Denver & Rio Grande Western Railroad Company v. Union Pacific Railroad Company/Dissent Frankfurter

Mr. Justice FRANKFURTER, dissenting.

I agree with the Court that through routes were not in existence and that joint rates are therefore not empowered under § 15(3) of the Interstate Commerce Act, unqualified by § 15(4). 54 Stat. 898, 911-912, 49 U.S.C. § 15(3), (4), 49 U.S.C.A. § 15(3, 4). The controversy thus turns on the enforcement of congressional policy expressed as follows in § 15(4):

'In establishing any such through route the Commission shall     not (except as provided in section 3, and except where one of      the carriers is a water line) require any carrier by      railroad, without its consent, to embrace in such route      substantially less than the entire length of its railroad and      of any intermediate railroad operated in conjunction and      under a common management or control therewith, which lies      between the termini of such proposed through route, (a)      unless such inclusion of lines would make the through route      unreasonably long as compared with another practicable      through route which could otherwise be established, or (b)      unless the Commission finds that the through route proposed      to be established is needed in order to provide adequate, and      more efficient or more economic, transportation: Provided,      however, That in prescribing through routes the Commission      shall, so far as is consistent with the public interest, and      subject to the foregoing limitations in clauses (a) and (b),      give reasonable preference to the carrier by railroad which      originates the traffic. * *  * '

As is true so often in applying regulatory legislation, the general approach-that is, the starting point-may be determinative of the result. It makes a vital difference whether § 15(4) is deemed a restriction on the power of the Interstate Commerce Commission which is to be closely confined and sharply construed or whether it is deemed to express a legislative command which ought to be heeded and not slightingly enforced. The fact of the matter is that we are dealing with a provision of the law which the Commission has long considered undesirable from the point of view of a national railroad policy and whose repeal it has consistently urged upon Congress. See the history set forth in Thompson v. United States, 343 U.S. 549, 554-556, 72 S.Ct. 978, 981, 982, 96 L.Ed. 1134. Although Congress has, from the time of the Commission's creation and especially in recent years, relied on the Commission as its expert adviser on policy, and legislation has largely reflected the Commission's recommendations, the latter's persistence in recommending repeal of § 15(4) has been matched and overborne by the persistence of Congress in retaining it. Congress has emphatically made clear that in its view the national interest requires the protection of railroads against being short-hauled. Encouragement should not be given to disregard of that policy, even if such disregard occurs through inadequate observance attributable to an unconscious desire to restrict the scope of the statute. In short, when an order of the Commission is brought under judicial scrutiny, and challenge is made that the safeguards of § 15(4) have not been observed, it is the duty of this Court to apply the policy expressed by that section. If the requisite findings or conclusions are ambiguous or unclear, or the policy of the section is slighted, our duty demands remand to the Commission to dispel ambiguity or to secure clarity and obedience to the policy.

It is my view that, even though evidence may be found in the record to support a portion of the order, the Commission did not support the portion on that basis but, on the contrary, appears to have justified the whole order on considerations that collide with congressional policy. The proceedings should therefore be returned to the Commission and the order ought not to be sustained in whole or in part. I will summarize the reasons for this conclusion.

The Commission ordered the establishment of through routes and joint rates by the Union Pacific with the Rio Grande for shipments of livestock and certain perishable agricultural products originating in the northwest (excluded) territory and destined for that part of the United States which the Nebraska District Court roughly described as "East of Denver." 132 F.Supp. 72, 75, note 1. Apparently, through routes and joint rates were already in existence for shipments via the Ogden Gateway between the northwest territory and intermediate points on the Rio Grande, originating or terminating at those intermediate points. Joint through rates, however, were not generally in effect over the Rio Grande to or from the Colorado or Utah common point territory (e.g., Denver, Colorado Springs, and Pueblo; Ogden, Salt Lake City, and Provo) of the Rio Grande and the Union Pacific and other defendants, or for transcontinental traffic between the northwest territory and points east of the Colorado common points. The Commission did not order through routes and joint rates to the Utah or Colorado common points or to a large area which is in fact east of Denver. (See description in footnote * .) Through routes and joint rates over the Rio Grande also were not ordered for westbound traffic to the northwest territory originating east of the Colorado common points, except for granite and marble monuments from origins in Vermont and Georgia. The Commission found that it was 'necessary and desirable in the public interest, in order to provide adequate and more economic transportation,' 287 I.C.C. 611, 659, to establish the specified through routes and joint rates. The Commission gave this justification for its finding:

