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ever, in its conclusions with reference to the measure of the car rental charges.

The opinion of the district court suggested that the Commission's jurisdiction to determine the reasonableness of the car hire involved in litigation before it lies in section 1 (14) (a) of the Interstate Commerce Act. With due respect to the court, I am of the opinion that the Commission should have looked elsewhere in the act to sustain the action it has taken on the complaint in this proceeding.

If section 1 (14) (a) be said to confer jurisdiction on the Commission to pass upon the reasonableness of the past car rentals involved in this case, it follows that the door is open to all claims for money damages arising out of car-service contracts involving the reasonableness of the compensation paid or exacted for the use of cars and other similar facilities. Thus there could be presented to the Commission claims based upon allegations of past unreasonableness of car rentals under contracts arrived at in arm's length dealings between car owners and carriers, and unrelated to rights arising out of other laws, as is the case here. But unlike the ordinary claim for reparation under section 9, a claim for damages under section 1 (14) (a) would stand upon a different footing. Section 1 (5) (a) provides that every unjust and unreasonable charge for transportation service is prohibited and declared to be unlawful. There is no corresponding declaration in section 1 (14) (a) with respect to car rentals. The section 1 (5) (a) prohibition derives from the common law that one dealing with a public carrier was not dealing on an equal basis with him and therefore the law protected him from the imposition of extortionate or exorbitant charges. Cocke v. Morgan's L. & T. R. & S. S. Co., 4 Fed. (2d) 961; Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 436; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 162 U.S. 184; Interstate Commerce Commission v. Cincinnati, N. O.&T.P. Ry. Co., 167 U. S. 479; Tift v. Southern Ry. Co., 123 Fed. 789. On the other hand, the assertion of jurisdiction under section 1 (14) (a) must be based upon the inherent power in the sovereign to alter the terms and conditions of private contracts which militate against the public interest. Norman v. Baltimore & O. R. Co., 294 U. S. 240; Otis & Co. v. Securities & Exchange Comm., 323 U. S. 624. And even conceding such power so far as present or prospective effect on such contracts is concerned, it may be doubted that it includes the power to give retroactive effect to rights that have already vested. Between the two Federal powers the contrast is clear. In the reparation provisions of the act Congress was not creating a new right but merely designating a

274 I. C. C.

forum in which a long recognized right must be asserted. On the other hand, in the retroactive reforming of contracts a new right is created. With respect to the former, Congress has seen fit to legislate with certainty and precision. A fortiori the creation of a new right should have equal certainty in the legislation in which it is sought to be found.

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I cannot find such legislative intent in the language of section 1 (14) (a). On the contrary, its verbiage and context import only a future application. (Cf. Transcontinental & Western Air, Inc., v. Civil Aeronautics Board, 336 U. S. 601.) It provides that the Commission "may establish reasonable rules * including the compensation to be paid for the use of any car, or other vehicle not owned by the carrier using it." These are not preteritive words, but imply prospective operation. Moreover, this subsection grants authority to the Commission to act on complaint or upon its own initiative without complaint. It would be extraordinary to find a grant of power by Congress to any tribunal to award damages upon the tribunal's own initiative. Finally, the subsection confers power to establish penalties or other sanctions for the nonobservance of the rules, regulations, or practices. Surely Congress was not attempting to give ex post facto effect to penalties and sanctions which the Commission might establish. To have conferred the power to make money awards with respect to unreasonable car rentals and the like would have required no special feat of draftsmanship. Simple language would have accomplished this purpose.

Furthermore, the pervasiveness of such an interpretation itself argues against its validity. Per diem, per diem reclaim, locomotive hire, and all the contracts which have entered into the performance of car service would be made susceptible of reopening for the purpose of seeking damages through the offices of this Commission. Again, is the power to make an award to be unilateral or is it to operate against a private company or individual? It is conceivable that car rentals may have been excessive. In such case is the carrier to be given the right to seek reparation? They might also be too low as between carriers. In such a case is the Commission to assume authority to order the payment of higher charges than those collected?

I find nothing in section 1 (11), or sections 8, 9, or 16 (1), that derogates from the position above stated. Compensation for the use of cars is not mentioned in section 1 (11). Without a violation of some provision of the act sections 8, 9 and 16 (1) are inoperative.

"For more than a hundred years it has been the affirmative duty of the courts to 'execute and enforce' the common law requirement that 'all charges shall be reasonable and just'." Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 167 U. S. 479, 501. 274 I. C. C.

Accordingly, I am of the opinion that section 1 (14) (a) affords no jurisdictional warrant for an independent determination by the Commission of the issues in this proceeding. This conclusion, however, does not foreclose the Commission from taking any action pursuant to the reference directed by the Court. The growing complexity of our economic and political structure requires a close coordination between the administrative and judicial functions. The Supreme Court has said that the courts and administrative agencies are collaborative instrumentalities of justice. United States v. Ruzicka, 329 U. S. 287, 295; see also United States v. Morgan, 307 U. S. 183, 191. Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U. S. 134, 141. In Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285, 291, the necessity for preliminary recourse to the Commission was recognized in matters involving intricate transportation problems where the inquiry is essentially one of fact and discretion in technical matters.

