*1 CO. ILLINOIS RAILROAD & EASTERN CHICAGO STATES UNITED еt al. et al. 2, 1963. Decided December
No. 275. appellants. Vesper for Freeman and F. F. M. Richard Attorney General Or- Cox, Assistant General Solicitor Robert W. Kestenbaum, Moyer, Elliott H. rick, Lionel States and for the United P. Sender Ginnane Stanton Commission. Interstate Commerce H. W. and Robert John Murphy, J. Richard Hanifin appellees. rail сarrier Bierma Per Curiam. Railroad the Baltimore Ohio motion to add granted. The mo- appellee, is parties et
Company al., as affirmed. judgment and the granted are to affirm tions Douglas Black, whom Justice with Mr. Justice Mr. dissenting. concurs, Congress of 1940 amended Transportation Act
In the Act to authorize the Commerce the Interstate wa- regulate of interstate of railroads carriers. as well as motor carriers ter Act seq. 901 et At the time the § Stat. S. C. 929, U. opposition Congress was active passed exercising who feared that those *2 84 it would be too “railroad-minded.” power granted For this id., also at 5880-5883. Cong. 5965; Rec. see in Interstate Commerce рointed as was out reason, Inter and Mechling, 567, 574-577, 330 S. Comm’n v. U. Waterways Corp., 319 Commerce Comm’n Inland state v. draftsmen of the (dissenting opinion), 692 671, U. S. Act “National legislation specifically wrote into the pre 49 Transportation Policy,” 899, 54 Stat. U. S. C. making Congress command of ceding 1, explicit § impartial regulation a “fair and of all there should be of transportation subject provisions modes of this recognize preserve so administered as to Act, Mechling advantages case, inherent of each.” In the years decided times in 1947, several recent this protect Court and District Courts have had to inland barge from Commission action would lines have Congress frustrated thе intent of to secure for them the benefit of advantages inherent of their low-cost mode carriage. generally Arrow Co. Transportation See v. Co., Southern R. 372 658, (dissenting opinion). U. S. 673 Sometimes procedural delaying the Commission has used deny barge devices to lines advantage their inherent over Arrow railroads, Transpоrtation States, see Co. v. United (D. F. 411 Supp. 176 C. D. aff’d Ala.), N. sub nom. State Corporation Comm’n Arrow Transportation Co., v. 361 353; again, U. S. the Commission has away taken duty would be remiss in our if we did not take note of [W]e “. . . eight years plaintiffs seeking the fact for over have been relief in proceeding discriminatory this rail rates which we find are in (e) violation of the Interstate Commerce Act. Section 10 provides reviewing Administrative Procedure Act court compel agency unlawfully ‘shall . . . action withheld or unreason ably delayed.’ opinion present It is the of this court that the device “the through barge lines advantage inherent carriers denied but by rail carriers allowеd States, v. United Carriers, Inc., Dixie see by water,” case, present Sometimes, S.U. ob or inadequate use resorted has g., e. See, of fact. findings scure Mechling see also S. Mechling, v. Comm’n States, 368 U. United Inc., Lines, Barge de been have lines And opinion).2 (dissenting rail advantage when inherent their the benefit nied unlawful to be found later challеnged road because effect to take permitted been have upon their passing long delay unlawfulness.3 *3 and statutory provision, of this application one for appropriate
is an the discrimina- from relief prompt to entitled are plaintiffs the with remanded is therefore The effect. in presently tory rаtes lawful, prescribing order an to enter to the instructions 421. Supp., at F. 176 . .” nondiscriminatory . rates . reasonable, and rates, grain through 2 rail lumps all which here used formula “The pre grain a rendered, give rail-carried the services irrespective in cause indistinguishable grain, is barge-carried over rate ferred rates barge directly raises order an consequence from has event, competition. In barge the railroads relieve any, of much, if how as to showing no been ex-barge the fact is attributable increase reshipping rate 3-cent ex-rail average does than on the service terminal requires grain Mechling, Comm’n grain.” at litiga Arrow in the be seen can episode an unfolding such The all- for rates their suddenly to cut tion, which Although half. by more than the Southeast shipments to grain rail prob approved rates if found subsequently the District in a short business out barge lines competing ably put would months seven no after action taken still time, the Commission history For a effect. intо went rates statute under so Co., R. v. Southern Transportation Co. Arrow litigation, see Arrow lack (denying, 3, 1962 Ala.), Aug. D. (D. C. N. 10,224 No. Civil Trans- rates); Arrow railroad injunction unlawful jurisdiction, it may significant
Therefore
that the Commission in
present
at
case,
the instance of
large
Eastern rail-
finding
roads
without
basic facts
support
its con-
clusion, disallowed as nonсompensatory a proposed joint
rate of a small railroad and a barge line which
give
would
shippers of coal from
Virginia
West
and eastern Ken-
tucky to Chicago
advantage
of a
appreciably
less
than
charged by
the Eastern railroads for
same
haul. 315 I.
