Page:Harvard Law Review Volume 32.djvu/554

518 5i8 HARVARD LAW REVIEW the rates shall be just and reasonable to shipper and carrier alike."" Language of the same sort has long been used by the Supreme Court of the United States. In Smyth v. Ames, Mr. Justice Harlan said: "What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a pubUc highway than the services rendered by it are reasonably worth." ^^ Speaking for the court in 1915, Mr. Justice Hughes said: "There are many factors to be considered, — differences in the articles transported, the care required, the risk assumed, the value of the service . . ." ^^ Again in 191 7 the Supreme Court repeated that "the nature and value of the service rendered by the company to the public are matters to be considered." ^* Another group of dicta go further, and make of value of the service, or reasonableness to the pubhc, a criterion not merely coordinate with, but superior to, cost of service. "Reasonable- ness relates to both the company and the customer. Rates must be reasonable to both, and, if they cannot be to both, they must be to the customer." ^^ "The rates must be reasonable to the company, but they must, in any event, be reasonable to the pub- lic." ^^ Mr. Robert H. Whitten, in an article on "Fair Value for Rate Purposes," uses closely similar language — "Reasonable compensation . . . must be just to the public and should be just to the company; but if it cannot be just to both it must in any event be just to the pubhc." " Logically, there are two halves to the proposition that cost must give way to value: rates must sometimes be fixed below cost, and they must sometimes be fixed above it. They must be fixed below cost when the value of the service to the public is less than »i New England Plaster, 41 I. C. C. 687, 704 (1916). " 169 U. S. 466, 547 (1898). " Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 599 (1915)- " Darnell v. Edwards, 244 U. S. 564, 570 (191 7). " Brunswick & T. Water Dist. v. Maine Water Co., 99 Me. 371, 380, 59 AtL 537, 540 (1904). '* Southern Pacific Co. v. Bartine, 170 Fed. 725, 767 (1909). "27 Harv. L. Rev. 421. Cf. Puget Sound Electric Railway v. R. R. Commission, 65 Wash. 75, 117 Pac. 739 (1911).