JOHN R. BROWN, Chief Judge:
The sole question in this diversity case is whether a private contract between the Texas Highway Department and the Railroad
Before getting to the merits, it is appropriate to make a few brief comments about the method used to dispose of this appeal. This is done to acquaint the Bar of this Court, the Federal Judiciary across the nation, scholars and others interested in judicial administration with the continued operation of the process of judicial screening of cases before calendaring. Essentially it is to update our experience since the full discussion of the procedure in Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I.
As there outlined, the system works this way. Every case upon the filing of the last brief (or expiration of time in which to file briefs) is referred to one of four standing panels composed of Judges in active service of the Fifth Circuit. The case is judicially screened by Judges. This results in a classification as one of four categories. Class III is for limited oral argument (15 minutes) with notice to the Bar on the face of the printed Court calendar.
As we pointed out in Murphy, supra 409 F.2d at 806, for a case to go on the Summary Calendar there must be unanimous action of the panel members, and in disposing of it, the decision must likewise be unanimous.
The experience of the Court has been both informative and productive. The figures covering the first six months of 1969 (January-June) plus the few days in 1968 (December 13-31, 1968) are revealing. Although it is too early to tell for a certainty the extent to which
In the judicial screening process itself, the number of Summary II cases has steadily increased
Not only has the procedure demonstrated its administrative utility, but, more important, our experience in a judicial technique never before tried in such depth or width has given us a feeling of confidence in the trustworthiness of the system in achieving the goals of our cherished Anglo-American adversary case-and-controversy system. Every step in the process calls for judicial selectivity — judicial selectivity in the light of arguments pro and con made on behalf of the parties under the full briefing assured by FRAP.
In this process of discriminating selectivity, the Court, in its continuing self-education from cumulative experience in the shaping of this new judicial tool, strives to meet both the literal demands and, more important, the underlying spirit of F.C.C. v. WJR, The Goodwill Station, Inc., 1949, 337 U.S. 265, 274-277, 69 S.Ct. 1097, 1103-1104, 93 L.Ed. 1353, 1360-1361.
There the Court, rejecting the Court of Appeals' holding that oral argument is required to satisfy the Constitution, said, "Taken at its literal and explicit import, the Court's broad constitutional ruling cannot be sustained." Any such conclusion, the Court went on, "would require oral argument upon every question of law * * * regardless of whether the legal question were substantial or insubstantial; of the substantive nature of the asserted right or interest involved; of whether Congress had provided a procedure, relating to the particular interest, requiring oral agument or allowing it to be dispensed with * * *." And then declining to explore the administrative consequences of any such holding, the Court declared,
The Court then proceeded to emphasize the discriminating nature of the problem. "On the contrary, due process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process. For this Court has held in some situations that such argument is essential to a fair hearing, Londoner v. Denver, 210 U.S. 373, [28 S.Ct. 708], 52 L.Ed. 1103, in others that argument submitted in writing is sufficient. Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911, 80 L.Ed. 1288 . See also Johnson & Wimsatt v. Hazen, 69 App.D.C. 151, 99 F.2d 384; Mitchell v. Reichelderfer, 61 App.D.C. 50, 57 F.2d 416."
It then characterized the Court of Appeals' holding as "in conflict" with its rulings "that the right of oral argument as a matter of procedural due process varies from case to case in accordance with differing circumstances, as do other procedural regulations. Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised." (Emphasis supplied).
The Court warned against undertaking to "generalize more broadly than the particular circumstances require upon when and under what circumstances procedural due process may require oral argument." That is not a matter for indiscriminate application. "It is rather one for case-to-case determination, through which alone account may be taken of differences in the particular interests affected, circumstances involved, and procedures prescribed by Congress for dealing with them." F. C. C. v. WJR, supra, at 337 U.S. 274-277, 69 S.Ct. 1103-1104, 93 L.Ed. 1360-1361.
Every step on the way is a delicate judicial judgment. In approximately 63% of the cases (see notes 5 and 8, supra) the Court judicially determines that from the nature of the case, its class, its complexities, the public significance of the issues, or a variety of other factors, the case calls for oral argument, either limited or full. For the remaining 37% the same judicial judgment for each case is that oral argument is not required. The care with which that critical judgment is exercised is magnified by the system's requirement for a double unanimity — (1) at the time of classification as a Summary II and (2) in the decision.
Obviously this Court, made up of exlawyers seasoned by courtroom combat, must be the first to recognize that in making this delicate case-by-case judgment for or against oral argument it can — as in every other type of ruling — make an error. Happily, under our system the Court rests easier since any such error, or the claim of one, is open to review. And the fact that 60 to 65% of the cases are calendared for oral argument attests to our conviction that oral argument is at times required. The differences arise with respect to a particular case, and the rule of dual unanimity and automatic reclassification affords in our judgment additional insulation against making such errors.
On the merits we need not labor the facts. The special contract came from a mutually agreeable exchange of right-of-way easements according the
What — and all — this case is about is the significance of the contract.
In a way the Railroad's hopeful escape from the expected consequences of its own misactions is a sort of scriptural paraphrase: What the State gives [imposes] the State may take away [relinquish].