C. 129.
In doing
C.
this the Commission
denies the small railroad
right
tо ship coal for a divi-
$2.04
sion of
per ton in a barge-rail rate and leaves it
with no
if
alternative,
it wants this business,
to accept
but
$1.66
division of
per ton for a substantially identical
haul in combination with one of the large Eastern rail-
roads.
report
obscure
Commission leaves an
impression that
its order
may,
violation of the con-
gressional will, have
an
nullified
inherent advantage of
line and the cooperating
It
railroad.
is true
portation
Co.,
Co. v.
Sup.
(in chambers)
Southern R.
(ex
1Ct.
tending
judges
order
temporarily
of circuit
restraining rates); Arrow
Transportation
Co.,
Co.
(C.
Cir.)
v. Southern R.
court of I review. am sorry the Court has not chosen to write an opinion to suрport affirmance. must myself admit for that I would find the task impos- sible and attempt embarrassing.
Summary affirmance is particularly place out of here because the District Court proceeded clearly on a incor rect assumption of law, contrary one on its face to the command of Congress in the Administrative Procedure Act, one which, being approved here, apparently overrules a line of previous decisions of this Court. The District Court ruled that “the only Commission is re quired to set out ultimate and not evidentiary sup facts porting its conclusions.” this With require contrast the ment of (b) § 8 of the Administrative Procedure 5Act, U. S. §C. (b), that “all decisiоns ... shall... include (1) statement of findings and as well conclusions, as the reasons or basis upon all therefor, the material issues of fact . . . .” Contrast also by statements this Court that “findings on based the evidence must embrace the basic facts which are needed to sustain Morgan the order,” States, United 468, S. 480, U. and that “we have re peatedly emphasized the need for clarity completeness in the basic or essential findings on which administrative orders rest.” Colorado-Wyoming Gas Co. v. Federal Comm’n, Power 324 U. S. 634. See g., e. Atchi also, son, T. & S. F. R. Co. States, v. United U. 201- States, Florida v. United S.U. 194, 215.
The insufficiency of the Commission’s basic findings made clearer facts circumstances of this Chicagо case. The' and Eastern Illinois Railroad, ap- pellant operates here, line southern Indiana town of Vernon, Mount on the Ohio River, to the steel plants Chicago area. Most coal shipped to Chi- cago for steelmaking comes from the Virginia West area large over the Eastern railroads, intervening appellees, although which, authorized if not required by 3§§ (4), CO *6 24 Act, Commerce Interstate the (4) and 15 (3) (3), (4), 3§§C.S. 49 U. amended, as 380, 384, Stat. with joint to establish refused (4), have for a tariff filed C&EI the ago years Some line.
