Alabama Great Southern Company v. United States Galveston Chamber of Commerce/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I agree that the differentials established under § 307(d) of the Act need not be measured by the difference in cost between rail and barge transportation. Barge costs as compared with rail costs are, however, a relevant factor for consideration by the Commission under § 307(f) when it determines what differentials are reasonable. When the Commission proceeds to fix differentials without knowing what the relative barge and rail costs are, it is to my mind experimenting as a legislative body might do, not performing the infinitely more exacting task of the rate expert.

The Commission practically concedes that in this case it adopts a different standard than the statutory one. It is admitted that on this record there can be no adequate findings on costs. The evidence for an earlier period (1933-1938) shows that the cost for joint rail-barge routing is greater than for direct all-rail-routing. The Commission refused to pursue the cost study into later years. The reason is apparent. One of the appellees is Inland Waterways Corp. which operates Federal Barge Lines. Inland is a federal corporation, 43 Stat. 360, 49 U.S.C. § 151, 49 U.S.C.A. § 151, and it and Federal are subsidized by Congress. It is that program that the Commission is seeking to promote here. That may be important and desirable. But the standards which guide the Commission are still found in § 307(f). Costs have some relevance to the problem of differentials as § 307(f) makes clear. Congress is entitled to disregard costs completely. But I do not think the Commission is.