This analysis starts from the position that the State has statutorily imposed upon the railroads in Texas a duty to maintain their rights of way in proper condition.
In perhaps a man-bites-dog approach the Railroad, as a member of an industrial class that might ordinarily minimize the operative significance of statutory obligations, here maximizes them to the utmost. On this basis it then
But the problem is not in terms of the contract, its enforceability as between Railroad and State, or the interpretation of it as applying to this occurrence. The question is not whether the words of the contract operate to shift the duty of maintenance but is whether the Railroads' statutory duty to keep its crossings and adjacent rights of way in proper condition is capable of being shifted to the State by mere contract.
The only new twist is whether it matters that the State is the one taking on these duties, for in Texas it is clear that a railroad cannot by contract shift this duty to an entity other than the State. See Paschall v. Gulf, C. & S. F. Ry., Tex.Civ.App., 1936, 100 S.W.2d 183; Gulf, C. & S. F. Ry. v. Woods, Tex.Civ. App., 1924, 262 S.W. 229 (a contract to shift the duty to a county is without consideration).
The Railroad argues, however, that a contract with the State presents a special situation. It says that the duty of maintenance of all public roads including railroad crossings and rights of way originally rested with the State, that the State delegated this duty to the railway companies, and that the State can reclaim, and here has reclaimed, the duty.
The Railroad argues that such reclamation has been judicially sanctioned and points to Hale v. City of Dallas, Tex. Civ.App., 1969, 335 S.W.2d 785 (error ref'd n. r. e.), as authority for this proposition.
In Hale the City of Dallas was sued for negligent maintenance of a public street within the city limits on the theory that the City had breached a statutorily imposed duty. The Trial Court granted the City's motion for summary judgment, and the Court of Civil Appeals affirmed on the ground that the City's duty of maintenance had been reclaimed contractually by the State. The Court recognized the obvious — that the State originally had absolute control over the thoroughfares of Texas cities and that since the cities acquired control over their streets only by grant of the State Legislature, what the State had granted it could take back.
But this was not a situation in which Texas Courts, concerned for the safety of Texas citizens (or visiting travellers), were even for the moment about to allow two parties to shift responsibility in, around and among as many participants as could be found. As Hale recognizes, this was a case of the State — aware of all the complex problems of construction, maintenance, and operation of the growing network of State highways through cities — calling for legislative and administrative adjustment. A statute was enacted to permit just such contracts.
It is true, as the Railroad contends, that Hale stands for the proposition that within the hierarchy of State agencies the State can reclaim a duty that it imposed on one of its subordinate constituents. But it does not mean that this may be done by contract alone. The contract in Hale was, of course, important for it was the contract which manifested the purpose of the parties to take advantage of the legislative grant of power to shift responsibilities. But the contract was effective as to nonparties only by reason of the empowering statute.
F.Y. F.Y. 1968 1969 Net change Cases closed 1290 1496 +206 New filings 1347 1489 +142 Undisposed of cases 1079 1069 -7 Percent of carry-over of unassigned cases to total annual filing 56.0% 50.6% -5.4% All of this was accomplished with reduction in actual available judge power (from 13 to 12) and with a notable reduction of approximately 10 weeks in regularly scheduled sessions of court weeks during January-June 1969.
Cases Classified Total Classified As by Judges I II III IV Total 667 2 216 265 184 667 The overall adjusted percentage of Class II to the total cases screened was 32.7%.
Habeas Corpus and § 2255 25.7% Direct criminal appeals 26.8% Civil appeals 47.5% _____ 100%
Number of Subject Matter Class II cases Direct criminal 58 Habeas corpus 38 § 2255 17 Civil: Private Civil 53 U.S. Civil 20 Tax 5 Bankruptcy 5 NLRB 10 Civil Rights 4 Admiralty 6 ___ Total 216
Cases Classified Total Classified As by Judges I II III IV Total 857 3 289 338 227 857 During the period July 1, 1969-Sept. 9, 1969, the percentage of Class II to the total cases screened was 38.9%. At this rate approximately 60 to 65% of the cases will be calendared for oral argument.
A.O. Dir. Rpt. Time FY 1968 Saved by Class II (5th Cir.) Class II Median Time from Last Brief to Date of Opinion ....... 68 126 58 Median Time from Last Brief to Date Transmitted to Full Panel .................... 22 81 59
Signed opinions 41 Per Curiams 109 ___ Total 150
Dec. 13, 1968- July 1- June 30, 1969 Sept. 9, '69 Total Reclassified from Summary II 21 10 31 Remaining Final Summary II 216 73 289
Vernon's Civ.Stats.Ann. Art. 1151 (1963).
Art. 6327 states:
Vernon's Civ.Stats.Ann. Art. 6327 (1926).
"The State Highway Commission is hereby authorized and empowered, in its discretion, to enter into contracts or agreements with the governing bodies of incorporated cities * * * providing for the location, relocation, construction, reconstruction, maintenance, control, supervision, and regulation of designated State highways within or through the corporate limits * * *."
Vernon's Civ.Stats.Ann. Art. 6673-b (1969).