Section 12 (1) confers upon the Commission authority to perform the duties and carry out the objects for which it was created and to inquire into and report on the management and business of all common carriers and to keep itself informed as to the manner and method in which the same are conducted. These broad powers should be construed as a means of affording close association between the courts and the Commission where the especial qualifications and resources of the Commission are needed in matters that the courts are called upon to decide. In acting under this section the Commission's findings and conclusions should not be treated as binding administrative findings having the force of findings subordinate to the exercise of the primary statutory powers given it, but rather in aid of the Court in the determination of the proper measure of damages by it in the proceeding it is called upon to decide. In so acting the Commission should consider itself as an adjunct of the Court and not as an independent agency exercising its own primary powers of adjudication.

COMMISSIONER ROGERS did not participate in the disposition of this proceeding.

'Section 12, in abbreviated form, appeared in the original act to regulate commerce, approved Feb. 4, 1887, 24 Stat. L. 383. As originally framed it constituted the heart of the Commission's general investigative powers. By act of March 2, 1889, 25 Stat. L. 858, this section was amended by authorizing the Commission to call upon the Attorney General for assistance in enforcing the provisions of the act. An amendment of this section was inserted in conference in 1940, 54 Stat. L. 910, without an explanation in the conference committee's report as to the purpose of the amendment, by incorporating authority for the Commission to report on investigations after they are made. The scope and purpose of the inquiries and reports were limited by this amendment to those which enable the Commission "to perform the duties and carry out the objects for which it was created," but there is no limitation as to whom such reports must be made. Obviously, they can be directed to a court in a proper proceeding.

FOURTH SECTION APPLICATION NO. 23859

FARES BETWEEN LOUISVILLE AND EAST ST. LOUIS AND ST. LOUIS

Submitted November 12, 1948. Decided July 20, 1949

Authority granted, on conditions, to continue or to establish and maintain oneway and round-trip passenger fares between Louisville, Ky., and East St. Louis, Ill., and St. Louis, Mo., without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act.

J. F. Whittington for applicant.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2:

Applicant, The Baltimore and Ohio Railroad Company, seeks authority to continue or to establish and maintain for the transportation of passengers, first class and in coaches, over its line between Louisville, Ky., and East St. Louis, Ill., and St. Louis, Mo., one-way and round-trip fares, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. Relief pending disposition of this application is authorized by fourth-section order No. 15756, as amended. No opposition has been presented.

The purpose of the relief sought is to enable applicant to compete with the Louisville and Nashville Railroad Company and the Southern Railway Company. The distances between Louisville and East St. Louis are 321.1 miles over the Baltimore & Ohio, 317.5 miles over the Louisville & Nashville, and 274.2 miles over the Southern. East St. Louis is intermediate to St. Louis and the distance between them is 3.2 miles. The Southern recently discontinued its passenger train operations between East St. Louis and St. Louis, in view of which applicant states that it is concerned principally with competition it encounters with the Louisville & Nashville. From Louisville the route of the Baltimore & Ohio extends north to North Vernon, Ind., where it connects with that carrier's main line, thence west through points in Indiana and Illinois to East St. Louis and St. Louis. The route of the Southern traverses Indiana and Illinois points south of the line of the Baltimore and Ohio and is the short and fare-making route between the considered points. The route of the Louisville & Nashville extends in a westerly direction south of the Ohio River to

Henderson, Ky., where it crosses that river to Evansville, Ind., and traverses a northwesterly course south of the line of the Southern to East St. Louis and St. Louis.

Applicant and the Louisville & Nashville each provide one day-train and one night-train service from Louisville to East St. Louis and St. Louis. In the reverse direction, applicant provides two day trains and one night train and the Louisville & Nashville provides one of each. Applicant's service generally requires transfer of passengers at North Vernon, where its trains to and from Louisville connect with its through trains between St. Louis and the East, and its equipment consists generally of coaches between Louisville and North Vernon, and coaches, dining car, coffee shoppe car, lounge car, and sleeping cars between the latter point and St. Louis. A through sleeping car is, however, included in its night-train service. The equipment of the Louisville & Nashville consists of coaches only in the day trains and coach and sleeping car service in its night trains. The elapsed time between the competitive points over applicant's route is less than that over the Louisville & Nashville. From Louisville to St. Louis the elapsed time on the day trains is 8 hours 40 minutes over applicant's route and 9 hours 35 minutes over the Louisville & Nashville, and the elapsed time on the night trains is 7 hours 44 minutes and 8 hours 21 minutes, respectively. In the reverse direction, the elapsed time in connection with applicant's two day trains is 6 hours 50 minutes and 7 hours 20 minutes, respectively, as compared with 9 hours 5 minutes on the day train of the Louisville & Nashville, whereas on the night trains it is 8 hours 20 minutes over applicant's route and 8 hours 40 minutes over the Louisville & Nashville.

In Increased Fares, Eastern Railroads, 1948, 272 I. C. C. 17 the Commission approved as reasonable certain increases in fares proposed by common carriers by railroad in the eastern district and Pocahontas region, as set forth in appendix I to the report in that case. Applicant, one of the parties in that proceeding, bases its fares on the rates generally prevailing in Trunk Line-Central Passenger Association territory, and effective July 19, 1948, pursuant to the authority granted in that proceeding, it increased (except as noted below) its one-way first-class and coach fares by 14.3 and 20 percent, or to 4 and 3 cents per mile, respectively. No reduction under the one-way fares was provided for round-trip travel of less than 225 miles (one-way distance). For greater distances, however, increased round-trip fares were established on basis of approximately 4 cents per mile at 225 miles (one-way distance), declining to approximately 3.6 cents at 700 miles and over, for first-class, and on basis of 3 cents per mile at 225 miles, declining to approximately 2.28 cents at 500 miles

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