherman Act but nonetheless are steps toward the monopolistic ends which the latter had undertaken to forbid.24 "In passing the Clayton Act," Congress "sought to bring within the scope of its proscriptive provisions, conduct and practices which, though dangerous to the competitive structure, were not covered at all or only inadequately covered by provisions of the Sherman Act."25 It was intended "to supplement the purpose and effect of other anti-trust legislation, principally the Sherman Act of 1890;"26 it "sought to reach the agreements embraced within its sphere in their incipiency, and . . . to determine their legality by specific tests of its own."27 In sum, by banishing designated practices, Congress endeavored to nip embryonic conspiracies and monopolies in the bud.28

That, which is so true of the Clayton Act, generally, is no less so of Section 10, which imposes the prohibition upon which appellant relies. In its features relevant to this case, Section 10 provides that:

No common carrier engaged in commerce shall have any dealings in securities . . . or other articles of commerce, . . . to the amount of more than $50,000, in the aggregate, in any one year, with another corporation, . . . when the said common carrier shall have upon its board of directors or as its president, manager, or as its purchasing or selling officer, or agent in the particular transaction, any person who is at the same time a director, manager, or purchasing or selling officer of, or who has any substantial interest in, such other corporation, . . . unless and except such purchases shall be made from, or such dealings shall be with, the bidder whose bid is the most favorable to such common carrier, to be ascertained by competitive bidding under regulations to be prescribed by rule or otherwise by the Interstate Commerce Commission.29

As we shall see, both the legislative history and a consistent course of judicial construction unveils Section 10 as "a narrowly drawn statute designed to meet a particular set of experienced evils."30

Section 10 followed in the wake of public concern over abuses flowing from interlocking directorates among railroads and their suppliers and bankers shortly after the turn of the century.31 Interlocked office-holding in these industries created the potential for such activities as purchases by railroads at exhorbitantly high prices, issuance of railroad securities at exhorbitantly low prices, and loans to railroads at excessively high rates of interest.32 President Wilson, in his message to Congress of January 20, 1914, proposed "laws which will effectively prohibit and prevent such interlockings of the personnel of the directorates of great corporations."33 The House promptly responded with a bill which would have outlawed certain kinds of interlocks between carriers and bankers.34 The Senate expanded the House version to cover dealings in supplies and other articles of commerce, but contrasted it by supplanting the total ban on interlocks with a requirement for competitive bidding.35 In conference, the Senate bill prevailed,36 and became Section 10 of the Act in the exact form in which it appears today.

So it is that, as the Supreme Court has observed, "while history shows a rather wide pattern of railroad misconduct leading to § 10, that section is a rather narrow prohibition applicable to activity that is conceptually within the antitrust philosophy."37 For, as the Court has declared, "the evident purpose of § 10 of the Clayton Act was to prohibit a corporation from abusing a carrier by palming off upon it securities, supplies and other articles without competitive bidding and at excessive prices through overreaching by, or other misfeasance of, common directors, to the financial injury of the carrier and the consequent impairment of its ability to serve the public interest."38 It is clear, on the other hand, that Section 10 bars noncompetitive dispositions as well as noncompetitive acquisitions by carriers in transactions with an interlocked corporation.39 It is equally clear, on the other hand, that the section is not to be extended to business activities which are not infected with the wrongdoing for which Congress intended redress. III

It is against the historical and adjudicative background of Section 10 that we must examine the case which appellant advanced in the District Court. In essence, it was as we have said,40 a claim that Transit transferred illegally -- that is, without competitive bidding -- six parcels of real estate to six subsidiaries at book value rather than true market value in return for securities -- all of the capital stock -- of the subsidiaries. In this fashion, appellant's complaint charged, Transit divested itself of assets for less than their fair value, and of the earning power those assets had and of the assistance they might have afforded Transit in obtaining loans to bolster its financial stability. Since these transactions occurred without competitive bidding, appellant insists that they fell within the purview of Section 10.

