Western Pacific Railroad Company v. United States/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

Under the Interstate Commerce Act, 49 U.S.C. § 1 et seq., as I read it, there are two ways of obtaining 'through routes.' One is to qualify as a 'connecting line' within the meaning of § 3(4) where a similarly situated competing carrier has been given a through route. The other is to apply for a rate for a 'through route' under § 1(4). In the event that a carrier refuses to establish a 'through route,' the Commission may 'upon complaint or upon its own initiative without complaint,' establish a 'through route' when 'deemed by it to be necessary or desirable in the public interest.' § 15(3).

In this case appellants sought a 'through route' with certain appellee railroads on the same basis as the joint rates those railroads had established with the Southern Pacific. In an adversary proceeding the Commission denied the establishment of a 'through route' under § 1(4) saying:

' * *  * The shippers urge that the rates and routes sought      would give them more freedom of choice in the movement of      their goods, would improve transportation service, time in      transit, and car supply, and make available additional      transit privileges. Nothing of record, however, indicates     that the existing through routes and joint rates are      inadequate to meet the needs of the shipping public. In fact     the failure of the shipper witnesses to initiate in the last      31 years a determined campaign to persuade the defendants of      the necessity of establishing through routes between points      on the complainants' lines in California and points on the      defendants' lines in the Northwest, is at least some      indication of the adequacy of the existing routes. The     expression 'in the public interest' means more than a mere      desire on the part of shippers for something that would      merely be convenient or desirable for them. This desire must     be weighed against the effect on other carriers and the      general public. On the basis of this record, we cannot find     that the public interest would be served by requiring the      establishment of joint rates and through routes which are      substantially slower and costlier than the present routes.'      316 I.C.C. 795, 810-811.

What the Court does today is to let § 3(4) swallow § 1(4) by letting any segment of a multi-carrier through route become a 'connecting line.' For then the ban in § 3(4) on discriminatory rates in effect forces the establishment of 'through routes' with 'just and reasonable rates' as required by § 1(4), without satisfying any of the conditions of § 1(4) and of § 15(3). Indeed after today, the whole protective scheme of § 15(3) which makes the Commission the guardian of 'through routes' (see St. Louis South-western R. Co. v. United States, 245 U.S. 136, 142-143, 38 S.Ct. 49, 51, 62 L.Ed. 199) breaks down.

In addition to the conditions set forth in § 15(3) the Commission's power to compel the establishment of through routes is limited by § 15(4), which prevents the Commission from establishing any through route requiring a carrier to 'short haul' itself except where particular circumstances (enumerated in § 15(4)) are found to exist. See Thompson v. United States, 343 U.S. 549, 552-556, 72 S.Ct. 978, 980, 982, 96 L.Ed. 1134; Denver & R. G. W. R. Co. v. Union P.R. Co., 351 U.S. 321, 325, 76 S.Ct. 982, 984, 100 L.Ed. 1220 et seq.; Chicago, M., St. P. & P.R. Co. v. United States, 366 U.S. 745, 81 S.Ct. 1630, 6 L.Ed.2d 772. Can a carrier after today's decision be compelled to 'short haul' itself where an internal segment of a multi-carrier through route invokes § 3(4)?

Section 3(4) narrowly construed to include only lines that physically abut, would, of course, lift some cases from § 1(4) and from § 15. But those are the exceptions, relatively few in number. The Court multiplies those almost without end when it holds that any interior segment of an established multi-carrier through route is a 'connecting line' within the meaning of § 3(4).

Today's decision uproots the established concept of 'through routes.' As we stated in Thompson v. United States, 343 U.S. 549, 557, 72 S.Ct. 978, 983 (quoting from the Commission's 21st Annual Report to Congress):

'A through route is a continuous line of railway formed by an     arrangement, express or implied, between connecting carriers. * *  * Existence of a through route is to be determined by the      incidents and circumstances of the shipment, such as the      billing, the transfer from one carrier to another, the      collection and division of transportation charges, or the use      of a proportional rate to or from junction points or basing      points. These incidents named are not to be regarded as     exclusive of others which may tend to establish a carrier's      course of business with respect to through shipments.'

'In short, the test of the existence of a 'through route' is     whether the participating carriers hold themselves out as      affering through transportation service. Through carriage     implies the existence of a through route whatever the form of      the rates charged for the through service.' Ibid. (Italics     added.)

And see Denver & R. G. W. R. Co. v. Union P.R. Co., 351 U.S. 321, 327, 330, 76 S.Ct. 982, 985, 987, 100 L.Ed. 1220.

Here there has been no 'holding out' by the participating carriers (either consensually or as a result of any Commission action) that offers this interior segment of this multi-carrier route to become a part of any 'through route.' If we are to allow § 1(4) and §§ 3(4) and 15(3) to exist in harmony, we must adhere to that requirement, restricting 'connecting line' to those lines that have a direct physical connection with the allegedly discriminating carrier.

Atlantic Coast Line R. Co. v. United States, 284 U.S. 288, 52 S.Ct. 171, 76 L.Ed. 298, is not opposed. While the line in question was only a segment in a multi-carrier system, it had 'through routes' with the other carriers in controversy. Id., at 292, 52 S.Ct. at 172. The words 'connecting lines' were therefore used to include 'all the lines making up a through route.' Id., at 293, 52 S.Ct. at 173. But there is no 'through route' here, the defendants not having agreed to one and the Commission having expressly disallowed one pursuant to its power under § 15(3).