' * *  * The growth of our population and the development of      the country have required a constantly expanding flow of      diverse commodities. * *  * Movements of transcontinental      proportions are involved in important instances. * *  * A      complex but efficient marketing system has been evolved to      provide as orderly a distribution of food commodities as possible. Adequate transportation facilities and services are required     for the proper functioning of the system. Because of their     generally perishable nature, (the enumerated) food articles *      *  * must be moved to market with expedition and care, and      over as many routes as possible. This requires that many     routes be open in order that unnecessary interruptions of the      free flow of such commodities may be avoided and that as much      flexibility as possible in the distribution process be      permitted. A number of services, not only at origin and     destination, but en route, which are not usually required in      the movement of ordinary traffic, must be provided for these      perishable and semiperishable commodities.' 287 I.C.C., at      655-656.

The Commission also found support for its conclusion that shippers of these products are debarred from participation in the widespread marketing system in the fact that 'in-transit' privileges on the Rio Grande, such as stop-off for partial unloading or processing, or for grazing of cattle, are not available to shippers of these commodities from the northwest territory, except at the higher combination rates.

The Commission considered through routes and joint rates to points 'east of Denver' as a unitary problem and saw no difference between shipments destined initially to intermediate points on the Rio Grande and shipments destined initially to points 'east of Denver.' The Nebraska District Court, however, found nothing in the evidence to support a finding that the transportation service furnished by Union Pacific on through service between the northwest territory and points 'east of Denver' was inadequate, and as to livestock this restriction was not contested by the Commission on this appeal. The Nebraska District Court, therefore, narrowed the order to require through routes and joint rates only for those carloads originating in the northwest territory and consigned to initial destination points on the Rio Grande west of Denver, Pueblo, and Trinidad, Colorado, which require 'in-transit' privileges incident to reshipment to points east of those places.

The Court, rejecting the narrowed construction by the Nebraska District Court, affirms the Commission's order as written. In doing so, however, it does not rely on the reasons given by the Commission in support of its conclusion, but rather it affirms on a different basis. How can we know whether, and to what extent, the Court's reasons influenced the Commission, or would influence it, in making its decision? The report certainly indicates that the Commission thought its own reasoning sufficient to support the whole order. Once the Commission's reasoning for a conclusion is found wanting, the conclusion is necessarily impaired. While the judgment of a lower court may be sustained by this Court on a ground other than that on which it was rested below, see Langnes v. Green, 282 U.S. 531, 534-539, 51 S.Ct. 243, 244, 246, 75 L.Ed. 520; Helvering v. Gowran, 302 U.S. 238, 245 247, 58 S.Ct. 154, 157, 158, 82 L.Ed. 224, the legal relation between the Commission and the courts is of a very different order from that of a lower court and a reviewing court. A Commission having defined and limited delegated power must justify the exercise of that power by findings that support it and by evidence that supports the findings. When regard is had for the complicated technical nature of the problems and the voluminousness of the records in the important cases that come before the Commission, a fair discharge of its functions precludes casting upon a reviewing court the task of quarrying through a record to find for itself adequate evidence to permit the effectuation of orders of the Commission.

The precise function of findings is to make practicable scrutiny by the courts in order to determine whether the Commission has kept within the bounds legislatively defined. To be sure, the Commission's findings are not binding in the sense that attack cannot be made on them for lack of evidence. Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U.S. 88, 91-94, 33 S.Ct. 185, 186, 188, 57 L.Ed. 431. The Commission cannot it has not purported to do so here-pass on to the Court an unanalyzed summary of a long proceeding and call it findings. While findings need not be formulated in an enumerated sequence, helpful as that would be, they must at least appear in a Commission's decision with unambiguous clarity, and they must be logically related to its conclusion. The justification the Commission has given cannot be rejected and a new justification found by the Court to satisfy the requirement of a foundation for judicial review. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 92-95, 63 S.Ct. 454, 461, 462, 87 L.Ed. 626. After all, it is the Commission which Congress has established as the expert in this field.