It may be that the facts stated in the complaint could be jammed into the mold of the literal language of Section 10, but the ability to do so would not constitute the full proof of its applicability. "Literalness may strangle meaning,"41 and "the decisions of [the Supreme] Court have repeatedly warned of the dangers of an approach to statutory construction which confines itself to the bare words of a statute."42 We ourselves have had previous occasion to point out that "the literal wording of [a] statute is . . . not the sole index to legislative intent,"43 and that "it cannot prevail over strong contrary indications in the legislative history;"44 rather, as we have added, "we must look through the statute itself to what lay behind it."45 These admonitions deserve special heed in Section 10 cases, wherein courts before us have recognized the hazards inherent in literal interpretation of that section.46

Moreover, Section 10 not only augurs civil liability but criminal penalties as well.47 So, as the Supreme Court has held, Section 10 is "[a] criminal statute [which] is to be construed strictly, not loosely."48 We think the factor entitled to dominance in tightening the interpretation to be given Section 10 is the specific object which Congress had in mind in enacting it.49 What Congress sought, we repeat, was protection against the draining away of carrier assets by noncompetitive acquisitions for which the carrier pays too much, or by noncompetitive dispositions for which it nets too little.50 We turn, then, to the case at bar to ascertain whether the conveyances complained of impinged in that way on Section 10.

One feature of the conveyances stands out indelibly. Each was made to a corporation in exchange for all of its capital stock. And both at the time of conveyance and at the time of suit, each corporate conveyee was a wholly-owned subsidiary of Transit. To be sure, the conveyances effected a legal transformation of Transit's ownership of real estate to ownership of stock, but in the practical sense Transit's position hardly changed at all.51 Its complete ownership of the stock of the corporations having direct ownership of the realty was tantamount to continuing proprietorship of the realty.52 By virtue of its exclusive power to control the subsidiaries, Transit retained full dominion over the properties. Its economic relationship to the properties after the conveyances was virtually the same as it had been before.

In these circumstances, we cannot agree with appellant that in making the conveyances Transit divested itself of the properties at less than fair value. Viewing the situation realistically, Transit simply did not depart with them. And certainly the post-transfer value of the stock which Transit acquired was equal to the value which the properties would have possessed had they remained as nonoperating assets in Transit's hands. Nor can we agree that Transit, or in turn its farepayers, lost either the earning power of the properties or the financial strength which they could impart to Transit's loan applications. The earnings of the subsidiaries in which the properties were titled, though retained, were the earnings of Transit, their parent.53 As the record establishes, the financial statements of Transit and its corporate subsidiaries were consolidated for purposes of financial transactions. Indeed, some of the properties have been mortgaged and the proceeds used to support transportation operations.54 No financial prejudice to Transit or its customers in consequence of the rearrangement of its property holdings is apparent.55

Beyond that, the grievances which appellant's complaint attributed to the conveyances were not bases for disapprobation by farepayers. It is one thing to say, as recently we have held, that upon removal of Transit's properties from operating to nonoperating status, its farepayers were entitled to consideration, in the fare-setting process, of value appreciations resulting solely from the interaction of market forces while the properties were dedicated to the public weal.56 That point was not raised in the complaint which the District Court dismissed,57 and in any event could not have affected the outcome of the litigation.58 It is quite a different thing, however, to claim for farepayers, as the complaint did, the earnings and the loan value of assets after they have properly been removed from public service. Properties so withdrawn from then on are ordinarily outside the area of farepayers' concern, which is the reasonableness of the rates they are called upon to pay for the service.59 It is well settled that income received by a public utility from nonoperating property is not to be considered in establishing the rate,60 and in the setting of Transit's fares for public transportation that rule has been specifically observed.61 And we perceive no ground upon which farepayers can legitimately object that the withdrawal of an asset no longer useful to transportation service has weakened the financial position of the carrier. The record before us discloses without contradition that the properties in question were removed from transportation operations only after they had outlived their usefulness therein.

We conclude, then, that the challenged conveyances are free from the evil against which Section 10 was designed to protect. That evil is financial imposition upon the carrier,62 and we can identify nothing of that sort in the property transfers under attack. It follows that appellant's complaint failed to state a claim under Section 10 upon which relief might be awarded,63 and that the District Court was plainly right in dismissing it.64 Its judgment doing so is accordingly





* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

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