barge The barge. Vernon Mount came which hauling coal refused Commission The protested. roads Eastern it found $2,045 ton, per than a rate lower approve C. I. 310 C. I. 308 C. C. cost. C&EI’s to be the Company, River Ohio turned then The C&EI mines the coal from Ohio the down operating barge line rate joint ait with established and Vernon, to Mount The $2.04. be towas share railroad’s the of which $3.36, weighing expense the and paperwork saved rate joint were from, lines Eastern barges. the coal transferred shipment. all-rail for $4.75 the charging set ICC the demanded swiftly roаds The Eastern there- cost and below claiming it was rate, aside the Act, 1 (5) § illegal under fore the Both (5). 1§C.S. amended, 379, as 24 Stat. averages cost presented roads Eastern and C&EI many on disputes were There operation. step of each the Com- cleared had smoke when and points, factual unlike figures, set own with emеrged mission make not did Commission though party, of either exactly tell, could my judgment else and no one clear, up added simply Commission opinion In its why. sum found produced, mysteriously had figures C&EI by the held $3,416, and be cost. below cents as 5.6 illegal line embarrass- some produced District Review the Eastern for both ment, Com- crystal-clarity demonstrate briefs to filed explanations respective their however, findings; mission’s had figure at arrived of how the inconsistent. part were
One example should suffice to puzzling demonstrate the nature of the “findings” which the District Court upheld. Representatives of the C&EI testified that trains Mount Vernon would, being instead of switched weighed they had been before the joint pass tariff, right through the switching yard except without stopping perhaps to change crews. The Eastern contended lines the total costs should include the of weighing costs and switching, as before. The finally made *7 no charge for weighing, charged but for switching the cars just the same. Why the cars would if they be switched were not going weighed explained. not wit- No ness for party either suggested had thing. such a This switching charge alone for accounts of the 4.2 cents 5.6 cents on which the Commission relied to invalidate the tariff. The record reveals other disputes, resolved by whether analysis, inattention or whimsy no can one tell. The lawyers urged Commission’s in the District if even that there no way was of justifying the 4.2 cents really it charge, didn’t make difference because that alone would not bring suffice to the total costs down to the level the tariff. In fact, said the Commission, “could legal have met all requirements by accepting in toto protestants’ figures”; that effect, purpose hearing was not to determine what costs really were, but rather to produce report setting forth figures to justify a conclusion. Heretofore had thought that orders of agencies administrative were not to be sustained unless based on substantial supported evidence by the record. Universal Camera Corp. v. Board, Lаbor 474. S. Yet how can this Court tell whether sub- stantial evidence when it cannot tell how the Commis- sion figures? arrived at its “We must know what a decision means before duty becomes ours say right whether it is or wrong.” United States Chicago, v. reasons Explicit 511. Co., 294 U. S. R.& P. M., St. P. for where called all the seem would its result those compelled had decisions its eаrlier under Commission in this that like initial protesting g., e. See, invalidity. rate’s proving burden bear Mill- Bay State C. Orleans, 49 I. C. New Cotton from C. 43 I. C. Corp., Transit Lakes Great Co. ing v. simply means here Commission opinion reviewing courts tariff, down strikes Commission doing so. reasons for good trust please will Comm’n Furthermore, by the use held 581-583, we Mechling, 330 U. averages unsifted formulas general Commission Yet the findings. place take not could averages taken on its result basing much admits here opera- all on the C&EI report of annual the 1959 from protests unrebutted leaving unanswered tions, routes on other incurs which it many costs C&EI In Yernon-Chicago run. Mount applicable not are taken costs increased addition, ex- operating theory that on the report annual 2.9% *8 during amount by that increased had of C&EI penses of the time report of the time year between in costs increase be the to stated figure This hearing. The period. for the States in the United all railroads of 1957 and of its comparison protested C&EI been, had its costs many showed reports annuаl slightly, decreasing average, national to contrary conclusion apparent for the nowas basis argued that much decrease, however continued not its costs so But have increased. might railroads other those “trending factor” the Commission fond was 2.9% of the part a cost it as have included it seems explаining well, without segment of labor cost increase national supposed how by one accompanied necessarily railroads equipment for barge lines also. I am unable grasp logic apparently determined that increases in costs of steel rails and maintenance of rolling stock made the Ohio River barges Company’s expensive to operate. appears It that the Commission ignored has commands of Congress and of this Court. large have succeeded in this in doing great injury to a barge line and to a small railroad which dared willingly to cooperate with another mode transport, as the law required it to do, in рrofit order to from the in- herent advantages of each and thereby benefit public. The Commission asks us to believe that the C&EI schemed to carry on an operation on which it would lose money, losing greater and greater sums the more coal it hauled, presumably in the hope of living on its capital until had driven out of business such companies as the New York Central and Pennsylvania. I find this a diffi- proposition cult to accept, and should like to have the Commission explain plain English understandable how such reached a conclusion. report Unfortunately, as it stands makes it impossible for say me to whether the findings ultimate are supported by substantial or evidence not. Yet instead requiring comply with the law at sufficiently least that its may acts be re- my viewed, Brethren affirm silently a lower court judg- ment which I think is completely out line with the mandate of Congress and past our emphatic holdings. The Commission apparently seeks to make a rubber stamp of any reviewing court its orders. I do not like that role. If summary disposition is in order, should think reversal the appropriate judgment.