The Commission treated the whole problem of joint rates alike, whether the shipment was initially destined for intermediate points on the Rio Grande or whether it was a through shipment. The Court now finds one justification, the inability to use available 'in-transit' privileges of the Rio Grande, to support the order in the former situation, and another justification, elimination of 'pocket markets,' to support the order in the latter situation. It does not rely on what appears to have been the principal, if not the only, reason which the Commission thought justified its whole order, the necessity for the specified products to be able to move to market 'over as many routes as possible.' Indeed, that viewpoint of the Commission is directly contrary to the congressional policy expressed in § 15(4). The theory of that section is that products are not to be able to move to markets 'over as many routes as possible' when that would involve short-hauling a carrier without its consent on the proposed through route, unless, among other things, the transportation already in existence is inadequate. To make available to shippers as many routes to market as possible is a policy which the Commission has long urged but which the Congress has resolutely rejected. To find inadequacy of service on a short-hauled carrier in that other routes are not made available would virtually nullify § 15(4).

It may well be that what are somewhat misleadingly called 'in-transit' privileges justify joint through rates to shipments stopped at intermediate points on the Rio Grande for those privileges, and on similar reasoning joint through rates might be justified for shipments initially consigned to intermediate points on the Rio Grande and thereafter reconsigned to points 'east of Denver' if the sale is lost, subject to findings being made concerning reconsignment privileges on the Rio Grande. In both situations it is a fiction to speak of a single shipment on which the Union Pacific would be short-hauled should the proposed through route go into effect. The situation involves two separate shipments for which, under normal railroad practice, only the rate of a single continuous shipment over the whole route is charged. On neither of these shipments is Union Pacific being short-hauled because it is capable of performing neither. In this sense, Union Pacific service is of course not 'adequate'; it is non-existent. But the Commission did not found its order on such an analysis, and I cannot confidently surmise that it would have ordered the establishment of through routes and joint rates on this basis. Such a determination should be left for the Commission.

The Court also affirms that part of the Commission's order establishing through routes and joint rates for shipments destined initially to points 'east of Denver.' It does so both with respect to the specified agricultural products and with respect to livestock, even though the Commission did not before us contest the Nebraska District Court's elimination of through routes and joint rates for livestock to points 'east of Denver' for want of evidence to support a finding of inadequacy of service. This Court relies for support of this very important portion of the Commission's order on a few paragraphs of the Commission's report under the heading 'Proponents' Testimony' where some testimony concerning 'pocket markets' is set forth. The Commission in its 'General Discussion and Ultimate Fact Findings' makes no reference to the 'pocket market' problem as supporting its order. Indeed, the discussion of 'pocket markets' seems related only to the refusal of the Union Pacific to establish joint through rates on shipments going through certain points even over its own lines (because the points involved are off the main line and substantial back hauls or out-of-line hauls are required), and has nothing at all to do with the Rio Grande. Moreover, the order requiring the Union Pacific to establish through routes with the Rio Grande prescribes that there be maintained over such routes only joint rates 'the same as those maintained and applied on like traffic from and to the same points over routes embracing the lines of the Union Pacific Railroad Company through Wyoming.' From all that appears on the record before us, this could not affect the 'pocket markets' complained of because at those points there are no joint through rates over the Union Pacific. Since the establishment of through routes and joint rates for shipments destined initially to points 'east of Denver' appears to have no effect on 'pocket markets,' it is difficult to understand how the 'pocket market' situation can be used to justify the establishment of such routes and rates.

The upshot of all this is that after the Nebraska three-judge District Court disagreed about the justification for the order and the majority thought it could be saved by narrowing it, this Court reinstates the whole order, but on a different basis from that of the Commission, and with respect to a major portion of the order, it does so on a ground which appears to have no support in the Commission's findings. I do not say that no through routes or joint rates can be established through the Ogden Gateway. But I do believe that it is neither for the District Court nor for this Court to speculate what the Commission would have done if it were required to disregard some of its important views on policy, as this Court has disregarded them. I also believe that it is not our duty to find reasons to support the Commission's order which the Commission on full consideration did not summon to its support. This is a striking instance of a case requiring remand to the Commission for clarification and reconsideration of the basis for decision. See United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510-511, 55 S.Ct. 462, 467, 79 L.Ed. 1023.