Page:Harvard Law Review Volume 32.djvu/587

551 VALUE OF THE SERVICE AS A FACTOR IN RATE MAKING 551 wise passing on particular rates. As the Interstate Commerce Commission said in 191 2, "In all classification consideration must be given to what may be termed public policy, the advantage to the community of having some kinds of freight carried at a less rate than other kinds." ^* For example, the Interstate Commerce Commission has treated the prosperity or depression of the business affected by a particular rate as bearing on the question what the rate should be, when there has been no question of going above or below the limits of cost. The complainant's prosperity was treated in Hikhman Coal b° Coke Co. v. Baltimore b° Ohio Railroad ®^ as pointing more or less to the conclusion, which the commission reached, that the rates complained of were not too high; and in Cattle Raisers^ Association of Texas v. M. K. and T. Railway ^°° the depression of the complainants' business was treated as having some tendency, though a slight one, to justify the commission's action in lower- ing rates.^"^ But it can hardly be said to be estabHshed law that prosperity or the lack of it on the part of consumers is entitled to any weight at all. On the other hand, it is entirely settled that the value of an article served counts in fixing the rate. In 191 7, in dismissing a '8 In re Advances in Coal Rates, 22 I. C. C. 604, 623 (191 2). The dictum in this case that the Norfolk & Western did not prove itself entitled to an advance by the mere showing that existing rates did not cover the cost of the service is overruled, if it was ever law — which is very doubtful — by Northern Pacific Railway v. North Dakota, 236 U. S. 585 (1915). In Coke Producers' Assn. v. B. & O. R. R., 27 I. C. C. 125, 132, 140 (1913), rates were lowered on the ground, among others, of public poUcy in favor of the dissemina- tion of an article. The Public Service Commission of West Virginia took similar action in Greer v. B. & O. R. R. Co., P. U. R. 1916 D, 286, 301, Cf. R. R. Passenger Rate Case, P. U. R. 1915 B, 362, 386. (Mass. Pub. Serv. Com.), and Bogart v. Wis. Tel. Co., P. U. R. 1916 C, 1020, 1053, ioS4> on propriety of favoring some classes of traffic. »» 16I. C. C. 512 (1909). "» II I. C. C. 296, 348 (1905). 101 In Central Yellow Pine Assn. v. Illinois Central R. R. Co., 10 1. C. C. 505 (1905); and Tift v. Southern Railway, 10 I. C. C. 548 (1905); the Interstate Commerce Com- mission, in holding that the prosperity of a business cannot excuse the imposition of a rate which exceeds cost, used language which, taken literally, would indicate that the prosperity of a business served has nothing at all to do with the propriety of a rate. But the Commission may be supposed to have had in mind only the question with which it was dealing, viz., the question of allowing a rate to exceed cost. The question of fixing a rate higher or lower within the range of cost is distinct.