740 FRANKFURTER, J., concurring-Appendix. C. Death penalty not mandatory—Continued. III. States where sentence of death or life impris- (28) Ala. Code Ann. tit. 14, § 318 (1940). (35) Nev. Comp. Laws Ann. § 10068 IV. States where the punishment is life imprisonment unless the jury specifies the death penalty: (36) N. H. Rev. Laws c. 455, § 4 (1942). (37) Wash. Rev. Stat. Ann. § 2392 (1932). V. States that have statutes more or less like the federal provision under consideration: (38) La. Code Crim. Law & Proc. Ann. art. 409 (1943). (39) Md. Ann. Code Gen. Laws art. 27, § 481 (1939). (40) N. J. Stat. Ann. § 2:138–4 (1939). § 1045-a. (42) Ohio Gen. Code Ann. § 12400 (1939). (43) Ore. Comp. Laws Ann. § 23-411 (1940). (44) S. C. Code Ann. § 1102 (1942). (45) W. Va. Code Ann. § 6204 (1943). (46) Wyo. Comp. Stat. Ann. § 9-201 (1945). FRANKFURTER, J., concurring-Appendix. C. Death penalty not mandatory-Continued. 333 U. S. VI. States that give effect to jury recommendation (48) Miss. Code Ann. § 2217 (1942). (“Ev- Syllabus. UNITED STATES v. SOUTH BUFFALO RAILWAY CO. ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NEW YORK. No. 198. Argued February 2, 1948.-Decided April 26, 1948. 1. The commodities clause of the Interstate Commerce Act does not prevent a railroad from transporting commodities of a corporation substantially all of whose stock is owned by a holding company which also owns substantially all of the stock of the railroad, unless the control of the railroad is so exercised as to make it the alter ego of the holding company. United States v. Elgin, J. & E. R. Co., 298 U. S. 492. Pp. 772-785. 2. In the light of the equitable considerations involved in this case and the fact that Congress rejected as too drastic an amendment proposed for the specific purpose, inter alia, of setting aside the decision of this Court in United States v. Elgin, J. & E. R. Co., supra, this Court declines to overrule that interpretation. Pp. 773-784. 3. The evidence in this case does not prove that the holding company, in either the legal or economic sense, disregarded the separate entity of its subsidiary railroad or treated it as its alter ego. Pp. 784-785. 4. Voluntarily abandoned courses of conduct are not grounds for injunction, though they may sometimes be relevant evidence of intent or similar issues. P. 774. 69 F. Supp. 456, affirmed. A District Court denied an injunction against alleged violations of the commodities clause of the Interstate Commerce Act, 49 U. S. C. § 1 (8). 69 F. Supp. 456. On direct appeal to this Court, affirmed, p. 785. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Sonnett, Robert G. Seaks and Robert W. Ginnane. Opinion of the Court. 333 U.S. Bruce Bromley argued the cause and filed a brief for appellees. C. A. Miller and Wm. J. Kane filed a brief for the American Short Line Railroad Association, as amicus curiae, urging affirmance. MR. JUSTICE JACKSON delivered the opinion of the Court. 3 The Government, by direct appeal from the District Court,' invites us to reconsider and overrule the interpretation of the commodities clause of the Interstate Commerce Act 2 promulgated in United States v. Elgin, Joliet & Eastern R. Co., 298 U. S. 492. That holding, in substance, is that the prohibition against a railroad company transporting any commodity which it owns or in which it has an interest, except for its own use, does not prevent it from transporting commodities of a corporation whose stock is wholly owned by a holding company which also owns all of the stock of the railway, unless the control of the railway is so exercised as to make it the alter ego of the holding company. The present challenge to that doctrine is predicated on the following facts: Bethlehem Steel Corporation (the 1 49 U. S. C. § 45; 28 U. S. C. § 345. 2 49 U. S. C. § 1 (8). 3 The complete text of the commodities clause provides: “From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier." 771 Opinion of the Court. holding company) owns substantially all of the stocks of South Buffalo Railway Company (South Buffalo) and of Bethlehem Steel Company (the Steel Company). At its Lackawanna plant, near Buffalo, N. Y., the Steel Company produces steel and from it fabricates various products. These commodities are transported by the South Buffalo from the plant to the rails of trunk-line carriers. In fact, South Buffalo provides the sole terminal connection between this industry and the trunk-line railroads. It operates about 6 miles of main-line track and 81 miles of spur track, 58 miles of its trackage being on leased right-of-way within the steel plant where it connects with other trackage owned by the Steel Company itself. While about 70% of South Buffalo revenues have been derived from the Steel Company traffic, it also renders terminal switching for 27 unrelated industries, some of considerable size. It enables all of them to ship, by direct connection, over five trunk-line systems and through interchange over seven more. South Buffalo performs no transportation service and owns no facilities outside of the State of New York, where it operates only within the Buffalo switching district. It is classified by the Interstate Commerce Commission as an "S-1" carrier, which is defined as one engaged in "performing switching services only." It files tariffs covering switching service, both with the Interstate Commerce Commission and with the New York Public Service Commission. It does not appear to participate with any line-haul railroad in a through interstate route or to receive a division of any joint or through rate. In 1936 this Court decided United States v. Elgin, Joliet & Eastern R. Co., 298 U. S. 492, and held that the production and transportation set-up of the United States Steel Corporation, one of Bethlehem's competitors, did not violate the commodities clause. Thereupon, Beth 776154 0-48-54 |